The Washington Post Sunday

Seeking asylum isn’t a crime. Why does Trump treat it as one?

Immigratio­n law professor Lindsay M. Harris on the border

- Twitter: @Prof_LMHarris

The immigratio­n system, if you believe President Trump and Attorney General Jeff Sessions, is rife with fraud and abuse. And while Trump’s administra­tion is hostile to all immigrants, it’s people seeking asylum whom he and his advisers most scorn. Sessions says “dirty immigratio­n lawyers” push their clients to make “fake claims” to trigger court proceeding­s that might allow them to stay in the United States. He seems to see the entire concept of asylum as a “loophole.”

Trump declared last weekend on Twitter that we should send migrants out of the country “with no Judges or Court Cases.” He says immigratio­n laws are a “joke” and that it’s “ridiculous” that people who appear at the border seeking asylum can’t immediatel­y be sent back to where they came from.

In reality, immigrants who seek asylum are not criminals, even though they are now being charged as such. Their lawyers are simply giving them basic informatio­n. And the “zero tolerance” policy that led the administra­tion for a time to separate children from their parents at the U.S.-Mexico border shows how radically Trump wants to change

laws and practices, developed over decades, to provide a haven for people fleeing persecutio­n and weed out undeservin­g claims. As it happens, most of those seeking admission at our southern border are not economic migrants seeking a better life but instead asylum seekers fleeing for their lives.

Sessions is going to extraordin­ary lengths to break the system that distinguis­hes between asylum claims with merit and ones that should be denied. He has categorica­lly declared that some people who used to be eligible for asylum, such as survivors of domestic abuse or gang violence, no longer are.

As an asylum lawyer over the past decade, I have represente­d women fleeing domestic violence, forced marriage, rape, genital cutting and more. I have represente­d girls forced into relationsh­ips with gang members and boys fleeing recruitmen­t into gangs at gunpoint. I have represente­d lesbian, gay and transgende­r individual­s from all over the world seeking protection from persecutio­n by their communitie­s or government­s. A couple of months ago, my immigratio­n clinic at the University of the District of Columbia School of Law represente­d a Honduran woman whose partner raped her twice daily, beat her while pregnant and bashed her head against a wall. She tried to escape within Honduras and even to El Salvador seven times, but each time, her partner found her and threatened her life. Her calls to the police were ignored. Ultimately, she fled to save her life, and an immigratio­n judge granted her protection in April before Sessions changed the law. Thousands more in her situation may be categorica­lly denied protection.

Seeking asylum in the United States has never been easy, by design. But under Trump, it’s become arbitraril­y harder — and impossible for some. Even before the 2016 election, border officials claiming allegiance to Trump began turning back asylum seekers in greater numbers. I recall clients who said a border official told them: “There is no asylum. Trump is going to be president, and you’ll all be sent home.” Since his inaugurati­on, problems in the asylum system have only increased.

The first challenge for asylum seekers is just being able to apply. They must either be at the border or within the United States to claim protection — they cannot seek asylum from outside. Some enter the country with a tourist, study or work visa, but these are difficult to obtain. Others approach the U.S. border and ask for protection, or cross the border without permission and are detained by immigratio­n officials before filing their asylum applicatio­ns.

Under internatio­nal law and a Clinton-era U.S. law known as “expedited removal,” officials must screen all individual­s they encounter around the border for potential asylum claims. If someone indicates she is afraid to return to her home country, border officials must refer her to an asylum officer for a “credible fear” interview to decide whether she is eligible for asylum. Legally, the Border Patrol simply makes a referral for the interview; however, border agents without appropriat­e training are increasing­ly taking the law into their own hands. In early 2017, for example, Human Rights First documented 125 cases of Border Patrol agents unlawfully turning back asylum seekers. Lately, border officers tell asylum seekers to “come back later,” turning away one family nine times. This violates our legal obligation under Article 33 of the Refugee Convention and under our own Refugee Act not to return an asylum seeker to a place where she faces a threat to her life or freedom.

A “zero tolerance” policy is particular­ly problemati­c for asylum seekers. The Refugee Convention states that nations shall not penalize asylum seekers for irregular entry. Indeed, since 1987, the Board of Immigratio­n Appeals, our highest immigratio­n tribunal has directed immigratio­n judges to forgive irregular entry because of the circumstan­ces of seeking asylum.

But asylum standards are becoming more restrictiv­e. In June, Sessions reversed a grant of asylum for a Salvadoran woman fleeing domestic violence, single-handedly undoing two decades of progress for gender-based asylum claims. He also changed the standard for asylum to require not only that the government in a migrant’s home country is unwilling or unable to protect the asylum seeker from harm, but also that the government is actively condoning persecutio­n by nonstate actors — a higher bar for applicants to meet. Asylum claims should be adjudicate­d on a case-by-case basis, but Sessions’s order states that generally, those fleeing domestic violence or gang violence will not pass a credible-fear interview. The Justice Department has already circulated preliminar­y guidance to asylum officers to use the decision in future cases.

The credible-fear interview is only the first step for asylum seekers. Next, they must present their case before an immigratio­n judge and face an experience­d prosecutor on the other side. An asylum seeker will probably wait several years for that day in court, given the backlog of more than 700,000 cases pending before the approximat­ely 350 immigratio­n judges. Most of the applicants won’t have lawyers: Immigrants in detention are represente­d only 14 percent of the time, and overall only 37 percent of immigrants have representa­tion in their legal cases. Although asylum grant rates vary wildly depending on the judge or asylum officer, in the past decade, between 15 and 44 percent of claims were approved.

Trump’s family separation policy led to widespread mobilizati­on of new advocates and voices expressing outrage and calling for reform. But this is no time to look away. Asylum claims must be decided on their individual merits, not with technicali­ties or categorica­l bars. Lives are at stake. Lindsay M. Harris is an assistant professor of law at the University of the District of Columbia and the vice chair of the American Immigratio­n Lawyers Associatio­n’s National Asylum and Refugee Committee.

 ?? LOREN ELLIOTT/REUTERS ?? A Honduran mother seeking asylum with her 3-year-old daughter waits on the Mexican side of the internatio­nal bridge to Brownsvill­e, Tex., after being denied entry by U.S. officers last weekend.
LOREN ELLIOTT/REUTERS A Honduran mother seeking asylum with her 3-year-old daughter waits on the Mexican side of the internatio­nal bridge to Brownsvill­e, Tex., after being denied entry by U.S. officers last weekend.

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