We Need Common Sense, Effective and Humane Solutions
Last night, the President issued a memorandum that purports to be a solution to the increasing number of families seeking asylum at our southern border by imposing fees on asylum seekers, ending work permits for asylum seekers to support themselves while awaiting decisions on their cases, limiting the hearing process, and imposing unrealistic time limits on processing without appropriate resources.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “Don’t be fooled. This is more of the same failed border policy. They have already tried and failed to close off asylum in between ports of entry which is clearly authorized by Congress, through the Remain in Mexico policy, and the former Attorney General’s decision in Matter of A.B. All have been enjoined by courts and would do nothing to address the real issues. So now they are resorting to more cruel and inhumane policies that, like the previous failed policies, will only serve to exacerbate the problem while inflicting more pain on families seeking protection from violence.”
David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said: “Asylum should not be a luxury for those who can afford it. Asylum should provide shelter to those in need of safe haven. More enforcement policy — no matter how tough and cruel — will do little to stop families from coming who see no other choice to life and safety for their children. The real solution starts with addressing root causes of migration in triangle countries, not cutting aid to programs that could help improve the situation in Central America. The real solution includes immediate resources to the border and to the asylum adjudication system to bring order to the process at the border and beyond, not forcing people to wait in refugee-like camps in Mexico for their turn in unnecessarily slow lines for processing or in the U.S. without any way to shelter or feed themselves. That will simply inflict unnecessary and inhumane pain and chaos.”
Summary and Analysis of President Trump’s Memorandum
- Section 3(a): Currently, a person who arrives at our border and establishes a credible fear of persecution, is permitted to prepare evidence to build a case for asylum before an immigration judge in a hearing. If during that process there is another avenue for relief — such as through a U.S. citizen family member — they may pursue such action. Under Section 3(a) of the memo, this individual would be limited to pursue only asylum or withholding of removal even if there is another clearly available form of relief.
- Section 3(b): Without requiring any new resources, this provision requires the Department of Justice to develop regulations to ensure that all asylum cases are adjudicated in immigration court within 180 days. The problem with this approach is it fails to recognize that the main reason for the growing immigration court backlog — a failure to match the immigration court budget with the ever-increasing enforcement budget that results in more and more cases for the court. To set an arbitrary 180 day deadline on asylum cases without providing more resources will only put more strain on an already overly strained immigration court system.
- Section 3(c): This section requires DHS to develop an application fee for asylum and the authorization to work while awaiting a decision on a case. As a former USCIS official stated, “The majority of people coming to the United States seeking asylum are coming with little more than the shirts on their back.” These fees could result in closing off asylum to the very people that need it, unless they are wealthy enough and have the ability to pay for it at the border.
- Section 3(d): This section requires DHS to develop regulations that would end work permits for asylum seekers who apply in between ports of entry, closing out any lawful way for such asylum seekers to work to feed and shelter themselves while they await adjudication of their cases that can take months or even years. The Immigration and Nationality Act clearly authorizes applications for asylum “whether or not at a designated port of arrival,” so this provision, which clearly runs counter to the language and spirit of U.S. asylum law, would merely serve to starve out such applicants for asylum.
- Section 4: Without requiring appropriate training, this section requires DHS to reassign employees of the agency to jobs they were not originally hired or trained for, including adjudicating credible fear claims and assisting in the removal process. It has been reported that the President and Stephen Miller want Border Patrol agents — instead of USCIS asylum officers — to conduct credible fear interviews, under the assumption that more people would fail the interview conducted by Border Patrol agents. This provision makes it clear to DHS that they should do more of this.
Common Sense, Effective and Humane Solutions
Instead of more failed policies, we should be investing in a regional approach to this regional refugee crisis in a sensible and multi-faceted way while simultaneously marshalling resources at the border for an effective humanitarian response that brings order to the process.
- Immediately Increase Port-of-Entry Infrastructure, Personnel and Resources for Processing Asylum Applicants: We should retool and grow border infrastructure and retrain personnel to receive and process asylum-seeking families efficiently, fairly and in a humane manner at the border.
- More Immigration Judges: We should be increasing immigration judges for fair and more timely asylum hearings.
- Greater Use of Alternatives to Detention: We should make better use of smart, effective, and cost-efficient alternatives to detention that help ensure families and individuals are accountable to the law.
- Immediately Restart and Ramp-Up Regional and In-Country Refugee Processing: To manage the flow of people in a humane manner and to disincentivize dangerous black market migration, we should be developing structures, together with the United Nations High Commissioner for Refugees and partners in the region, to receive and adjudicate refugee and other claims before people travel to the U.S. border, which includes restarting and growing the Central American Minors program ended by Trump.
- Deter Smuggling: We should ramp up anti-smuggling and intelligence initiatives with regional partners.
- Address Root Causes: Former Vice President Joe Biden said last year, “The Border Won’t Be Secure Until Central America Is,” so we should be working with Central America to address root causes, not threats to cut off aid by presidential Tweet. Two former officials with expertise in Central America, former Ambassador Roberta Jacobson and former National Security Senior Director for Western Hemisphere Affairs Dan Restrepo, have provided details of a plan to address root causes, including a point-by-point plan.
