Wednesday, May 4, 2022


There is a saying in immigration circles: “It’s not over until the alien wins,” meaning that the machinery intended to make sure our immigration system operates with integrity actually slants heavily in favor of aliens, even those who lie to receive immigration benefits. With their recent rule-making, the Biden administration has essentially adopted “the alien always wins” as its new motto.

In March, the Departments of Homeland Security and Justice issued an interim final rule that, once implemented, will gut the federal government’s ability to remove illegal aliens quickly and efficiently from the country. In addition to being a horrendous policy, it also violates the U.S. Constitution, interferes with authorities and obligations established by Congress, and will likely entice hundreds of thousands more illegal aliens to head toward our southern border. 

Federal law currently permits immigration enforcement officials, via what is known as expedited removal, to detain and remove illegal aliens found anywhere in the United States within two years of entry back to their home countries. 

Even under expedited removal, an alien can claim a fear of returning to his or her home country, and is entitled to a review of that claim. If found to be credible, a more detailed case for asylum can be made before an attorney general-selected immigration judge. If, however, the claim is found not to be credible, the alien is then supposed to be removed from the United States forthwith.

The Biden administration’s IFR would make sure that aliens who are eligible for expedited removal from the United States never leave by essentially creating an endless loop of review that only ends when the alien receives an immigration benefit. Here is how it works.

The IFR provides authority to U.S. Citizenship and Immigration Services asylum officers beyond what both the Constitution and federal law allow. It gives these career civil servants — who are neither appointed nor is their work subject to review by any properly appointed officer — the unchallengeable ability to grant asylum to aliens, violating the Appointments 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 IJs to adjudicate asylum claims.

Beyond that, the IFR gives USCIS asylum officers the authority to revisit an alien’s asylum claims even after an IJ has rejected the alien’s claims. It also requires an IJ to review an alien’s claims de novo (meaning a new review) if an asylum officer rejects an alien’s claims, but prevents a de novo review when an asylum officer grants asylum, even if the IJ has reason to believe the asylum officer may have made errors.

The IFR also unnecessarily extends cases and creates costs. For example, aliens no longer have to even fill out an application for asylum — their words will count instead. It allows aliens to have representatives with them in their initial interviews, which interferes with an asylum officer’s ability to obtain unvarnished, uncoached information. In the event an alien accidentally provides truthful information anyway, the IFR allows the alien to “amend or correct” the evidentiary record, or, in other words, to eliminate conflicting information once he or she is coached by an open-borders activist. 

In contrast, the IFR establishes rigid procedural requirements and deadlines for government attorneys, so that an alien’s chances of getting to stay because of technicalities will skyrocket. American citizens do not get a fraction of these courtesies when dealing with, say, the Internal Revenue Service or the Fish and Wildlife Service.

Even though the IFR basically admits that federal law prohibits an alien in expedited removal proceedings from being paroled or released on his or her own recognizance except under extreme circumstances, the Biden administration has ignored the law and declared that it is going to apply a much broader parole standard. 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 on, behind closed doors. 

The IFR is basically a wholesale adoption of the immigration attorney bar’s strategy for winning immigration cases: to defer, delay and force endless review until someone, somewhere, gets the alien to yes. Though our southern border is already overwhelmed by the administration’s engineered border collapse, this new IFR will invite yet more aliens 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 action to make it clear to this administration that their job is not to make sure the alien 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 the deputy director of investigations at the America First Legal Foundation. He was former acting chief of staff at the U.S. Citizenship and Immigration Services during the Trump administration.

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