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At a moment that calls for presidential leadership and serious policymaking, Trump’s response to the caravan and the challenge of Central American migration has been irresponsible, cynical and ineffective. As thousands of Hondurans head north in search of security and hope, Trump has reacted with politically motivated tweets, ugly rhetoric, and outright lies. From a policy perspective — which is the brief of DHS Watch — the Trump administration’s approach is likely to make the situation worse.
In fact, the Trump administration’s approach to date has left Central Americans facing violence and destitution with few options for seeking asylum besides coming to the U.S.-Mexico border.
A smart multi-pronged approach would combine 1) serious and sustained investments in sending countries to alleviate the root causes of out-migration; 2) a regional approach to refugee protection and resettlement; and 3) a fair asylum determination process in the United States that protects those needing it and ensures the integrity of our immigration system.
With respect to root cause alleviation, the U.S. government has reduced aid to the northern triangle countries of Central America by 40%. As Reuters summarized, “In 2016, the United States provided some $131 million in aid to Guatemala, $98 million to Honduras, and $68 million to El Salvador, according to U.S. data. By next year, those sums were projected to fall to $69 million for Guatemala, $66 million for Honduras and $46 million for El Salvador – a reduction of almost 40 percent for the three nations.”
With respect to a regional approach to refugee protection and resettlement, this administration has ended or thwarted processing and resettlement programs from within the region that would obviate the need to travel to the U.S.-Mexico border to seek safety. The administration ended the Central American Minors (CAM) program that enabled young people with strong claims for refugee status to apply in their home countries. And efforts by the Obama administration in 2016 to work with the UNHCR (the UN High Commission for Refugees) to set up refugee reception and processing centers in the region have dried up under Trump, with just 525 refugees resettled in the U.S. from all of Latin America in fiscal year 2018.
With respect to a fair asylum process that both protects people in danger and ensures integrity of the system, this administration has sought to enact a strategy that undermines fairness, emphasizes detention, separates families and compromises the independence of immigration judges. Careful research of this approach finds that these policies do not work to deter people from seeking protection at our border.
If the Trump administration gets serious about shifting from the exploitation of this situation for political purposes to the implementation of policies that work, here are our recommendations.
In 2014, the Obama administration implemented a program — Central American Minors program (CAM) — that was intended to “to provide a safe, legal, and orderly alternative to the dangerous journey that some children are currently undertaking to the United States [from El Salvador, Guatemala, and Honduras],” precisely what children, families, and adults are doing today. Instead of expanding the program to consider protection claims in country in an effort to prevent the alternative, the Trump administration ended the CAM program last year.
According to an LA Times interview of Doris Meissner, a former Commissioner of the Immigration and Naturalization, “the CAM program, as modest as it was, was always an effort to create a safer way of coming to the United States for people who actually had an eligibility to come. Cutting that off simply worsens what it is [the Trump administration] say that they’re trying to deter.” Other experts echo Meissner’s views.
One component of a serious policy strategy would revive, strengthen and improve the CAM program.
In addition, the State Department and DHS should take up the offer by UNHCR to work with the countries in the region — mostly notably, Mexico and Costa Rica — to improve their own capacity to provide safe haven to those fleeing violence, to assist with refugee processing and family reunification so that those determined to be eligible are resettled in an orderly process to the United States, Canada and other countries in our hemisphere.
The Trump Administration needs to get serious about addressing root causes compelling refugee and migration flows — violence, weak governance, and poverty. Instead of tweeting threats to cut off an already decreasing amount of aid, and ending TPS programs that will only serve to exacerbate problems in sending countries and stimulate increased out-migration, the Trump Administration should support public safety and sustainable economic development efforts by governments and NGOs in Honduras, El Salvador and Guatemala.
As an example of just one component of a serious strategy, the Center for American Progress (CAP) proposes series of measures, with a priority to bolster the rule-of-law in the sending countries:
Assist in creating and fortifying the professional police forces, credible judiciaries, and effective penal institutions needed to establish accountability and the rule of law in the Northern Triangle countries….
The Trump administration’s response to the migration of asylum-seeking families, children and adults has relied on zero tolerance, family separation and increased detention in hopes of deterring those seeking asylum at the U.S.-Mexico border. An in-depth study of the effect of these policies concludes that this approach has failed.
The study looks at 81 months of data…finds that there was no immediate or long-term decrease in apprehensions of families at the southwest border after the expanded use of family detention in July 2014.
Tom K. Wong, senior fellow…at the Center for American Progress and associate professor of political science at the University of California, San Diego, finds, “The Obama administration used family detention in response to an increase in Central American families and unaccompanied children arriving at the southwest border. And the Trump administration has turned to family separation and the detention of families. Both policies, however…have not deterred families from coming to the United States.”
In fact, the monthly number of apprehensions has increased after the administration’s zero-tolerance pilot in July 2017.
The administration justifies its increased detention practices by claiming that those who are released from detention at the border disappear through what they call “catch and release.” What receives much less attention is that most families do show up for hearings, especially those seeking asylum. The American Immigration Council recently found:
[F]amily members who were released from detention had high compliance rates: 86 percent of released family members (with completed and pending cases) had attended all of their court hearings that occurred during our study period. [T]his rate was even higher among family members applying for asylum: 96 percent of asylum applicants had attended all their immigration court hearings.
According to direct legal service providers who work with immigrants and refugees, this high compliance rate is easily explained because asylum seekers and those with credible legal claims and family and community in the U.S. have strong incentives to appear in immigration court and comply with requirements. Consequently, for many, release on recognizance or a minimal bond is appropriate because they pose little flight risk or risk to the community.
When case management systems and alternatives to detention strategies are used, they work to ensure even greater integrity of the process. Multiple pilot projects achieved compliance rates of 97%, 96% and 93%.
Alternatives to detention (ATDs) can also be a successful and cost-effective strategy. According to the 2018 ICE budget justification, it costs $133.99 per day to hold an adult immigrant in detention and $319.37 for an individual in family detention, whereas ATDs only cost an average of $4.50 per day. A 2014 GAO study found that the ATD daily rate was less than 7% of the daily cost in detention.
To ensure integrity, legitimacy, and cost-efficiency in our immigration system, and to ensure asylum seekers’ claims are fairly and timely heard, the Trump administration should be working towards greater independence and resources for the immigration court, as recommended by the American Bar Association (ABA).
The President of the ABA, Hilarie Bass, testified before Congress stating, “One of the distinctive hallmarks of our democracy is our tradition of an independent judiciary – the principle that all those present in our country are entitled to fair and impartial consideration in legal proceedings where important rights and privileges are at stake.” Like other courts, Bass explained, “The immigration courts issue life-altering decisions each day that may deprive individuals of their freedom; separate families, including from U.S. citizen family members; and, in the case of those seeking asylum, may be a matter of life and death.”
But impartiality and fairness in immigration court not only upholds long-held American principles of democracy while benefiting immigrants with serious issues at stake, it also helps to cut costs and promote efficiency. Bass stated that the lack of immigration court independence undermines “public confidence in the competence and impartiality of immigration judges.” Impartiality and fairness:
should lead to greater acceptance of the decision without the need to appeal to a higher tribunal. When appeals are taken, more articulate decisions should enable the reviewing body at each level to be more efficient in its review and decision-making and should result in fewer remands requesting additional explanations or fact-finding. These improvements in efficiency should reduce the total time and cost required to fully adjudicate a removal case and thus help the system keep pace with expanding caseloads. They also should produce savings elsewhere in the system, such as the cost of detaining those who remain in custody during the proceedings.
The ABA also found that “without question the most serious issue facing the immigration courts, and the one with the most significant impact on the speed and quality of case processing, is the lack of resources throughout the entire system.” Among other recommendations, the ABA recommended hiring more immigration judges, increasing counsel and legal information, and “implementing smart procedures such as greater use of prosecutorial authority and prehearing conferences.”
Instead of implementing these and other critical recommendations, Attorney General Sessions is engaged in a systemic assault on the immigration courts and the law. He has required case-completion quotas for judges with no regard to quality, fairness and due process. He is banning the use of tools by judges to appropriately address and reduce overwhelming workload, undermining judicial independence by reviewing and single-handedly re-deciding cases he disagrees with on policy, and attempting to end the critical legal orientation program (LOP) that ensures basic due process, humanity, and transparency, and is cost-effective for the government. Sessions has gone so far as to strong-arm immigration judges and asylum adjudicators to deny most claims for asylum based upon domestic and gang violence without a case-by-case review of facts, as required by the law.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said:
There are smart, effective and humane alternatives to the politically-motivated, ineffective and inhumane approach by the Trump administration. A combination of root cause mitigation, in-country refugee processing, regional refugee protection, fair proceedings, case management strategies and enhanced resources for the adjudication process would move us towards a safe, legal and orderly process and away from the chaos and cruelty created and exacerbated by the Trump administration.