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Federal Register / Vol. 86, No. 159 / Friday, August 20, 2021 / Proposed Rules
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242a2Aiii, e2, 8 U.S.C.
1252a2Aiii, e2.
Noncitizens placed into expedited removal and determined to have a credible fear of persecution or torture by an asylum officer or an IJ must be referred for further consideration of the application for asylum. INA
235b1Bii, 8 U.S.C.
1225b1Bii. The INA is silent as to the procedures by which this further consideration should occur. Under regulations in place before December 2020,7 such individuals are currently referred to IJs for removal proceedings under section 240 of the INA, 8 U.S.C.
1229a, section 240 removal proceedings and its implementing regulations, 8 CFR 208.30f, 235.6a1iiiii, 1208.30g2ivB.
In those proceedings, IJs conduct adversarial hearings to determine removability and adjudicate applications for asylum, withholding or deferral of removal, and any other forms of relief or protection.
The process put into place in 1997, under which noncitizens who establish credible fear generally must have their asylum claims decided through an adversarial removal proceeding before an IJ, is no longer fit for its intended purpose. It does not adequately address the need to adjudicate in a timely manner the rapidly increasing number of asylum claims raised by individuals arriving in the United States.
This system was designed at a time when the vast majority of southwest border encounters involved single adults from Mexico and relatively few asylum claims were filed. This system has proven unable to manage the increasing numbers and changing demographics of noncitizens 8 with asylum claims arriving in recent years at the southwest border. Since the mid2010s, the demographic characteristics of noncitizens encountered at the border with Mexico have been utterly transformed from being dominated by Mexican nationals to consisting mainly of nationals from the Northern Triangle countries of Central America El Salvador, Guatemala, and Honduras along with other Western Hemisphere states; from consisting almost entirely of 7 See infra note 24 discussing recent regulations and their current status. The final rule entitled Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 FR 80274, 80276 Dec. 11, 2020
Global Asylum rule, revised the process used to hear the asylum claim, placing noncitizens into asylum/withholding-only proceedings instead of removal proceedings under section 240 of the INA.
8 For purposes of this discussion, the Departments use the term noncitizen synonymously with the term alien in the INA.
See INA 101a3, 8 U.S.C. 1101a3.

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adults traveling without children to including large numbers of families and unaccompanied children; and from including very few asylum seekers to asylum seekers making up a large share of southwest border encounters.9 As a result, even as overall encounters at the southwest border have been lower in recent years than in the 1990s and 2000s, the demands on the U.S. asylum system have increased sharply.
Recent demographic changes in southwest border encounters have been dramatic. As recently as 2009, Mexican nationals accounted for 92 percent of southwest border apprehensions.10
Their share fell below 50 percent for the first time ever in 2014, remained below 50 percent between 2016 and 2019, and fell to an all-time low of 20 percent in 2019, the last full year before the COVID19 pandemic disrupted ongoing migration trends.11 Single adults accounted for about 89 percent of southwest border encounters in 2013
a number that was likely near an alltime low at the timeand fell to just 38
percent in 2019.12 Over much of this period, U.S. Border Patrol USBP
agents have apprehended an increasing number of families and children from Northern Triangle countries. Individuals from Northern Triangle countries accounted for 71 percent of USBP
apprehensions in 2019, a record high, and families from all countries accounted for 56 percent of the total, also an all-time high.13
9 Office of Immigration Statistics, Fiscal Year 2020 Enforcement Lifecycle Report 1, Dept of Homeland Security Dec. 2020 OIS FY 2020
Lifecycle Report, https www.dhs.gov/sites/
default/files/publications/immigration-statistics/
Special_Reports/Enforcement_Lifecycle/2020_
enforcement_lifecycle_report.pdf.
10 Dept of Homeland Security, Fiscal Year 2019
Border Security Metrics Report 52 Aug. 5, 2020, https www.dhs.gov/sites/default/files/
publications/immigration-statistics/BSMR/ndaa_
border_security_metrics_report_fy_2019_0.pdf.pdf.
11 U.S. Customs and Border Protection, Southwest Land Border Encounters, https www.cbp.gov/
newsroom/stats/southwest-land-border-encounters last visited Aug. 4, 2021; see also OIS FY 2020
Lifecycle Report, supra note 9, at 7. Mexicos share of southwest border encounters returned to 65
percent during the first year of the COVID19
pandemic, but preliminary data indicate that Mexican nationals accounted for fewer than half of southwest border encounters during the first eight months of Fiscal Year 2021 and only about onethird of unique individuals when controlling for higher than usual repeat encounters due to border COVID19 protocols.
12 Id. The phenomenon of families being encountered at the border was sufficiently rare that U.S. Border Patrol only began recording data on family unit apprehensions in 2013, and the Office of Field Operations did so beginning in 2016.
13 Mike Guo, Immigration Enforcement Actions:
2019 at 4, Dept of Homeland Security Sept. 2020, https www.dhs.gov/sites/default/files/
publications/immigration-statistics/yearbook/2019/
enforcement_actions_2019.pdf.

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These demographic changes have coincided withand contributed to the reversal ofwhat had been a long-term trend in declining border encounters.
Moreover, as the population of individuals encountered at or near the southwest border has changed, the number of people making fear claims after being placed in expedited removal has increased sharply. Southwest border apprehensions by the U.S. Border Patrol fell from over 1.6 million in 2000 to under 330,000 in 2011 before rising back to over 850,000 in 2019.14 During the same period, however, credible fear referrals to USCIS initially decreased from just over 10,000 in 2000, to just under 5000 in 2008, before increasing back over 11,000 in 2011, to over 105,000 in 2019.15 Thus, even as overall border encounters fell 48 percent between 2000 and 2019, the number of individuals making fear claims increased over 900 percent. These changing demographics have had an equally dramatic impact on the immigration courts responsible for determining removability. EOIR now faces a pending caseload of approximately 1.3 million cases,16 with approximately 610,000 pending asylum applications.17 While the corps of IJs has more than doubled since 2014, going from 249 at the end of FY 2014
to 539 as of April 2021,18 the number of pending cases has more than tripled in that same period, growing by nearly 500,000 cases since the end of Fiscal Year FY 2018.19 This surge in 14 United States Border Patrol, Southwest Border Sectors, Total Illegal Alien Apprehensions by Fiscal Year, https www.cbp.gov/sites/default/files/
assets/documents/2020-Jan/
U.S.%20Border%20Patrol%20
Fiscal%20Year%20Southwest %20Border%20Sector%20
Apprehensions%20%28FY%201960%20%20FY%202019%29_0.pdf last visited Aug. 4, 2021.
15 Bruno, Andorra, Immigration: U.S. Asylum Policy CRS Report No. R45539, at 37 Feb. 19, 2019 data through 2018, https
crsreports.congress.gov/product/pdf/R/R45539; see also U.S. Citizenship and Immigration Services, Credible Fear Workload Report SummaryFY2019
Total Caseload 2019 data, https www.uscis.gov/
sites/default/files/document/data/Credible_Fear_
Stats_FY19.pdf last visited Aug. 4, 2021.
16 EOIR, Executive Office for Immigration Review Adjudication Statistics: Pending Cases, New Cases, and Total Completions Apr. 19, 2021, https
www.justice.gov/eoir/page/file/1242166/download.
17 EOIR, Executive Office for Immigration Review Adjudication Statistics: Total Asylum Applications Apr. 19, 2021, https www.justice.gov/eoir/page/
file/1106366/download.
18 EOIR, Executive Office for Immigration Review Adjudication Statistics: Immigration Judge IJ
Hiring Apr. 2021, https www.justice.gov/eoir/
page/file/1242156/download.
19 EOIR, Executive Office for Immigration Review Adjudication Statistics: Pending Cases, New Cases, and Total Completions Apr. 19, 2021, https
www.justice.gov/eoir/page/file/1242166/download.

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