Rep Zoe Lofgren Statement on House Judiciary Committee's Failure to Move Meaningful Immigration Reform, Hearing on "Asylum Abuse: Is it Overwhelming our Borders?"

Reps. Zoe Lofgren (D-CA), the top Democrat on the House Judiciary Immigration and Border Security Subcommittee, delivered the following statement during the last hearing of the House Judiciary Committee in 2013, titled "Asylum Abuse: Is it Overwhelming our Borders?":

(as delivered)

Five years ago, I became part of an increasingly rare process in the House of Representatives—a large group of lawmakers. We met once or twice a week, sometimes more often, to try and devise a plan to fix our broken immigration system. And although that process went on hiatus for much of the last Congress, we renewed our efforts last fall and worked hard until just a few months ago when several Republicans in the group—for whom I have a great deal of respect—announced their departure from the group.

That process may not have borne fruit—not yet, at least—but at least it was something. I'm afraid that when it comes to immigration, the work this Committee has done over the past year has not moved the ball forward. Hope springs eternal, however, and when I return for the next session in January I will come ready to work.

But back to today's topic. Before I address the question put to us by the title of this hearing I think it's important to review how our current expedited removal and credible fear processes came about and what they are.

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). I voted against the bill in Committee, I voted against it on the Floor, and I voted against it when it came out of conference. I believed then, as now, that the bill was a mean-spirited bill that would do drastic damage to immigrants and our immigration system.

One of the most pernicious aspects of that law was the creation of expedited removal, which allows people apprehended at our ports, along the borders, and – in some cases – in the interior to be deported with little due process. As Congress recognized at that time, expedited removal posed the real danger that bona fide asylum seekers would be summarily removed from the country to face persecution and torture abroad.

In an effort to prevent that unacceptable outcome, the law required that every person subject to expedited removal be screened to determine whether they express a fear of returning to their home country. If so, the law required that except in very limited circumstances they be detained until a trained Asylum Officer could interview them and determine whether or not they possessed a "credible fear" of persecution.

We defined "credible fear" at that time to mean that there is a "significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum." This is a lower standard than the "well-founded fear" standard that applies to a final decision on the merits of an asylum claim, and that was our intention. We understood that it can be nearly impossible to demonstrate a well-founded fear of persecution just days after arriving in the country, and setting the bar too high would lead to unconscionable results.

After the bill became law, we heard a wave of complaints regarding the effect that expedited removal was having on asylum seekers. And just two years later, Congress enacted the International Religious Freedom Act of 1998 and we established the U.S. Commission on International Religious Freedom (USCIRF) – an independent body whose Commissioners are appointed by the President and the Congressional leadership of both parties. In that very first authorizing statute, Congress asked the commission to study the impact of expedited removal on people fleeing persecution.

The commission issued its study in 2005 and concluded that because of expedited removal "and its serious flaws, the United States' tradition of protecting asylum seekers – not to mention those asylum seekers' lives – continues to be at risk." One of the most striking findings had to do with ICE's practice of paroling people out of detention. Policy guidance clearly authorized parole after an applicant had demonstrated a credible fear, had also established his or her identity, and had also showed that he or she posed neither a flight risk nor a danger to the community. But while one ICE field office paroled 97.7 percent of applicants, another paroled just 0.5 percent. So it was recommended by the commission that the issuance of regulations to promote consistency.

Now I want to turn to the question of today's hearing: "Asylum Abuse: Is it Overwhelming our Borders?" Let's analyze that.

First, are our borders overwhelmed? By historical measures the answer is clearly no. Although we've seen an increase in attempted border crossings along our southwest border over the past two years, this is an increase from what appears to be a 40-year low just two years ago. And given the increases we have made in manpower and infrastructure at the border, there is no way to argue that they are more overwhelmed today than they have been for much of our recent history.

Second, are some parts of our border overwhelmed? I hope to learn more about that today, but there is no question that we've seen a sharp increase in people expressing a fear of being returned to their home countries. There were 5,369 claims of credible fear in Fiscal Year 2009; more than double that number, 13,880 in Fiscal Year 2012; and nearly triple that number, 36,035 this past fiscal year. Still, to keep things in perspective: only a small fraction of the people apprehended at and in between our ports express such a fear. The overwhelming majority of people subject to expedited removal are removed from the country in a short period of time.

So the final part of the question is whether the recent increase is the result of asylum abuse. And the truth is that we don't yet know—we can't yet know. The cases that are driving the increase in Fiscal Year 2013 have largely not yet been adjudicated by the immigration courts. As this Committee has documented time and time again, the case backlog in our courts—caused primarily by inadequate investment in new judges, support personnel, and facilities—is preventing cases from being resolved in an acceptable timeframe.

We do know a few things, however.

The increase in credible fear claims is being driven by people from Central America—65% of the claims in FY13 came from Guatemala, Honduras, and El Salvador. Although claims by Mexicans have increased, Mexicans still make up only 7 percent of all credible fear claims.

Also, more than three-quarters of the claims are coming from people apprehended between the ports, not at the ports. Since people apprehended between the ports are not eligible for parole under the parole directive issued by ICE in 2009, this provides strong evidence that the directive itself is not drawing people to come here.

Something is, in fact, going on. The number of people claiming a credible fear of persecution or torture definitely increased in the last two years. But whether that is the result of better fear screenings, efforts to defraud the system, or a brewing refugee crisis in the Western Hemisphere is something we still need to explore. Prejudging that question, I believe, is dangerous and unwise. I look forward to learning from our witnesses and I thank each of them for appearing today.

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Video from today's hearing can be viewed by clicking here.