You're Kidding Me

 Southern Border Parole Policy 

Whoa! You're kidding me, right?

Two wrongs don't make a right

Yes, it's Redhand, and this is one of my unhappily rare posts here.  The spirit is willing, but my septuagenarian career as an immigration lawyer keeps me far, far busier than I'd like.  ("All work and no play makes Jack a dull boy.")  However, this development is so interesting that its takes precedence over my long-ago-promised post about dysfunction in the immigration court system. (An evolving work-in-progress.)

A large percentage of my work is devoted to asylum claims, and it's probably what I'm best known for.  Prior to the Trump Administration's attempted (and largely successful) dismantling of the system for processing asylum claims near our borders, there were reasonably well-understood procedures for processing individuals appearing at U.S. ports of entry (POE) ("arriving aliens") or points of illegal border entry (present in the United States without authorization after entry at a place other than a POE).  Note, these latter folks  are popularly known in the trade as "EWIs" (those who "Entered Without Inspection.")

Aliens appearing at POEs without proper entry documents were subject to summary orders of removal (in effect for five years) unless they expressed a fear of returning to their home countries, and Customs and Border Protection (CBP) personnel were trained to ask if they had such a fear.  If they expressed one, they were scheduled for a "credible fear interview"  ("CFI") before an asylum officer who examined them to determine if an immigration judge ("IJ") could find they had claims for asylum on one of the five "enumerated grounds." "The applicant must have been persecuted on account of race, religion, nationality, political opinion, or membership in a particular social group."

A positive CFI finding meant that an alien would appear before an IJ to determine if he or she should be granted asylum.  Arriving aliens could be detained for the duration of proceedings, but they were sometimes released on "parole," to stay with family or friends and have their claims heard at immigration courts other than those near the border.

Due to a quirk in the law, EWIs apprehended within 100 miles of the border could also be considered "arriving aliens" or simply unlawfully present individuals.  Those in the latter category would also be put into proceedings but have the right to request bond and transfer of their cases to immigration courts where they relocated for non-detained hearings.  Particularly if EWIs were new arrivals, they also could be asked if they had a fear of returning to their home countries and given a credible fear interview.  

Sometimes, if families were involved, EWIs would be paroled into the United States on humanitarian grounds even in the absence of a CFI, though most would ultimately have to go to their local immigration court for a decision whether they had a basis for staying in the USA permanently.

When the Biden Administration took office, we were assured that the asylum system at the border, which had been dismantled by the folks who brought us "kids-in-cages," would be re-established to return this country to the "rule of law."  And that is what I thought was happening.

At times my naïveté surprises even me.  Yesterday I answered a referral request for a person from a Central American country who was recently released from custody at the border and who is here in NJ "with an asylum claim."

I spoke with the individual, who was an unaccompanied man in his 40s.  When I asked him what kind of fear of returning to his home country he expressed to the arresting officers, and what kind of interview he had (credible fear before an asylum officer?) he told me that he wasn't asked any questions at all, had no interview, and after a few days was simply released on his own recognizance to a relative here, albeit with an ankle bracelet.  He was happy that after a week he was able to take the bracelet off and just has an ICE reporting requirement.  Oh, and he said that the ICE people told him he "needed a lawyer."  Hence, our conversation.  I won't tell you the substance of our conversation about why he came here.  "That would be wrong."

A colleague and friend confirmed to me that she had been contacted by another individual recently who recounted a similar experience, and on further inquiry, she learned that CBP wasn't asking "fear of returning" questions anymore, and instead was just paroling people in.

My visceral response to this news is, "Say what?!"  It appears that in a few short years we have gone from parents ripped from their children and kids-in-cages to a system that looks suspiciously like the "open borders" we always hear the RWNJ's decry.

Work with me on this please, and realize you're reading the words of a pretty liberal guy if not someone others might consider has "radical left-wing views."  Do we not have a "fallacy of relevance" here?  See "Two wrongs don't make a right."

What's the policy justification for this?  Is there one? Ah, I guess I am wondering if, figuratively speaking, we'll be saying, "Hey, maybe you haven’t been keeping up with current events, but we just got our asses kicked pal!" come the midterms later this year.