10/28/2013 03:56 pm ET Updated Dec 28, 2013

The Wall Street Journal Misplays the 'Asylum Card'

The Huffington Post's "Best World Reads of the Week: October 12-18" recommends the October 17 Wall Street Journal article, "Credible Fear: More Illegal Immigrants Ask for Asylum" by reporter Joel Millman.

Millman, however, fails to provide the context behind the article's theme that many undocumented immigrants apprehended by the Border Patrol are "playing the asylum card," claiming a fear of return to their country of origin in order to delay or avoid deportation.

Millman asserts such asylum claims are "flooding immigration courts," with 27,546 lodged in FY2013 alone. However, the 2004 reform that gave rise to these credible fear claims actually shifted workload away from the courts, authorizing the Border Patrol to exercise deportation authority previously reserved for immigration judges. In 2012, the Border Patrol summarily deported 240,363 undocumented migrants, all of whom would have previously gone to immigration court. It seems that, for every one credible fear case that has been added onto immigration judges' docket, nine deportation cases have been taken over by the Border Patrol.

Since the 2004 reform, if a Border Patrol agent apprehends a migrant within 100 miles of the border and believes that the migrant entered within the last 14 days, DHS may summarily deport him. He has no right to see a judge, consult a lawyer, or speak with any government official other than DHS law enforcement officers. Only if the migrant successfully expresses to the Border Patrol that he has a fear of return will he be allowed to consult an attorney and speak to an asylum officer. If the migrant is then able to establish to the satisfaction of the asylum officer that he has a "credible fear" of return, he will finally be able to see an immigration judge and apply for asylum. Otherwise, the migrant is deported.

How did DHS get such broad and unreviewable powers of deportation? Through 1996, anyone being "deported" or "excluded" from the United States had the right to see an immigration judge. That year, however, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), which authorized immigration inspectors at land, sea, and air ports to "expeditiously remove" arriving non-citizens who lacked proper documentation to enter the United States. Once in "expedited removal" proceedings at a port of entry, the only way for an arriving non-citizen to be allowed to consult an attorney -- or to otherwise have his case reviewed before removal from the United States -- is to convince the immigration inspector that he has a fear of return. The arriving non-citizen is detained in jail-like conditions until an asylum officer decides that his fear of return is "credible."

In 2005, I directed a congressionally authorized study on expedited removal and credible fear proceedings for the U.S. Commission on International Religious Freedom (USCIRF). We were given unprecedented access to ports of entry, where we observed hundreds of inspections. The USCIRF study documented that, more often than not, DHS inspectors failed to follow their agency's own procedures designed to prevent erroneous removals of non-citizens.

While the USCIRF study was limited to the ports of entry, in 2004, the Bush administration announced the expansion of expedited removal authority to the interior as well. In other words, the Border Patrol was suddenly authorized to arrest and expeditiously remove undocumented migrants apprehended within 100 miles of the border within 14 days after entry. Although the USCIRF study did not include the Border Patrol, the Department of Homeland Security gives us no reason to believe that its officers at the border are any less prone to abusing their authority than DHS officers at ports of entry.

What does a migrant apprehended by the Border Patrol "win" by successfully claiming a "credible fear" of being returned to his home country? Not the right to work, nor the right to be freed from detention. Only the right to be considered for release from detention, and the right to see an immigration judge. Even then, the migrant often "sees" the immigration judge only on a TV screen, while sitting alone in front of a camera, in shackles.

Undocumented migrants who recently entered the country should indeed be subject to an expedited removal procedure. However, the procedure should be fair and transparent. Expedited removal as it exists today takes place in a black box, with unchecked deportation authority by gun-wielding border patrol agents and immigration inspectors. Apparently, an increasing number of people have discovered that the only possible escape route from this black box is an asylum claim.

Since 2005, DHS's Customs and Border Protection has done little to address the recommendations of the USCIRF study to make expedited removal transparent and accountable. It is unfortunate that the Wall Street Journal did not mention any of the larger problems with expedited removal and the solutions suggested by USCIRF. While expedited removal remains yet another dysfunctional component of our broken immigration system, it is one of the few that can be fixed without waiting for legislation.