Sessions Calls on Congress to End Abuse of Asylum Process

Obama-era changes led to easy entry, skyrocketing applications

Attorney General Jeff Sessions
Attorney General Jeff Sessions / Getty Images
October 12, 2017

Attorney General Jeff Sessions on Thursday called for Congress to swiftly pass policy proposals from the Trump administration that would help rectify abuses of the asylum process.

Sessions addressed the Executive Office for Immigration Review, which oversees the administration of America’s immigration courts.

"The immigration laws that Congress has enacted are some of the most generous in the world," Sessions said. "Indeed, we will soon reach the highest level of non-native born Americans in our history."

However, a failure to properly enforce immigration laws has resulted in an estimated 11 million illegal immigrants currently living in the United States. One of the ways by which said aliens take advantage of the immigration system is through so-called "credible fear" claims for asylum seekers, Sessions said.

The Department of Homeland Security uses a process called "expedited removal" to remove certain immigrants without a full hearing or the laborious process used in more complicated immigration cases. Exceptions are made for illegal immigrants who claim to have a "credible fear" of persecution in his or her country of origin, who are allowed to avoid the expedited removal process and proceed to a full immigration court hearing.

"This is an important exception," Sessions said. "We have a generous asylum policy that is meant to protect those who, through no fault of their own, cannot co-exist in their home country no matter where they go because of persecution based on fundamental things like their religion or nationality. Unfortunately, this system is currently subject to rampant abuse and fraud."

Under the credible fear procedure, an asylum seeker has a preliminary interview, which may then make him eligible for a subsequent formal hearing to grant asylum. Historically, the ashylum seeker was detained while awaiting the hearing, unless the would-be asylee explicitly requested parole.

That changed in 2009, when the Obama administration issued new guidance that made the consideration for parole automatic. What that meant in practice is that asylum seekers were no longer detained, but were all-but-automatically released into the population after their interview—meaning they only sometimes showed up to their subsequent formal hearing.

"This is a pretty easy way into the United States," explained Andrew Arthur, a former federal immigration judge and Resident Fellow in Law and Policy for the Center for Immigration Studies. "Individuals who wanted to enter illegally, and individuals who had hired smugglers, were aware of the fact that if they said the words 'credible fear' the odds are that they would be released and that they’d be allowed to continue into the United States."

The result of the Obama administration guidance was a skyrocketing rate of credible fear exception applicants.

In 2009, the DHS reported doing around 5,000 credible fear reviews. By 2016, that number reached 94,000. In 2009, around 4,000 asylum seekers were placed in removal proceedings; in 2016, that number is more than 73,000. At the border, some 3,000 people sought credible fear exemptions in 2009; 2016 saw more than 69,000. In all, an illegal alien has an 88 percent chance of avoiding expedited removal by making a credible fear claim.

Even if asylum seekers do show up to court, litigating an asylum claim is relatively low cost, and every asylum case is required to have a full hearing.

"That's why there's a common, fatalistic refrain you’ll hear from immigration judges and immigration enforcement that 'the case isn’t over until the alien wins,'" Sessions said.

The credible fear process also poses a threat to national security: Sessions noted that at least five Somali terrorists had taken advantage of the process to try to gain access to the United States.

"I think the expedited removal/credible fear process has been largely ignored up to this point," Arthur said, "and I think that it poses a much more serious risk to the national security than even the legal immigration process does."

Sessions called for Congress to pass President Donald Trump’s new bevy of immigration proposals, released earlier this week. Among those proposals are recommendations to tighten standards in the immigration system, increase the standard of proof in initial interviews, impose penalties for frivolous or fraudulent asylum applications, and tighten the standards for parole.

Trump also pushed for an expansion of the personnel and resources of the immigration court system, the overwhelming backlog in which Sessions has made a priority of reducing.

"The president's proposals on asylum reform especially are crucial," Arthur said. "There are many loopholes in the asylum system, and the president appropriately has noted that we need to elevate the threshold standard of proof in credible fear interviews."

Sessions, for his part, was resolute in supporting the administration's proposed changes.

"What we cannot do—what we must not do—is continue to let our generosity be abused," he said. "We cannot capitulate to lawlessness and allow the very foundation of law upon which our country depends to be further undermined."