Trump looks to curb asylum

Amid Congress’ inertia, DOJ tries to limit process

Ever since the horrors of the Holocaust, the United States has welcomed millions of people fleeing war, violence and persecution.

Now President Donald Trump’s administration is reframing how the nation admits refugees, reducing who can come here and making it tougher to apply for protection. It is playing out not through congressional action or public announcement, but in policy tweaks and guidelines that together make up an overhaul.

For Trump and his supporters, it is part of a welcome return to focusing on Americans, a crackdown on those who they say take advantage of the country’s generosity and put its citizens at risk.

But some say the changes tear at the fabric of the country’s core beliefs.

“We’re very concerned that these several small policy moves are undermining due process,” said Bradley Jenkins, a lawyer with the Catholic Legal

Immigration Network, a national nonprofit. “It is part of our American tradition and values that we offer protection and refuge to our neighbors who are fleeing persecution. If the U.S. stops leading by example, we fear other countries will follow.”

Trump has said a more compassionate approach would be to help people in their home countries and has slashed the number of refugees allowed into the U.S. this year to 45,000, the lowest in three decades. Halfway through, only about 10,600 have arrived.

More quietly, his administration is curbing how asylum-seekers receive protection at the border. Attorney General Jeff Sessions, who leads much of the effort, has argued that it is necessary to stop what he called “rampant fraud” in the system and resolve a record backlog in immigration courts.

Much of the focus is on deterring Central American families and children, who make up the fastestgrowing segment of migrants at the southern border. Many end up in Houston, where government data show the most unaccompanied children in the nation, about 12,500, have resettled since they started coming here en masse in 2013.

Federal laws and legal settlements protecting children prevent the government from the prolonged detention or quick deportation of many families. Trump has said repeatedly that he wants to close such “terrible loopholes exploited by criminals and terrorists.”

Top officials in recent weeks have hammered the sentiment, suggesting increasing urgency as the number of Central American families coming here is once again on the rise. More than 8,600 were apprehended in February, according to the latest statistics.

At a recent briefing on the border wall, acting Border Patrol Chief Carla Provost said the controversial structure wasn’t enough.

“Current loopholes in our immigration laws pertaining to family units and unaccompanied minors have created a path to entering America illegally,” Provost said. “Without legislative changes to these loopholes, we will continue to see a rush.”

With Congress stuck on immigration, Sessions has led the charge to limit asylum.

“On the one hand, it’s messaging, trying to frame asylum-seekers as criminals,” said Anne Chandler, who heads the Tahirih Justice Center in Houston, a nonprofit representing immigrant women and children.

It’s also accomplished through a series of administrative changes that together have significant impact.

“What they have decided to do is see how much of this they can address by regulation and policy memowise and attorney general decisionwise,” said Leon Fresco, a former Justice Department immigration attorney under President Barack Obama.

A different threshold

As attorney general, Sessions oversees the civil immigration courts, which unlike federal and state courts are not independent but under the Justice Department. That gives him authority to intervene in cases decided by the Board of Immigration Appeals, the courts’ highest body, and set interpretations of law that become precedent.

Previous attorneys general rarely used that administrative tool, said Jeremy McKinney, secretary of the American Immigration Lawyers Association.

Sessions has employed it four times in two months, recently to reconsider a landmark ruling that could drastically limit how victims of domestic and gang violence qualify for asylum.

In the March 7 order, he requested review of a case involving a Salvadoran domestic violence victim who the board found deserved asylum because the government was unable to protect her. Sessions asked for legal opinions on whether victims of “private criminal activity” should make up a “particular social group.”

To obtain asylum, people must show they fear persecution because of belonging to such a class, or due to their race, religion, nationality or political opinion. Only 8,726 immigrants received the protection through the courts in 2016, the latest figures available.

The board established in 2014 that women who can’t leave abusive relationships because of certain country conditions constitute a social group. Now Sessions could narrow that finding and apply it to those fleeing gang persecution.

“That has the potential to shrink significantly the pool of people on the asylum front,” Fresco said..

Sessions, in a speech last fall to the Executive Office for Immigration Review, the agency over the courts, criticized “case law that has expanded the concept of asylum well beyond congressional intent — created even more incentives for illegal aliens to come here and claim a fear of return.”

Deborah Anker, a Harvard Law School professor who specializes in asylum, said Sessions’ office declined to identify the decision he was reviewing, initially leaving lawyers without a way to respond to his request for arguments.

“It was unprecedented,” she said. “The attorney general by executive action appears to want to be overturning the statute as it relates to asylum.”

A Justice Department official said the decision was available through the Freedom of Information Act, which can take months.

Art Arthur, a former immigration judge and fellow at the Center for Immigration Studies, a group advocating for reduced immigration, said the authority for attorneys general to review cases was previously underused. He said Sessions is correctly employing that tool to clarify a contested area of the law that could have “widereaching consequences” in limiting fraud.

Justice Department spokesman Devin O’ Malley said in a statement that Sessions is trying to clear the “outrageous” backlog of more than 632,000 cases in immigration courts that means an average case can drag on for two years.

He is doing so “in part by exercising his congressionally provided authority to review Board of Immigration Appeals cases without compromising due process,” O’ Malley said. “These reviews are not improper, do not impugn the independence of judges … and restore the rule of law.”

Sessions has taken charge of three other cases, tossing out a 2014 board decision that allowed immigrants full hearings before a judge even if their initial claims didn’t set out a basis for asylum. Supporters say that will streamline the docket.

But Denise Gilman, director of the immigration law clinic at the University of Texas at Austin, said most asylum-seekers don’t speak English and don’t initially have attorneys. Removing their rights to a hearing means they lose protection because they could not at first articulate how their need fits into the law’s complicated definition.

Accelerating cases

Sessions also directed to himself a case that could end the ability of immigration judges to halt deportation proceedings through a process known as “administrative closure.”

Critics said use of the practice skyrocketed under Obama’s administration after it focused on deporting immigrants with criminal records, temporarily shelving some other cases of lower priority.

Advocates argue the procedure is also used to close cases in which the most vulnerable immigrants have other ways to legally remain, such as qualifying for crime victim visas that are pending approval in the backlogged system.

Sessions is reviewing when judges should be able to postpone cases and putting the onus on judges to hurry cases through the system, issuing a memo in December saying he is “prioritizing the completion of cases and developing performance measures.”

The National Association of Immigration Judges said quotas would be the “death knell for judicial independence” in courts where complex cases involving political refugees regularly unfold.

“Actual numbers are being bandied about, and it is being suggested that judges should be rated about whether they complete ‘x’ amount of cases in ‘x’ amount of time,” said Dana Leigh Marks, a San Francisco immigration judge and spokeswoman of the judges’ association. “The whole concept we believe is an anathema to due process.”

Judges are being blamed for the backlog, she said, when in reality the courts have been underfunded and understaffed for years while immigration enforcement agencies disproportionately ballooned.

Congress has authorized funding for 384 judges, which would double the number on the bench.

Other agencies have made similar changes to tighten asylum. U.S. Citizenship and Immigration Services in February issued new lesson plans for interviewers that narrow who qualifies for credible fear, a screening interview that is the first step to asylum.

Sessions has said the system is “gamed” because more than 80 percent of claims are approved. Such claims at the border went from about 3,000 in 2009 to more than 69,000 in 2016, though advocates say that reflects the intensifying violence in El Salvador and Honduras.

As with some of the White House’s most controversial immigration policies, including the socalled travel ban, changes to the asylum system are being fought in federal courts.

The American Civil Liberties Union filed a lawsuit last month arguing that hundreds of families are unlawfully separated after prospective asylum-seekers are prosecuted for illegally crossing the border, forcing the placement of their children in foster care.

The group has also challenged a practice of detaining asylum-seekers who seek protection at ports of entry until they resolve their cases in the courts. Previously they were usually released if they had potentially valid claims and posed no danger.

“All of these new policies together, they are part of a larger deterrence strategy, a larger effort to both kind of punish asylumseekers from making the trip, but also to send a very clear message to the world that asylum-seekers need not apply, that the U.S. is no longer a place of refuge,” said Michael Tan, an attorney with the ACLU's Immigrants' Rights Project.