America should never aim to deter asylum seekers from securing life-saving legal protection. But the Trump Administration is implementing policies that systematically deny them protection even as families continue to flee from violence and arrive at the U.S. border in greater numbers.
Last week, Customs and Border Protection (CBP) announced that in August it apprehended 12,774 arriving families. The month’s overall border apprehension levels are consistent with the rise in border arrivals and asylum claims being sought largely by Salvadorans, Hondurans, and Guatemalans.
Since 2014, transnational gang violence and runaway domestic abuse have wracked the northern region of Central America, causing what the United Nations has declared a “refugee crisis” marked by a “significant increase in the number of people fleeing violence and persecution.”
As a result, many of the families reaching the U.S. southern border qualify as refugees under U.S. law. In fact, United States Citizenship and Immigration Services reported that of the members of the much-publicized caravan of Central Americans that arrived in May, over 90 percent of those who were screened passed their initial “credible fear” interview. While the interview is intended only as a preliminary determination, it nonetheless indicates that a very high proportion will ultimately qualify for asylum or other protection.
Of course, you would never know this from the Trump administration’s public statements characterizing the growth in family arrivals as the exploitation of so-called “loopholes” in U.S. immigration law. Attorney General Jeff Sessions has repeatedly made such unsupported charges about the upturn in asylum claims ignoring the well-documented evidence of the crisis in Central America that fuels these requests.
A new regulation proposed by the Department of Homeland Security (DHS) and Health and Human Services is no less misguided. The proposal is transparently designed to undermine the 1997 Flores Settlement Agreement which established legal protections for children arriving at our borders.
At present, Flores forbids Immigration and Customs Enforcement (ICE) from detaining noncitizen children for longer than 20 days in family detention facilities or other facilities that do not meet required legal standards. If the rule goes into effect, it could allow ICE to confine these children and their families in inhumane detention conditions indefinitely.
This proposal is part of a campaign to erect an invisible wall against asylum seekers and other immigrants. Most infamous is the administration’s family separation policy. As was revealed in a complaint recently filed by the American Immigration Lawyers Association and the American Immigration Council, ICE officers are impeding these families’ due process rights by using coercion and abusive tactics, including threats to parents that they will never see their children again.
In addition, Attorney General Jeff Sessions has issued a precedent-setting decision that will deny asylum to victims of domestic violence and gang-based persecution. Reports also show that CBP is turning back asylum seekers at the border. Step by step, the administration is discouraging families from exercising the right, guaranteed them under U.S. and international law, to pursue life-saving grants of asylum.
DHS’s efforts to deter asylum-seekers not only run counter to law but also are ineffective. Statistical analysis shows that family detention and separation fail to deter arrivals because they are fleeing serious threats of death or other violence and will risk the perilous journey and possible detention in the U.S. to escape those dangers.
The administration has professed concern for Central Americans who place themselves in harm’s way by embarking on the journey to the U.S. border. But last year, the administration also ended the Central American Minors Refugee/Parole (CAM) program that previously allowed children and parents from El Salvador, Honduras, and Guatemala to relocate to the United States and thereby avoid the journey northward.
The United States cannot close its borders to asylum seekers as the administration is now attempting to do. Our laws and Constitution require that every person arriving at the border receives a fair and just legal proceeding.
First, the government should end family detention altogether and withdraw the proposed regulations modifying the Flores Settlement Agreement. The administration has shown no justification for detaining these families, and it should release them from custody or use alternatives to detention programs that are more humane than detention and have proven effective at ensuring court appearances.
Second, Congress must reform our immigration courts. Under current law the immigration courts fall under the authority of the Department of Justice. For years, AILA has supported structural reforms that will enable the courts to operate more efficiently while ensuring fairness in each case.
The need for reform could not be more urgent especially when the attorney general is implementing an agenda designed to erode judicial independence and maximize deportations with little regard for due process. The creation of an Article I immigration court system independent of the Department of Justice would help restore the rule of law, and even more important, it would help safeguard our nation as a refuge for the persecuted.
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