So I’m on a volunteer pro bono trip to Dilley, Texas to represent migrant mothers in “credible fear” hearings. Dilley is home to the South Texas Family Residential Center, the largest detention facility for migrant mothers and their children in the country. Dilley is one of the “good” jails; the mothers are with their children; there’s daycare and medical facilities on the campus; they sleep on real beds in dormitories; and they and their children receive relatively hot, nutritious food. It’s called “baby jail” because everyone here has a baby or a minor child under the age of eighteen.
What’s a “credible fear” hearing? If a migrant can show that she has a credible fear of returning to her own country, based on actual harm or threat of harm, whether through gangs, extortion, or something else, she will be released from custody with an ankle monitor and allowed to stay in this country while she pursues her asylum claim on humanitarian grounds.
That’s been standard operating procedure for not only years, but decades. Recently, in July of this year, the Trump administration promulgated a rule that if a migrant failed to request asylum in any country that she passed through on her way to the US, she was then ineligible for a “credible fear” interview, but would be entitled to a “reasonable fear” interview.
What’s the difference? To show a credible fear, the migrant mother only has to show a 10% chance of persecution if she returns to her home country, or put another way, if she returned to her home country 10 times, only one of those trips needs to result in harm or the likelihood to her for her to be allowed to stay in the US and pursue her asylum claim.
The standard of proof for a reasonable fear claim is 51%....meaning that a woman would need to show that on six trips out of ten back to her home country, she would suffer harm and be persecuted.
So now, thanks to the Trump Administration’s sadistic legal worldview, if a migrant mother passes through Honduras, Guatemala, El Salvador, or Mexico on her way to the US and fails to request asylum in those countries, she can’t have a credible fear interview, and instead can only have a reasonable fear interview.
Here’s the legal hurricane of a timeline that I was unknowingly swept up in:
--July 16, 2019: nationwide ban on migrants obtaining positive CFI (Credible Fear Interview) status if they passed through a third country and didn’t request asylum there goes in to effect (the “Trump ban”).
--July 18, 2109: US Federal District Court Judge Jon Tigar of San Francisco implements a nationwide injunction prohibiting the Trump ban from taking effect.
--August 24, 2019: Ninth Circuit Court of Appeals stays Judge Tigar’s injunction, but only in states covered by the Ninth Circuit (California and Arizona). That left the Trump ban in place in New Mexico and Texas. The Ninth Circuit also said that Judge Tigar “retains jurisdiction to further develop the record in support of a preliminary injunction extending beyond the Ninth Circuit.” When I arrived in Dilley for my week of pro bono work, there was great wailing and gnashing of teeth about how hard this ban would affect our clients (more on that later).
--September 9, 2019: Judge Tigar “further developed the record” and restores the nationwide injunction against the Trump ban. Here in Dilley, the front line for Central American mothers and children, there was great rejoicing.
--September 10, 2019: The Ninth Circuit again limits the scope of Judge Tigar’s nationwide injunction to California and Arizona (meaning our migrant mothers in Dilley are once again SOL). We despaired.
--September 11, 2019: The US Supreme Court makes the Trump Ban nationwide, including California and Arizona. We despair again.
To be sure, the ban remains in effect only until the underlying case is heard and decided on its merits. But that could take a year, perhaps longer.
For folks on the ground like the clients I’ve seen the last three days, the damage is incalculable. Many will not be able to meet the higher standard of proof, and will be sent home to suffer persecution, extortion, sexual and physical violence, and in some cases, death. I’m honestly not overstating the case here. The stories I’ve heard in just four days are horrific and hard to believe, but the details are so chilling that you just know they have to be true. I’m not sure I can sleep tonight knowing what my country is doing to these desperate, frightened, and courageous women and children who have dared to journey towards what they thought was safety.
