The Immigration Mess

The hyperbole and outright lies regarding our immigration mess has been interesting to watch.  It seems that we've come to a place where everyone is pissed and no one is willing to anything about it. Except, that is, blame President Trump.  There's no doubt that his administration pulled some boneheaded action early on in the latest enforcement attempt.  But they are fixing that as best they can and hopefully will get to a static state.  I say hopefully because I don't really believe it.  It will continue to a dog's breakfast.

A friend who is a Priest and lawyer is retired from the Priesthood but is currently doing a lot of pro bono work in immigration law.  I admire this man quite a bit and he has written a paper to try and explain some of the quagmire.  I'm copying the whole thing here.  Read it and learn.

Asylum and the Migrant Crisis on Our Southern Border:

What’s Happening and How Do We Respond?

“The bosom of America is open to receive not only the opulent and respected stranger, but the oppressed and persecuted of all nations and religions; whom we shall welcome to a participation of all our rights and privileges.” – George Washington, 1783

Few issues in the United States are as emotionally charged and divisive as how to handle the migrant crisis on our southern border. Protecting our borders and controlling the number of noncitizens who enter is always of concern. But so is upholding our nation’s values, the rule of law, due process, and providing opportunities for people escaping oppression. Since the end of World War II, the United States has provided a legal process for people coming to our borders seeking asylum. The horrors of the Holocaust led our leaders in the 1950s to recognize the pivotal role our country could play in saving countless lives. 

Today the United States is faced with thousands of migrants coming from poverty-stricken, violence-plagued nations seeking safety and security for themselves and their children. Most of these migrants are from Guatemala, El Salvador and Honduras, but there also are a rising number from Nicaragua and Venezuela – two politically unstable countries with repressive governments. Only about 5% of the people claiming asylum are from Mexico.   

In this paper I will address three issues of primary concern. First, what is asylum? Second, what is happening on our southern border? And third, is there a better way to respond to the crisis?  

I. What is Asylum?

Asylum is a protection granted to foreign nationals already in the United States or at the border who meet the international law definition of a “refugee.” The United Nations 1951 Convention Relating to the Status of Refugees and the 1967 UN Protocol define a refugee as a person who is unable or unwilling to return to his or her home country, or cannot obtain protection in that country, because of past persecution or a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion.” Congress incorporated this definition into U.S. immigration law in the Refugee Act of 1980.

A claim for asylum under present American law requires:

1. past persecution or a well-founded fear of future persecution

2. because of a protected ground: race, religion, nationality, membership in a particular social group, or political opinion

3. committed by the government, or by a persecutor the government is unable or unwilling to control

4. not subject to any bars in being admitted into the country

5. meets favorable exercise of discretion

Those seeking asylum must claim that they cannot return to their home country because of past persecution or a well-founded fear of future persecution by the government or by a non-government actor that the government is unable or unwilling to control. For example, being the victim of gang violence that the government cannot control would be a legitimate ground for asylum. 

Even in the absence of past persecution, an applicant may be eligible for asylum based on a well-founded fear of future persecution. Such a fear must be subjectively genuine and objectively reasonable. For example, if the asylum-seeker is gay, lesbian or transgender in a country where members of the LGBT community have been harmed or threatened with harm, an asylum-seeker could claim it would not be a safe option to return to the home country.

While race, religion, nationality, membership in a particular social group, and political opinion are all grounds for seeking asylum, there are other commonly made claims that are not included. Economic hardship, for example, unless the result of government persecution is not a valid claim for asylum. Nor is ordinary spousal abuse, though there may be cases where a wife or partner could claim asylum if the abuse is reported to the authorities who are unwilling to safeguard the abused spouse. 

The Right to Due Process

Every person who claims asylum has the right to due process of law, which means notice and a full and fair opportunity to be heard. Due Process is enshrined in the U.S. Constitution and extends to every person (not just a citizen or even permanent resident) in the United States, irrespective of immigration status. The Supreme Court for well over a century has expressly recognized a person cannot be deported without due process.

The Burden of Proof

In applying for asylum, the applicant has the burden of proving that he or she meets the definition of a refugee. To be successful in their claim, asylum-seekers need to provide credible evidence either of past persecution or that they have a “well-founded fear” of future persecution in their home country. The individual’s own testimony will be critical in the final determination by the immigration judge. The applicant must demonstrate before the immigration judge that it is more likely than not that he or she would be subject to persecution on one of the five specified grounds.

Asylum-seekers have a right to be represented by an attorney but not at government expense. This means that asylum-seekers must seek out and pay for an attorney or represent themselves before an asylum officer or immigration judge. Many lawyers represent asylum-seekers on a pro bono basis, but there are simply not enough lawyers to represent all the people claiming asylum. Thus, many migrants go without any legal representation and they are the most likely to be deported.

Moreover, being detained impedes asylum-seekers’ ability to find a lawyer. It also makes it more difficult for asylum-seekers to obtain corroborating evidence and expert witnesses, given that access to phones, the internet, and other vital resources is limited.

Asylum Protocols

In addition to the statutory requirements for asylum, there are strict protocols in place. All applicants are subject to thorough vetting, which includes fingerprinting and background checks. Certain factors bar individuals from asylum, including people with violent criminal histories, or who have committed aggravated felonies or crimes of moral turpitude, members of gangs, and people who are deemed terrorists or belong to a terrorist organization.  

The Asylum Process

When asylum-seekers present themselves to a U.S. official at a Port of Entry, they will be initially screened in what is known as a credible fear screening process with a Department of Homeland Security official. If the official determines that the asylum-seeker has a credible claim, the person will be allowed to remain in the country until there is a final decision on the case by an immigration judge. If the claim is rejected by the DHS official, the person will be deported, though the person does have a right of appeal to an immigration judge. This is not a loophole but due process and consistent not only with federal law but our international obligations to protect refugees and asylum-seekers.

The situation is more complicated for migrants who are caught near the border without passing through a Port of Entry. These people are eligible to be deported without having their case heard by an immigration judge, due to what is known as “expedited removal,” a part of the Immigration and Nationality Act, the use of which has dramatically expanded in recent decades. 

Expedited removal is an accelerated process which authorizes the Department of Homeland Security to perform rapid deportations of individuals. To ensure that there is no violation of international law or human rights, the credible fear screening process is available to asylum seekers in expedited removal cases. If the asylum officer determines the person does not have credible fear, the individual is ordered removed. Before removal, the individual may appeal the negative credible fear decision by pursuing review before an immigration judge. If the immigration judge overturns a negative credible fear finding, the individual is placed in further removal proceedings through which the individual can seek protection from removal. If the immigration judge upholds the negative finding by the asylum officer, the individual will be removed from the United States.

How Long Does the Asylum Process Take?

The asylum process can take years to conclude. A person may file an application and receive a hearing date years into the future.  At present, there about 700,000 open deportation cases for immigration judges to decide. On average, these cases are pending for 718 days – and many remain unresolved.

The Benefits of Asylum

A person granted asylum is protected from being returned to his or her home country, is authorized to work in the United States, may apply for a Social Security card, may request permission to travel overseas, and can petition to bring family members to the United States. Asylum seekers may also be eligible for certain benefits, such as Medicaid or Refugee Medical Assistance. 

After one year, an asylum seeker may apply for lawful permanent resident status (i.e. a green card). Once the individual becomes a permanent resident, he or she must wait for four years to apply for citizenship. 

II. What’s happening at Our Southern Border?

The crisis at our southern border has divided Americans as few other issues in recent times due to the separation of children from their families. The family separation crisis is the result of the federal government’s “zero tolerance” policy promoted by President Trump and ordered by Attorney-General Sessions. This policy instructed immigration officials to criminally prosecute anyone crossing the border other than through a Port of Entry into the United States, including those who came seeking asylum.

Migrants who come to the United States other than through a Port of Entry are criminally prosecuted and held in detention until their case is adjudicated. That process can take months, and even years, if it includes an asylum claim. The problem is the legality of detaining children with their parents for longer than 20 days.

A 1997 settlement in a California case, Flores v. Reno, mandated that families cannot be detained longer than 20 days. The Flores agreement requires that children be released from Immigration and Customs Enforcement (ICE) custody – preferably to a parent – without delay. When the child cannot be released due to a significant public safety or flight risk concern, the child should be placed in the least restrictive setting in a non-secure facility licensed by a child welfare agency. 

The Department of Justice has asked U.S. District Judge Dolly Gee, who approved the Flores settlement, to allow for longer detentions. According to the Department of Justice brief, “Tens of thousands of families are embarking on the dangerous journey to the United States, often through smuggling arrangements and then crossing the border illegally in violation of our federal criminal law. And as the government has previously stated, once those families are released into the interior, a vast segment fail to appear at their immigration hearings.” 

According to the Department of Justice, the Flores settlement has eliminated all practical availability of family detention after the 20-day period, “Thus creating powerful incentives for aliens to enter this country with children in violation of our criminal and immigration laws without a valid claim to be admitted to the United States.”

The Department of Justice has asked Judge Gee to “exempt the Department of Homeland Security from the Flores settlement agreement’s release provisions so that ICE may detain aliens who have arrived with their parent or legal guardian together in ICE family residential facilities.” Those residential facilities would be exempt from any state licensure requirements. 

Where will the asylum seekers and their children be detained? It appears that old military bases are being readied to accommodate large inflows of detained migrants and their children. Given the slow pace of immigration adjudication and the lack of a sufficient number of immigration judges, these people could be detained a year or two, or even longer. 

If President Trump’s Executive Order can stand, the result will be family detention in place of family separation. The Order instructs immigration officials to hold the entire family in detention centers together. Children would be indefinitely held in detention with their parents while their case is processed, a procedure that will likely take years.  

This treatment of asylum seekers only applies to people who cross the border illegally rather than to go through a Port of Entry. The question asked is, “Why do people with valid asylum claims not go through a Port of Entry, and thus avoid capture, arrest and prolonged detention?” There is no one answer to this question. Some migrants may believe their backgrounds will bar them from admission into the United States. Others come for economic reasons which are not grounds for asylum. However, we do know that Central American families who have attempted to apply for asylum through official channels since April have been forced to wait in line outside the border entrance for days, sometimes weeks, before being seen by immigration officers. This motivates some families to cross the border without documentation. Almost inevitably they are caught and detained. These are the ones in detention who have suffered separation from their children. 

III. A Better Way

How can we improve family detention? We can’t. ICE’s own 2016 advisory committee on this issue stated unequivocally that the system cannot be fixed. The only viable option is that the Department of Homeland Security “should generally exercise its authority to release family members, together as a family, as soon as possible.”

President Trump is not the first president to jail children. Time and again administrations have responded to surges in migrants by detaining families. In 2014, for example, President Obama responded to the surge of Central American immigrant children by ramping up family detention. The number of available beds jumped from 100 to 3,000. The government implemented a “no bond, no release” policy, holding families even after they passed asylum officers’ credible fear interviews. More than half of the 1,050 children who entered family detention in 2014 were six or younger. 

So, the issue of detaining migrants and their families is not a Republican or Democratic issue, nor is it a Trump or Obama issue – both administrations have done it, one quietly, the other proudly. Regardless, there is a better way that is humane, civilized and far less costly.

The family case management program was started in January 2016. It allowed families seeking asylum to be released together and monitored by caseworkers while their immigration court cases proceeded. Case managers provided asylum seekers with referrals for education, legal services and housing. They also helped sort out confusing orders about when to show up for immigration court and ICE check-ins. And they emphasized the importance of showing up to all court hearings, which can stretch over two or three years.

The case management program was implemented in five metro areas, including New York and Los Angeles, and it was a huge success. About 99 percent of immigrants showed up for their hearings. 

It also was financially cost-effective. The program cost $36.00 per day per family, compared with the more than $900 a day it costs to lock up an immigrant parent with two children.

Sadly, the case management program was cancelled by the Trump Administration in 2017. It should be reinstituted and monitored for five years. The cost and success rate make it an appealing alternative to detention. 

In addition to the case management program, ICE has two programs that use electronic ankle monitors, biometric voice-recognition software, unannounced home visits, telephone reporting, and global positioning technologies to track people who have been released from detention while their cases are being adjudicated. In 2013, 96 percent of those enrolled appeared for their final court hearings, and 80 percent of those who did not qualify for asylum complied with their removal orders. 

Both the ICE program and the case management program work. Along with adequate vetting of migrants and enhanced border security, the immigration crisis on our southern border could be alleviated. In addition, there is a need to expand access to pro bono and government-funded lawyers so that the immigration court process can be fair and just.

If a family loses its case and isn’t deemed eligible to stay in the United States legally, the federal government should issue a notice for them to present themselves to ICE for deportation. If they don’t show, give ICE the resources it needs to go out and arrest and deport the migrants. 

Law and order can go hand in hand with humane treatment. It’s the American way.