Ted Cruz: Catch and Release of Illegal Immigrants Is ‘Troubling’

The Obama-era practice of turning aliens loose and asking them to return for a court hearing has not stopped

by Brendan Kirby | Updated 19 Oct 2017 at 2:00 PM

Sen. Ted Cruz (R-Texas) sounded an alarm this week that the infamous “catch-and-release” policies of Barack Obama’s administration have not fully ended.

Cruz questioned Attorney General Jeff Sessions about it during his appearance before the Senate Judiciary Committee on Wednesday.

"That is highly troubling," Cruz said. "When I heard those reports in January and February, I told them, 'Give the administration some time to get their team in place to change policy. Because you can't turn a battleship overnight.' It's now October."

Sessions said President Donald Trump has tried to change the practice but has run up against roadblocks. He noted that a backlog in immigration court cases roughly doubled from about 300,000 in 2011 to more than 600,000 last year.

He said about 5,000 illegal immigrants in 2009 claimed they had a "credible fear" of returning to their homeland, triggering an asylum process. That ballooned to 94,000 last year, he said.

"It's not the policy. It's just the reality that there are so many people claiming and being entitled to hearings that we don't have the ability to provide those hearings," Sessions said. "And they are being released into the community and they're not coming back for their hearings. It's still unacceptable."

Sessions said 50 new immigration judges have been hired this year and that he expected 40 more to come on board by January. He said this would help whittle down the case backlog, but he called on Congress to expedite the asylum process.

"Those people are basically entitled to hearings. And this is a loophole that's too big. And we need to create some sort of control over it," he said. "We are looking at if there are any things that we can do effectively, short of legislation. But there's no doubt, Mr. Chairman, we need legislation on this subject and several others."

Immigration and Customs Enforcement (ICE) representatives could not immediately be reached for comment Thursday.

'Credible Fear Scrutiny'
Percentage of "credible fear" claims approved
MonthFear Found
October76.3%
November80.8%
December74.8%
January80.7%
February78.1%
March71.2%
April73.3%
May70.2%
June68.1%
Source: U.S. Citizenship and Immigration Services

Brandon Judd, president of the union that represents U.S. Border Patrol agents, said his agency has returned to pre-Obama practices. Under Obama, Border Patrol agents were under orders to release anyone claiming to have been in the United States since before Jan. 1, 2014, as long as they did not pop up during a criminal background check.

The agency also released other illegal immigrants caught near the border after issuing notices for them to appear for immigration court hearings. But a large percentage of them never appeared for those hearings.

"Under the Obama administration, it got almost to the point where we were releasing everybody," he said.

That has changed, Judd said. Now, border agents transfer apprehended illegal immigrants to ICE. But he said some ICE offices are still releasing people with instructions to return to court, particularly youths coming from Central America and adults traveling with them.

Judd said it is contrary to the spirit of Trump's policy and one of the reasons why border crossings have been rising for months after sharp declines that initially occurred after Trump took office.

"It is something that upsets our agents because that sort of thing gets back to other countries," he said. "People know that we're still releasing people ... We're not carrying out the rhetoric the way I believe it was intended to."

Ira Mehlman, a spokesman for the Federation for American Immigration Reform, said the rising border crossings are a signal that lawmakers need to act with urgency.

"It is important for Congress to get to work for more judges, more detention spaces, all of the things that expedite the process," he said.

Jessica Vaughan, director of policy studies at the Center for Immigration Studies, said she believes a lack of detention space plays a role in some cases. So, too, does a 2015 ruling by a federal judge in California ordering the release of minors and their mothers who had been caught crossing the border without permission, she said.

A three-judge panel of the 9th U.S. Circuit Court of Appeals in July upheld U.S. District Judge Dolly Gee's ruling.

When illegal immigrants tell Customs and Border Protection officials that they fear persecution if they are returned home, it triggers what can be a long process. First, a customs officer makes an initial determination and then schedules the person for a hearing to determine if asylum will be granted. If the illegal immigrant loses, he or she can appeal to an immigration judge.

Vaughan said that under lax standards during the Obama administration, the government accepted the vast majority of "credible fear" claims. Statistics published by U.S. Citizenship and Immigration Services indicate the new administration has applied a bit more scrutiny. During the first four months of fiscal year 2017 — during Obama's presidency — the government found credible fear had been established in 79 percent of cases. That dropped to 73 percent during the next month months under Trump.

Vaughan said illegal immigrants who come to the border should be directed to Mexico City to apply for asylum at the U.S. embassy. If they have to wait in Mexico for an extended period of time, she said, it likely would serve as a deterrent.

Vaughan said the eighteenfold increase in "credible fear" claims since 2009 is the result of coaching by smuggling organizations and not an increase in oppression in Central and South America.

"The conditions are the same," she said. "This is the result of people realizing if they make it to the border, they will be let in and allowed to stay for an indefinite period of time — years at a minimum."

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