As the Trump administration continues to eviscerate asylum protections, several important new pieces draw important contrasts with the administration’s approach and motivations.
In the Wall Street Journal, the American Immigration Council’s Aaron Reichlin-Melnick dismantles the falsehood peddled by the Trump team that those seeking asylum do not comply with court appointments. He shows how the administration purposefully uses bad math to cook the books. They do so to argue against releasing asylum seekers and to justify lengthy detentions.
In Slate, Bill Ong Hing, a leading legal scholar on immigration, highlights real stories of asylum seekers – a powerful reminder of what’s at stake in contrast to the Trump team’s dehumanizing cruelty.
And in the Washington Post, Plumline columnist Greg Sargent examines Democrats’ vision for a sane and humane and rational approach to asylum and larger immigration policy, noting that Democrats should lean into the debate and contrast with Trump, knowing they have not only sensible policy on their side, but public support as well.
Below are excerpts from each piece:
Aaron Reichlin-Melnick in the Wall Street Journal: “Trump’s Bad Immigration Math”
Trump administration officials have repeatedly argued against releasing adult asylum seekers from detention on the ground that they’re unlikely to show up in court. “The absentia rates in immigration court are sky high,” Thomas Homan, former acting director of Immigration and Customs Enforcement, told a House hearing July 12. But as a new report from the American Immigration Council shows, the administration is using the wrong measure. In fact, over the past decade, 1.97 million cases have been filed in immigration court for aliens not held in ICE detention. In 1.8 million of those cases, at least one scheduled court hearing has occurred. Among those, nearly 1.5 million showed up to every hearing—an appearance rate of 83%.
Asylum-seeking families are even likelier to appear in court. Of families released from detention from 2001-16, 86% attended every scheduled court hearing. Among families that had lawyers, 97% appeared in court. That makes sense—the only way for them to get the legal protection they need is to show up in court to argue for it.
The government, however, does not report immigrants’ appearance rate. Instead it reports a related figure called the “in absentia rate”—the percentage of “completed” cases closed each year because the person missed court. Because the penalty for missing court is an automatic deportation order, these cases are completed rapidly. As a result, that figure overemphasizes rapid deportations for missing court and leaves out the much larger number of cases that remain pending as the immigrant diligently appears for every hearing.
…Some asylum seekers fail to show up through no fault of their own, as demonstrated by a 2018 study by the Urban Justice Center and the Catholic Legal Immigration Network. It examined families ordered deported for missing court and found that in a significant number of cases, government error was to blame. One family received two letters on the same day—one notifying them of a court date that had already passed, the other a deportation order for missing it.
Given that the vast majority of asylum seekers do appear for court, the government should focus on ensuring that those seeking to follow the rules have a full opportunity to do so. A good start would be to restore the Family Case Management Program, established in 2016 and ended in 2017, which achieved a 95% compliance rate by helping families navigate the court process and building stability in their lives during proceedings. Keeping a family of two in this program cost taxpayers $38 a day, vs. $592 for detention. Even modest efforts like sending text messages before hearings could help people.
It makes no sense to lock people up who only want to abide by the law. The administration should focus instead on helping them do so.
Bill Ong Hing in Slate: “My Asylum Clients Are Not ‘Gaming the System’”
Republican lawmakers are suddenly very concerned with asylum fraud. Senate Judiciary Committee Chairman Lindsey Graham is proceeding with a partisan asylum reform proposal because his discussions with Senate Minority Whip Dick Durbin are “going nowhere.” President Donald Trump believes current asylum laws are riddled with “loopholes” that allow illegitimate asylum-seekers to “abuse” the system. Thus, Graham wants to authorize the detention of asylum-seekers—including families and children—for longer periods, because of the “tsunami of people coming and gaming the system.” Graham’s legislation would require Central American immigrants to apply for asylum in their home countries or Mexico and extend current detention requirements. Some Republicans on the committee have sought an even more hard-line approach.
…After handling asylum cases for more than 40 years—including Central American migrants in the 1980s as well as today—I can attest to the fact that my clients are not “gaming the system.” The law school clinic that I help to direct accepts clients in order and does not cherry-pick those with the “best” claims because all are desperate for assistance.
…We should be granting protection to these Central American migrants. They are not coming for the adventure. Many are getting discouraged or turned away by strict policies implemented by the Trump administration at the border. For those who get to apply for asylum, only about one in five Central Americans get approved. The asylum process is complicated for a person to navigate on their own. An applicant is five times more likely to prevail with an attorney, but the government does not provide a free attorney, and legal services programs are not able to handle the pressing need for legal representation across the country.
Perhaps it is human nature for adjudicators to be skeptical that the alleged danger is real. But that is not what the court demanded in Cardoza-Fonseca. Asylum reform is needed, but not in the direction that Trump and Graham would lead us. Something more needs to be done to ensure that the principles of our nation’s international refugee obligations will be followed.
Greg Sargent in the Washington Post: “Don’t fear the immigration debate, Democrats”
A new Quinnipiac poll probes public attitudes toward the asylum crisis in a way I haven’t seen before — and the findings suggest that Democrats really should get over this reflexive belief that President Trump possesses magical political powers when it comes to this issue.
The Quinnipiac poll asks about a complex policy challenge at the core of this whole situation — what to do about migrants while they are awaiting hearings — and the results suggest that Americans are more tolerant toward this problem than you might have expected.
…People who favor restricting immigration (albeit not as drastically as Trump wants) sometimes suggest Trump has the winning argument. Their standard move is to say something like, “If Democrats don’t support controlling our borders, Trump’s demagoguery will win.”
…The frequent implication is that Democrats must grant the premise of Trump’s argument — that release of migrants equates to an alarming loss of border control and a severe blow to our national sovereignty. The idea is that if Democrats don’t grant this premise — and don’t accept new restrictions on asylum seeking as a result — they are in denial about the realities of public opinion.
But these findings suggest these realities might be more complicated than that.
Democrats in Congress have offered numerous plans for the asylum crisis. One core proposal is to dramatically expand the family case management system — a government pilot program Trump ended — which tracks and provides legal and social services to asylum seekers.
…The Quinnipiac poll suggests the public might understand the problem along these lines — as a messy one with no perfect solutions, but also one that doesn’t justify caging migrants in horrible conditions.
…The public is recoiling at all the cruelty to migrants. The poll finds that 62 percent of voters say the government isn’t doing enough to ensure humane conditions, and that 68 percent say those conditions are a serious problem. And fully 70 percent say immigration is good for the country.
The argument over what to do about the families is a complicated one. But it’s one Democrats can win.
