The story of the Trump Administration on making the necessary changes to immigration policy, regulations, and practice is a sad one of long-term failure. At almost every turn, instead of capitalizing on the immense power within administrative practice and executive authority to direct personnel and action, the Administration failed to take action, usually with dire consequences for any further action later, if that occurred.
Compare this to the Administration’s attitude and practice when dealing with administrative issues relating to Israel and the Iran Deal. Both the Iran Deal and the U.S. Embassy’s location in which city in Israel on one hand and, for instance, the Deferred Action for Childhood Arrivals (DACA), as well as other immigration enforcement issues, rested solely within the discretion of the President. On one side, the Israel Lobby got everything it wanted: Embassy moved immediately to Jerusalem and within a few months the Iran Deal was dead. President Kushner made certain that happened. Even the sign for the new American Embassy in Jerusalem was ordered and made, ready for installation.
Contrast this with the dithering over DACA and the failure to immediately get moving with the border wall. Instead of repealing DACA on the first day as promised, it continued for almost a year before being hamhandedly withdrawn, making it easier for Traitor John Roberts to overturn the incompetently presented case for ending it.
Similarly, the Administration did not allow Deep State bureaucrats in the State Department to interfere with or sabotage the Embassy move to Jerusalem. The bureaucrats were given orders and directly supervised at all levels to make certain it happened. Compare this to the order of the President to end the Temporary Protected Status (TPS) of Central American illegal aliens.
The Administration let Deep State bureaucrats like Elaine Duke openly defy the President and extend TPS for some nations and gave others six more months to “wind down” their affairs. Of course, what happened was that these delays enabled to kritarchy to step in and save TPS, with the bureaucrats even extending TPS at the demand of kritarchs despite the fact that TPS is under the exclusive jurisdiction of the Executive, as it clearly states in the enabling legislation, Title 8 United States Code, Section 1254a, Temporary Protected Status.
Similarly, the Trump campaign promised administrative reforms of the asylum process, specifically to the previous sabotage of the asylum system and the Expedited Removal process by which fraudulent claimants are supposed to be removed. That was almost three years ago. Only now has the Administration proposed regulations to fight asylum fraud in the administrative procedures that were implemented by the Clinton Administration effectively nullifying the definition of asylum, opening it up to fraud and sabotage. Under the Clinton Administration, the asylum system, which starts with a "credible fear" determination, i.e., an interview of an alien who claims fear of returning to their nation of citizenship based on persecution, would received only a perfunctory interview and the claim rubber stamped. The Bush and Obama Administrations would continue that fraud.
However, finally, the Trump Administration has proposed regulations that define the credible in the credible fear process that begins the asylum application process.
The Trump administration has unveiled its furthest-reaching plan yet to change asylum law in the U.S., redefining the meaning of “persecution” and raising the bar for refugees seeking protection under the Convention Against Torture, among other changes.
The 161-page proposal, officially posted Monday in the Federal Register, would also streamline the asylum-approval process, letting immigration judges rather than immigration courts make rulings in asylum cases and redefining the definition of a frivolous application.
The proposal follows similar actions by the departments of Homeland Security and Justice, but legal experts say this time it will be harder to challenge in court than those previous rules.
“Essentially this rule tries, in a way that hasn’t been done before, to define what can be grounds for asylum,” said Jessica Bolter, an associate policy analyst at the Migration Policy Institute.
[Administration Unveils Sweeping Plan To Tighten Rules On Asylum Seekers, by Conkite News, WYMA, June 16, 2020]
The good news is that the Open Border advocates see this as a death knell for the asylum fraud system that has been going on since Bill Clinton, slowly flooding the country with asylum applicants, their anchor babies, and the resulting chain migration, both legal and illegal.
The proposal, first unveiled Wednesday, was swiftly condemned by advocates like the Tahirih Justice Center, which called the proposed regulations “an assault on the fundamental right to seek asylum.”
“If fully implemented, they will gut years of progress in the U.S. to create bridges to safety for so many whose governments could not and would not protect them from severe harm and even death,” said a statement from the nonprofit, which advocates for immigrants escaping gender-based violence.
And they are correct to fear the reaper on this issue. Reviewing the details shows that the Trump Administration plans to at least attempt to end the current endless appeals, though the jury is out on that as there are some problems with the regulations.
The most important change is that the definition of “credible fear” is being changed to something actually resembling an approximation of “credible.” The current standard of credible fear has long been “any specious claim without any factual basis.”
Your correspondent was in on credible fear determinations from the beginning, and any ridiculous claim that was reviewed by an Asylum Officer was accepted as credible. I recall a case from the first days, a Swiss citizen arrived at an international airport in the United States, made a claim that he was being persecuted in Switzerland for being a homosexual (where gay sex was legalized in 1942!) and that claim was not only accepted as credible for the purpose of referring the alien to an asylum interview, but also accepted as credible by the interviewing Asylum Officer and referred to a kritarch in the Executive Office for Immigration Review (EOIR) for a full hearing in immigration court. That was sabotage from Day 1 by the Clinton Administration after the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. And it continues today under Deep State saboteurs at USCIS Asylum Offices.
Remember, in practice, an alien must make a “credible” claim of fear of persecution by the government of which he is a citizen before an immigration officer in the United States, usually first with an Immigration Inspector of the legacy Immigration and Naturalization Service (INS) at a Port-of-Entry (POE) or after an arrest in the United States by a Border Patrol Agent, Special Agent (SA), or Deportation Officer (DO) when first implemented, or now with a Customs and Border Protection Officer (CBPO) of U.S. Customs and Border Protection (CBP) or after arrest by an U.S. Immigration and Customs Enforcement (ICE) SA or DO. Only if the claim is facially credible is the alien referred to an Asylum Officer, once with the INS, now with U.S. Citizenship and Immigration Services (USCIS). The first encounter with an above officer should have been weeding out 99% of claims, like our friend above from Switzerland or the Mexican nationals who were let in to make claims based on fear of not finding work in Mexico.
Sadly, the Administration proposal does not address the problem of the fallacious claim made to a CBPO, SA, or DO. Ostensibly the right to apply for asylum is statutory, but the statute is quite specific. It requires an alien to specifically state that he is applying for asylum or fears persecution.
If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title and the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer under subparagraph (B).
[Title 8 United States Code, Section 1225, Inspection By Immigration Officers, unattributed, GovInfo.gov, undated]
An intent to apply for asylum or a fear of persecution is quite different from “credible fear.” Inspecting Immigration Officers should have the authority and power to determine if an alien intends to apply for asylum or has a fear of persecution. In most cases arriving aliens who later claim fear of persecution or intend to apply for asylum don’t actually do that with an immigration officer, especially when arriving at a POE.
Current regulations require that inspecting Immigration Officers prompt aliens who say, and I quote from personal experience, “I am afraid to go back” or words to that effect. They don’t say “I want to apply for asylum” or “I fear persecution by the government of my country of nationality,” but just that “I am afraid,” which can mean they’re afraid of their parents, crime in their country, social ostracism, or fear they can’t improve their life by moving to America. In the Clinton days and today, arriving aliens who are eventually referred for credible fear interviews who just say they’re “afraid to go back,” are then either prompted to say the magic words “I want to apply for asylum” or asked about what they’re afraid of, which usually does not end up being persecution by the government, but some other fear, mostly of poverty or of crime. The regulations should concentrate on what the statute says: The alien, unprompted, must make a clear and convincing statement of “…an intention to apply for asylum under section 1158 of this title or a fear of persecution…” with accompanying credible facts that are recorded and can be used against the alien when he claims something different to the Asylum Officer, which is also quite common.
On the positive side, the new definition of credible fear is solid and should help discourage mass asylum fraud and zerg rushes to the border by illegal aliens being smuggled by trafficking organizations, most located in the United States and who still remain unmolested or arrested by ICE SVU.
The Departments propose amending 8 CFR 208.30 and 8 CFR 1208.30 to raise the standard of proof in “credible fear” screenings for aliens in expedited removal proceedings and for stowaways from a significant possibility that the alien can establish eligibility for statutory withholding of removal to a reasonable possibility that the alien would be persecuted because of his or her race, religion, nationality, membership in a particular social group, or political opinion. See 8 CFR 208.16, 208.30(e)(2), 1208.16. Similarly, for aliens expressing a fear of torture, the Departments propose amending 8 CFR 208.30 and 8 CFR 1208.30 to raise the standard of proof from a significant possibility that the alien is eligible for withholding or deferral of removal under the CAT regulations to a reasonable possibility that the alien would be tortured in the country of removal.
[Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, Chad R. Mizelle, Senior Official Performing The Duties of the General Counsel for DHS, Federal Registrar, June 16, 2020]
Interpreting the legalese and bureaucrat speak, the Department of Homeland Security (DHS) is proposing that aliens who claim persecution, but have credible evidence that they will be persecuted, will overcome the first hurdle to be referred to the EOIR for an immigration hearing. We just don’t know if this standard will be applied to referral to an Asylum Officer or the standard for the Asylum Officer to refer the alien to the EOIR. Another of the weaknesses of not addressing the details, which the Open Borders advocates will exploit later.
Also of note is that DHS has discovered what was well known at the time, that passing the Credible Fear interview with an Asylum Officer does not make one eligible for a full hearing before the EOIR. The Administration is proposing a limited EOIR review of “credible” claims of persecution, though we don’t know what that will be and how soon the Deep State saboteurs, EOIR kritarchs, and the Treason Bar will make the abbreviated system the same as the current system where it ain’t over until the alien wins, or at least delays deportation forever.
For several reasons, the Departments believe that section 235(b)(1), 8 U.S.C. 1225(b)(1), when compared with section 235(b)(2), 8 U.S.C. 1225(b)(2), may also be read as permitting a procedure for “further consideration of [an] application for asylum” that is separate from section 240 proceedings. First, while section 235(b)(1), 8 U.S.C. 1225(b)(1), mandates that an alien with a positive credible fear determination receive “further consideration of [his or her] application for asylum,” section 235(b)(2), 8 U.S.C. 1225(b)(2), mandates that other classes of aliens receive “a proceeding under section 1229a of this title”—i.e., section 240 of the INA, 8 U.S.C. 1229a. Compare INA 235(b)(1)(B)(ii), 8 U.S.C. 1225(b)(1)(B)(ii), with INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A). The difference in language suggests that section 235(b)(1), 8 U.S.C. 1225(b)(1), does not require use of section 240 proceedings, in contrast to section 235(b)(2), 8 U.S.C. 1225(b)(2), which does so require. See Henson v. Santander Consumer USA, Inc., 137 S. Ct. 1718, 1723 (2017) (“differences in language [generally] convey differences in meaning”). That negative inference is reinforced by the fact that aliens in expedited removal are expressly excluded from the class of aliens entitled to section 240 proceedings under section 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A). See INA 235(b)(2)(B)(ii), 8 U.S.C. 1225(b)(2)(B)(ii).
Overall, these new regulations are a good start, but, more important, are four years too late. And there are further changes on defining who is eligible, purposely excluding criminals, terrorists, crime victims, firm resettlement, and women being a category for asylum based merely on being a woman. But a good start and too late is the story of the Trump Administration. It is ever the victim of the Deep State, but always the willing victim, never or belatedly taking action against the saboteurs or attempting to overturn the sabotage. It is sad that this is the end result of what was so much hope from Donald John Trump. But it is his own fault for allowing Jared Kushner and the Deep State to run amok. Trump had the power to do better, he acted strongly on benefits for Israel, but did not for his signature immigration reforms. Sad.