The Border Isn’t a Crisis, It’s a National Disgrace

This was inspired by a few headlines and a rule making document from immigration. The first was a question on Quora that asked if thew border was a crisis. Then I came across a headline declaring new rules for expediting asylum claims. I downloaded the 140 page rule changing document and it’s full of wonderfully treasonous garbage.

It begins by describing our immigration system as broken. I would say it’s not even a system at all if it can’t be enforced. They bemoan the gigantic backlog of asylum seekers and “people with fear” of going home. The massive backlog of criminals who burnt our country down just leads to dropped charges or easy plea bargains. They want the immigration system to work just as disgustingly, I suppose. Harsh and trumped up charges for taxpayers who protest the establishment. No charge or plea bargaining down to community service for arsonists.

Our borders have been a voting issue for decades. It finally led to this system, that still fails at an embarrassing rate.

The current U.S. protection system at the border was initially designed in the mid-1990s.3 Congress established an expedited removal process for noncitizens who present themselves at a port of entry for inspection or are encountered at or near the border and who are found to be inadmissible because they lack valid entry documents or because they sought to enter the United States by fraud or misrepresentation. 

This seems good to me but it was riddled with loopholes, relies on the tales of the immigrant to decide where they belong, and it leaves the asylum route much broadened and meant to clog the system and lead us to exactly what we are getting now. Overhaul of immigration and expedited asylum.

A DHS immigration officer who encounters a noncitizen subject to expedited removal may order the noncitizen to be “removed from the United States without further hearing or review” unless the noncitizen indicates either “an intention to apply for asylum” or “a fear of persecution.” 

If the noncitizen indicates such an intention or fear, the immigration officer must refer the noncitizen for an interview by an asylum officer to determine whether the noncitizen has a “credible fear of persecution.” INA 

A credible fear is defined by statute as a “significant possibility” that the noncitizen could establish eligibility for asylum 

Before various regulatory changes published between 2018 and 2020, explained in greater detail below, the “significant possibility” standard also was applied to screening for eligibility for statutory withholding of removal and CAT protection.5 Because those recent regulatory changes have been vacated or enjoined, the “significant possibility” standard presently applies to all three forms of protection claims.6 If the asylum officer determines that the noncitizen lacks a credible fear, that determination is subject to expedited review by an IJ, but not by the BIA or an Article III court. INA 

The officers on the ground used to be able to make the determination of whether A “significant possibility” for asylum exists. Due to an explosion in asylum seekers the definition of “significant possibility” was narrowed in an attempt to provide for those who legitimately feared for safety for their persecuted families, and the criminals who take advantage of the years long wait for a court hearing. All the while enjoying US residence and access to all off our social services.

The process put into place in 1997, under which noncitizens who establish credible fear  generally must have their asylum claims decided through an adversarial removal proceeding before an IJ, is no longer fit for its intended purpose. It does not adequately address the need to adjudicate in a timely manner the rapidly increasing number of asylum claims raised by individuals arriving in the United States. 

This system was designed at a time when the vast majority of southwest border encounters involved single adults from Mexico and relatively few asylum claims were filed. This system has proven unable to manage the increasing numbers and changing demographics of noncitizens8 with asylum claims arriving in recent years at the southwest border. 

Since the mid- 2010s, the demographic characteristics of noncitizens encountered at the border with Mexico have been utterly transformed from being dominated by Mexican nationals to consisting mainly of nationals from the Northern Triangle countries of Central America (El Salvador, Guatemala, and Honduras) along with other Western Hemisphere states; from consisting almost entirely of adults traveling without children to including large numbers of families and unaccompanied children; and from including very few asylum seekers to asylum seekers making up a large share of southwest border encounters.9 

As a result, even as overall encounters at the southwest border have been lower in recent years than in the 1990s and 2000s, the demands on the U.S. asylum system have increased sharply. 

Recent demographic changes in southwest border encounters have been dramatic. As recently as 2009, Mexican nationals accounted for 92 percent of southwest border apprehensions.10 Their share fell below 50 percent for the first time ever in 2014, remained below 50 percent between 2016 and 2019, and fell to an all-time low of 20 percent in 2019, the 8 For purposes of this discussion, the Departments use the term “noncitizen” synonymously with the term “alien” in the INA. See INA 101(a)(3), 8 U.S.C. 1101(a)

last full year before the COVID-19 pandemic disrupted ongoing migration trends.11 Single adults accounted for about 89 percent of southwest border encounters in 2013—a number that was likely near an all-time low at the time—and fell to just 38 percent in 2019.12 Over much of this period, U.S. Border Patrol (“USBP”) agents have apprehended an increasing number of families and children from Northern Triangle countries. Individuals from Northern Triangle countries accounted for 71 percent of USBP apprehensions in 2019, a record high, and families from all countries accounted for 56 percent of the total, also an all-time high.13 

These demographic changes have coincided with—and contributed to the reversal of— what had been a long-term trend in declining border encounters. Moreover, as the population of individuals encountered at or near the southwest border has changed, the number of people making fear claims after being placed in expedited removal has increased sharply. Southwest border apprehensions by the U.S. Border Patrol fell from over 1.6 million in 2000 to under 330,000 in 2011 before rising back to over 850,000 in 2019.14 During the same period, however, credible fear referrals to USCIS initially decreased from just over 10,000 in 2000, to just under 5000 in 2008, before increasing back over 11,000 in 2011, to over 105,000 in 2019.15 Thus, even as overall border encounters fell 48 percent between 2000 and 2019, the number of individuals making fear claims increased over 900 percent.

Border encounters in FY 2021 remain high. To date, the data does suggest that single adults make up a greater percentage of apprehensions than in FY 2019 and, controlling for repeat encounters, the actual number of unique encounters (the number of unique individuals encountered irrespective of potential repeated attempts to enter) has been lower to date in FY 2021 than in FY 2019 (given the continuing use of Title 42 authority to expel many adults and families soon after they are apprehended). But total encounters at or near the southwest border through April for FY 2021 has surpassed the FY 2019 highs over the same period. 

So there ya go, maybe a bit much, but this is the “justification” for their rule changing. The blatant and immature, attempt to blame anything on Trump is just as looney as the rest of this garbage. Illegal immigration was steadily declining throughout the late 90’s and first decade of the new century. Trump got hammered with a real or contrived, highly irregular, change in the demographic makeup of the average immigrant. 

Since the immigration issue began we have taken notice that the vast majority, like 90% of the illegals are single, fighting age, males. Trump was flooded with, still, a commanding majority of single young men. However there were enough families bussed in by Soros and Gates to provide enough TV footage to make the border seem full of women and children. Only 20% of the illegals were families so the media was totally lying, misrepresenting, and manipulating you. Color me surprised.

As noted earlier, the current system for processing protection claims made by individuals encountered at or near the border and who establish credible fear was originally adopted in 1997. Within the last 3 years, however, several attempts have been made to issue new rules to change the credible fear screening process. Many of these attempts have been vacated or enjoined, and the implementation of others has been delayed pending consideration of whether they should be revised or rescinded.24 

This proposed rule offers another approach. It would establish a streamlined and simplified adjudication process for individuals encountered at or near the border, placed into expedited removal, and determined to have a credible fear of persecution or torture, with the aim of deciding protection claims in a more timely fashion while ensuring procedural protections against erroneous denials of relief.25 The proposed rule would authorize USCIS asylum officers to adjudicate in the first instance the protection claims of individuals who receive positive credible fear determinations under the expedited removal framework in section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1). The procedures that USCIS asylum officers would use to adjudicate these claims would be nonadversarial, and the decisions would be made within timeframes more in line with those established by Congress in section 208(d)(5) of the INA.26 

The current rule limits parole consideration before the credible fear determination to situations in which parole “is required to meet a medical emergency or is necessary for a legitimate law enforcement objective.” 8 CFR 235.3(b)(2)(iii), (b)(4)(ii). Under this proposed rule, DHS also would be able to consider whether parole is required “because detention is unavailable or impracticable.” 

The current narrower parole standards effectively prevent DHS from placing into expedited removal many noncitizens who would otherwise be eligible for this process, especially families, given the requirements of the Flores Settlement Agreement (“FSA”).27 These restrictions on DHS’s ability to detain families, coupled with capacity constraints imposed by the COVID-19 pandemic, have effectively prevented the Government from using the third option to detain families subject to expedited removal for more than a very limited number of families and for more than a very limited period of time. 

This proposed rule would, when finalized, eliminate that barrier to placing families into expedited removal. The proposed parole provision would allow more noncitizens arriving at the U.S. border without proper documents for entry into the country to be placed into expedited removal and allow for them to have their fear claims heard and considered outside the detention setting when space is unavailable or impracticable to use. 

This proposed rule would apply prospectively and only to adults and families who are placed into expedited removal.28 The proposed rule would not apply to unaccompanied children see 6 U.S.C. 279(g)(2) (defining “unaccompanied alien child”), as they are statutorily exempt from expedited removal proceedings. 8 U.S.C. 1232(a)(5)(D)(i) (providing that “any unaccompanied alien child” “shall be—(i) placed in removal proceedings under section 240” of the INA).29 

The proposed rule also would not apply to individuals already residing in the United States who are not designated by the Secretary as subject to expedited removal.30 Such individuals would continue to have their asylum claims heard in removal proceedings under section 240 of the INA, or through an affirmative asylum application under section 208 of the INA if they have not yet been placed into removal proceedings. The proposed rule also would not apply to (1) stowaways or (2) noncitizens who are present in or arriving in the Commonwealth of the Northern Mariana Islands who are determined to have a credible fear. Such individuals would continue to be referred to asylum/withholding-only proceedings before an IJ under 8 CFR 208.2(c). 

Finally, the Departments clarify that nothing in this proposed rule, if finalized, is intended to displace DHS’s (and, in particular, USCIS’s) prosecutorial discretion to place a covered noncitizen in, or to withdraw a covered noncitizen from, expedited removal proceedings and issue a Notice to Appear (“NTA”) to place the noncitizen in section 240 removal proceedings at any time after they are referred to USCIS for a credible fear determination. See Matter of E‐R‐M‐ & L‐R‐M‐, 25 I&N Dec. 520, 523 (BIA 2011). 

This is so fu**ing disgusting I want to be sick. US Citizens are guaranteed a speedy trial, decided by their peers, and due process in all aspects of the case. They have been denied these supreme laws of the land for decades. Due process? They don’t respect the 4th, 2nd, 5th, 9th, 10th, or the 1st amendments. Jan 6th trespassers are given no due process, speedy trial, ability to claim fear of persecution for their views, or even right to counsel. The Biden administration cares far more for the fighting age males assembling on our southern border, than the taxpayers who love this country and walked through open doors to take pics.

The credible fear screening regulations proposed under this rule generally would recodify the current screening process, returning the regulatory language, in large part, to what was in place prior to the various regulatory changes made from the end of 2018 through the end of 2020. Noncitizens encountered at or near the border or ports of entry can be placed into expedited removal and provided a credible fear screening if they indicate an intention to apply for asylum, a fear of persecution or torture, or a fear of return to their home countries. See INA 235(b)(1)(A)(ii), (B), 8 U.S.C. 1225(b)(1)(A)(ii), (B); 8 CFR 235.3(b)(4), 1235.3(b)(4)(i). 

Individuals claiming a fear or an intention to apply for protection are referred to USCIS asylum officers for an interview and consideration of their fear claims under the credible fear screening standard, which applies to all relevant protection claims. If an asylum officer determines that an individual does not have a credible fear of persecution or torture, the individual can request that an IJ review the asylum officer’s negative credible fear determination. See INA 235(b)(1)(B)(iii)(III), 8 U.S.C. 1225(b)(1)(B)(iii)(III); 8 CFR 208.30(g), 1208.30(g). 

If the IJ concurs with the asylum officer’s negative credible fear determination, no administrative appeal is available, 8 CFR 1208.30(g)(2)(iv)(A), and DHS can execute the individual’s expedited removal order, promptly removing the individual from the United States. 

If the noncitizen is found to have a credible fear, however, the proposed rule would change the procedures in place prior to this rulemaking that are described above. Under this proposed rule, rather than referring the individual to an IJ for an adversarial removal proceeding under section 240 of the INA, or, as provided for in a presently-enjoined regulation, an asylum/withholding-only hearing, the individual’s asylum application instead could be retained by USCIS for a nonadversarial hearing before an asylum officer. See 8 CFR 208.30(f) (proposed). 

Similarly, if, upon review of an asylum officer’s negative credible fear determination, an IJ finds that an individual does have a credible fear of persecution or torture, the individual also could be referred back to an asylum officer for proceedings on the individual’s protection claims. Id. §§ 1003.42, 1208.30(g). The Departments plan to implement these procedures by having asylum hearings conducted for those individuals who are referred to or retained by USCIS after the positive credible fear determination would be adjudicated in a separate queue, apart from adjudications made with respect to affirmative asylum applications filed directly with USCIS. The individual would have the right to representation during this proceeding. Id. § 208.9(b). 

If, at the conclusion of an asylum hearing described in this proposed rule, the asylum officer grants asylum, the individual would be allowed to remain in the United States indefinitely with the status of “asylee” and eventually may apply for lawful permanent residence. Id.; see also INA 208(c)(1), 209(b), 8 U.S.C. 1158(c)(1), 1159(b). If the asylum officer denies asylum and orders the individual removed based on the immigration officer’s initial inadmissibility determination under section 235(b)(1)(A)(i) of the INA, 8 U.S.C. 1225(b)(1)(A)(i), the asylum officer will also issue a decision regarding withholding or deferral of removal. 8 CFR 208.14(c)(5) (proposed). An individual who is denied asylum may request review by an IJ of the asylum decision, as well as any denial of withholding or deferral of removal. Id. §§ 208.14(c)(5)(i), 1003.48(a). 

In cases in which a noncitizen seeks review of an asylum officer’s adverse decision, the Departments propose that the IJ would make an independent de novo determination based on the record of the hearing before the Asylum Office plus any additional, non-duplicative evidence presented to the court that is necessary to reach a reasoned decision. Id. § 1003.48(e) (proposed). The individual would also have the right, consistent with the INA, to representation during this review. See 8 CFR 1003.12 (proposed) (providing that the rules in this subpart apply to the proposed proceedings under 8 CFR 1003.48); 8 CFR 1003.16(b) (providing that a noncitizen “may be represented in proceedings before an Immigration Judge by an attorney or other representative”). 

The IJ also would be authorized to vacate proceedings when the judge finds the individual is prima facie eligible for other forms of relief from removal, so that DHS, in the exercise of DHS’s discretion, could place the noncitizen into removal proceedings under section 240 of the INA, 8 U.S.C. 1229a. See 8 CFR 1003.48(d) (proposed).

Finally, the rule proposes that both parties would be able to appeal the IJ’s decision to the BIA under procedures similar to those used in section 240 removal proceedings and asylum/withholding-only proceedings under 8 CFR 208.2(c), 1208.2(c). See 8 CFR 1003.1(b)(15) (proposed). In addition, the individual would be able to petition for review of the BIA decision with the Federal courts. See infra note 59. B. DOJ and DHS Authority to Propose This Rule 

The Attorney General and the Secretary jointly propose this rule pursuant to their respective authorities concerning asylum determinations. The Homeland Security Act of 2002 (“HSA”), Pub. L. 107-296, 116 Stat. 2135, as amended, created DHS and transferred to it many functions related to the execution of Federal immigration law. The HSA charged the Secretary “with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens,” INA 103(a)(1), 8 U.S.C. 1103(a)(1), and granted the power to take all actions “necessary for carrying out” the Secretary’s authority under the immigration laws, INA 103(a)(3), 8 U.S.C. 1103(a)(3). The Secretary’s authority also includes the authority to publish regulatory amendments governing the apprehension, inspection and admission, detention and removal, withholding of removal, and release of noncitizens encountered in the interior of the United States or at or between the U.S. ports of entry. INA 235, 236, 241, 8 U.S.C. 1225, 1226, 1231. 

The HSA thus transferred to DHS authority to adjudicate asylum applications, as well as the authority to conduct credible fear interviews and make credible fear determinations in the context of expedited removal. INA 235(b)(1)(B), 8 U.S.C. 1225(b)(1)(B); see also HSA 451(b), 6 U.S.C. 271(b) (providing for the transfer of adjudication of asylum and refugee applications from the Commissioner of Immigration and Naturalization to the Director of the Bureau of Citizenship and Immigration Services, now USCIS). By operation of the HSA, the reference to “Attorney General” in the INA is understood also to encompass the Secretary in matters with respect to immigration proceedings before DHS. That authority has been delegated within DHS to the Director of USCIS. See 8 CFR 208.2(a), 208.30. 

In addition, under the HSA, the Attorney General retained authority over individual immigration adjudications (including section 240 removal proceedings and certain adjudications related to asylum applications) conducted within EOIR. See HSA 1101(a), 6 U.S.C. 521(a); INA 

103(g), 8 U.S.C. 1103(g). 

IJs within DOJ continue to adjudicate all asylum applications filed by noncitizens during the pendency of removal proceedings, and they also review asylum applications referred by USCIS to the immigration court. See INA 101(b)(4), 240(a)(1), 8 U.S.C. 1101(b)(4), 1229a(a)(1); 8 CFR 1208.2(b), 1240.1(a). 

Section 235(b)(1)(B)(ii) of the INA, 8 U.S.C. 1225(b)(1)(B)(ii), provides that if a noncitizen in expedited removal proceedings is determined to have a credible fear of persecution by an asylum officer, the noncitizen is entitled to “further consideration of the application for asylum.” This proposed rule addresses how that further consideration will occur. Section 208(d)(1) of the INA, 8 U.S.C. 1158(d)(1), provides the Attorney General with the authority to establish procedures for the consideration of asylum applications, including those filed in accordance with section 235(b) of the INA, 8 U.S.C. 1225(b). See INA 208(a), 8 U.S.C. 1158(a).

Section 103(a)(1) and (3) of the INA, 8 U.S.C. 1103(a)(1), (3), authorizes the Secretary to establish rules and regulations governing parole. Section 212(d)(5) of the INA, 8 U.S.C. 1182(d)(5), vests in the Secretary the discretionary authority to grant parole to applicants for admission on a case-by-case basis. 

C. The Current Asylum and Expedited Removal Process 

1. Asylum 

The Refugee Act of 1980, Pub. L. 96-212, 94 Stat. 102, was the first comprehensive legislation to establish the modern refugee and asylum system in the United States. Asylum is a discretionary benefit that can be granted by the Attorney General or the Secretary if a noncitizen establishes, among other things, that they have experienced past persecution or have a well- founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA 208(b)(1), 8 U.S.C. 1158(b)(1) (providing that the Attorney General “may” grant asylum to refugees); INA 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A) (defining “refugee”). As long as they retain their asylee status, noncitizens who are granted asylum (1) cannot be removed or returned to their country of nationality or last habitual residence, (2) receive employment authorization incident to their status, and (3) may be permitted to apply for readmission after travel outside of the United States with prior consent from the Secretary. INA 208(c)(1), 8 U.S.C. 1158(c)(1); see Johnson v. Guzman Chavez, 141
S. Ct. 2271, 2286 (2021) (“[A] grant of asylum permits an alien to remain in the United States and to apply for permanent residency after one year[.]” (internal quotation marks and citation omitted) (emphases omitted)); 8 CFR 274a.12(a)(5) (employment authorization incident to asylum status); id. § 223.1(b) (readmission after travel for a “person who holds . . . asylum status pursuant to section 208 of the Act”). 

Asylum applications are presently classified based on the agency with jurisdiction over the noncitizen’s case. If a noncitizen is physically present in the United States, not detained, and not in removal proceedings, the noncitizen may file an asylum application with USCIS. These applications are known as “affirmative” filings. If the noncitizen is in removal proceedings before an IJ, the noncitizen instead may file an application for asylum with the IJ as a defense to removal. Such “defensive” filings are currently the only route by which noncitizens referred to an IJ by a USCIS asylum officer after receiving a positive credible fear determination can obtain an adjudication of the merits of their asylum claims. 

This is truly incredible. The legal process for illegal immigrants is so much more lenient and concerned with fairness than anything available for US Citizens. In all cases of court in the US it’s an “adversary” system. One side attempting to prove guilt, another hoping to introduce any reasonable doubt in the prosecution’s case. 

There isn’t some special court that takes a cooperative role with the defendant to help their cause by declining to question them. That’s what is meant by adversarial. Different interests in outcomes from the respective parties. That’s why the prosecution has the ability to coerce testimony from anyone, except the defendant. They have the burden of proof and they are duty bound to represent their clients with the best of their ability, whether the state or a person.

Illegal immigrants get to apply for asylum, without question. Then if that looks shaky they can apply for a UN refugee concept called CAT. United Nations Convention Against Torture (“CAT”). This is absolute treason and using a foreign entity to make, distort, to manipulate our border laws is outrageous. This needs to be shouted from the mountains until all Americans understand that the increase in permanent new residences from the third world is justified with a UN law. This is directly contradictory to our Constitution and offensive on every level. Fu** the UN and fu** anyone supporting this globalist, communist, supranational monster.

So if asylum fails, then it’s CAT, that they get next. “I fear I will be mistreated by my third world government”, no shit. I fear my government far more than you could possibly fear some tin pot dictator. My government hates me and has the most technologically advanced war machine ever invented. Who is going to take me in?

2. Expedited Removal and Screenings in the Credible Fear Process 

In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. 104-208, div. C, 110 Stat. 3009, 3009-546, Congress established the expedited removal process. 

The process is applicable to noncitizens arriving in the United States (and, in the discretion of the Secretary, certain other designated classes of noncitizens) who are found to be inadmissible under either section 212(a)(6)(C) of the INA, 8 U.S.C. 1182(a)(6)(C), regarding material misrepresentations, or section 212(a)(7) of the INA, 8 U.S.C. 1182(a)(7), regarding documentation requirements for admission. Under expedited removal, such noncitizens may be “removed from the United States without further hearing or review unless the [noncitizen] indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.” INA 235(b)(1)(A)(i), 8 U.S.C. 1225(b)(1)(A)(i). 

The former INS and, later, DHS implemented a screening process, known as the “credible fear” screening, to identify potentially valid claims for asylum, statutory withholding of removal, and CAT protection, or, more specifically, to prevent noncitizens placed in expedited removal from being removed to a country in which they would face persecution or torture. 

Currently, with regulatory changes made from 2018 through 2020 either vacated, enjoined, or delayed, any noncitizen who expresses a fear of persecution or torture, a fear of return, or an intention to apply for asylum during the course of the expedited removal process is referred to a USCIS asylum officer for an interview to determine whether the noncitizen has a credible fear of persecution or torture in the country of return. INA 235(b)(1)(A)(ii), (B), 8 U.S.C. 1225(b)(1)(A)(ii), (B); see also 8 CFR 235.3(b)(4), 1235.3(b)(4)(i). If the asylum officer determines that the noncitizen does not have a credible fear of persecution or torture, the noncitizen may request that an IJ review that determination. 

They might as well just get rid of all of this crap. It must cost a fortune to employ all of these losers to not protect the borders. Even if the border patrol catches em, the so called courts just help them beat the system. They have access to a completely opposite style of court than we do, who pays for everything. They get to appeal everything, the initial ruling, the decision made by the bureaucrats, and if they see an actual judge, it’s not an adversary or even concerned with the FELONY that is committed by illegally entering our country. Then even if the judge denies asylum, they encourage the UN CAT defense, and allow the criminal alien to appeal everything from everyone who made a decision in the case.

Compare this to the criminal court system and it’s fu**ing outrageous. First of all, you have no right to anything in today’s court rooms. Speedy trial? Not even close. Trial by your peers? Not even close. Unless your peers are the wives and husbands of cops and city employees. Right to humane treatment and freedom from torture? Not even close. They will house nonviolent kids (18 to 20 year olds) with lifers who killed a family. Men are raped more than women in this country by tens of thousands a year due to our prison system. If that’s not torture what is? Solitary confinement has been universally recognized as torture and citizens spend months at a time in these conditions. As for separating families? Criminals that go to prison lose their whole lives. They lose their wife, kids, career, respectability, and dignity. I’ve never heard anyone cry for the pot grower who has lost his children unjustly. Breaking laws can separate you from loved ones, except foreigners, that is. It’s a felony to cross our border without permission. Felons are all separated from their families. Why do I care about Mexican families more than Americans? I don’t.

A. Parole – Proposed 8 CFR 235.3(b)(2)(iii) and (b)(4)(ii) 

The expedited removal statute provides for detention throughout the expedited removal process, including during the credible fear screening process and during the process for further consideration of the protection claims on their merits. The statute does not, however, limit DHS’s general parole authority under section 212(d)(5) of the INA, 8 U.S.C. 1182(d)(5), and 8 CFR 212.5(b), and the Departments have not understood the language providing for detention in expedited removal to limit this parole authority. Instead, parole authority in the context of expedited removal has been specifically provided for in the relevant regulations covering expedited removal and the credible fear screening process since they were first implemented in 1997. See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; 

Conduct of Removal Proceedings; Asylum Procedures, 62 FR 10312, 10356 (Mar. 6, 1997) (interim final rule). And the U.S. Supreme Court recently acknowledged in Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018), that DHS may exercise its authority to temporarily parole persons subject to expedited removal, while also acknowledging that the relevant statutory language in section 235(b)(1) and (b)(2) of the INA, 8 U.S.C. 1225(b)(1), (b)(2), “unequivocally mandate that aliens falling within their scope ‘shall’ be detained,” id. at 844. 

Since expedited removal’s implementation regulations were first promulgated, parole consideration has been limited to a narrow category of circumstances for individuals awaiting a credible fear determination—when necessary “to meet a medical emergency or . . . for a legitimate law enforcement objective.” See 8 CFR 235.3(b)(2)(iii), (b)(4)(ii) (current). This proposed rule change would add to those grounds, allowing parole when “detention is unavailable or impracticable (including situations in which continued detention would unduly impact the health or safety of individuals with special vulnerabilities).” 8 CFR 235.3(b)(2)(iii), (b)(4)(ii) (proposed). 

This change would allow DHS to prioritize use of its limited detention bed space to detain those noncitizens who pose the greatest threats to national security and public safety, while avoiding unnecessary operational limitations on DHS’s authority to place noncitizens into expedited removal. Under the proposed rule, when detention space is unavailable or its use is otherwise impracticable, DHS would have the option of using parole rather than placing nearly all families arriving at the border directly into section 240 removal proceedings. The proposed rule also makes clear that a grant of parole only authorizes release from custody and cannot serve as an independent basis for employment authorization under 8 CFR 274a.12(c)(11).32 See 8 CFR 235.3(b)(4)(ii) (proposed). The Departments are seeking public comment on this change in the circumstances under which parole may be considered in the expedited removal context, as well as the use of (c)(11) employment authorization documents (“EADs”) for those in expedited removal who have been paroled from custody. 

I have been offered parole several times and am familiar with the process. Any arrest able offense is going to start at around $10,000 in bail. It takes nothing more than a DUI with no other charges or circumstances to get a 6 figure bail. The bondman wants 10 percent usually which is not refundable. If you fail to show for court and you used your house as collateral, goodbye house. I’ve made the choice more than once to stay in jail instead of waste the thousands of dollars for a few days out before court. When you’re in custody they have to rush things and can’t fiddle around with charges and shenanigans. Plus if your charge is petty, time served is very common.

This thing is 140 pages and I only got through the first 75 or so. The real nasty stuff is always towards the end of these things. I’ll have to follow up with you because a quick scroll showed me that they may even be paying the administrative costs to complete these asylum requests. Again a quick scroll so I need to read it more thoroughly. But have to go to work so maybe tomorrow we can look at some more.

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