As Trump dithers back and forth over whether he will completely shut down access across the southern U.S. border or if he manages somehow to manipulate Mexico over the next year into acting as a buffer zone and barrier blocking migrants from entering the U.S., it needs to be pointed out that the crisis that is growing to the south has only been made worse by Trump administration policies, and in fact that the core of his approach— including the “zero tolerance” policy—is in fact a crime in progress.
Simply put, Trump has turned existing asylum laws upside down by choosing to arrest and detain people who have literally not broken the law by crossing the border because it is fully legal to do so if a person’s intention is to apply for asylum.
Sec. 208. (a) Authority to Apply for Asylum.-
(1) In general. - Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 235(b). [Emphasis added.]
Once someone applies for asylum, they become subject to U.N. protections under the 1951 Refugee Convention, which was established following the Holocaust in Europe to protect those who would face the threat of death if they were placed back into their home country, an international right called non-refoulement.
The U.N. High Commissioner for Human Rights noted in 1977:
“No person may be subjected by a member State to measures such as rejection at the frontier, return or expulsion, which should compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article 1, paragraphs 1 and 2.”
8. Again, Article 22(8) of the American Human Rights Convention adopted in November 1969 provides that:
“In no case may an alien be deported or returned to a country regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status or political opinions.” [Emphasis added.]
This means that Trump’s policy of arresting and detaining all persons found to have crossed the border between points of entry and his attempts to ignore their asylum rights and expedite their expulsion are in direct violation of principles that the U.S. has upheld for over 50 years.
Naturally, Trump understands none of this and instead calls the asylum process a “big fat con job.” As Talking Points Memo reports,
“They are all met by the lawyers and they say ‘say the following phrase: I am very afraid for my life,'” he said of the attorneys who help asylum seekers understand the application process.
“And then I look at the guy. He looks like he just got out of the ring. He’s a heavyweight champion of the world,” he continued, referring to a hypothetical asylum seeker.
“It’s a big fat con job, folks,” Trump added.
Right: It’s somehow wrong for people to be accurately advised on what the actual law is in the U.S. before they try to enter and immediately surrender themselves to border patrol—particularly when most would be perfectly happy to go through a standard point of entry if Homeland Security hadn’t already essentially closed those entry points down for asylum-seekers.
Jeff Sessions’ “zero tolerance” policy sought to arrest and criminally prosecute every migrant who crosses the border “improperly”—that is, at any point between the 44 official land border crossings, or ports of entry—even if that migrant is asking for asylum. The result would be to force asylum-seekers to avoid arrest by crossing at official ports of entry. “You are not breaking the law by seeking asylum at a port of entry,” Homeland Security Secretary Kirstjen Nielsen tweeted in mid-June.
But at the same time as the flow was being diverted to them, U.S. Customs and Border Protection (CBP) agents at the ports of entry notably slowed their reception of asylum-seekers. During March, April, and May 2018, more than 6,000 children and families reported to ports of entry as what CBP calls “inadmissibles.” Every month since June, however, the number of children and families at the ports has held mysteriously steady at 4,000 per month, even as “zero tolerance” was encouraging them to approach the official crossings.
The numbers point to a deliberate effort to throttle asylum-seekers’ access to the ports of entry (see WOLA’s report on this, published earlier this year). Reports from sectors all along the border point to the same thing. Starting in May or June, most ports of entry began stationing CBP officers directly on the borderline, checking documentation and preventing asylum seekers from setting foot on U.S. soil, which would give them the right to ask for protection. Instead, the officers most often tell them to “come back later,” and accept only a very limited number of asylum applicants per day.
This has actually increased the rate of asylum-seekers who, due to the extended wait at points of entry, have opted to enter between those points, which, again, is perfectly legal.
Also, the claim that border crossings are at an “all-time high” is, in fact, a lie.
1. There is no migrant crisis. In fact, the flow is near its lowest point in half a century.
The number of migrants apprehended by Border Patrol at the U.S.-Mexico border in 2018—396,579 people—was the fifth lowest total since 1973. The number of adult migrants traveling without families (239,331) was almost certainly the second-lowest total since 1970.
Meanwhile, a federal judge responding to Trump’s illegal asylum policy has slapped it down, hard.
In an order laced with language accusing President Donald Trump of attempting to rewrite immigration laws, a federal judge based in San Francisco temporarily blocked the government late Monday night from denying asylum to those crossing over the southern border between ports of entry.
Judge Jon S. Tigar of the US District Court for the Northern District of California said that a policy announced November 9 barring asylum for immigrants who enter outside a legal check point '"irreconcilably conflicts" with immigration law and the "expressed intent of Congress."
"Whatever the scope of the President's authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden," Tigar wrote, adding that asylum seekers would be put at "increased risk of violence and other harms at the border" if the administration's rule is allowed to go into effect.
The Department of Homeland Security and Justice Department slammed the ruling and the lawsuit, calling them both "absurd."
The reality that needs to be recognized is that many of those leaving Central America and crossing through Mexico to arrive at our border aren’t just coming here randomly; they are part of what has been called the Great Central American Exodus.
Indeed, over the past six years, over 100,000 unaccompanied migrant children from Guatemala, Honduras and El Salvador have been apprehended at the US southern border. They are but a sub-set – albeit a particularly tragic one – of the approximately three million migrants from the so-called Northern Triangle of Central America that have reached US shores over the past two decades, often after a harrowing journey that could belong in the pages of Dante’s Inferno.
At the root of this exodus lies a complex brew of structural problems that besets these three small countries. In this mix, factors such as the chronic weakness of the state, the endemic corruption, the glaring economic fragility, and the collapse of public order play decisive roles and reinforce each other. These challenges are unlikely to subside any time soon and will continue to dash the hopes entertained for the region two decades ago, in the wake of the end of civil wars and the emergence of fledgling democratic institutions. More importantly for the purposes of this discussion, these problems are not easily amenable to external solutions. Foreign assistance to Central America’s Northern Triangle is useful, even necessary, but will not – irrespective of its generosity – remedy the region’s profound development imbalances and institutional shortcomings. Central Americans must accept that, just as only they could put an end to the region’s civil conflicts two decades ago they must also take responsibility for building modern states, overhauling law enforcement institutions, and providing opportunities for young people.
The four factors factors at the heart of these institutional breakdowns are:
- The weakness of the state
- “… fiscal starvation impinges on the ability of the state to mitigate the impact of the very high levels of poverty and inequality that afflict these countries. Also, fiscally weak states have great problems exerting effective control over their territory.”
- Corruption
- “… recent examples of the corrupt practices that pervade states in the Northern Triangle. These practices are the result of a toxic combination of factors – the blurring of lines between public and private activities by entrenched elites, the growing penetration of organized crime in political structures, the overlapping of political elites and the media, and, above all, the dire state of judicial institutions, which inexorably leads to widespread impunity. “
- Economic vulnerability
- “Despite the efforts made by these countries to open up their economies, they appear unable to generate the kind of growth that could make a real dent in their poverty levels.”
- Crime and violence
- “Last year, El Salvador and Honduras, each of them alone, had more homicides than the 28 member states of the European Union combined. ”
On top of threatening to close the border, Trump has now ended funding to Honduras, Guatemala, and El Salvador aid programs as “punishment” for the migration of thousands of their citizens northward. The obvious impact of this will be to reverse the gains the USAID programs have been fostering.
With the highest murder rates in the world, Central America, in particular Honduras, El Salvador, and Guatemala, is the most crime-ridden and violent region in the world. Narco-trafficking, gang violence, corruption, the proliferation of guns, and weak government institutions create a dire situation for these countries, which struggle to grow their economies and improve their citizens’ standard of living.
Aggressive government crackdowns and heavy-handed suppression only led to wrongful arrest of thousands of youth, overwhelmed prisons and justice systems, and empowered gangs.
Against this backdrop, the United States Government launched the Central America Regional Security Initiative (CARSI), a whole-of-government effort to improve security conditions alongside Central American governments and other donors. Through CARSI, the United States Agency for International Development (USAID) builds resilience to insecurity in high-crime, urban communities by improving access to public services, jobs, and justice. With 50 percent of the Central American population under 25 years old, USAID focuses on youth who are at particular risk of being not only victims, but also perpetrators of violence.
Vanderbilt University performed a study to show the impact of USAID programs in Central America such as CARSI and found the following.
The impact evaluation shows that USAID’s programs, built on experiences from many U.S. and Latin American cities, have a significant positive impact on communities.
The quantitative findings, which assessed the success of USAID-presence neighborhoods compared to how they would fare without USAID assistance, show that:
- 51% fewer residents reported being aware of extortion and blackmail.
- 51% fewer residents reported being aware of murders.
- 35% fewer residents reported avoiding dangerous areas because of fear of crime.
- 25% fewer residents reported being aware of illegal drug sales.
- 19% fewer residents reported being aware of robberies.
- 14% fewer residents perceived youth in gangs as a problem.
- 18% more residents supported their community’s crime prevention efforts.
- 9% more residents had trust in the police.
The qualitative research explains and deepens our understanding of the quantitative results:
At-risk youth: There was consensus that schools, families, and churches need to continue to play a critical role in exposing at-risk youth to more positive influences. Given the potential for youth to be recruited into gangs and other criminal activity, most residents called for more targeted interventions with extremely at-risk youth and those already involved in gangs.
Community planning: Residents called for greater coordination among community members to address insecurity.
Police: Residents desire an improved relationship with the police. Currently, individuals only share intelligence with police officers they know personally.
So by cutting these programs, Trump is taking away the primary tool that has reduced crime and corruption in the triangle nations—which is cutting off your own nose to spite your face.
And as bad as all this is, the Trump administration actually began these wrong-headed policies before it declared its “zero tolerance” policy and has been subsequently deporting far more of the asylum-seeking families of detained children than was previously known.
A federal judge has declared that the Trump administration is legally responsible for all children who were separated from their parents at the US-Mexico border and placed with relatives or other sponsors after July 1, 2017 — which could amount to “thousands” beyond the 2,800 separations already acknowledged as a result of the Trump administration’s “zero tolerance” policy of 2017 and 2018.
The order, from Judge Dana Sabraw of the Southern District of California, comes as part of the lawsuit that forced the administration to reunify thousands of separated families in the summer of 2018. That order, however, only applied to reuniting children who were in the custody of the federal government as “unaccompanied minors” at that time.
Sabraw is now expanding the lawsuit to cover children who had already left government custody and been placed in the care of other relatives or sponsors before the reunification order came down.
[...]
The January inspector general report raised the possibility that there could be “thousands” more separated children who’d left the government’s custody before the reunification order. It’s not clear where that estimate came from — it appears to have come from contractors working with unaccompanied-child shelters, and it’s not clear whether the contractors formally estimated the number or were speaking off the cuff.
Trumpsters have justified the detentions on the basis that “90% of those released don’t show up” for their hearings, but that information is a flat-out lie.
According to Justice Department data from the last five available years, around 60 to 75 percent of non-detained migrants have attended their immigration court proceedings. That’s determined by subtracting the percentage of judgments entered against migrants in their absence (known as an in absentia ruling) from total judgments entered.
Those numbers were even better for asylum-seekers under an Obama-era program that provided them basic legal aid.
Asylum-seekers flee to the United States out of fear of persecution in their home country due to race, religion, nationality, or because their social or political activities have put a target on their back.
As we’ve noted before, there’s been a nearly 1,700 percent increase in U.S. asylum claims over the last 10 years. What’s fueling the increase is growing instability, gang violence and worsening economic conditions in Central America’s "Northern Triangle" countries of El Salvador, Guatemala and Honduras.
[...]
One source of data comes from an Obama-era program that released asylees from detention and matched them with case managers who encouraged compliance with court-ordered obligations. As of April, the Family Case Management Program, or FCMP, had 630 enrolled families.
Before the Trump administration ended the program in June, participants had a 100 percent attendance record at court hearings. They also had a 99 percent rate of check-ins and appointments with Immigration and Customs Enforcement, according to a Department of Homeland Security Office of Inspector General report.
"According to ICE, overall program compliance for all five regions is an average of 99 percent for ICE check-ins and appointments, as well as 100 percent attendance at court hearings," the report said. "Since the inception of FCMP, 23 out of 954 participants (2 percent) were reported as absconders."
In 2018, the asylum acceptance rate was about 35%.
Fiscal year 2018 broke records for the number of decisions (42,224) by immigration judges granting or denying asylum. Denials grew faster than grants, pushing denial rates up as well. The 42,224 decisions represented a 40 percent jump from decisions during FY 2017, and an 89 percent increase over the number of asylum decisions of two years ago.
[...]
In 65.0 percent of these decisions this past year asylum was denied[1]. This is the sixth year in a row that denial rates have risen. Six years ago the denial rate was just 42.0 percent. See Figure 1. (For year-by- year figures, see Appendix Table 1 at the end of this report.)
Table 1. Asylum Grant and Denial Rates and
Overall Immigration Court Case Outcomes in FY 2018
|
Asylum Decision Grant/Deny |
All Asylum Applications |
All Immigration Court Cases |
|
Number |
Granted |
Number |
Outcome:
Can Remain in U.S. |
Number |
Outcome:
Can Remain in U.S. |
All Nationalities |
42,224 |
35.0% |
64,974 |
39.2% |
215,569 |
33.2% |
El Salvador |
8,232 |
23.5% |
12,073 |
31.1% |
28,665 |
37.6% |
Honduras |
6,240 |
21.2% |
8,745 |
23.9% |
30,242 |
27.2% |
Guatemala |
6,052 |
18.8% |
9,214 |
24.9% |
37,571 |
26.2% |
Mexico |
5,379 |
14.5% |
10,896 |
33.5% |
65,792 |
24.7% |
Part of the reason for the increase in asylum denials has been that the Trump administration specifically removed the ability to claim gang and domestic violence as a “credible fear,” until a federal judge forced it to change the rule back.
A federal judge on Wednesday blocked the Trump administration's policy that makes it difficult for victims fleeing domestic and gang violence to qualify for asylum in the United States and ruled that some people deported under the policy have to be returned.
In a rebuke of the policy established by former Attorney General Jeff Sessions, Judge Emmet Sullivan agreed with a group of women and children who argued the policy unlawfully imposed a heightened standard in reviewing their claims, concluding that the administration must stop deporting migrants currently in the US "without first providing credible fear determinations consistent with the immigration laws."
"It is the will of Congress -- not the whims of the Executive -- that determines the standard for expedited removal," wrote Sullivan of the US District Court for the District of Columbia.
After months of this inhumane nonsense, including placing children in tent camps in the middle of the Texas desert, the Trump policy has reached the breaking point, and an overwhelmed Border Patrol has begun releasing falsely detained immigrant families by the thousands.
The number of migrant families and children entering the U.S. from Mexico is so high that Border Patrol is immediately releasing them instead of transferring them to the agency responsible for their release, forcing local governments to help coordinate their housing, meals and travel.
“We need to work toward a clean sweep,” Border Patrol Deputy Chief of Operations Richard Hudson said in a letter obtained by The Associated Press sent to sector chiefs Thursday. “This should be our daily battle rhythm.”
Agents are still doing medical screenings and criminal checks, but the decision means thousands of families will be released without first going through U.S. Customs and Immigration Enforcement, which manages their deportation cases.
The overcrowding in detention facilities has led to this, and consequently Trump has argued that we now need to completely shut down the border.
The so-called point of closing the border has been an attempt to force Mexico to block these asylum-seekers from entering and crossing their territory, using that argument that Mexican immigration laws are more restrictive than those in the U.S.
Foreigners may be expelled for any reason and without due process. According to Article 33: “The Federal Executive shall have the exclusive power to compel any foreigner whose remaining he may deem inexpedient to abandon the national territory immediately and without the necessity of previous legal action.”
However, Mexico also has laws on asylum that are based on the same U.N. convention that it ratified in 2000.
Mexico signed the 1951 Refugee Convention and its 1967 Protocol in 2000. In addition, Mexico is party to the 1984 Cartagena Declaration on Refugees. The 1984 declaration goes beyond the definition of "refugee" that appears in the 1951 Geneva Convention. Per the 1951 Geneva Convention a refugee is an individual who,
[O]wing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.
The Cartagena Declaration expands the definition of refugee to include:
persons who have fled their countries because their lives, safety, or freedom have been threatened by generalizedviolence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order. [Emphasis added.]
In 1994, the San Jose Declaration reiterated the importance of the Cartagena Declaration, and broadened its scope to extend protection to the internally displaced.
In fact, Mexican laws protecting the rights of refugees actually go somewhat further than U.S. law.
Mexico's law, written with technical support from the Office of the United Nations High Commissioner for Refugees (UNHCR), incorporates the broader definition of "refugee" found in the Cartagena Declaration. Thus, Mexico's Law on Refugees, Complementary Protection, and Political Asylum grants protection for people whose lives have been threatened by generalized violence but would not be considered refugees under the 1951 Convention. It also considers gender as grounds for persecution, incorporates the principle of non-refoulement, and includes provisions regarding non-discrimination.
Moreover, if an individual does not qualify for refugee status under this extended definition, the Ministry of the Interior may grant complementary protection, which halts the return of an individual to a territory of another county where his or her life would be in danger of being subjected to torture or other cruel, inhuman, or degrading treatment or punishment.
[...]
It should be noted that, according to Mexico's law, any immigration proceedings initiated due to illegal entry are suspended until a final decision regarding an individual's refugee status is submitted.
This is clear even to Fox News' Shepherd Smith.
“Critics say stopping the aid would make things worse back home in Central America and those countries, and create more movement north,” Smith said, reminding viewers that the vast majority of migrants were fleeing violence and poverty. “Closing the border doesn’t stop them.”
“Even opponents admit it might be a scare tactic for the Mexicans,” he added. “But closing the border would stop legal movement and jobs and trade and tourism.”
Closing the border wouldn’t stem the tide of asylum seekers either, who only “need two feet on American soil to apply,” Smith went on. “But because the U.S. is so backlogged and obviously under-resourced, it can take years, and as we’re no seeing so clearly, we’re not equipped to house them.”
“And before you say ‘build the wall,’ experts remind that alone would not work, because for hundreds of miles, especially along the Rio Grande, any wall would be required well inside the American border,” Smith added. “Asylum seekers would be on the U.S. soil long before reaching any proposed wall.”
Also, the consequences of closing the southern border could be truly devastating to both the U.S. and the Mexican economies, but, as White House spokes-shill Mercedes Schlapp has stated, a crashed economy is a worthwhile price to pay to essentially make sure that desperate people fleeing for their lives aren’t allowed to find sanctuary.
“The Center for Automotive Research says the U.S. auto industry would shut down in one week if the Mexican border was closed because of all of the dependence on plants down there for parts, etcetera,” he continued. “Is the president saying that price is necessary to pay today on a step that hasn’t been taken since 9/11?”
“What we’re seeing is the cost of lives at the border,” replied Schlapp, who went on to repeat the Trump administration’s familiar refrains of sexual assault, drug cartels, and child endangerment, and accused the Democratic Party of not taking the crisis -which many argue was created by the White House itself- seriously. A frustrated Sciutto called out her dodge.
“I asked someone from Customs and Border Patrol yesterday if he or anyone in his agency recommended to the White House closing the border, if he’s heard it. He said no,” Sciutto said. “Who has recommended this step to the border and if it’s not coming from his national security advisers, how we do not conclude this is more about politics?”
“The president is looking at all options, we’re being left with no choice, little choices at this point in terms of what we’re going to do with our resources,” Schlapp replied defensively. “In essence, there is a crisis.”
Yes, there is a crisis—but everything that Trump is doing, and everything that he is considering, will make that crisis worse, not better. And as I’ve written before, his wall and his shutdown will not do anything to make America safer.
Mike Pence has said that they’ve stopped “10 terrorists per day from somewhere other than Mexico” at the southern border while in reality, CBP says that a total of between six to 12 people who were on the terrorist watchlist have been detained at the southern border. And the watchlist does have major accuracy problems because some of them were U.S. citizens and legal residents, not immigrants. Meanwhile, the State Department says that zero terrorist have been apprehended trying to enter the U.S. from our southern border.
Trump says the “wall” will help with all these problems. But the fact is that, according to the DEA, most illegal drugs enter the U.S. through normal points of entry smuggled in trucks, or else using private planes and boats, so a wall wouldn’t stop that. Human traffickers and drug mules are rare and most of them also come through normal points of entry rather than attempt to hoof it around the pedestrian barriers on foot, where they’re likely to die in the desert or else be easily caught by CBP, so again: a wall wouldn’t stop that.
[...]
Fewer people are attempting the foot journey around the existing barriers due to Trump’s anti-immigrant rhetoric, with many more of them opting instead to be smuggled by coyotes through the existing points of entry and avoiding the barriers entirely. Simply put, more wall means more death for the most desperate and poor migrants who can’t afford the $10,000, or aren’t willing to put themselves into virtual slavery, to pay off what coyotes are now charging.
The Trumpsters don’t care about the rate of crime—which isn’t linked to immigration—they apparently don’t care much about the U.S. economy; they don’t care about humanitarian concerns for those attempting to escape the countries with the highest murder rates on the planet; and they don’t care to continue trying to help bring those crime rates down.
They only care about keeping the brown people out of America, and it’s not simply because they’re racist—even though, frankly, they are—it’s worse than that. It’s because they’re afraid that more Latinos in America will mean more votes for Democrats and less power for the Republican Party.
"In some states, Democrats are even trying to give illegal immigrants the right to vote. They want to give them the right to vote,” President Donald Trump told a Florida crowd on Wednesday. “We believe that only American citizens should vote in American elections,” he continued.
They’ve further argued that Democrats have already voted to allow undocumented immigrants to vote in our elections, even though that’s a lie.
A misleading social media post suggests that House Democrats want to give the right to vote to noncitizens.
"House Dems 228 yes 197 GOP no to allow illegal aliens to have right to vote. Let that sink in America!" stated a March 9 Facebook text-post that was posted on a page called Donald Trump for President Martin County, Florida.
The text post oversimplifies a vote in the U.S. House.
[...]
Some conservative politicians and activists have been raising alarm about noncitizens voting, including President Donald Trump (often without evidence). There have been cases of noncitizens who have cast ballots, but they are statistically rare.
The Facebook post provides no additional details. It is in reference to HR 1, the bill that calls for sweeping changes to voting rights and campaign finance. The Democratic-led House passed the bill March 8, but Senate Majority Leader Mitch McConnell, R-Ky., has said he has no plans to bring the legislation to a vote.
So in the end, they don’t care about immigrants and they don’t really care about America—they only care about retaining their own power.