Originally Published in The Hill
Opinion by Nolan Rappaport - January 12, 2021
The U.S. Department of Homeland Security (DHS) has released its Fiscal Year 2020 Enforcement Lifecycle Report which links the enforcement records for 3.5 million border encounters between fiscal 2014 and fiscal 2019, with their final or most current enforcement outcomes.
The report indicates that we still have a border security crisis, a crisis that is likely to get much worse if President-elect Joe Biden keeps his campaign promise to rescind President Donald Trump’s border security measures during the first 100 days of the new administration.
Fortunately, Biden is walking back this promise.
At a recent press conference, Biden said that changing Trump’s policies immediately is the last thing we need because it could lead to having 2 million asylum seekers at our border. He thinks he needs probably six months to rebuild the system for processing migrants and to secure funding for more immigration judges.
His aides are saying that initially only a limited number of migrants will be allowed to have their asylum claims heard.
Six months won’t do it
We have never had a system that was capable of processing all of the undocumented aliens that have been apprehended after entering the U.S. illegally. There are too many of them. The choice has been between prolonged detention and “catch and release.”
And the immigration courts have never been able to handle their asylum applications.
No progress has been made on reducing the immigration court’s backlog since fiscal 2006, when the Bush administration reduced it from 184,211 to 168,827 cases. The court’s backlog was up to 1,281,586 cases as of the end of November 2020.
The immigration court is so far behind that even if it stopped accepting new cases, it would take more than four years to catch up.
Moreover, lack of funding to hire new judges isn’t the only problem. The immigration court has had such difficulty finding qualified lawyers who want to be immigration judges that it has had to resort to hiring attorneys with no immigration law experience.
Highlights from the report
For border security purposes, the term “encounter” refers to apprehending aliens who have made an entry without inspection between ports of entry and to finding aliens inadmissible when they seek admission at a port of entry.
Between 2014 and 2019, CBP apprehended 2.8 million aliens who had made an entry without inspection and found 725,000 aliens inadmissible.
Encounters with Mexican nationals dropped from 50 percent in 2014 to 24 percent in 2019. Encounters with aliens from the Northern Triangle countries of Guatemala, Honduras, and El Salvador increased from 44 percent in 2014, to 64 percent in 2019.
Encounters with single adults declined from 431,000 in 2014 to 372,000 in 2019. Parents or legal guardians and children traveling together are classified as “family unit aliens,” and are referred to as “FMUA’s.” Encounters with FMUA’s increased from 67,000 in 2014 to 527,000 in 2019.
Encounters with unaccompanied alien children (UAC) increased from 73,000 in 2014 to 81,000 in 2019. UACs from noncontiguous countries are treated differently than UACs from Mexico and Canada: They are transferred to the custody of the Department of Health and Human Services. UACs from Mexico and Canada can be returned to their home countries.
The number of aliens who claimed to fear a return to their home countries increased from 60,000 in 2014 to 115,000 in 2019.
Total outcomes
As of the end of the second quarter of fiscal 2020, only 59 percent of the 3,500,000 encounters had been resolved — 50.9 percent of the aliens (1,781,000) were returned to their own countries, and 8.1 percent (284,000) were granted relief or other protection from removal.
In other words, the cases of 1,435,000 aliens were still unresolved.
This is not surprising. The immigration court is so far behind that the average wait for a hearing is around 849 days.
Outcomes by family status
Eighty five percent of the 2.1 million encounters with single adults between 2014 and 2019 had been resolved by the end of the second quarter of fiscal 2020; 78 percent of them had been repatriated, and 7.2 percent had been granted relief.
Only 32 percent of the 290,000 encounters of UACs from non-contiguous countries had been resolved; 28 percent of them were granted relief or other protection from removal. Only 4.3 percent of them had been repatriated.
Outcomes by fear claims
There were 519,876 fear claims (such as for asylum or for relief under the Convention Against Torture) between 2014 and 2019: 64 percent of them were still unresolved by the end of the second quarter of fiscal 2020.
Only 28 percent of these aliens were repatriated; 8 percent were granted relief or other protection from removal.
According to Kenneth Cuccinelli, Acting DHS Deputy Secretary, the report demonstrates that catch and release policies do not work.
Unfortunately, one of Biden’s promises for the first 100 days of his administration is to end prolonged detentions.
The report found that aliens who were detained continuously throughout their proceedings were removed 98 percent of the time, and aliens who were not detained after their initial encounter were repatriated only 30 percent of the time. Relief was only granted to 15 percent of the aliens who were not detained.
Repatriation occurred even less frequently with aliens who were detained after their initial encounter but released prior to a final enforcement outcome. Only 3 percent of them were repatriated. Relief was granted to 12 percent of these aliens.
If Biden rescinds Trump’s border security measures before he has resolved the problems described in this report — and eliminated the immigration court backlog crisis — his fear of being overwhelmed by 2 million aliens at our border could become a reality.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow his blog at https://nolanrappaport.blogspot.com.
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