In an unprecedented attack on a long-held American tradition, the Trump administration is engaged in a comprehensive effort to close the door on people seeking refuge from persecution. For those seeking refugee status from abroad, the administration has resettled the lowest number of refugees in more than 40 years and intends to continue this trend next year.
For those seeking refuge at our borders, the door is being slammed shut in just about every way imaginable: turning away asylum-seekers at border checkpoints and prosecuting them if they cross elsewhere; closing legal pathways to asylum; strong-arming immigration judges and adjudicators to deny significant numbers of asylum claims; continuing separations of families seeking asylum under certain circumstances; and, doubling down on multiple efforts to lock up as many asylum seekers as possible, even families and children.
Taking A Wrecking Ball to America’s Proud Tradition Of Robust Refugee Resettlement
Enacted by Congress nearly 40 years ago, the the U.S. Refugee Act has been used by Republican and Democratic Presidents to resettle on average 80,000 refugees per year. At the close of fiscal year (FY) 2018, however, the U.S. admitted only 22,491 refugees, the lowest number in 40 years. The FY 2018 refugee resettlement population is even lower than the period immediately following 9/11 when the refugee program was stalled for months as new security checks were implemented.
To make matters worse, the Trump administration recently announced plans to admit no more than 30,000 refugees in FY 2019, the lowest limit since 1980 when the Refugee Act was enacted. If the administration does in FY 2019 as it did in FY 2018 — when it admitted only about half of the projected limit (22,941 refugees despite a ceiling of 45,000) — then actual admissions for FY 2019 may be much lower than the 30,000 ceiling.
As Former Ambassador Ryan Crocker, who served both Democratic and Republican Presidents in Afghanistan, Iraq, Pakistan, Syria, Kuwait, and Lebanon, stated, “This is shameful, a frontal assault on American ideals that will increase the suffering of people who have already suffered greatly.” He also noted, “By rolling back resettlement, however, the United States hurts not only refugees but also itself.”
Turning Away Asylum Seekers at the Border and Then Prosecuting Them for Legally Seeking Asylum Where it is Available
U.S. law is crystal clear: Those who are “physically present in the United States or who arrive[] in the United States (whether or not at a designated port of arrival…)…may apply for asylum.” In addition, international treaty obligations, as noted by the DHS Inspector General, generally require that asylum seekers not be prosecuted for seeking protection away from a border checkpoint.
Yet, this administration is ignoring the law and telling asylum-seekers they should request asylum only at ports of entry. And, if they don’t, they will be arrested and prosecuted. But even when asylum seekers heed the administration’s dubious advice, they are often turned away when they seek asylum at border checkpoints.
In a crude defense of the administration’s cruel family separation policy, Attorney General Jeff Sessions said, “They can go to our ports of entry, if they want to claim asylum, and they won’t be arrested [and separated from their children].” Homeland Security Secretary Kirstjen Nielsen parroted these remarks in Congressional testimony:
If you are fleeing…please come to the ports of entry. We will process your claim there. But if you come across the border illegally, you’ve broken the law and we have to prosecute….So, if you have a claim, you have children…go to a port of entry. You’ll be processed. We have asylum laws. But when you break the law…we have to prosecute….”
For months, however, reports corroborated by the DHS Inspector General (OIG) indicated that some asylum seekers were being turned away at official border checkpoints.
On top of that, the OIG found that when asylum seekers were turned away, some chose the dangerous route of crossing outside of border checkpoints, as they likely perceived no other way to reach U.S. soil to legally apply for protection. In doing so, they faced the draconian zero tolerance policy — 100% prosecution for a misdemeanor of crossing outside of a border checkpoint, notwithstanding legal asylum claims protected by U.S. law and international obligations.
In other words, the Trump administration turned away asylum seekers multiple times at border checkpoints, effectively forcing them to cross between border checkpoints. It then prosecuted asylum seekers for not crossing at border checkpoints and, based upon a legally-flawed decision by the Attorney General, attempted to instruct asylum adjudicators to consider crossings between border checkpoints a negative factor in the adjudication of asylum cases. A classic “Catch-22” that has trapped multiple vulnerable asylum seekers desperately seeking protection.
Cutting off Legal Avenues to Asylum
In June, Attorney General Sessions attempted to strong-arm immigration judges and asylum adjudicators to close the door on most asylum claims made by Central Americans. In Matter of A.B., Sessions said, “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” The problem is, the proper adjudication of an asylum claim requires a review of the facts against the law, not a predetermined conclusion that most claims will fail. With this gratuitous statement inserted into a precedent decision, Sessions all but predetermined the merits of thousands of asylum claims without hearing a word of testimony or reviewing a shred of evidence. Because the most common asylum claim by Central Americans is based upon domestic or gang violence, this is a direct assault on Central American asylum seekers, especially women and children, in need of protection.
Even more concerning is a report on a potential regulation that would severely limit asylum claims. According to Dara Lind of Vox:
The Department of Justice, under Attorney General Jeff Sessions, is drafting a plan that would totally overhaul asylum policy in the United States.
Under the plan, people would be barred from getting asylum if they came into the US between ports of entry and were prosecuted for illegal entry. It would also add presumptions that would make it extremely difficult for Central Americans to qualify for asylum, and codify — in an even more restrictive form — an opinion [Matter of A.B.] written by Sessions in June that attempted to restrict asylum for victims of domestic and gang violence.
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One source familiar with the asylum process but not authorized to speak on the record described the proposed changes as “the most severe restrictions on asylum since at least 1965”…and “possibly even further back.”
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It would eliminate the path that thousands of Central Americans, including families, take every month to seek asylum in the US: entering between ports of entry and presenting themselves to Border Patrol agents….It would create a presumption against Central Americans who travel through Mexico on their way to the US.
Some Families Seeking Asylum Still Face the Daunting Possibility of Separation
In spite of public outcry over the Trump family separation policy, an executive order that purports to end family separation, and effective, cost-efficient and humane alternatives to detention, some parents still face the daunting decision of seeking protection knowing they may be separated from children and indefinitely detained.
According to KPBS, under a policy confirmed by border officials, “since July, at least 54 U.S.-citizen children have been transferred to Child Welfare Services by law enforcement agencies as ‘asylum referrals.’ This applies mostly to boys and girls separated from asylum-seeking parents at the border, including at ports of entry.”
Furthermore, according to a DHS spokesperson, “DHS still has a policy of separating ‘for the best interest of the child, for health or medical reasons, or for criminal background of the adult.’” Given the cruel separation of almost 3,000 children from their parents until a court ordered DHS to stop, it is questionable whether DHS even has the institutional competence and priority to determine what is in “the best interest of the child” and implement it.
In addition, DHS has been dragging its feet in reuniting some children with their parents claiming “the best interest of the child” but without providing much evidence, let alone a fair opportunity for parents to refute the evidence according to basic child welfare principles and standards.
Locking Up More and More Adults, Children, and Families, Many Seeking Asylum
Under the Trump administration, detention is skyrocketing, making it difficult for more and more asylum seekers to seek protection. Over the last few decades the average daily population of detained immigrants, including asylum seekers, has increased, “from approximately 5,000 in 1994, to 19,000 in 2001, and to over 39,000 in 2017.” ICE has requested a massive increase in fiscal year 2019 – 47,000.
Furthermore, the Trump administration is intent upon drastically expanding detention of asylum seekers, including families and children. According to the New Yorker, several government officials have been meeting since the middle of July in the wake of the President’s “failed zero-tolerance policy….The main focus…has been to ‘map out’ how the government can detain asylum seekers as they wait for a hearing before an immigration judge, which can take several months….”
Other reports demonstrate that the Department of Defense is working on plans to detain 20,000 migrant children at military facilities, despite vociferous opposition from retired generals and flag officers. In addition, ICE issued a request for information in June for up to 15,000 beds for immigrant families.
Moreover, in a recently proposed regulation, the Trump Administration is attempting to end legal requirements established under the Flores consent decree that protect children, including those seeking asylum, from prolonged detention and unsafe detention conditions. This is not a new effort. Before the regulation was proposed, the Trump administration pressured the Congress to undo the Flores agreement through legislation. It also sought to amend the Flores agreement with the court overseeing the matter, a failed effort.
Finally, the Trump administration is holding a record number of children –13,000 — in federal custody, which according to CNN, “The cause is likely moves by the Trump administration in its aggressive efforts to tighten immigration.” Indeed, on April 13, the Department of Health and Human Services (HHS) and the Department of Homeland Security (DHS) signed an agreement that requires HHS to share immigration status with DHS of those willing to care for children outside of federal custody, and other adults in the household.
According to a report by the Senate Homeland Security and Governmental Affairs Committee (HSGAC), since roughly 90% of current sponsors are undocumented, experts warned that the April agreement would dissuade many from stepping forward to care for children, thereby leading to more children in federal custody for longer than necessary. As predicted, the number of children in federal custody has soared, and ICE has admitted that it arrested 41 people who applied to become sponsors.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said:
Make no mistake. The Trump administration changes to refugee and asylum policy and law are not simply minor adjustments to address legitimate areas in need of improvement. This is a comprehensive effort to fundamentally transform the American tradition that proudly protects people in need of refuge from persecution. The Statue of Liberty’s “lamp beside the golden door” welcoming ‘your tired, your poor, [y]our huddled masses yearning to be free’ is not just a line in a poem inscribed in an American symbol. That symbol is backed by decades of law and policy that this administration seeks to fundamentally alter so that the ‘golden door’ closes to thousands in need of hope.
