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Resources and Reminders: Trump’s Failed Policies Worsened the Humanitarian Crisis at Border and a More Sane and Effective Vision Exists

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President Trump yesterday engaged in another round of rage-tweeting about the border, heavy on bluster, fear-mongering, and now, saber rattling about the “ARMED SOLDIERS” the U.S. is sending to the border to confront the Mexican military. This included a renewed threat, as we predicted, to shut down the southern border.

It’s the latest episode of a predictable cycle. As we’ve been highlighting, Trump is failing and flailing and has zero idea what to do, as his hardline policies aren’t working to stem the volume of asylum-seeking families arriving at the border. Nor are they fully distracting the country from the findings of the U.S.-Russia investigations and the devastating revelations about the Trump presidency. Now, Trump is hellbent on injecting more chaos, more inhumanity, and more headline-grabbing bad ideas into the mix, mostly because of what Trump views as his brand and related political incentives for hardline stances ahead of the divisive 2020 re-election campaign he intends to run.

Watching all of this unfold, some media observers are embracing a heavy dose of both side-ism (“Trump isn’t going about it correctly, but doesn’t he have a point? Aren’t advocates failing to offer an alternative vision?” type hot takes.) So let’s be clear – outside observers should recognize that:

(a) Trump’s policies helped create and exacerbate this humanitarian crisis and further hardline approaches are doomed to fail because he fundamentally doesn’t understand the problem and therefore is incapable of prescribing solutions; and

(b) There exists an alternative strategic vision that a more sane administration would pursue that would be more smart, sane, humane, and effective with concrete steps to regain control of the situation.

To come up to speed on both of the above points, see related resources below, including a new detailed Q&A with leading immigration legal and policy expert and Stanford Law professor Lucas Guttentag (excerpted and described in more detail below):

And in a new addition to the mix, read the new Stanford Law School Q&A with immigration policy and law expert and Stanford Law professor Lucas Guttentag: “Crisis at the Border? An Update on Immigration Policy,” (excerpted below and available in full online here). Professor Guttentag is the founder and former national director of the ACLU Immigrants’ Rights Project and a former senior immigration advisor at DHS from 2014-2016.

“What has changed at the southern border recently? Are the immigrants themselves different?

What has changed significantly in recent years is the composition of the migrants coming to the southern border. Today, more than 50 percent are from the Northern Triangle countries of El Salvador, Guatemala, and Honduras. These migrants are fleeing almost unprecedented levels of violence and danger from countries that have some of the highest gang violence and murder rates in the world. By comparison, in the past, most migrants apprehended at the border were young Mexican men seeking opportunity and employment in the U.S.  … So, the critical question is not the total number, but who is coming and why.

Our current border enforcement regime is failing to address this new reality. The system is mired in the past and treats migrants as threats who should be jailed and deterred rather than as refugees seeking protection whose claims must be heard and fairly adjudicated. Responding to the current situation with inhumane measures that violate our legal obligations is a moral and management failure.

What are the rights of asylum-seekers?

Persons fleeing persecution are entitled to legal protection under U.S. immigration law and international human rights treaties…

How are the immigration and asylum laws enforced at the border, and what is the “credible fear” process?   Should that process be made stricter, as some in the administration have claimed?

Generally, migrants arriving at the southern border who lack valid entry documents are subject to summary expulsion (or “expedited removal”) without any hearing.  But if a person expresses a fear of return, they must be interviewed by DHS asylum experts to determine if they have a “credible fear” of persecution. The credible fear standard is defined in the asylum statute as meaning that the individual has a “significant possibility” of being eligible for asylum. If the DHS officer finds a credible fear, the applicant must receive a full hearing before an immigration judge on their asylum claim. The credible fear process is a critical safeguard intended to ensure that the normal summary expulsion process will not result in returning refugees to persecution. Currently, more than 75 percent of Northern Triangle migrants demonstrate a fear of return that satisfies the credible fear standard.

If the credible fear standard is made more difficult, bona fide refugees will be returned to persecution without any reasonable chance to make their case. The asylum standards and protections were adopted by the international community after the Holocaust because of the failure of the West—including the United States—to accept and protect Jews and others fleeing Nazi Germany.  Those who today suggest that the credible fear standard should be raised ignore that past and would repeat it.

…What do you think is driving the increase in people coming from Central America?

The increases are driven overwhelmingly by the conditions in Central America.

…Before 2017, there were programs in place or planned that allowed some Central American children and refugees to apply for admission to the U.S. from their home countries. These were ended by the Trump administration—though a recent court ruling held that children who had already been processed and approved for admission to the U.S. must be allowed to come.

The Trump administration also recently announced an end to the foreign aid for the Northern Triangle countries.  This is astoundingly short-sighted and counterproductive. It will lead to even worse conditions, further diminish hope for improvement, and aggravate migration pressures. The Trump administration is abandoning responsible, long-term efforts that are essential for regional stability and are responsive to human suffering. Some see this as a tactic to inflame rather than diminish the problem

So is there a crisis at the border?

The “crisis” at the border is not the numbers who are arriving but the system’s failure to respond in a humane, efficient, and orderly way in light of the government’s legal obligations and the number of migrants who are seeking protection.

…It’s instructive to recall the 1980’s when conditions of civil war, persecution, and genocide in Central America caused a similar refugee flow to the United States and a reaction not unlike today’s.  An estimated total of 1 million Central Americans came during that period. Like today, they braved traveling—often literally walking—thousands of miles through an entire country to seek safety in America. That alone is a remarkable testament to their courage, initiative, and fear.  A generation later, those earlier refugees are settled, working, and contributing to our communities—and some their children have been students in my classes.

How are the immigration courts handling the pressure? Is there a plan to increase capacity for both judges to hear cases and lawyers to represent asylum seekers? Doris Meissner, the immigration commissioner in the Clinton administration said that the backlog “has been allowed to build to the point of a crisis.”

The immigration courts as well as the U.S. Citizenship and Immigration Services (USCIS) asylum system are completely under-resourced and confronting an unmanageable caseload. This situation has grown over the years as Congress devotes ever greater resources to enforcement while starving the adjudication system.

…Is there anything else you’d like to add?

Just two points. One is that people migrate for the same reasons they always have: to seek safety and opportunity for themselves and their children. Laws and punishment won’t change that fundamental human imperative. It can be addressed only through changing conditions in countries of origin. Second, immigration is not a threat or a danger to our country or our values. At every point in our history new immigrants have been viewed with suspicion and hostility, and some political leaders have always tried to exploit and inflame those fears. But history also shows that in every case, new immigrants have fueled the American experience, have become part of the American people, have adopted English in every successive generation, and have contributed beyond measure to our intellectual, cultural, economic, and political life and success.”