President Biden would have us believe that the border crisis is either fake, or real but the Republicans’ fault. Americans don’t buy it.
We’ve all seen the massive influx of people crossing the border illegally and the Biden administration’s fight to cut the wire fencing Texas installed to protect its border.
But there’s so much more behind the scenes. Notably, in May 2022, the Biden administration promulgated an “interim” final rule governing asylum and has been phasing it in gradually ever since.
This rule increases the illegal migrant flow into the country and speeds up eligibility for public benefits for both new migrants and those already across our border.
It opens the door to even more widespread fraud in the asylum process and human trafficking of children.
And it’s illegal.
The asylum rule flies in the face of laws passed by Congress specifically to address the same concerns that illegal immigration presents today — the flooding of labor markets, the rise of immigrant organized crime operations, the burdening of school systems, and the rise in public benefits requested and received by aliens.
In a 1995 report, Congress found that the asylum system was being systematically abused by tens of thousands of aliens who filed false claims to extend their stay and receive work authorization. Congress found the executive branch (like today’s Biden administration) was abusing its limited parole authority to admit entire categories who did not qualify for legal admission at all. Congress addressed those problems through an “expedited removal” process for meritless asylum claims, coupled with mandatory detention of asylum-seekers while their claims were being processed.
The asylum rule wrecks these processes. Prior to the rule, if an alien somewhat credibly claimed “fear” to return home, the case would be passed to an immigration judge — a position required to be politically neutral — to determine asylum eligibility in an adversarial proceeding, with the government presenting its case for why the alien should be deported.
The asylum rule removes that process. It instead allows pro-migration asylum officers to make the asylum determination based on a non-adversarial interview; that is, based on the migrant’s word alone.
That’s a real problem. The Supreme Court has recognized the significant fraud that existed in asylum claims even in an adversarial system. The prevalence of fraud will only worsen with less scrutiny and with asylum officers rather than immigration judges now conducting the review. Asylum officers are notoriously political, with their union frequently issuing statements and filing court briefs arguing for more lax immigration policies.
The asylum rule also imposes time limits on asylum proceedings that effectively require the release of all minors and minor-adult units into the country without any hearing on their asylum eligibility at all. This standard gives human traffickers an even greater incentive to attach minors to adults crossing the border in order to ensure they are permitted to stay and to obtain monthly cost-of-living checks. The Border Patrol has stopped DNA testing, so there is no oversight of who is bringing children into the country.
Fortunately, the rule is currently being challenged in court by nineteen states — many of them high-immigration states that bear the brunt of increased immigration flows, particularly in their expenditures on public benefits.
Under the separation of powers in our constitutional structure, it is unlawful for an executive agency to adopt rules that conflict with laws passed by Congress. Although it’s gotten lost in the din, that’s what the Mayorkas impeachment is about: treating Congressional commands that an agency “shall” or “shall not” do certain things as optional, to the point of critically endangering our democracy.
Testimony from former Border Patrol Chief Rodney Scott made clear that increasing the flow of illegal asylum aliens into the United States was the object of the asylum rule, which the Biden administration adopted despite warnings from senior Border Patrol officials.
Biden doesn’t need new border legislation. He needs to stop violating the law, undermining his own border agents, and putting our well-being at risk.
Anna St. John is the president and general counsel of the Hamilton Lincoln Law Institute and a visiting fellow at Independent Women’s Law Center (iwlc.org).
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.