A Positive Way Forward Exists, Yet Trump Has Dismantled the Current System
Since the beginning of the Trump presidency, Trump and his administration have tried multiple cruel and hard-line approaches to addressing the challenge of Central American migration. The Trump administration has cruelly separated families, is doing everything it can to lock up more migrating parents, children and adults for longer periods of time and in unsafe conditions, and has sought to close asylum to many Central Americans. Instead of positive results, an unprecedented number of Central Americans in search of protection and a better life are now at the border and Customs and Border Protection officers are tear gassing them, even mothers and children, an unprecedented, dangerous and brutal response.
In addition to this ineffective and ruthless approach to Central American migration, other Trump administration actions have left Central Americans facing violence and destitution with few options for seeking asylum besides enduring the treacherous, in many cases life-threatening, trek through Mexico to the U.S. border.
- 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. Within six months of his presidency, the Trump administration ended the Central American Minors (CAM) program that enabled young people with strong claims for refugee status to apply in their home countries rather than take the dangerous journey to the border in search of protection. Furthermore, 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.
- The Trump administration has also tried to close asylum to individuals seeking protection from domestic and gang violence, the most common asylum claim from Central America, and to unlawfully limit asylum to ports of entry.
- With respect to root cause alleviation, the U.S. government has made matters worse; it 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.”
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. Instead, the Trump administration has ended or reduced each and every component of a workable approach.
If the Trump administration gets serious about shifting from the cynically exploiting this situation for political purposes to the implementation of policies that work, here are our recommendations.
In-country Processing, Regional Protection and Refugee Resettlement
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.
Address Root Causes
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….
- Police reform efforts must focus on building police forces rooted in communities from the bottom up. Judiciaries should outsource their most vexing prosecutions through extradition and supranational support for national rule-of-law institutions, at least in the short term.
- With prisons across the region filled beyond capacity, the United States must work with other international actors—particularly the European Union and the United Nations—that have the resources and capacity to engage on prison reform and management issues in the region.
- Too often, femicides and domestic violence go unpunished in the Northern Triangle countries. These nations must prioritize the prosecution of these crimes in order to make the countries safe for women and girls.
Release on Recognizance, Bond, and Alternatives to Detention (ATDs) For Those That May Reach the U.S. Border
The Trump administration’s response to the migration of asylum-seeking families, children and adults has relied on zero tolerance, family separation, increased detention, and now tear gas 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 the overwhelming majority of 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.
Strong, Independent, Well-resourced, and Fair Immigration Courts
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, former Attorney General Sessions engaged in a systemic assault on the immigration courts and the law. He required case-completion quotas for judges with no regard to quality, fairness and due process. He banned the use of case management tools by judges to effectively address and reduce overwhelming workload. He undermined judicial independence by reviewing and single-handedly re-deciding cases he disagreed with on policy. He attempted to end the critical legal orientation program (LOP) that ensures basic due process, humanity, and transparency, and is cost-effective for the government. Sessions even went 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.”
David Leopold, Counsel to DHS Watch, Chair Immigration Law, Ulmer & Berne, LLP and former President, American Immigration Lawyers Association, said: “The immigration statute is clear, people can apply for asylum in the U.S. regardless of how they arrive. By severely limiting asylum applications at border checkpoints Trump and his advisors have again demonstrated that this is not about border security, it’s about shutting America’s doors to desperate families and individuals in need of safe haven.”