In its crackdown on illegal immigration, President Donald Trump’s administration has made a series of policy changes that lawyers and advocates say are trampling the rights of a group of immigrants who did not cross the border illegally: asylum-seekers.
The results so far this year have been dramatic: Immigration judges, who are employed by the Justice Department and not the judicial branch like other federal judges, rejected 61.8 percent of asylum cases decided in 2017, the highest denial rate since 2005.
Under U.S. law and international treaty obligations, people who fear persecution or violence in their home countries have a right to seek asylum protection, which is similar to refugee status, regardless of how they entered the country.
Trump and Attorney General Jeff Sessions, however, have sought to deter newly arrived foreigners from seeking refuge in the United States in part by using criminal laws to punish people who advocates say should not be treated as criminals.
“They’re just not letting them in the legal process to seek asylum,” said Olga Byrne, a senior associate at Human Rights First, which has documented cases of asylum-seekers being wrongfully turned away. “They’re just funneled into the criminal justice system, charged with illegal entry and offered a plea bargain.”
Although most asylum-seekers crossing the U.S. southern border hail from Honduras, El Salvador and Guatemala — which have the first-, fourth- and fifth-highest murder rates in the world, according to the United Nations — the administration views the recent wave of Central Americans looking for protection not as a humanitarian crisis but as people trying to game the U.S. immigration system.
“Unfortunately, this system is currently subject to rampant abuse and fraud,” Sessions said in an October speech. “And as this system becomes overloaded with fake claims, it cannot deal effectively with just claims. The surge in trials, hearings, appeals, bond proceedings has been overwhelming.”
To stem the tide, the administration has significantly restricted the asylum system:
• Through an executive order, Trump made it more difficult for immigrants to succeed in what are known as “credible fear interviews,” the first step in the process, by instructing asylum officers to be more critical of immigrants’ claims that they have a legitimate fear of violence or persecution if they return to their home countries.
• Customs and Border Protection officials are misinforming immigrants who arrive at border entry points about what U.S. law offers asylum-seekers and are turning them away without allowing them to make their cases, according to a lawsuit filed in a California federal court.
• On Sessions’ orders, federal prosecutors are speedily trying more border-crossers on illegal immigration charges in criminal courts, leading many who are seeking asylum to be deported without their asylum cases reaching immigration courts. Some prosecutors are pushing plea deals that force defendants to drop their asylum claims.
• The federal government is increasing the number of asylum-seekers who are being held in detention during the years-long wait for their cases to be heard in immigration court, a practice that a New York federal court recently ruled violates their rights by denying them bail.
The question of how to handle asylum-seekers reflects a problematic dynamic for the Trump administration as it uses old tools to confront a new reality at the border.
Asylum requests skyrocket
More than half of the 311,000 immigrants apprehended at the border last year were from Central America — just the second time Mexicans were not the majority. The first was in 2014. Asylum applications, meanwhile, have skyrocketed, from 57,000 in 2014 to more than 116,000 in 2016, according to U.S. Citizenship and Immigration Services data.
The immigration laws at the disposal of federal prosecutors were crafted primarily to address unauthorized immigrants from Mexico, who generally try to avoid authorities and rarely pursue asylum. Since 2014, however, the driving force behind unauthorized border crossings is Central Americans who readily turn themselves in to authorities to seek asylum from gang violence back home. Many arrive as families or unaccompanied children.
Denise Gilman, who runs the University of Texas Law School’s immigration clinic, said it’s no accident that the federal government is funneling asylum-seekers into criminal courts despite this new reality.
“The more they can make asylum-seekers look and feel like criminals to the public, the easier it is for them to justify detention and rapid deportation,” Gilman said. “It’s intentional.”
The White House did not respond to a request for comment.
Proponents of strict immigration enforcement argue that the asylum process is ripe for fraud and could be used by terrorists to enter the country because it is difficult for asylum officers and immigration judges to verify or disprove applicants’ claims.
“Given its susceptibility to fraud, the credible fear process is particularly vulnerable to exploitation by individuals or groups seeking to do harm to the United States, by traffickers seeking to bring victims to the United States, and by economic migrants seeking employment opportunities,” Andrew Arthur, a resident fellow at the Center for Immigration Studies, which advocates for less immigration, wrote in an April article.
Fear of violence discounted
To win asylum, immigrants must prove that, if returned to their home countries, they would be targeted or persecuted on the basis of “race, religion, nationality, membership in a particular social group, or political opinion,” according to U.S. law.
While many Central Americans in El Salvador, Guatemala and Honduras face violence at home, they have had little success convincing U.S. immigration judges that they should be considered members of one of those protected groups.
From 2012 to 2017, Salvadorans were denied in 79.2 percent of cases, Guatemalans in 74.7 percent and Hondurans in 78.1 percent, according to data from Syracuse University’s Transactional Records Access Clearinghouse. At 88 percent, asylum applicants from Mexico had the highest denial rate for countries with a large number of asylum-seekers coming to the United States.
Ethiopian, Chinese and Nepalese applicants, meanwhile, were denied asylum in just 25 percent or fewer cases in that time frame.
Justin Estep, director of the Catholic Charities of Central Texas’ immigration legal services, said immigration judges generally have not accepted arguments that Central Americans who have been threatened by gangs, or adolescent boys whom gangs are trying to conscript, should be considered a “particular social group.” One reason, he said, is that immigration judges have used asylum primarily to protect immigrants from state violence or paramilitary groups but do not consider the far-reaching power of gangs in those countries.
“The gangs have become the government authority, which might be the practical reality on the ground, but it’s not the reality legally,” Estep said.
Some judges have granted asylum to Central Americans in some special cases using the “particular social group” clause, he said, such as woman-owned businesses targeted by gangs for extortion.
Prosecutors get more aggressive
As a signatory to the 1967 Protocol Relating to the Status of Refugees, the United States has agreed not to punish asylum-seekers for entering the country without authorization because people fleeing violence or state persecution are often unable to obtain entry visas.
Federal prosecutors, however, regularly charge asylum-seekers in criminal court, forcing their proceedings in immigration courts to wait until after the defendants have served their federal prison sentences. Often, the defendants agree to be deported without following through on their asylum cases, Gilman said. In some recent cases, prosecutors require them to do so as part of a plea agreement, she said.
The aggressive prosecutorial approach has increased under Sessions, who has sought to more rapidly prosecute and deport immigrants by expanding a pilot program called Operation Streamline that originated in the Del Rio federal court. Under the new approach, the administration prosecutes as many recent border-crossers as possible, rather than prioritizing those with previous criminal records and funneling the rest into the immigration enforcement system.
In the proceedings, a dozen or more simultaneously plead guilty to misdemeanor illegal entry or felony illegal re-entry. They are sentenced individually based on their previous records.
One effect of prosecuting as many cases as possible is that some families seeking asylum are split up as the adults are sent to criminal courts and federal lockups while the children are sent to immigrant detention or resettlement.
“The criminal prosecutions are being used as a way to separate families,” Gilman said. “Dad is criminally prosecuted for unlawful entry. The children are sent off to essentially foster care. In those cases, basically everyone gives up their asylum claims so they can be united.”