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Date Created:December 11, 2013

Date Uploaded to the Library:December 13, 2013

Tags:Illegal Immigration, ICE

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 Asylum Abuse: Overwhelming our Borders? 
DECEMBER 12, 2013
Chairman Goodlatte, Ranking Member Conyers, and distinguished members the
Judiciary Committee: Thank you for the opportunity testify today hearing. The joint
testimony today will focus how the following DHS agencies, U.S. Citizenship and
Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE), and
U.S. Custom and Border Protection (CBP), support U.S. efforts related border security while
upholding our refugee protection obligations.
The United States has long history providing humanitarian protection refugees and
other vulnerable individuals and party the 1967 Protocol relating the Status Refugees
and the Convention against Torture (CAT). parties the 1967 Protocol and CAT, are
committed abiding our non-refoulement obligations refrain from returning eligible
individuals countries where they would more likely than not face torture persecution. Our
non-refoulement obligations under the Protocol and the CAT are implemented the
immigration context through various laws and regulations.
The Expedited Removal and Credible Fear Processes
Prior the enactment the Illegal Immigration Reform and Immigrant Responsibility
Act 1996 (IIRIRA), individuals seeking admission the United States port entry
those apprehended attempting enter the United States unlawfully were able present their
requests for asylum directly Immigration Judge within the Department Justice (DOJ
Executive Office for Immigration Review (EOIR). IIRIRA, however, amended the Immigration
and Nationality Act (INA) allow for the expedited removal individuals who lack required
documentation possess improper documentation ports entry. DHS also applies the
expedited removal process individuals who are present without admission and encountered immigration officer within 100 air miles the United States border and who were not
physically present the United States for the 14-day period immediately before their arrest
well aliens unlawfully arriving the United States sea.
The expedited removal provision was designed deter individuals from entering the
United States illegally and streamline what had been lengthy, resource-intensive process that
required hearing and order deportation exclusion from Immigration Judge, process
that could take months years complete. Under the expedited removal process, when
immigration officer determines that individual inadmissible, the individual ordered
removed from the U.S. without hearing before Immigration Judge. ensure that the United States maintains compliance with its international treaty
obligations relating non-refoulement, however, individuals subject expedited removal who
indicate fear persecution torture who indicate intent apply for asylum are detained ICE until they can present their claim specially trained USCIS asylum officer who
conducts detailed screening for potential asylum eligibility. These officers are professional
cadre within USCIS, dedicated full-time the adjudication screening protection claims.
They are extensively trained national security issues, the security and law enforcement
background check process, eligibility criteria, country conditions, interview techniques, making
proper credibility determinations, and fraud detection.
The Role CBP U.S. Ports Entry
When alien arrives the United States air, land sea, the alien must present
himself herself CBP officer for inspection U.S. port entry. the alien lacks
required documentation possesses improper documentation, she may placed
Expedited Removal (ER) and referred secondary inspection for sworn statement and
complete forms under C.F.R. 235.3. during this process the alien expresses fear return his her country, intention apply for request asylum from the United States, the
alien will referred USCIS asylum officer for credible fear interview. The alien must
detained per section 235(b)(1)(B)(iii)(IV) the INA and turned over ICE Enforcement and
Removal Operations (ERO) pending the credible fear interview. Every alien encountered
U.S. port entry undergoes full inspection that includes national security, law enforcement,
immigration, customs, and agricultural components.
The Role CBP Between U.S. Ports Entry
Border Patrol agents (BPA) receive training the process and how identify the
applicable charges, recognize the conditions making alien subject ER, and proper protocols
for the overall management aliens through the process. The training includes recognizing
the circumstances that require referral USCIS for credible fear interview.
During processing, BPAs inquire whether the alien has any fear persecution
torture, fear return his/her home country. the alien expresses intention apply
for asylum, fear persecution torture, fear return his/her home country, the
alien detained ICE ERO and referred USCIS asylum officer for credible fear
Only asylum officers are authorized make credible fear determinations. during the booking
process, the alien expresses fear return his/her country, the local USCIS Asylum Office
contacted and provided with the relevant case forms initiate the credible fear process. This
may occur before after remanding custody the local ICE facility depending local
agreements between ICE, USCIS and CBP. all cases, the credible fear interview conducted
after the alien remanded ICE custody.
The Credible Fear Screening Process
Individuals proceedings, including those who indicate fear persecution who
indicate intent apply for asylum, are subject mandatory detention (with few exceptions).
Credible fear interviews therefore are generally conducted USCIS officers while the
individual ICE detention. Credible fear determinations are made promptly. Since
June 2013, the USCIS credible fear screening process has taken average days complete
following ICE notification that individual subject expedited removal has indicated fear
return. During Fiscal Year (FY) 2013, the average number days between the date when
individual was detained the process and the date the individual was referred the USCIS
Asylum Division for the scheduling credible fear interview was days.
During the credible fear interview, individuals are questioned regarding their biographic
information, their fear persecution torture, and whether there are any concerns that may
make them ineligible for asylum. While regulations issued December 2000 prohibit USCIS
from taking mandatory bars into account during the credible fear screening, asylum officers must
explore whether any mandatory bars are implicated during each credible fear interview.
Mandatory bars grant asylum include the persecutor bar, conviction for particularly
serious crime, having committed serious non-political crime outside the United States,
being security risk the United States, and terrorism grounds. Asylum officers document this
information the interview notes that are taken contemporaneously with the interview.
Wherever any derogatory information uncovered that could implicate mandatory bar, either
through security checks the alien testimony, the information flagged for ICE, and
available for the ICE attorneys the event they have hearing before Immigration Judge.
USCIS coordinates with ICE and other law enforcement authorities, appropriate, there are
reasonable grounds believe that individual may barred for criminal activity, security
risk, belongs terrorist organization human rights violator. The Immigration Judge
would make determination whether mandatory bar applies during the removal
Historically, only small percentage individuals placed expedited removal
proceedings have expressed fear return. However, the percentage has risen over time. From 2000 through 2009, the annual percentage individuals subject expedited removal
who expressed fear return ranged from 4-6%. From 2010 through 2012, the annual
percentage ranged from 7-9%. During 2013, approximately 15% the individuals placed
into expedited removal expressed fear return and were placed the credible fear screening
process. Despite this increase, expedited removal proceedings have been effective and have
saved significant resources since their implementation 1997 while also ensuring that the
United States upholds its international treaty obligations regarding non-refoulement. Before the
implementation the expedited removal process, every individual subject would have
been entitled hearing before Immigration Judge where they could apply for asylum.
Security Screening the Credible Fear Process addition the detailed credible fear interview, USCIS conducts security checks
including biographic (TECS and biometric (IDENT) checks during the credible fear process
assess identity and inform lines questioning. TECS owned and managed CBP and its
principal law enforcement and national security system. TECS contains various types
information from variety Federal, state, local, and foreign sources, and the database contains
records pertaining known suspected terrorists, wanted persons, and persons interest for
law enforcement and counterterrorism purposes. IDENT DHS system managed the
National Protection and Programs Directorate (NPPD) Office Biometric Identity
Management (OBIM), and includes biometric information related the travel history foreign
nationals and watchlist information. also contains visa application information owned the
Department State. This system used confirm identity, determine previous interactions
with government officials and detect imposters. Asylum officers conduct mandatory check
both TECS and IDENT during the credible fear process. Asylum officers also ensure that the
Federal Bureau Investigation (FBI) name check and fingerprint checks have been initiated. previously noted, most aliens are detained ICE throughout the credible fear
screening process. Based the interview and all available evidence, the USCIS asylum officer
determines whether not the individual established credible fear persecution torture.
The USCIS asylum officer determination well information the individual identity,
including how she established it, results the security checks, and any adverse
information recorded and placed the alien file upon completion the credible fear
process. This information then provided ICE.
TECS not acronym the primary law enforcement and national security database which contains
enforcement, inspection, and intelligence records.
The Credible Fear Standard defined statute, order establish credible fear persecution torture, the
asylum officer must find that significant possibility exists that the individual could establish
eligibility for asylum withholding removal. The purpose this screening standard
dispose claims where there significant possibility success, while not foreclosing viable
claims. This procedural safeguard allows the expedited removal process act efficient
mechanism maintaining border security while ensuring compliance with the United States 
international treaty obligations regarding non-refoulement.
Several months ago, USCIS initiated review the training materials and guidance used the Asylum Division instruct asylum officers the credible fear standard. This review
has included the engagement EOIR, ICE and CBP. After more than fifteen years since the
establishment the expedited removal/credible fear screening process, review was necessary make certain that our application the credible fear standard properly reflects significant
possibility that claims for asylum protection under the Convention Against Torture will
succeed when made before Immigration Judge. This review has recently been completed and
asylum officers will soon receive training the updated guidance.
Credible Fear Determinations
Like affirmative asylum decisions, 100 percent credible fear determinations undergo
supervisory review. Individuals who are ultimately found not have credible fear are subject immediate removal ICE, unless they request limited review the USCIS asylum
officer determination Immigration Judge. The Immigration Judge can overrule the
asylum officer decision and find the individual does have credible fear. the individual establishes credible fear persecution torture, USCIS issues
Notice Appear (NTA) and the individual placed removal proceedings before
Immigration Judge which point she can seek asylum other forms relief
protection from removal. With the issuance the NTA, USCIS role the process
completed. The Immigration Judge ultimately determines whether the individual eligible for
asylum any other requested forms relief protection.
During the pendency the removal proceedings, certain individuals are entitled
custody hearing before the Immigration Judge. Aliens arriving Ports-of-Entry (POE),
however, are only eligible for parole. Parole determinations are made ICE and are not
reviewed Immigration Judge. DHS has adopted parole standards determine whether
individuals should paroled into the United States during the pendency the removal
proceedings. Aliens apprehended between the POEs who demonstrate credible fear
persecution torture are eligible for release. detained, these aliens who are placed removal
proceedings are eligible for bond hearing before Immigration Judge.
During 2013, 65% credible fear referrals involved nationals Salvador,
Honduras, and Guatemala; just over were Mexican nationals.
Developments the ICE Parole Policy
Parole administrative measure, provided under section 212(d)(5) the INA. ICE
uses this parole authority release inadmissible aliens who arrive port entry and are
found have credible fear persecution torture. Parole not lawful admission
determination alien admissibility, and can conditioned upon such terms the posting bond other guarantee. December 2009, former ICE Director John Morton issued revised directive
 Parole Arriving Aliens Found Have Credible Fear Persecution Torture ensure
transparent and consistent parole determinations for arriving aliens seeking protection the
United States. Under this policy, aliens who arrive the United States port entry and
who are found have credible fear persecution torture are considered for parole.
The policy added heightened quality assurance safeguards, such nationwide analysis number paroled aliens and their compliance rates. Further, while the prior policy allowed
ICE officers grant parole based determination the public interest, did not concretely
define this concept. contrast, the directive explains that ICE may parole aliens found have credible fear who (1) establish their identities and (2) pose neither flight risk nor danger
the community, (3) additional factors weigh against their release.
Protections the ICE Credible Fear-Parole Process definition, aliens the expedited removal process lack valid travel documents,
ICE must verify the alien identity before release from custody. When considering parole for
arriving alien found have credible fear, ICE Enforcement and Removal Operations officers
review all relevant documentation and databases determine the alien can reasonably
establish his her identity. alien paroled without undergoing comprehensive
background check identify any possible public safety national security issues. Relevant
information for this determination includes evidence past criminal activity, both the
United States and abroad; disciplinary infractions incident reports; and any criminal
detention history showing that the alien has harmed would harm others. addition, the alien must present sufficient evidence demonstrating that she will
appear for the immigration hearing when required order considered for parole. Some
the factors considered include family and community ties, employment history, record
appearance for prior court hearings, compliance with past reporting requirements, and ability
post bond. The alien must also provide address where she will reside and must timely
inform ICE and any other DHS agency (if required) any change address.
While ICE procedures reflect the sound public policy position favoring parole
positive credible fear cases where identity established, and any flight risk and public safety
concerns are alleviated, these procedures safeguard the ultimate discretion the agency
deny parole. particular, the 2009 policy specifically recognized that parole remains
inherently discretionary decision that can affected, even positive credible fear cases,
additional factors, like overriding law enforcement interests. ICE takes its law enforcement
responsibilities seriously, carefully considers each and every parole decision, and balances
with the need protect border security.
Affirmatively Filed Asylum Applications
Individuals the United States who are not subject expedited removal may seek
asylum one two ways: either applying for asylum affirmatively with USCIS
 defensively while removal proceedings before Immigration Judge. general, any
individual present the United States and not removal proceedings may file affirmative
asylum application with USCIS. Affirmative asylum procedures require in-depth, in-person
interview every principal asylum applicant. This interview conducted the same specially
trained asylum officers who conduct credible fear screening interviews.
The asylum officer fully explores the applicant persecution claim, considers country
origin information and other relevant evidence, assesses the applicant credibility and completes
required security and background checks. The asylum officer then determines whether the
individual eligible for asylum and drafts decision. Supervisors review 100 percent asylum
officers determinations prior issuance final decision. the asylum officer does not grant
the asylum application, most cases the applicant placed removal proceedings for
hearing before Immigration Judge, including decision the asylum claim and any other
claims for relief from removal. Information used make determination the individual
claim, including the interview notes, biographic information, completed security checks and
decisional documents, placed into the individual file and available for use ICE
attorneys during removal proceedings.
Defensively Filed Asylum Applications
Individuals who have been placed removal proceedings before Immigration Judge
receive full hearing and have the right request certain types relief from removal,
including, with few exceptions, asylum.
Background Checks the Affirmative Asylum Process
Before individuals are granted asylum, they must all establish identity and pass all
requisite national security and law enforcement background security checks. Each asylum
applicant subject extensive biometric and biographic security checks. Both law
enforcement and intelligence community checks are required including checks against the FBI,
the Department Defense, the Department State, and other agency systems. conducting background screenings, asylum applicants are first checked against the
USCIS Central Index System determine they have previously been issued alien number.
They are also screened against TECS, CBP primary law enforcement and national security
database which contains enforcement, inspection, and intelligence records. For applicants ages through 79, FBI search conducted the person name(s) and date(s) birth.
USCIS Application Support Center takes complete set fingerprints and biometrics
(signature, photograph and index print) asylum applicants between the ages years months and years. The FBI electronically searches the fingerprints within the Integrated
Automated Fingerprint Identification System. The 10-prints are also electronically submitted
the IDENT database, where they are stored and matched existing fingerprint records. This
system used confirm identity and determine previous interactions with government officials. addition, biometric check against the DOD Automated Biometric Identification System
(ABIS) conducted for certain cases. The Asylum Division also screens all asylum information
against the National Counterterrorism Center terrorism holdings. Finally, the Asylum Division
conducts biometric checks certain applicants against Canadian, United Kingdom, Australian,
and New Zealand holdings through agreement under the Five Country Conference (FCC). expect move 100% biometric checks through the FCC the end 2014.
The credible fear screening process and the established system that allows for individuals seek asylum the United States support efforts effectively and efficiently meet our
international obligations provide humanitarian protection refugees and other vulnerable
individuals while maintaining the integrity the immigration system and national security.
USCIS carries out these programs manner aimed protect those who deserve it, while
safeguarding the integrity the programs from those who not merit protection.
The expedited removal process critical tool for effective border management. The
credible fear screening process that identifies individuals potentially need protection the
larger expedited removal framework affords those border efficiencies while ensuring
U.S. compliance with its international treaty obligations relating non-refoulement. Prior
IIRIRA, all individuals apprehended while unlawfully entering the United States were placed
deportation exclusion proceedings before Immigration Judge such framework today
would overwhelm DHS and DOJ already stretched resources. important note that asylum officer positive credible fear finding does not
confer immigration benefit guarantee any lawful status the United States. Rather,
finding credible fear results only individual opportunity present his her
protection claim before Immigration Judge removal proceedings.
Thank you again for the opportunity testify. would happy answer your
Arriving Aliens Ports-of-Entry. Aliens
arriving ports-of-entry without valid travel
documents are subject expedited removal
without hearing before Immigration Judge.
Illegal Entrants Apprehended. Aliens who have
spent less than days the U.S. after their illegal
entry and are apprehended between ports-of-entry
within 100 air miles the border are subject
expedited removal.
Removal. The alien
immediately removed from
the U.S. without hearing
before Immigration Judge.
Does alien express fear return?
Referral CBP ICE Officer. matter law, the alien referred the
CBP ICE Officer USCIS Asylum Officer for screening interview
determine the alien has credible fear persecution torture.
Detention. The statute requires that the alien detained until the credible fear interview.
Credible Fear Determination. The USCIS Asylum Office conducts the screening interview
determine the alien has credible fear persecution torture. Per regulations, the Asylum Office
does not consider any bars (such commission serious non-political crimes) this stage the
process. The government provides interpreter services facilitate the interview, and the alien may
obtain consultant cost the government present the interview.
Does USCIS find
credible fear
persecution torture? the Immigration Judge
agrees with the negative
decision review waived alien, the alien
The USCIS Asylum Office finds credible fear and refers the case the Immigration Judge
(Department Justice) for full hearing the merits the course removal proceedings.
Detention/Parole. this point the alien may paroled the ICE Special Agent Charge.
Immigration Court. The Immigration Judge conducts full hearing the merits the asylum claim and
any other application for relief requested the alien and determines what, any, relief should granted. relief granted, the judge may issue the alien final removal order. The U.S. government
represented DHS ICE Counsel these proceedings.
BIA Proceedings. The Immigration Judge decision may appealed either the alien ICE
the Board Immigration Appeals (BIA), agency within the Department Justice. The BIA
decision may then appealed the applicant to14 U.S. federal court system.