After President Biden repealed, but did not replace, President Trump's border security policies, we have all been waiting for the executive branch to provide their own vision for a secure border. A new proposed rule regarding asylum begins to paint a picture that resembles the haunting Munch classic "The Scream." The proposed rule would empower frontline asylum officers as the judge and jury for asylum and other discretionary forms of relief. According to the rule:
"These changes are intended to improve the Departments' ability to consider the asylum claims of individuals encountered at or near the border more promptly while ensuring fundamental fairness."
(EDITOR'S NOTE: To leave a comment on the rule, click here: https://www.regulations.gov/commenton/DHS_FRDOC_0001-2070)
Notice the rule is not claiming that this will ensure safety or security along with promptness and fairness. Removing judicial checks and balances to asylum approvals will assuredly speed up the process as the Department of Justice (DOJ) and the Department of Homeland Security (DHS) abdicate their crucial vetting role for the sake of expediency.
This, of course, gets the cart before the horse. The problem at the border is not shattering records on a monthly basis because the asylum process is slow. The problem at the border is escalating exponentially because the people coming believe they will be granted status and allowed to stay. This regulation will simply provide more hope that if you make it to the border, then you will be allowed to stay. The United States is even creating more regulations to make it faster and easier to get approved.
What is especially staggering about this is that DOJ and DHS acknowledge the border is overwhelmed, contradicting many dismissals of a crisis at the border by the President and the Secretary of Homeland Security. That sound you hear is the smack of reality, yet again, to this Administration's sunny pronouncements and persistent denial. The question is how an Administration can use reality to justify their actions while denying that very reality to the public.
The major shift of this rule is making the weighty asylum determinations at the frontline level with little to no oversight by immigration judges or supervisors. The regulation offers a way for aliens to appeal denials to immigration judges, but approvals are final. From asylum flows citizenship, and the Biden Administration is proposing to delegate the awesome power of granting a path to citizenship to people that do not even approach the top of the authority flow chart or pay scale. This would be like major banks allowing tellers to make investment decisions in the name of expediency.
But this regulation raises more questions than just how their formal justifications defy their political messaging or why delegating awesome power to staff is appropriate. Fundamentally, how can a regulation that is expediting and simplifying the seeking of immigration benefits going to reduce the number of people traveling to seek those benefits? If this regulation is being proposed to mitigate the burden at the border, how does it do that when it is creating a new and exciting pull factor?
Another question of particular interest for Americans, what is the effect of this on public safety and security? The regulation does not discuss the issue of vetting very much (in fact the word 'vetting' does not appear when you search for it in the document). This makes sense because the rule is clear that its purpose is to promote expediency of decision making and "fairness." Consideration of the fairness surrounding potentially creating an unvetted population within our communities is not mentioned in the rule.
It is true that DHS is completely overwhelmed. They estimate a 610,000 asylum backlog exists at the moment. With the border numbers we have seen in the Biden Administration, that number will just continue to rise. Admittedly this situation requires some trimming of the Department's sails. Now that they are admitting the situation is overwhelming, it makes sense that they are making tactical choices to focus resources. The disappointing thing is that the Administration is choosing to focus their resources on expediting rushed review of asylum claims as opposed to narrowing their focus to securing the border and stopping the flow of aliens that are creating the operational burdens that overwhelm them
DHS was created in the smoldering ashes of 9/11 with a primary purpose of securing our nation's homeland. This regulation is abdicating that responsibility for the purpose of expediency. Instead of having an adversarial hearing where derogatory evidence of fraud or threats to public health and safety could be heard by an immigration judge, asylum can be granted on the whim of career staff.
Yet it still gets worse. In addition to supposedly mitigating the border crisis that is overwhelming them by making it quicker and easier to be granted immigration benefits, they are also proposing to expand parole for those coming to our border. If this proposed rule becomes the law of the land, aliens will be eligible for parole simply because there isn't enough space to detain them. Since we all know detention capacity is overwhelmed (the regulation itself says DHS is overwhelmed), this low bar guarantees virtually anyone is eligible for parole. Keep in mind that the parole statute Congress passed was extremely limited to individual circumstances of aliens offering significant public benefit or have an urgent humanitarian need. Parole power was not provided to DHS and DOJ to use simply because they do not have the will to deter aliens coming in numbers that overwhelm them. It is of course axiomatic that aliens are coming to our border because they think they will be allowed to stay. Expanding parole so more can be allowed to stay will mean more are going to come to the border.
Sadly, this type of regulation creating more permissive policies will only exacerbate the border crisis. Expanding parole and making immigration benefits quicker and easier to obtain is rolling out the red carpet. They are dangling a carrot over a cliff, and more and more people will come. With each Biden policy initiative the number has increased. This regulation persists in the theme that if we just implement enough open border policies, then the numbers at the border will drop. But make no mistake, the more permissive the policies the more people will come. The more people that come, the more overwhelmed DHS will become. It is surreal that we are watching an Administration propose rules that map out their own demise. It is also scary because their demise is also our own.
(EDITOR'S NOTE: To leave a comment on the rule, click here: https://www.regulations.gov/commenton/DHS_FRDOC_0001-2070)
JARED CULVER is a Legal Analyst for NumbersUSA
