The White House
Office of the Press Secretary
November 8, 2018

Via Teleconference

4:09 P.M. EST

MR. GIDLEY: Thank you so much. We really appreciate you guys for joining the call today. This is a background briefing regarding the prevention of illegal entry at the southwest border.


This call is on background, attributable to a senior administration official and embargoed until the conclusion of the call. By joining the call, you are agreeing to the terms.

Joining us today is [senior administration officials]. Again, this call is on background, attributable to senior administration officials.


And with that, I’ll turn it over to my colleague.

SENIOR ADMINISTRATION OFFICIAL: Thank you, Hogan. Hi, everyone. Today, in about five minutes, there will be an interim final rule posted online, available for public inspection. It's a joint Department of Justice and the Department of Homeland Security interim final rule that will be physically published in the Federal Register tomorrow morning.


This rule uses the Attorney General’s and the Secretary’s discretionary authority under Section 208 of the INA to limit eligibility for asylum for those aliens who are subject to, but contravene, a suspension or limitation on entry into the United States through the southern border with Mexico. That is imposed by a presidential proclamation under Section 212(f) or 2159(a)(1) of the Immigration and Nationality Act.

As many of you know, the President has broad authority under Section 212(f) of the INA, which says: “Whenever the President finds that the entry of any aliens or any class of aliens into the United States would be detrimental to the interests of the United States, he may, by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of any aliens any restrictions he may deem to be appropriate.


Similarly, Section 215(a) says, “Unless otherwise ordered by the President, it shall be unlawful for any alien to depart from, or enter, or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.”

As you will recall, it was this use of authority that the Supreme Court upheld, in Trump vs. Hawaii, what many of you know as the "travel ban” case.


The Departments recognize the seriousness of the use of such authority and have issued this rule to ensure that we do not provide a discretionary benefit to those aliens who violate a suspension that’s issued under those terms.

The interim rule, if applied to a hypothetical proclamation suspending the entry of aliens who cross the border unlawfully, would bar them from eligibility for asylum, and thereby channel inadmissible aliens to ports of entry, where they would be processed in a controlled, orderly, and lawful manner.


The regulations also amend the initial screening process for aliens who are subject to such a bar on asylum eligibility. In those cases, aliens will remain eligible for withholding of removal under the INA, and protections under the regulations implementing U.S. obligations under Article 3 of the Convention against Torture.

Claims under INA 241 for withholding or for the regulation implementing the Convention against Torture will be screened using the reasonable fear standard.


This regulation is entirely consistent with U.S. treaty obligations, which are not directly enforceable in U.S. law, but some of which has been implemented through legislation.

Our international obligations are satisfied through the withholding of removal provisions in the INA, and in the regulations implementing CAT, not through the asylum statute.


There are some limitations that are explicitly listed on this regulation, the most important of which is that it is prospective in nature. It does not cover anyone who has entered in the past.

That’s a good overview of the law, of it surrounding this regulation. And with that, I’m going to turn it over to [senior administration official].


SENIOR ADMINISTRATION OFFICIAL: So I just want to walk through a little bit of background on what we are experiencing at our borders right now that have led us to a situation where we’re considering additional acts and changes to better get a handle on the illegal immigration flow and the crisis we’re facing.

In fiscal year 2018, we encountered 600,000 inadmissible aliens. Of those, 400,000 attempted to enter illegally. Almost all of those who attempted to enter illegally entered on the southwest border.


Generally, we can then remove some illegal aliens through expedited removal. In the last year, we were able to remove 240,000, which is a little more than half of those that we apprehended. What we have seen as we’ve tried to remove people through expedited removal is that there's been, in the last five years, a 2,000 percent increase in aliens claiming credible fear once placed in expedited removal. So we’ve gone from 5,000 credible fear interviews in 2008, and 97,000 in 2018. The vast majority of these applications eventually turn out to be non-meritorious.

In 2018, a total of 6,000 aliens who passed through credible fear screening established that they should be eventually granted asylum; that is 17 percent of all completed cases. Interestingly, 70,000 of those who enter illegally are claiming credible fear when they enter between the ports of entry.


So what we are trying to -- attempting to do is trying to funnel credible fear claims or asylum claims through the ports of entry, where we are better resourced, have better capabilities, and better manpower and staffing to actually handle those claims in a expeditious and efficient manner so that those who actually do require asylum protections gets those protections.

With that, I will turn it over at this time to [senior administration official] to share a couple thoughts as well.


SENIOR ADMINISTRATION OFFICIAL: I think in the interest of time, we can just move to Q&A.

Q Hey, guys. Can you hear me?


Q Okay great. Thanks for doing this. I appreciate it. Two questions, I think the most obvious of which is, who is this going to apply to? I mean, you guys have some sort of -- and the President talked about this in context of the Central American folks coming up mostly from Honduras, El Salvador, and Guatemala, and in particular, the caravan. So is it going to be limited to those three countries? Is it going to be limited even more to just people in caravans? Who does this apply to?


And then the second question would be, you know, you talk about funneling people to the ports of entry, but is the goal here to ultimately reduce the number of people who ultimately claim asylum? Because by sending them to the ports of entry, you know, that's a much slower process, and a process that a lot of these people don’t want to go through, so ultimately there would be fewer people coming through that way if you can shut down the areas between the ports, and the goal is to reduce those numbers?

SENIOR ADMINISTRATION OFFICIAL: Thanks for those questions. I’ll take the first one, which is who does it apply to.


The text of the regulation itself, which is all we’re talking about today, is it applies to anyone who is subject to a presidential proclamation suspending the entry of aliens or limiting, or placing restrictions on their entry. At this time, we don’t have anything to announce about any presidential proclamations, but we’ll anticipate having news to share with you all tomorrow.

SENIOR ADMINISTRATION OFFICIAL: Michael, for the second question, I would say that our intention is to be able to more quickly arrive at determinations for those who have legitimate asylum claims so that those can adjudicated -- those individuals can receive protection and then go on with their lives.


We expect that by having additional people flow to the ports of entry, we will be able to better place resources there to affect that. We've already started to work on our staffing models to ensure that we can handle the asylum claims that we're going to be seeing. But there is -- that's our goal.

Q Thank you. My question is one of time and space. I know there's a lot you can't talk about until tomorrow, but is this going to be indefinite? You talked about how the President has that authority under the INA for any period necessary. Is this going to be something that is going to be an indefinite new policy that sticks?


And then, on space, do you have the resources, or are you building the resources, the space, to detain all of these people who you would presumably deny?

SENIOR ADMINISTRATION OFFICIAL: So as it pertains to the regulation, the regulation is an interim final rule that makes a permanent change to Title 8 of the Code of Federal Regulations. So the regulation itself is in there for use by this President or any future president as they see fit. It only becomes effective when the President issues a proclamation that suspends the entry or places restrictions on the entry of aliens into the United States.


SENIOR ADMINISTRATION OFFICIAL: And, Julia, on the second one, I just want to make sure: you said increase our ability "to detain"? I think our expectation is that, by being able to funnel through the ports of entry and more efficiently and effectively work through these, given the second part of the reg, returning to the reasonable fear standard, that we will be able to see and adjudicate more of these more rapidly.

But, yes, we are working through the resources and manpower to ensure that we can do that in a responsible manner.


But we just need to be clear that DHS personnel on the border have many responsibilities; hearing asylum claims is one of those. I would point you to our counter-drug mission, our counter-narcotics mission; our screening for criminals and for terrorists; our trade facilitation mission. All of these take place at the ports of entry along the border. And so we have a number of different missions; this is one of them. And we're trying to set it up so we can handle all of these missions in the most effective manner possible.

Q Hi, thanks very much. I had sort of a basic question. Can you just walk us through the steps of what happens to somebody who shows up claiming asylum, and they're not at a port of entry? Sort of, step by step, what happens to that person? And then, on a more global question: The President talks a lot about wanting to crack down on illegal immigration versus legal immigration, but a lot of people will see this as a crackdown on what's currently the asylum system -- limiting it, a legal form of immigration. So can you just talk philosophically if that's the intent?


SENIOR ADMINISTRATION OFFICIAL: We'll split up your question into two parts for those of you (inaudible). We'll take the second part first, and then the first part second.

On the second part, I think it's important just to remind people that those who enter the country between ports of entry -- i.e. illegally -- are knowingly and voluntarily breaking the law. It's a federal crime. People can and do go to jail for it every single day. Punishable by up to six months in prison.


And the second time you lawlessly enter our country, you can go to jail for a felony criminal offense. So it's serious enough that first time is up to six months, and the second time is a felony punishment over a year to be served in prison.

So it's just important to remind everybody that while all immigration laws do afford people various forms of protection, the reality is that it's a violation of federal law to enter our country in the manner that these illegal aliens are entering the country.


And so with that, I'll hand it over to my colleague to ask the first part of the question.

SENIOR ADMINISTRATION OFFICIAL: So to not take up too much time here answering your questions but to give a brief overview -- the current process, if an alien is apprehended after crossing -- cross the border unlawfully, after apprehension and initial processing and intake by U.S. Customs and Border Protection, they are referred then -- if they express an intent, or if they express a fear of return, they are referred for an interview with the USCIS -- that's U.S. Citizenship and Immigration Services asylum officer -- who assesses their claim for fear under the credible fear standard, under which they determine, according to the statute, whether the alien has -- taking in -- credible fear is defined as a significant possibility, taking into account the credibility of the statements made by the aliens in support of the alien's claim and such other factor, as are known to the officer, that the alien could establish eligibility for asylum under Section 208.


If they satisfy that screening standard, they are then placed -- and they established a credible fear of persecution -- they are then referred for immigration court proceedings under Section 240 of the Immigration and Nationality Act. Under this regulation, an alien who is subject to a proclamation suspending his entry or restricting his entry into the United States would be initially interviewed for their fear claims.

The officer would determine whether or not the proclamation applies to the alien. If it does, their credible fear screening would be put to the side and it would not be denied because there would be no possibility that the alien could establish eligibility for asylum. Instead, they would be interviewed and determined whether or not they have a reasonable fear such that they should be granted withholding of removal under Section 241 of the INA or protection under the regulation to implement our obligations under the Convention against Torture. It's a higher bar but that is the process.


SENIOR ADMINISTRATION OFFICIAL: I just want to point out a couple numbers here to give this a little bit better context. Is that -- currently we're seeing about 89 percent of aliens from the Northern Triangle are receiving a positive credible fear determination. In those -- in nearly half of those cases that then go to an immigration judge, one, the alien failed to appear at the hearing or failed to actually file an asylum application. Seventy-one percent of the claims were completed with an issuance or an order of removal. Thirty-one percent of claims completed were the alien failed to appear at a hearing. Forty percent were claims completed without the alien filing the application. Only 9 percent of those who passed the initial credible fear actually meet the standard for asylum.

So just something to include in your reporting: that although there may be a number of people seeking to come here claiming asylum, history and statistics have shown us that the number who are actually qualified for asylum is a much, much lower number. And in the case for many of these countries, less than 10 percent.


And our objective is to have a process that works quickly and efficiently so that those people who actually qualify for an asylum claim are able to have that determination made so that they can then begin their life under the protections granted by the U.S. government.

SENIOR ADMINISTRATION OFFICIAL: But also, just to add to that -- and I think we'll probably -- those numbers are going to shared with everybody on the call in part of the background materials.


So we talked about upholding our laws. So you have individuals who are coming to our country illegally, choosing to break our laws as their first act upon entering the country. Then, in some cases, they are engaging in willful immigration fraud. And then, in those same cases, they are willfully defying court orders, absconding, and then, in many of those cases, they will illegally obtain fake identities, fake work permits, fake Social Security numbers.

So you could have individuals here whose opening participation in our society involves a series of back-to-back civil and criminal infractions -- one after the other after the other -- meanwhile depriving legitimate asylum seekers of a chance to have their cases heard because they are creating a judicial crisis in the form of a 700,000 backlog.


So it's a massive -- frankly, almost historically unparalleled abuse of our immigration system that is completely and totally overwhelming the immigration system, the asylum system, border security, receiving communities. By any definition, it is a full-fledged and very large crisis.

Q Hey, guys. Thanks for doing the call. How does this solve your problem of families and unaccompanied kids, who make up about 40 percent of apprehensions? In the Rio Grande Valley, it's about half of all apprehensions between the ports of entry. If all of those folks just go to ports of entry, you still can't detain them under federal law, based on a variety of rulings and agreements and so on. So how does this impact them?


And how do you get to those folks through that process at ports of entry that are not built for massive numbers of people? The largest port is San Ysidro, with about 300 beds -- or room for 300 people at any given time. As you pointed out, there's all kinds of other things at ports. So what are you going to do with all those folks when they do arrive at ports, since you can't detain them for longer than 20 days as family units?

SENIOR ADMINISTRATION OFFICIAL: I would say, first off, that we do not expect any one action to stall all of the myriad legion of flaws in our nation's current immigration system. We are looking at a number of possibilities and a number of legal options. The President has stated his commitment to securing our border, and we are working to ensure that that is possible. And we're working to ensure that the border does become secure.


So what I would tell you is, this is one effort; this is one option to address a particular issue. And I would expect that we'll be working on additional measures in the future.

MR. GIDLEY: All right, guys. Thank you for jumping on the call. Once again, this is on background from senior administration officials. The embargo is lifted.


END 4:31 P.M. EST

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