Board of Immigration Appeals Cleans Up Precedents to Stop Fraud

The Trump Administration’s actions on immigration are still coming at a breakneck pace two years into the term. One key characteristic of Trump 2.0 has been its use of a diverse set of tools to drive desired policy changes and target fraud in the immigration system. For example, the Trump Administration has utilized authorities within the Department of Labor (DOL) to target unscrupulous H-1B employers. 

Another Department with a stronger immigration enforcement focus is the Department of Justice (DOJ). Housed within DOJ is the Executive Office for Immigration Review (EOIR), which includes both immigration courts and the Board of Immigration Appeals (BIA). While aliens can appeal BIA decisions to Federal court, BIA precedent is binding on immigration courts, so most cases in immigration court are governed by BIA precedent. EOIR is where the buck stopped for Biden’s border crisis because that’s where the millions of mostly fraudulent asylum claims landed. 

Now the BIA is moving to make sweeping changes to immigration court precedent to empower early detection and dismissal of the frivolous claims clogging up the system. These changes will go a long way to clearing the asylum backlog, bringing integrity to the system, and removing aliens with no legal right to remain in the United States. Much of this effort by BIA involves overruling prior practices that made our immigration court system distorted and incoherent. 

Recent BIA Opinions Transform Asylum Processing and Adjudication

Over the past two years, the BIA has completely transformed the U.S. asylum system by issuing new precedents. Combined, these common-sense precedents shift the asylum landscape from one of endless bites at the procedural apple to efficient, early detection and dismissal of obviously frivolous claims. These new precedents include:

• Matter of B-S-A-N-, which broadly held that aliens with asylum claims from free democratic countries should have their claims denied; 
• Matter of M-R-I-, which held that aliens who use Advance Parole to travel to the country in which they claim to face persecution have abandoned their asylum claim;
• Matter of G-R-B-, which held that immigration judges may, on their own motion, deny obviously frivolous asylum claims that fail to make a prima facie case;
• Matter of A-K-R-, which ended long delays while aliens were purportedly trying to secure counsel; and
• Matter of S-S-F-M-, in which Attorney General Pam Bondi overruled Biden Attorney General Merrick Garland and restored asylum precedents established by Attorney General Sessions in the first Trump Administration.

Beyond these precedents, DOJ has issued a regulation empowering immigration judges to sanction misconduct by attorneys, aliens who are the subject of the proceedings, and certain witnesses. This rule followed a bold move to reduce the BIA's size and terminate recalcitrant members appointed by the Biden Administration. DOJ and EOIR have also moved to create a tighter, more streamlined adjudication process for immigration court, but legal challenges have delayed it.

The BIA precedents work in coordination to detect and dismiss obviously frivolous claims. By largely excluding asylum applicants from places like the European Union, and applicants who are taking vacations to the country from which they claim fear of persecution, the BIA is eliminating the most frivolous asylum claims. Giving immigration judges the power to dismiss obviously frivolous claims will not only clear out piles of current cases, but will flip the script for fraudulent applicants counting on immigration court delays. 

The Massive Asylum Backlog has Become a Pull Factor

While we celebrate the victories for common sense at the BIA, it is concerning that these actions were required in the first place. Why was the immigration court system broadly defining “particular social group” for asylum to include basically anyone on any pretext? Why were judges not allowed to dismiss obviously frivolous claims? Why was the United States spending taxpayer dollars processing asylum claims from people who live in Europe and claim they are fleeing persecution from countries like Germany and France? 

The abject absurdity, irrationality, and incoherence of the U.S. asylum system has been ignored for too long. Most asylum applicants admit they are economic migrants. Rather than believing them and turning them away, bureaucrats began to twist asylum procedures and generate precedents to accommodate applicants who plainly did not qualify. The result was immigration courts and lawyers trying to pretend that generalized crime or gang violence constituted government persecution. Even obvious frivolity like an alien from France or England filing an asylum claim was humored and the alien allowed to move for countless delays to avoid a negative decision. In other words, this asylum crisis was a very deliberate choice.

As cartels saw this, they began to market their ability to help aliens travel to the United States and manipulate these loopholes. As more political and resource pressure grew, the immigration court system collapsed on itself and largely functioned (when it functioned) as a negative feedback loop. One of the cartels’ main selling points to aliens has been that once they arrive and claim asylum, they can remain in the United States indefinitely. If the immigration courts process claims swiftly, that whole narrative collapses.

The dysfunction of the immigration courts was creating an incentive for asylum fraud. Aliens knew the cases could be indefinitely delayed through endless appeals and motions for delay. Asylum applicants could skip hearings by claiming maladies or emergencies or request continuances to prolong proceedings with immigration judges who gave the benefit of the doubt to the aliens. Applicants could get multiple time delays by claiming they needed more time to locate counsel. Deference to the procedural position of the alien was the norm. The asylum rules were drafted as if everyone were acting in good faith, despite the overwhelming evidence of bad faith. 

The changes being made by the DOJ, the BIA, and EOIR are crucial in maintaining a fair and efficient asylum process. In order to provide asylum to those who genuinely need it, the frivolous applicants must be quickly weeded out and returned home. 

However, these changes can be reversed by a new administration just as easily as they were implemented. Congress could and should codify reforms to the asylum system, including changes to how claims are processed in immigration court. Congress can no longer defer questions of asylum procedure and processing to the bureaucracy.