Attorney General Jeff Sessions Delivers Remarks to EOIR On "Fraud and Abuse" in the Asylum System

On October 12, 2017, United States Attorney General Jeff Sessions delivered remarks to the Executive Office for Immigration Review [PDF version]. His remarks focused primarily on “fraud and abuse” in the asylum system. In this post, I will briefly examine the key portions of Attorney General Sessions' remarks.

Sessions began by asserting that, although there has been significant improvement since President Donald Trump took office, there remains a “crisis at our borders.” To this effect, he added that “[a] great nation cannot allow this any longer.” Sessions did note that “illegal border entries are down as much as 50 percent…” However, while acknowledging the overall decrease in apprehensions along the Southwest border, Sessions stated that large numbers continue to break in and enter ahead of those who are “following the rules and waiting their turn.” The Attorney General described illegal border crossings as “inequitable, illegal, costly, [and] extremely dangerous.”

Having set the stage, Sessions turned to the primary focus of his remarks: “fraud and abuse in our asylum system.”

Sessions stated that Congress has, over the years, passed a scheme of laws allowing for the admission of aliens and designed to “expedite the removal of aliens who enter the United States illegally.” He then stated that “smart attorneys have exploited loopholes in the law, court rulings, and lack of resources to substantially undermine the intent of Congress.” Referring specifically to expedited removal, the Attorney General noted that any alien who legitimately establishes that he or she has “an actual, legitimate fear of returning to [his or her] homeland” can seek asylum.

In short, an alien who would otherwise be subject to expedited removal may make his or her case of a fear of persecution to an asylum officer. If the asylum officer determines that the alien has established a “credible fear,” the alien will be placed in removal proceedings in lieu of being subject to expedited removal. If the asylum officer issues a negative decision, the alien may have her claims of fear of persecution considered by an immigration judge. We discuss expedited removal and exceptions to expedited removal on site [see article].

Attorney General Sessions stated that the exception to expedited removal, as codified, is important because many individuals, “through no fault of their own, cannot co-exist in their home country no matter where they go because of persecution based on fundamental things like their religion or nationality.” However, he stated that this important exception “is currently subject to abuse and fraud.” He attributed the “surge in trials, hearings, appeals, [and] bond proceedings” as being, at least in part, attributable to “fake [asylum] claims.”

Sessions explained that in 2009, the Obama Administration implemented a policy which permitted certain aliens who “passed” an initial credible fear interview to be released from immigration custody pending a full hearing on the merits of their claims. Sessions took the position that this policy, in conjunction with other changes stemming from the policy, both contravened Congressional intent and created a new perverse incentive to lodge meritless claims of a fear of return to one's home country. Sessions stated that since 2009, the percentage of asylum claims made by those subject to expedited removal has “skyrocketed,” but the percentage of meritorious asylum claims has decreased. Sessions warned that “[s]aying a few simple words is now transforming a straightforward arrest and immediate return into a probable release and a hearing — if the alien even shows for the hearing.”

To support his arguments, Sessions offered the following statistics:

In 2009, the Department of Homeland Security (DHS) conducted 5,000 credible fear reviews. In 2016, the DHS conducted 94,000 credible fear reviews.
In 2009, fewer than 4,000 aliens who made claims of fear of persecution were ultimately placed in removal proceedings. In 2016, more than 73,000 aliens who had credible fear reviews were placed in removal proceedings.
In 2009, there were about 3,000 credible fear claims at the border. In 2016, there were more than 69,000 credible fear claims at the border.
The EOIR has more than 600,000 cases pending at the present. This is about three times more than were pending in 2009. Please see our recent blog for a discussion of the backlog of cases in the immigration court system [see blog].
The DHS found a credible fear of persecution in 88-percent of claims that it adjudicated.
Half of the individuals who pass the initial credible fear screening never file an application for asylum in the United States.
In 2016, there were more than 700 percent more removal orders issued in absentia for cases that began with a credible fear claim than in 2009. In 2012, there were almost 20,000 removal orders issued in absentia. In fiscal year 2017, there were nearly 40,000 removal orders issued in absentia.

Based on these statistics, Sessions criticized the current policies regarding credible fear claims. Besides asserting his position that many of the claims are fraudulent, Sessions noted that the high percentage of aliens who pass credible fear interviews and then fail to appear for their immigration court hearings “undermines the system and frustrates officers who work to make dangerous arrests in remote areas.” Furthermore, he observed that meritless claims consume time and resources, thus taking away attention from and burying the cases of aliens with bona fide asylum claims.

Sessions stated that “[o]ur asylum laws are meant to protect those who because of characteristics like their race, religion, nationality, or political opinions cannot find protection in their home countries,” listing four of the five protected grounds listed in section 101(a)(42) of the Immigration and Nationality Act (INA) (the last being “particular social group”). However, he stated that asylum is not a catch-all form of relief for “all those who fear generalized violence, crime, personal vendettas, or a lack of job prospects.” Suggesting that an increasing number of claims fall into the latter camp, he stated that these meritless claims “have swamped our system.”

Sessions stated that for many, there is “no cost or risk” in making a baseless asylum claim (note: there are penalties for making frivolous asylum claims, see our article on Matter of M-S-B-, 26 I&N Dec. 872 (BIA 2016) [see article] for examples). He added that asylum applicants who make baseless asylum claims are often able to procure employment authorization after their claims have been pending for six months [see article on related issue]. For this reason, he stated that “[t]here are almost no costs, but potentially many rewards, for filing a meritless asylum application.”

To remedy the problems addressed in his speech, Attorney General Sessions called for the following:

Imposition and enforcement of penalties for baseless asylum applications or fraudulent asylum applications;
Elevation of threshold standard of proof for credible fear interviews;
Expand ability to return asylum seekers to safe third countries;
Close loopholes and clarify asylum laws to ensure that asylum benefits those who it is intended to help; and
Expand the use of expedited removal.

It is worth noting that many of the Attorney General's points, including the handling of credible fear interviews and the expansion of expedited removal, were addressed in two memoranda issued by the former Secretary of Homeland Security, John F. Kelly, last February [see article]. However, no new rules on these points have been promulgated and are presumably still pending.

Conclusion

The immigration system faces substantial backlogs in both the immigration courts and the adjudication of asylum claims. To that effect, it is important to find a way to reduce the backlog to ensure that everyone has a chance to have their cases fully adjudicated in an expeditious manner. However, it is always important to strike a balance between trying to filter out asylum claims and other claims for relief that are without merit and ensuring that all claims are handled properly, especially those made by individuals with strong cases for relief.

An individual facing removal of any sort, including expedited removal, should consult with an experienced immigration attorney immediately. Regarding asylum claims, a responsible experienced immigration attorney will consider the alien's specific claims and make a determination as to whether he or she has a credible case to present in seeking asylum relief or related forms of relief such as withholding of removal or protection under the Convention Against Torture.

We will update the site with information on any new policies on the issues discussed by the Attorney General in his recent address.