Fox News' Idea Of Immigration “Loophole” Is Long-Standing Asylum Policy

Fox News repeatedly trumpeted a report from a local Fox affiliate claiming that immigrants crossing at the U.S.-Mexico border are using a “loophole” to enter and stay in the United States illegally by saying key phrases, namely that they have a  “credible fear” of the drug cartels. But as even its own reporting admitted, this so-called “loophole” is long-established asylum policy of allowing foreigners who fear persecution in their own country to state their case in immigration court. Moreover, the evidence doesn't support Fox's claims that these immigrants are using the tactic to ultimately skip out on their asylum hearings.

Phoenix Fox-Owned Station: Immigrants Taking Advantage Of Asylum “Loophole” To Stay In U.S.

Phoenix Fox Station KSAZ: “A Loophole Is Allowing Hundreds Of Immigrants Across The Mexico Border In To The United States.” KSAZ, a Fox-owned and operated station in Phoenix, started the claim that a “loophole is allowing hundreds of immigrants across the Mexico border in to the United States.” The report featured an interview with “a person who did not want to be identified on camera” who asserted that immigrants “are being told if they come across the border, when they come up to the border and they say certain words, they will be allowed into the country.” KSAZ also reported that in one day, “Border Patrol agents say about 200 people came through the Otay Crossing claiming a quote: 'credible fear' of the drug cartels.” [KSAZ, 8/10/13]

Fox News Used Report To Claim Immigrants Are Gaming System To Disappear In U.S.

Ainsley Earhardt: “Hundreds Of Immigrants Are Taking Advantage Of A Loophole” To Gain Entry Into U.S. On Fox & Friends First, correspondent Ainsley Earhardt claimed that according to a U.S. Border Patrol official, “hundreds of immigrants are taking advantage of a loophole and using some key words and phrases which permit them to enter America from Mexico and then stay here.” Fox then aired the comments from the anonymous person in KSAZ's report before claiming that one of the key phrases was “credible fear of drug cartels.” She went on to assert that when those who are admitted into the country receive a date for their asylum hearings, “many times, they don't show up.”  [Fox News, Fox & Friends First8/12/13]

Tucker Carlson: Immigrants “Are Taking Advantage Of A Loophole To Cross The Border And Get Asylum.” Reporting on the story on Fox & Friends, co-host Tucker Carlson called the asylum report “stunning” and went on to repeat the claim that “hundreds of illegal aliens are taking advantage of a loophole to cross the border and get asylum here in the U.S.” He added that the phrase “credible fear of drug cartels” were some of the “magic words” immigrants can use to stay in the country. [Fox & Friends8/12/13]

William LaJeunesse: “Critics Say” It's About “Getting A Court Date For Which No One Shows Up.” On America's Newsroom, host Martha MacCallum claimed the report uncovered a “massive loophole,” with correspondent William LaJeunesse adding: “Critics say this is an orchestrated sham. It's not about getting asylum -- 91 percent of those claims are ultimately denied. It's about overwhelming the system and getting released, getting a court date for which no one shows up.” LaJeunesse later admitted, however, that according to the Department of Homeland Security, “this is a long-standing policy.” MacCallum added:

MacCALLUM: There's no doubt that some individuals do have a very legitimate fear but then you've got this clogging with everybody claiming that that's their concern and that's why they need to get across the border." [Fox News, America's Newsroom8/12/13]

Jenna Lee: “Folks Trying To Get Into The United States Now Have A New Tactic.” On Happening Now, host Jenna Lee claimed that it is a “a new tactic” for those crossing at the U.S.-Mexico border to ask for political asylum by saying they have a credible fear of persecution. During his report, LaJeunesse stated: “Some call it a loophole, others a sham: With illegal immigrants making bogus claims of having a credible fear of persecution meant to overwhelm the system and existing bed space to get a date in court, for which they never show up.” LaJeunesse added:

LaJEUNESSE: Now the administration says it is simply following the law that credible fear determinations are dictated by statute not discretion, during the initial asylum interview process. A spokesman said, and I'm quoting, “The legal threshold for 'credible fear' is broad and low to ensure that individuals who may face a 'significant possibility' of persecution have an opportunity to have their case heard before an immigration judge.”

Lee went on to note however that “there are people that are legitimately seeking asylum and we don't know what's the case in this particular scenario but it certainly raised our antenna on it, if you will, because so many people were starting to use it.” [Fox News, Happening Now8/12/13]

In Fact, “Credible Fear” Of Persecution Is Long-Standing Asylum Policy

Immigration Official: “Credible Fear Determinations Are Dictated By Long Standing Statute, Not An Issuance Of Discretion.” In an article by LaJeunesse in which he legitimized the “loophole” language and claimed that “illegal immigrants have learned they can attempt to get asylum by using a few key words -- namely, by claiming they have a 'credible fear' of drug cartels,” he nevertheless quoted a Department of Homeland Security press office statement that said, “Credible fear determinations are dictated by long standing statute, not an issuance of discretion.” LaJeunesse reported:

Fox News spoke to four agencies responsible for the San Diego situation last week. All deferred to the Department of Homeland Security press office in Washington, D.C., which issued this statement:

"Credible fear determinations are dictated by long standing statute, not an issuance of discretion. The USCIS officer must find that a 'significant possibility' exists that the individual may be found eligible for asylum or withholding or removal.

“If the credible fear threshold is met, the individual is placed into removal proceedings in Immigration Court. The final decision on asylum eligibility rests with an immigration judge.” [, 8/12/13]

U.S. Immigration Law: Applicants Who Cite A “Credible Fear Of Persecution” Must Be Considered For Asylum. According to the Immigration and Naturalization Act (INA), individuals who ask for asylum upon entering the country have to establish a credible fear of persecution to qualify for it. The law states that if the immigration officer “determines at the time of the interview that an alien has a credible fear of persecution ... the alien shall be detained for further consideration of the application for asylum.” According to the INA, “credible fear” means 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.” [U.S. Citizenship and Immigration Services, accessed 8/12/13]

LA Times: “More Mexicans Seek Asylum In U.S. As Drug Violence Rises.” In an October 2012 article, the Los Angeles Times reported that asylum requests from Mexicans were on the rise as cartel violence increased in Mexico:

As cartel violence increased in Mexico, so did requests for asylum. Such requests can basically be made in two ways, and the method often reflects the resources and circumstances of the applicant.

Some applicants seek asylum “affirmatively,” meaning they already have entered the United States, sometimes with a border crossing card, and then approach U.S. Citizenship and Immigration Services. Last fiscal year, 4,042 Mexicans sought asylum this way, more than triple the number of applications five years earlier. During the same period, the agency approval rate increased slightly -- to 9% from 7%.

People may also seek asylum “defensively.” A defensive claim is made when a person seeks asylum at a port of entry -- such as a bridge or airport -- or if the person is picked up for entering the country illegally and faces proceedings in immigration court. In the last fiscal year, 6,133 Mexicans sought asylum defensively, up from 4,510 the year before, according to U.S. Justice Department figures.

Experts say this method is more adversarial because the asylum seeker is often fighting in immigration court hoping to avoid deportation.

In fiscal years 2007 through 2011, U.S. immigration courts received 21,104 defensive asylum claims from Mexicans. During the same time period, 2% of such Mexican asylum applications were granted. By contrast, out of all U.S. asylum applicants during the same period, about 24% were granted.

Among the top 25 nationalities granted asylum, Chinese often top the list. Last fiscal year, Mexicans ranked 23rd -- the first time they made the list in five years.

U.S. officials say Mexican asylum applicants are reviewed like any others.

Timothy Counts, a spokesman for U.S. Citizenship and Immigration Services, said that each asylum applicant must show “credible fear,” defined as “a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group or political opinion.” [Los Angeles Times10/28/12]

Nearly All Immigrants Appear For Court, Deportation Hearings

DHS: Only 11 Percent Of Immigrants Fail To Appear For Immigration Hearings. Contrary to Fox's claims that immigrants do not show up for their immigration hearings, DHS data show that only about 11 percent of immigrants fail to appear for their court hearings:

Of the immigration judge decisions rendered in FY 2012, 11 percent involved aliens who failed to appear. The number of aliens who failed to appear decreased by 31 percent from FY 2008 to FY 2012 while the number of immigration judge decisions decreased by 18 percent in the same time period. The failure to appear rate has remained fairly consistent from FY 2009 to FY 2012. [U.S. Department of Justice, March 2013]

Boston Globe: “96 Percent Of Participants Attended Their Final Court Hearings And 77 Percent Showed Up For Deportation.” In an article profiling BI Incorporated, a private company that monitors immigrants facing deportation hearings, The Boston Globe reported that according to BI, “96 percent of participants attended their final court hearings and 77 percent showed up for deportation.” [The Boston Globe3/17/13]