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
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.