There is a saying in immigration circles: “It’s not over until the foreigner wins”, which means that the mechanisms intended to ensure that our immigration system operates with integrity actually lean heavily in favor of foreigners, even those who lie to receive immigration benefits. With its recent rulemaking, the Biden administration has essentially adopted “alien always wins” as its new motto.
In March, the Departments of Homeland Security and Justice released an interim final rule that, when implemented, will reduce the federal government’s ability to quickly and effectively remove illegal aliens from the country. In addition to being an appalling policy, it also violates the US Constitution, interferes with authorities and obligations established by Congress, and will likely inspire hundreds of thousands more illegal aliens to head for our southern border.
Federal law currently allows immigration enforcement officials, through what is known as expedited deportation, to detain and deport illegal aliens found anywhere in the United States. within two years of their return to their country of origin.
Even under expedited removal, an alien may invoke the fear of returning to their country of origin and is entitled to a review of that claim. If found credible, a more detailed asylum case can be filed before an immigration judge chosen by the Attorney General. If, however, the request proves not to be credible, then the alien is supposed to be expelled from the United States immediately.
The Biden administration’s IFR would ensure that foreigners eligible for expedited removal from the United States never leave by essentially creating an endless review loop that only ends when the foreigner receives an immigration benefit. Here’s how it works.
The IFR gives U.S. Citizenship and Immigration Services asylum officers authority beyond what the Constitution and federal law allow. It gives these career civil servants – who are neither appointed nor their work subject to the scrutiny of a duly appointed officer – the indisputable ability to grant asylum to foreigners, in violation of the appointment clause of the Constitution . This is also illegal because it directly contradicts a key requirement of the Homeland Security Act of 2002, which specifically cemented the authority of JIs to adjudicate asylum claims.
Beyond that, the IFR gives USCIS asylum officers the authority to review an alien’s asylum applications even after an IJ has denied the alien’s applications. It also requires an IJ to consider an alien’s applications de novo (i.e. reconsideration) if an asylum officer rejects an alien’s applications, but prevents a de novo examination when an asylum officer grants asylum, even if the IJ has reason to believe the asylum officer may have made mistakes.
IFR also unnecessarily prolongs business and creates costs. For example, foreigners don’t even have to file an asylum application anymore – their words will count instead. This allows foreigners to have representatives with them during their initial interviews, which interferes with an asylum officer’s ability to obtain unvarnished and unframed information. In the event that a foreigner accidentally provides truthful information anyway, the IFR allows the foreigner to “modify or correct” the evidentiary record, or, in other words, eliminate conflicting information once that he is being coached by an open borders activist.
In contrast, the IFR sets rigid procedural requirements and time limits for government prosecutors, so the odds of a foreigner staying on technicalities will skyrocket. US citizens do not receive a fraction of these courtesies when dealing with, for example, the Internal Revenue Service or the Fish and Wildlife Service.
Even though IFR basically concedes that federal law prohibits an alien under expedited removal from being paroled or released on their own recognizance except in extreme circumstances, the Biden administration ignored the law and said it would apply a much broader standard of parole. But don’t worry, federal bureaucrats are going to use a “public interest” standard to help them determine who can be paroled…which they intend to write later, behind closed doors.
IFR is essentially a mass adoption of the Immigration Law Society’s strategy for winning immigration cases: defer, delay, and force endless review until someone, somewhere, gets the job done. stranger to accept. Although our southern border is already overwhelmed by the administration’s engineered border collapse, this new IFR will invite even more outsiders to invade our country.
My organization, America First Legal, is proud to partner with the State of Texas in challenging this lawless Biden administration IFR in federal court. We hope that others, including Congress, will take concrete steps to impress on this administration that their job is not to make sure the foreigner always wins, but that the Constitution and federal law are always respected and followed, and that the American people come first.
• John A. Zadrozny is Deputy Director of Investigations at the America First Legal Foundation. He was the former acting chief of staff for U.S. Citizenship and Immigration Services during the Trump administration.