Biden’s new asylum ruling is a big flashing ‘Welcome’ sign for undocumented immigrants 

On May 16, 2024, the administration announced the formation of a new recent arrivals docket process to more expeditiously resolve the asylum claims of single adults who are apprehended at the border after making an illegal crossing. 

The announcement claims that the objective of the program is to “accelerate asylum proceedings so that individuals who do not qualify for relief can be removed more quickly and those who do qualify can achieve protection sooner.” 

This does not mean that the asylum claims of these illegal crossers will be disposed of at the border. They will be released into the country for a hearing before an immigration judge in accelerated docket proceedings.  

The accelerated docket will operate in Atlanta, Boston, Chicago, Los Angeles and New York City. The Justice Department has assigned 10 judges who will try to render decisions within 180 days.  

This program appears to be just another scheme to let more undocumented migrants into the country. It isn’t likely to achieve its claimed objectives, and the prospect of being released into the county to wait for an asylum hearing will encourage more single adults to make illegal crossings.  

Biden already has an accelerated docket, but it is for families who are apprehended at the border after making an illegal crossing, not for single adults. The families are enrolled in the Alternatives to Detention program and released to wait for their hearings, which is probably how the single adults in the new program will be handled. But the judges handling the family cases are expected to issue their decisions within 300 days, not 180. 

I expected organizations that support immigration to be pleased with this program because it lets undocumented immigrant families into the country with little likelihood of having to leave if they fail to establish a lawful basis for remaining. But they weren’t. 

In fact, a letter signed by 77 of these organizations strongly encourages the administration to terminate it. Their reason? They say that the administration has had two years to make good on its promise that this dedicated docket would deliver efficient and fair proceedings for families seeking asylum, and it has failed to keep that promise.  

The letter describes four “due process failures:” lack of access to legal representation [The Immigration and Nationality Act grants migrants in removal proceedings the “privilege” of being represented by counsel “at no expense to the Government.”]; in absentia removal orders against unrepresented migrants; hostile treatment by immigration judges; and lack of transparency and public access to data. 

I don’t understand why Biden is establishing a new version of this unpopular program instead of finding a politically acceptable way to release more undocumented migrants into the country. The fact that it will apply to single adults instead of to families won’t make it more acceptable.  

Even if the immigration judges manage to issue decisions in 180 days, which is unlikely in view of the immigration court’s backlog crisis, their decisions won’t necessarily be final.  

When an immigration judge renders an adverse decision, he is required to ask the migrant if he wants to reserve his right to appeal the decision to the Board of Immigration Appeals. If he says yes, the government has to delay deportation for 30 days to give him time to file the appeal.  

If he files an appeal, the government can’t deport him while the appeal is pending, which is likely to be a long time unless the appeal is frivolous. The Board’s 28 members are overwhelmed already; as of the end of fiscal 2023, there were more than 113,000 appeals pending. 

Still, the program is likely to be much faster than the regular docket process, which is unfair to asylum seekers who have been waiting a long time for a hearing. The average wait for a master calendar hearing, needed to schedule an individual hearing, is four years. The entire process from start to finish can take up to 10 years .  

Also, taking judges away from their cases on the regular docket will hamper efforts to deal with the immigration court’s backlog crisis. TRAC Immigration says that the growth of the backlog has been accelerating at a breakneck pace since the start of the Biden presidency, when the backlog was only 1,290,766 cases. It is 3,596,317 now.  

Moreover, the administration is not making progress on reducing the backlog. So far in fiscal 2024, the immigration court has received 1,305,443 new cases and has only closed 517,675. 

Single adults in the new program will be released into the interior of the country, and they aren’t likely to have to leave even if they fail to establish eligibility for asylum or for any other form of relief from deportation. 

Deportable immigrants in the interior of the country are shielded from enforcement proceedings by Alejandro Mayorkas’s Guidelines for the Enforcement of Civil Immigration Law. The Homeland Security secretary says, “The fact an individual is a removable noncitizen therefore should not alone be the basis of an enforcement action against them.” His guidelines limit enforcement actions to deportable migrants “who pose a threat to national security, public safety, and border security and thus threaten America’s well-being.”  

So they aren’t likely to be deported even if an immigration judge denies their application for asylum and orders their removal. There were 1,292,830 migrants subject to final deportation orders in fiscal 2023, and ICE only removed 142,580 of them.  

If Biden were serious about border security, he would be eliminating the pull factors he has established that encourage illegal immigration instead of creating new ones. As U.S. District Court Judge Wetherell said in a 2023 immigration case, Biden’s actions have been “akin to posting a flashing ‘Come In, We’re Open’ sign on the southern border.” 

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.