The Halloween report from reporters following Donald Trump was scary, but not surprising. Just as he has for the past week or more, Trump obsessed over Central American migrant caravans. “They're not coming into our country,” Trump insisted. “We’re not doing any releases anymore. We're not going to release and let them never come back to trial.”
Trump essentially summarized policies his administration is already enacting. Here are two of them, legally speaking, and both concern asylum. The first is the “turnback policy,” the refusal to process asylum seekers at all; the second is denial of bond during the asylum process—effectively eliminating parole.
“The administration has turned people away at ports of entry who were lawfully seeking asylum,” says Kristen Love Greer, a staff attorney for the ACLU of New Mexico. She believes it’s unjust that people who try to follow the law nonetheless end up exposed to criminal prosecution after attempting unlawful entry. It’s the administration that’s breaking the law, both domestic and international.
Here’s what’s supposed to happen: An asylum seeker reaches a designated port of entry, makes an asylum claim, then submits to a credible fear interview.
Here is the statutory language on credible fear:
[T]he term “credible fear of persecution” means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum.
If credible fear is established, the asylum seeker is then supposed to be channeled into defensive asylum proceedings. If they fail, they can still challenge the result and ask an immigration judge to review the determination.
But in addition to the turnback policy, which has been around since 2016, the Trump administration has also changed federal policy on credible fear. In June 2018, in the Matter of A-B, Attorney General Jeff Sessions slashed the types of threats that could qualify as bases for credible fear.
Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum. … The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.
Here’s the footnote that ties Sessions’ take to the credible fear standard:
Accordingly, few such claims would satisfy the legal standard to determine whether an alien has a credible fear of persecution.
Given the types of threats asylum seekers are attempting to flee, this narrowing of credible fear is catastrophic. But the problems start far earlier in the process.
The legal challenges
A group of 13 asylum seekers and Al Otro Lado, an immigration legal services provider, are challenging the turnback policy with the help of the Southern Poverty Law Center. Their amended complaint, filed Oct. 12, charges DHS and CBP with violating the Immigration and Nationality Act; the Administrative Procedure Act; the procedural due process component of the Fifth Amendment; and non-refoulement doctrine, customary in international law, which prohibits nations from returning asylum seekers to a country in which they are in danger.
CBP agents are abusing their authority on individual and group bases to turn asylum seekers away. Sometimes they cite Trump directly, though the law on asylum remains the same.
These tactics include lying; using threats, intimidation and coercion; employing verbal abuse and applying physical force; physically obstructing access to the POE building; imposing unreasonable delays before granting access to the asylum process; denying outright access to the asylum process; and denying access to the asylum process in a racially discriminatory manner.
The more official turnback policy emerged in 2016, when high-level CBP officials began “mandating that lower level officials directly or constructively turn back asylum seekers at the border contrary to U.S. law.” Among other things, officials are claiming that “there is a lack of ‘capacity’ to process [asylum seekers]” or that they are “at cap”; they are “coordinating with Mexican immigration authorities and other third parties to implement a ‘metering,’ or waitlist, system that creates unreasonable and life-threatening delays”; and they are directing asylum seekers to wait in certain areas arbitrarily. None of the claims of lack of capacity, according to SPLC, are true.
A second suit, filed by the ACLU—one Greer is involved in—is tackling the indefinite detention of lawful asylum seekers. “People who did manage to get across when they requested asylum,” Greer tells me, “were then put into detention, where they had no meaningful way to be released.”
According to ICE’s “parole directive,” asylum seekers should be considered for parole on a case-by-case basis. Asylum seekers are supposed to receive notification of parole procedures—how they can seek it, when they can seek it, and so on—soon after a credible fear determination. Note, by the way, that one of the things that can qualify someone for parole is that “continued detention is not in the public interest.”
December 2009 guidance instructs that immigrants who establish their identity, prove credible fear, and do not present risk should presumptively be paroled: “[Detention and Removal Operations] should, absent additional factors, parole the alien on the basis that his or her continued detention is not in the public interest.”
In July, the ACLU prevailed at the district court. They’d been able to point to five ICE field offices whose parole rates dropped from 95 percent in 2013 to nearly 0 percent under Trump. The judge issued an order requiring ICE to reevaluate, on a case-by-case basis, requests for release from 1,000 or so people who passed their credible fear interview but were nonetheless detained by five ICE field offices, as well as from those who were denied parole by those offices “by check box,” or without individuated explanation, then detained elsewhere.
Of course, the order isn’t a panacea. It’s not just that asylum seekers are detained. It’s where they’re detained. ICE makes representation hard. It detains people “in remote places, far from attorneys,” Greer notes. While the order entitles detainees to review, how will they exercise that right? So many legal challenges lie ahead.