THE IMMIGRATION BUCK STOPS HERE – PART TWO – ASYLUM

WARNING:  This is a very long post.

Every time the Trump Administration rolled out a new asylum policy, I had to ask myself, “Can they actually do that?  Is that even legal?”  And then I had to admit that I didn’t know, because I didn’t know what the U.S. asylum laws are.  So I decided to educate myself on the subject—just dip my toe into it, really—so I could see what’s happening at the southern border through the lens of U.S. immigration law and decide whether the Trump Administration is weaponizing that law as a deterrent.  Spoiler alert:  for the most part, it is.

Before getting into specifics, let me just say that it’s hard to know what the American asylum law is.  It’s very complex, and to make matters worse, it’s a moving target with new policies being rolled out almost daily, with some of those policies being challenged by civil rights organizations and ultimately rejected or accepted by the courts.  A lot is pending.  A lot is in flux.  And beyond the statutes, voluminous case law, and policies, there are regulations and manuals that should be read to really understand how the law is being applied.  I have no access to those, which is a pity, because application of the law is key.  It’s the most difficult aspect to discover, however, because transparency is not in the interests of those implementing the policies that enforce the laws.   So, I’m not sure I have everything exactly right here, and if I’ve gotten some procedures or timelines wrong, my apologies.

First, what is asylum?  From the American Immigration Council, a non-profit organization that advocates for immigrants:

Asylum is a protection granted to foreign nationals already in the United States or at the border who meet the international law definition of a “refugee.” The United Nations 1951 Convention and 1967 Protocol define a refugee as a person who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion.” Congress incorporated this definition into U.S. immigration law [in the Immigration and Naturalization Act of 1952, as amended in 1965, the “INA”] and the Refugee Act of 1980.  As a signatory to the 1967 Protocol, and through U.S. immigration law, the United States has legal obligations to provide protection to those who qualify as refugees. 

The first thing to note is that fleeing your home because of extreme poverty, a desire for a better life, persistent crop failure from climate change, or governmental corruption are not within the refugee definition.  We can argue about whether that is fair and just or out-of-date, but that’s the way it is.  Refugee and asylum law came out of the Holocaust and the failure of European and American governments to accept those fleeing Nazi persecution and the refugee law reflects that historical context.

Second, you might wonder:  Are there any limits on the number of people who may apply for or be granted asylum?  No, unlike the annual limits on refugees who are resettled in the U.S., if you make it to the U.S. border, even if you cross illegally, you have the right to apply for asylum under §1158 (a)(1) or §1225(b) of Title 8 of the INA (emphasis added): 

   

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.

So what happens when you arrive at a designated port of entry or are picked up elsewhere inside the U.S. border without a visa or other documentation permitting you to enter?  It depends on who you are and where you entered.

Step One:  the CBP intake interview.  You will be asked by the Customs and Border Patrol (CBP), part of the Department of Homeland Security (DHS), who you are, why you came, and how long you intend to stay.  You’d better have the magic answers to those questions, because if you want to claim asylum, that’s the time to say so or to express fear of persecution because of one of the five categories defining refugee status.  Your name will be checked against databases to be sure you aren’t a terrorist, haven’t been convicted of a serious crime, or aren’t otherwise a danger to the national security of the U.S. and you will be given a medical exam.   If you fall into one of the security risk exclusions, or if a medical exam shows you have a contagious disease, you will not be permitted to make an asylum claim and you will be summarily deported.  Otherwise, if you gave the right answer and claimed fear of persecution for one of the five recognized categories defining refugee status, you will be referred a United States Citizenship and Immigration Service (USCIS) officer for a “credible fear screening” described in Step Two.  But first…there are a few roadblocks.

Roadblock One:  Failure to give the right answers.  There is no provision in the INA that you be represented by an attorney at the CBP intake interview.  At most, you will be provided with a translator.  So if you tell the CBP officer you came to the U.S. to escape poverty and seek a better life, you will be deported.  Asylum seekers who tell the CBP they came to the U.S. to escape domestic or gang violence will be referred to a credible fear screening, even though there is no specific reference to either in the U.N. 1951 Convention or the INA.  That’s because international and domestic courts have held that women and ex-gang members qualify as members of “a particular social group” entitled to refugee protections when their countries do not protect them.   

Roadblock Two:  The CBP slow-walk.  The INA does not require that a credible fear screening be held within any particular time after the initial CBP interview.  Taking advantage of this omission, and in keeping with the policy of deterrence and making the process for migrants at the southern border as difficult and painful as possible, the CBP has significantly slowed down the processing of asylum seekers to the point that some of them give up before they even get a credible fear screening.

Roadblock Three:  Detention and Flores.  As noted, you have the right to apply for asylum even if you entered the U.S. at a place other than a designated port of entry.  However, §1325 of the INA makes it a federal misdemeanor to cross the border anywhere other than at a designated port of entry.  In the past, that section wasn’t enforced very much.  Enforcement is a matter of prosecutorial discretion—it’s political.  There were some detentions for illegal crossings under the Clinton Administration, and in fact Reno vs. Flores (1993) and its consent decree in 1997 occurred during the Clinton presidency.  I’m not going into Flores in any detail, other than to say that the decision and consent decree held that the government cannot keep an unaccompanied minor in detention for more than 20 days, and thereafter the child must be released to his or her parents, to an adult relative, or failing that, to a suitable institution.  

After 9-11, under the Bush Administration, U.S. immigration policies changed radically, no pun intended.  Now every person entering the U.S. became subject to an FBI check for terrorism, which slowed migration down, including at the southern border.  §1325 was also more strictly enforced after 9-11 and as a result, more of the mostly single men from Mexico seeking work who came across the southern border illegally at that time were placed in detention centers, and a thriving for-profit industry was born.

In 2014, things changed yet again, some argue as the result of Flores, and there was a surge in the number of migrant families arriving at the border.  The Obama Administration sought to keep the families together in detention, but a 2015 court ruling held that Flores applied equally to accompanied minors.  So, the Obama official policy was to release the accompanied minors together with their families, except in cases where child custody could not be established or the parent was being prosecuted for a crime other than crossing the border at a place other than a designated port of entry.  This was called “catch and release.”  This was not “family separation.”

That came under the Trump Administration’s “Zero Tolerance” policy, which strictly enforced §1325, no exceptions.  So, now, if you enter with your family at a place other than a designated port of entry, you and your family will be immediately placed in detention—without the ability to post bond, under new rules promulgated by Attorney General Barr, who has enormous unreviewable discretion under the INA.  After 20 days, your minor child will be placed in a child detention center to await placement.  Somewhere.  At that point, it’s anyone’s guess when you will have an opportunity to make your asylum claim, or when your family will be reunited.  Frustrated by Flores, the Trump Administration continues to try to get the consent decree overturned or modified to allow the government to detain minor children for more than 20 days, so far without success.  But they will keep trying unless Congress repeals §1325 and makes illegal crossings a civil matter.  I’m not holding my breath.

Step Two:  The USCIS credible fear screening.   If you requested asylum or stated a fear of persecution under the defined refugee categories to the CBP officer, then congratulations!  You are now subject to expedited removal, an accelerated process that authorizes DHS to deport you.  But it also entitles you to a credible fear screening by an USCIS officer.  At that screening, if you demonstrate to the USCIS officer’s satisfaction that you have a “credible fear” of persecution on the basis of your race, religion, nationality, membership in a particular social group, or political opinion, you can defer expedited removal and move to the next step:  immigration court.  

Roadblock Four:  Timing and Tijuana.  There is no timing requirement in the INA governing when the credible fear screening must be held, so you could wait a long time for that after your CBP intake interview.  There is also no prohibition in the INA against DHS sending you to wait in Mexico until your credible fear screening, and that is what the Trump Administration has been doing in another attempt to deter migration to the southern border.  U.S. courts have upheld the policy, which was extorted out of Mexico with a tariff threat.   We’ll see how long that arrangement lasts.  There are already an estimated 13,000 asylum seekers sitting in Mexico, with little access to lawyers, waiting for their credible fear screenings or their immigration court appearances, or thereafter while their applications are slowly making their way through the asylum processing system.  By the way, have you noticed that the Trump Administration hasn’t asked for any money to hire more immigration judges in its “border security” funds requests?  That in and of itself would take a lot of pressure off the system, which suggests to me that there is no desire to relieve pressure.  A crisis at the border is a useful election campaign tool.

Roadblock Five:  Domestic and gang violence denials.  The Trump Administration tried to limit the grounds for credible fear with a policy introduced in June 2018 that would have categorically excluded asylum claims based on domestic or gang violence.  A federal court struck down that policy last December, holding that people who make domestic or gang violence claims must have the fair opportunity to apply for asylum.  In response, the USCIS issued new guidance and training manuals to its officers to make it harder for applicants to pass the credible fear screening.  Joining in the deterrence effort is the State Department, which created detailed maps showing crime levels in Central American countries so the screeners can challenge asylum claims based on gang and domestic violence.

Roadblock Six:  Outsourcing.  Most recently, the Trump Administration promulgated a rule that would require asylum seekers at the southern border to apply for and be denied asylum in either Mexico or Guatemala before their asylum claims could be made in the U.S.  That policy appears to rely on §1158(a)(2)(A) (emphasis added):

(A) Safe third country 

Paragraph (1) [permitting an asylum claim to be made in the U.S.] shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality… ) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection….

According to this section, the Attorney General’s discretionary right to refuse an application for asylum depends on there being in place an agreement with a third country to process an asylum request there.  Both Mexico and Guatemala have refused to participate and there is, as of this date, no agreement with either in place.  Unperturbed by the legal formalities, the Trump Administration has implemented the policy anyway.  What the hell?!  We’re in charge of our borders.  In the absence of a bilateral or multilateral agreement with Mexico and Guatemala, it seems pretty clear the policy is illegal on its face.  The ACLU thinks so and has already filed suit to enjoin and invalidate it.  Meanwhile, unless and until a court issues an injunction, the policy will continue to be implemented.  Query what Mexico and Guatemala will do with these asylum seekers if the U.S. puts them on a bus headed their way.  And query whether these countries, especially Guatemala, are “safe” by any conventional definition.

Step Three:  Immigration court and the asylum application.  If you haven’t been put on a bus to make your asylum application in Mexico or Guatemala, and if the USCIS officer determines that your fear is credible, which can depend on what side of the bed the asylum officer woke up on or how he or she decides to interpret the refugee definition, DOJ policy guidelines, and USCIS manuals, then the USCIS officer must refer you to the immigration court where you finally have the right to file an application for asylum.  Once before the immigration court, but—critically—not until, you will be informed of your right to counsel and will be given a list of attorneys available on a pro bono basis.

Roadblock Seven:  “Oops! You’re too late.”  While you’re cooling your heels in Tijuana, you could face another roadblock-- this one potentially fatal.  There is no requirement in the INA that the USCIS officer advise you at your credible fear screening that you must file your asylum application with the immigration court within one year of your entry into the U.S.  This is despite the fact that failure to apply for asylum within the one-year period is sometimes the sole ground for denying an asylum claim.  It is settled law that everyone physically present in the U. S.—citizen and non-citizen alike-- is entitled to the protections of the 14^th Amendment to the U.S. Constitution, the Equal Protection Clause.  For this reason, there is litigation pending to determine whether USCIS is obligated to tell you about the one-year deadline.  But until that is decided in favor of the asylum seeker, there is no indication that USCIS has an incentive to be helpful. 

Roadblock Eight:  Courtroom delays.  Assuming you don’t blow the one-year deadline, after your asylum application is filed, “in the absence of exceptional circumstances,” you are entitled to an initial hearing on your application within 45 days and a final adjudication within 180 days.  These deadlines have become a joke, given the backlog of cases before the immigration courts, and neither the 45-day nor the 180-day limits are adhered to.  As the American Immigration Council reports (emphasis added):

As of March 2018, there were more than 318,000 affirmative asylum applications pending with the U. S. Citizenship and Immigration Service. The government does not estimate the time it will take to schedule an initial interview [the credible fear screening] for these asylum applicants, though historically the delay could reach four years for such asylum seekers.

Individuals with an immigration court case who were ultimately granted relief—such as asylum—by March 2018 waited more than 1,000 days on average for that outcome. 

So, given that it could take four years to get a credible fear screening and another three years for a final decision on your asylum application in immigration court, what do you do and where do you go while your application is moving through the courts at a glacial pace?  If you’re not sitting in Mexico, Guatemala, or in a U.S. detention center, then maybe you try to connect with your relatives or sponsors in the U.S.  But leaving the area where your asylum application is pending presents a risk.  If you fail to appear for a hearing, unless you were authorized to do so or exceptional circumstances prevented you from doing so, that alone is grounds for dismissal of your application.  That makes you subject to immediate deportation, and because you failed to establish your refugee status, you can be sent back to your country of origin.

 

As the American Immigration Council notes:

Asylum seekers, and any family members waiting to join them, are left in limbo while their case is pending. The backlogs and delays can cause prolonged separation of refugee families, leave family members abroad in dangerous situations, and make it more difficult to retain pro bono counsel for the duration of the asylum seeker’s case.

Although asylum seekers may apply for work authorization after their case has been pending for 180 days, the uncertainty of their future impedes employment, education, and trauma recovery opportunities.

 

Deportation Rate for Unaccompanied Minors, 2014

Roadblock Nine:  Corroboration.  The burden to prove refugee status is on you.  You can meet the burden with your own testimony, provided the immigration judge finds it credible, persuasive, and refers to specific facts.  But the judge has the right to require corroboration, and unless you cannot reasonably obtain corroborative evidence, you must produce it, and if you don’t, your asylum claim will be denied.  A lot hangs on your testimony, the availability of corroborative evidence (which might be located in the country from which you escaped with your life), and the judge to whom you are assigned.  If the judge denies your claim, you will be subject to a deportation order, which can be appealed, assuming you still have legal representation to help you—after seven years.

Roadblock Ten:  The odds are against you.  Even if you’ve successfully navigated the backlog of cases and the unconscionable waiting periods, and despite the fact that you may have put down roots, found work, incurred a mortgage, or had a child or two during the seven-odd years your asylum claim has been pending, your chances of being granted asylum are slim.  The Trump Administration puts the number at 20%; immigration rights organizations say 40%.  Regardless of the actual numbers, both sides agree that asylum seekers who are ultimately denied often defy their deportation orders.  If you do so and are subsequently arrested in an ICE raid for example, you will be summarily deported.  

Step Four:  Grant of asylum.  If you are one of the fortunate few to convince the immigration court to admit you to the U.S. as an asylee, then you have several significant advantages.  You can find a real job; you will not be removed to your country of origin; and you can travel outside the U.S. 

Roadblock Eleven:  Impermanent residency.  But there’s a potential catch.  Asylum status does not convey the right to permanently stay in the U.S. and may be terminated by the Attorney General under §1158(c)(2)(C):

(C) the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or, in the case of an alien having no nationality, the country of the alien's last habitual residence) in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien is eligible to receive asylum or equivalent temporary protection;

So, if and when the U.S. concludes a “safe third country” agreement, perhaps with Mexico or Guatemala, might that agreement also allow for the safe third country to consider asylum applications from aliens whose asylum has already been granted in the U.S. and subsequently terminated by the Attorney General?  Think of it!  It would be a two-fer:  outsource new asylum applications in the first instance and then round up those already granted asylum and “send them back!” 

Do you think they’re working on that?  It wouldn’t surprise me, given this telling statistic from the Pew Research Center’s recent polling of 1,502 adults:  57% of Republicans and Republican-leaning independents say that if the United States is too open to people from around the world, “we risk losing our identity as a nation.”

And this report from Axios (emphasis added):

By 2045, the U.S. as a whole is projected to become a minority majority.  Since 2010, non-Hispanic white people have become the minority in 32 more U.S. counties—for a total of 372 counties, according to the U.S. Census Bureau.  The trends are largely due to a rise in Hispanic and Asian immigrants as well as slightly higher birth rates among non-whites.

Yes, immigration is shaping up to be the battle royal of the 2020 election campaign.  Now that I know what the law is, I'm prepared to detect bullshit when anyone on either side of the immigration debate tries to sling it.  Hopefully you're prepared too.

Keep it real!

Marilyn