Asylum Ban 2.0 Won’t Work – Here’s Why

by Jason Dzubow

In a recent decision, the Supreme Court has allowed a new asylum regulation to go into effect, at least until questions about the legality of that regulation work their way through the court system. Until now, the rule had been on hold, thanks to an interim decision by a lower federal court. The regulation–colloquially known as Asylum Ban 2.0–bars certain people from asylum, depending on when and where they entered the United States. Whether the regulation will ultimately be upheld by the courts is not yet known, but obviously, the Supreme Court’s decision does not bode well. 

Here, we’ll take a look at the effect of the new rule on asylum applicants and on “the system.” 

First, let’s talk about who is blocked by the regulation. The rule applies only to people who arrive at “the southern land border” of the United States. So if you arrive in the U.S. at an airport or seaport, or if you arrive by boat or drop in by parachute at a place other than the southern land border, the rule does not apply to you. Even if you arrived at the southern land border, the regulation does not apply to you if you got here prior to July 16, 2019. Those who arrive at the U.S.-Mexico border on or after July 16, 2019 are affected.

There are many ways to avoid the southern land border.

If you are affected by the regulation, you are barred from asylum unless (1) you demonstrate that you applied for protection from persecution or torture in at least one country outside your country of citizenship, nationality, or last lawful habitual residence through which you transited en route to the United States, and that you received a final judgment denying your application for protection in such country; or (2) you demonstrate that you satisfy the definition of “victim of a severe form of trafficking in persons” provided in 8 C.F.R. § 214.11.

So the first exception requires the alien to seek protection in a third country en route to the U.S. It’s worth noting that if you are seeking asylum from Mexico, the rule does not apply to you, since you have not passed through a third country. If you are from some other country, the only way to arrive at the southern land border is to pass through Mexico. Some people pass through dozens of countries to reach the U.S.-Mexico border; other people pass through only one country (Mexico). The regulation requires that you seek asylum in one of those countries; the regulation does not require you to seek asylum in more than one country.

In the preamble to the regulation, our government justifies its new policy by claiming that Mexico’s asylum system is a “robust protection regime.” This seems doubtful. Most reports indicate that the Mexican asylum system is overburdened and flawed. Moreover, the situation in Mexico is unsafe for many people trying to reach the U.S. Most other countries that asylum seekers might pass through are no better. And so the idea of barring asylum seekers simply because they did not seek asylum in a country that was unsafe for them and/or that does not have a functioning asylum system seems unfair (especially for those who did not know about the rule, which is effectively retroactive) and cruel. 

What then do you do if the new rule applies to you? For people who are not yet here, my guess is that some of them will start seeking asylum in third countries and being denied. It seems to me that the rule will create a cottage industry where any Mexican or Central American official with a “no” stamp can issue a denial, and then the asylum applicant can use that denial to support a claim for asylum in the U.S. For people who arrive after July 16, 2019 and who have not tried to obtain asylum in a third country, there are still two main options–Withholding of Removal (“WOR”) and relief under the UN Convention Against Torture (“CAT”). Both forms of relief are potentially available to people who fear persecution in their home countries, though they are both inferior in terms of benefits when compared to asylum. Also, the evidentiary burden for WOR and CAT is higher than the burden to obtain asylum. Nevertheless, WOR and CAT are forms of protection that remain available to asylum seekers, even those who are blocked by the new regulation.

The second exception to Asylum Ban 2.0 applies to victims of human trafficking. The regulation defines trafficking victim as follows–

Severe form of trafficking in persons means sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act is under the age of 18 years; or the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery

This is pretty broad and pretty vague. People who have been subject to sexual abuse or forced labor might meet this exception. Also, unlike the first requirement about seeking asylum in a third country, the regulation does not require that the trafficking took place “en route to the United States.” Potentially then, if you were ever a victim of human trafficking, you might qualify for this exception to the asylum ban.

Asylum Ban 2.0 will undoubtedly make it more difficult for certain people to obtain protection in the United States. That is the whole point. But I have my doubts about whether the new rule will accomplish what the Trump Administration hopes to accomplish, which is to deter people from coming here to seek asylum. The new regulation does not block people from WOR or CAT, and so when they arrive at the border and ask for protection, they will still be accorded a credible or reasonable fear interview (which is an initial evaluation of eligibility for asylum, WOR, and CAT). While it may now be more difficult to “pass” such an interview, the difference in the burden of proof between asylum and the burden for WOR or CAT is fuzzy, and it seems to me that aliens who would have passed for purposes of asylum may very well also pass for purposes of WOR and CAT. Thus, asylum seekers will still be entering the system, and so the deterrent effect of the new rule will probably be less than what the Administration wants. Further, I just don’t believe that people will be deterred from coming here by the Administration raising the bar a few notches. Look what is happening in the Mediterranean: Every year, thousands of migrants are killed trying to get to Europe, yet still they come. If people are not deterred by the real possibility of dying, it seems doubtful that they will be deterred by a higher legal hurdle.

In the end, I doubt that this new regulation will do much to alleviate the problem at the border or the backlogs in the Asylum and Immigration Court systems. However, it will hurt asylum seekers–by making it more difficult for them to get the protection they need and by encouraging those who arrive at the border to circumvent legal points of entry. The new regulation will also further erode morale among Asylum Officers and Immigration Judges, who simply want to follow the law. And finally, the new rule further degrades our country’s role as a beacon of hope and freedom for persecuted people throughout the world.

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A New Foundation for Asylum Reform

by Jason Dzubow

In case you hadn’t noticed, the asylum system has essentially collapsed. A lucky few still have their cases decided, but they seem to be a minority. It is painfully clear that the backlog continues to grow. It currently stands at about 327,000 affirmative asylum cases and more than 908,000 cases in Immigration Court (how many of these court cases involve asylum, I do not know). The heart of the problem is mathematical: Too many applicants; too few resources. Unfortunately, we are not moving towards a solution at either the legislative or regulatory levels.

In terms of new regulations and policies, the Trump Administration’s only apparent plan is to deter would-be asylum seekers by making the process more painful and by trying to block people from reaching our shores. In my opinion, making the asylum process more painful won’t work. That’s because whatever harm the Administration can impose (family separation, indefinite detention, “wait in Mexico,” hieleras, tear gas, stricter legal standards) pales in comparison to the harm many asylum seekers face if they return home (death). Asylum seekers, being rational actors, are simply choosing the lesser evil, and coming to the United States. Blocking people from coming here might be more effective, but again, I have my doubts. People are fleeing for their lives and determined to reach safety, and so gaining better cooperation from Mexico, building bigger walls, and tightening up visa requirements will only get us so far.

In today’s divisive environment, progress is measured in centimeters and Grahams.

The “problem” from the Trump Administration’s viewpoint is that the law of asylum still offers refuge to those fleeing persecution. Thus, the Administration’s efforts to change the regulations (which modify how the law is applied) can do only so much. To change the law requires Congressional action. During the first two years of Mr. Trump’s presidency–when Republicans controlled both Houses of Congress–there was no effort to reform the asylum law. Now, with the Democrats in control of the House, legislation is only possible if the two parties reach a compromise. And compromise in Washington has lately proved elusive (just a bit).

Elusive, yes, but perhaps not impossible. Recently, Republican Senator Lindsey Graham proposed changes to the asylum system to increase the length of time families can be held in detention and to add 500 new Immigration Judges, among other (mostly punitive) ideas. Despite the hard line, Mr. Graham expressed a willingness to “put other immigration ideas on the table to marry up with this.” Mr. Graham’s bill may be all stick and no carrot, but at least it signals a desire to address asylum reform. On the House side, the Democratic majority (with a few Republicans) passed a bill to protect Dreamers. Perhaps these opening bids could lead us in a productive direction.

The fact is, while asylum policy is a difficult issue, it should be amenable to a legislative fix. If politics were removed from the mix (a very big “if”), we could find policy solutions that would greatly improve the current situation. What would such a “solution” look like? Spoiler alert: I don’t have an answer. But I do have some ideas, at least about where we can get started–a foundation upon which legislation can be built. Here, I want to discuss the fundamental elements of this foundation:

– We must be honest about the problem: The Trump Administration has not been truthful about why asylum seekers are coming to our country, who they are, or what they do once they get here. It’s very difficult to move towards a reasonable policy solution when we are living in dystopian fantasy land. Asylum seekers are not invading our country. They are not coming to collect welfare or commit crimes. The data is pretty clear that they are basically regular people, who are coming here because they fear harm back home. They tend to commit fewer crimes than the average American, and they make an overall modest contribution to our economy. Reforming the asylum system will require a realistic and honest appraisal of asylum seekers, and so we have to stop the politically-motivated effort to demonize them.

– We need to decide who should receive asylum: The asylum law provides for five protected categories: Race, religion, nationality, political opinion, and particular social group (“PSG”). These categories exist because our nation decided to protect people who face these types of harm. Conversely, other types of harm–such as generalized violence in war or criminal violence–were not considered worthy of protection. Why did we make this distinction? Because these types of harm in some way reflect our national values (political freedom, religious freedom, and racial equality, to name a few). But these categories were largely created by white men to protect against harm inflicted on other white men, and national values evolve over time. In the case of the protected asylum categories, this evolution occurred through litigation, not through any sort of consensus legislation (with one exception, which relates to forced abortion and forced sterilization).

For example, litigation has expanded the definition of PSG to encompass a diverse range of applicants (LGBT individuals, victims of FGM, victims of domestic violence, members of a family, and many more) who were not on the radar when the law was created. This indeterminacy has led to shifting interpretations of the law (depending partly on the Administration in power), inconsistent decision-making at the individual level, and confusion and misinformation among asylum seekers about who is protected. This chaos has contributed to the influx of Central American migrants arriving at our Southern border, who are mostly seeking protection based on PSG.

In order to resolve this crisis, we need to make a decision by legislation, not by litigation, about who we want to protect. For example, we can choose to protect victims of domestic violence, or not. That is our right as a sovereign nation. However, in making that decision, we need to be honest about what we are doing–these people are often facing life-threatening harm. We can send them back, if we so choose, but we cannot pretend that they are returning to someplace safe. In other words, we can choose to let anyone in, or keep anyone out, but we have a moral obligation to make that decision based on facts–not based on anti-immigrant propaganda. If we can define more precisely who is eligible for protection, we can create more certainty for migrants, and hopefully deter those who do not qualify. Further, if this is done with the support of most Americans (i.e., through legislation), the decision about who to protect will have more legitimacy and be more sustainable.

– We need to decide how much due process is due: Even for people arriving at the border, we have a Cadillac-immigration system. This includes Border Patrol Agents, detention facilities, Asylum Officers, Immigration Judges, ICE attorneys, administrative support staff, and many others. All this is expensive, especially when you have thousands of asylum applicants presenting at the border each week. Our system is not designed to handle such a high volume of cases, and unless we are prepared to significantly increase resources to review asylum applications, something has to change.

One option is to screen applicants and release those who pass a credible fear interview (“CFI”), and then require them to return for a court hearing (what our President has eloquently called “catch and release”). This has the advantage of ensuring a high level of due process for everyone seeking protection at our borders, but has the disadvantage of essentially opening the border to anyone who can pass a CFI (a relatively low bar). It also seems to be politically unpopular. Another option is to detain some or all asylum seekers until we can give them a full hearing. This has the advantage of providing a higher level of due process (to the extent that a person can exercise her due process rights while detained), but comes with a heavy cost, both economically and in human terms. A third option is to provide a lower level of due process, maybe a rigorous CFI, followed by removal for those who are denied. Such a system would provide some measure of justice, but would result in the return of many people who might qualify for protection if they had time to gather evidence and present their cases. Another option might be to provide no due process at all: Anyone who requests asylum at the border can be placed into a refugee camp or sent to a safe third country, and will remain there until the crisis in the home country is resolved (which the way things are going, is probably forever). This would solve the problem of protecting people from imminent harm, but would result in long-term issues, since it would potentially create a permanent community of displaced people.

Perhaps the point here is that, while there may be no perfect solution, we need to think in realistic terms about the level of due process we want to offer asylum seekers who arrive at our border.

The idea that Congress and the President could actually come up with a rational solution to improve the asylum system seems almost fantastical in this age of divisiveness and gridlock. But something has to be done. The first step is to speak honestly about what is going on, and then to work towards a solution that is made democratically, and which considers our country’s national and economic security, moral ideals, humanitarian commitments, and the rule of law.

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“Legitimate” Asylum Seeker Urges President Trump to Build that Wall!

by Jason Dzubow

Mahir Ahmed really wants you to know that he’s a “legitimate” asylum seeker. Not like those other people who are “deliberately breaking U.S. laws” and “jumping in line” ahead of good people like him. To confront this crisis, which has delayed a decision in his case, Mr. Ahmed declares his support for President Trump’s border wall.

I have some sympathy for Mr. Ahmed ‘s frustration at the slow pace of his case, since many of my clients are similarly delayed. But his desire to slam the door on certain asylum seekers who he considers illegitimate demonstrates a deep ignorance of our asylum system, not to mention a profound arrogance about his own moral standing.

First, let’s take a look at Mr. Ahmed’s “legitimate” asylum case. Mr. Ahmed is from Ethiopia. He was born Muslim, in a “community that is virtually 100 percent Muslim.” After he came to the U.S. (legally!), he converted to Christianity. He writes that his “decision to leave and criticize Islam publicly forced me to resort to asylum.”

Mahir Ahmed offers his new-found Christian love to all asylum seekers. Except those who get in his way.

As an asylum lawyer, I have done apostasy cases from many countries. In some places, apostasy is illegal, and can be punished by death. Ethiopia is not one of those places. In fact, Ethiopia is mostly Christian, and while Mr. Ahmed’s community may be “virtually 100 percent Muslim,” his country is only 34% Muslim. This means internal relocation is a real possibility. If Mr. Ahmed can live safely in some other part of Ethiopia, he is ineligible for asylum. Further, it is unlikely that Mr. Ahmed fears persecution from the Ethiopian authorities, and so if the government can protect him from his Muslim community, he would also be ineligible for asylum. This is not to say that his claim is illegitimate, but an apostate from a country like Iran, Pakistan or Afghanistan might consider Mr. Ahmed to be unfairly blocking up the asylum system when he could potentially live safely in his own country. Let he who is without sin cast the first stone. Or something like that.

Now let’s take a look at some of Mr. Ahmed’s claims about these “law breaking” asylum seekers who have supposedly delayed the decision in his case. In fact, Mr. Ahmed was one of the lucky asylum seekers who received an interview quickly, based on LIFO. The Asylum Officer told him to return two weeks after the interview to collect his decision. Mr. Ahmed was excited: “You can imagine how thrilled I was knowing that no matter what the decision was, it would all be over within two months of filing. No more worrying, wondering, and being in limbo.” But then, the Officer called and informed Mr. Ahmed that he could not pick up the decision after all; it would come by mail. He “was told they have no idea when [the decision would be made] and that the fact that I had legal status might be a factor in the delay since priority is being given to illegal immigrants.” Mr. Ahmed was shocked: “I couldn’t believe that illegal immigrants would be given higher priority than someone who followed the law. It just seemed unfair to me that jumping in line would put you ahead.” More than seven months later, Mr. Ahmed is still waiting for a decision.

After doing a bit of research, Mr. Ahmed found that since the time he filed his case, “more than 460,000 illegal crossings took place” at the Southern border. The “vast majority of the crossers claimed asylum and basically got priority processing over everyone who filed their cases legally, myself included.” “That is exactly why I’m for the border wall,” he writes. “True asylum seekers will still be able to file for asylum at the ports of entry [and] maybe even in their home countries soon,” if a proposed anti-asylum bill becomes law.

There’s a lot to unpack here, and we only have time to address the major points of Mr. Ahmed’s thesis. Let’s start with his data–the 460,000 “illegal crossings.” If you look at his source for this number (Customs and Border Protection or CBP), you will see that this figure represents people “apprehended between points of entry” from October 2018 through April 2019. While Mr. Ahmed writes that the “vast majority” of these border crossers claimed asylum, a review of the latest asylum office data reveals a different story. During this period, about 70,000 people sought credible or reasonable fear interviews, which indicates their desire to apply for asylum at the U.S. border (this is an estimate since the asylum office data is not as current as the CBP data). Thus, even assuming Mr. Ahmed is correct that these “illegal crossers” are jumping ahead of him in line, the number of line jumpers is “only” about 70,000; not 460,000.

Regardless of the statistics, Mr. Ahmed misses a more fundamental point: The law makes no distinction between “legal” and “illegal” asylum seekers. It is legal to arrive at the border (at a point of entry or elsewhere) and seek asylum. It is also legal to enter the U.S. without inspection and file for asylum. The relevant legal statute, INA § 208(a)(1), states that “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival….), irrespective of such alien’s status, may apply for asylum.” And so these “illegal immigrants” that so concern Mr. Ahmed have the exact same legal right to file for asylum as he does.

Do “illegal immigrants” jump ahead of the line? Do they get priority over “legal immigrants,” such as Mr. Ahmed? In one sense, they do. When an alien arrives at the border and expresses a fear of return, she receives a credible fear interview or CFI (or if she was previously in the U.S., she receives a reasonable fear interview). This is an initial evaluation of asylum eligibility. Such interviews receive priority over “regular” asylum cases. The large number of CFIs in recent years is a major contributor to the backlog of asylum cases. In Mr. Ahmed’s case, however, he received an interview within a few months of filing. In other words, his case did not fall into the backlog. Thus, unlike other asylum seekers who filed and did not receive a timely interview, Mr. Ahmed’s case was not delayed due to “illegal immigrants” receiving CFIs.

Even for those “regular” asylum seekers who land in the backlog, I do not see how they have much basis to complain about CFIs. This is the system our country created to enforce its humanitarian immigration law. CFIs get priority because those applicants must either be approved and sent to Immigration Court for a full asylum hearing, or denied and deported quickly. If anything, people seeking asylum at the border need more protection than asylum applicants who are already in the U.S., since the latter are in no immediate danger of being returned to a country where they face persecution. As such, it makes sense to adjudicate CFIs first.

Mr. Ahmed also claims that a decision in his case was delayed because USCIS gives priority to “illegal immigrants.” He references a USCIS webpage, which indicates that “longer processing times may be required if you… are currently in valid immigration status.” First of all, this website lists several different reasons for post-interview delay, including “pending security checks” and headquarters review, which are common reasons for post-interview delay (especially, as far as I can tell, for cases involving Muslim–or formerly Muslim–men). Second, the reason a “legal” immigrant’s case may be slower than that of an “illegal” immigrant is because it requires more work to deny such a case. People in legal status receive a detailed Notice of Intent to Deny letter. People who are out of status receive a much less detailed Referral letter. Since it takes more work to create a NOID, it makes sense that such cases takes longer. A final note on this point: I have done many cases for people who are in status, out of status, and who have entered the U.S. illegally. At least in my anecdotal experience, I see no pattern of differences in processing times, and so I doubt that “illegal” cases are processed any faster than “legal” ones.

Based on his analysis, Mr. Ahmed endorses a border wall as a way to help “legitimate” asylum seekers like himself. But this “solution” has no relationship to the problem. If you want to prevent “illegal” aliens from seeking asylum, you need to change the law that allows such people to seek asylum. Perhaps by building a wall and increasing punitive measures, you can deter asylum seekers from coming here. This would help reduce the backlog (at the expense of our nation’s integrity), but you could achieve the same ends (more cheaply) by simply blocking aliens from coming here legally. If fewer people come here, fewer will ask for asylum. Indeed, the Trump Administration is trying to make it more difficult to obtain a visa if you come from a country that tends to produce visa overstays (had it been in place when he came to the U.S., this rule may very well have blocked Mr. Ahmed from coming here).

The bottom line for me is this: Anyone who reaches the U.S. and fears return to his country is a legitimate asylum seeker, and deserves to have his case carefully reviewed. Mr. Ahmed’s effort to distinguish himself from asylum applicants at the Southern border represents a basic misunderstanding of our country’s humanitarian immigration system and the values that that system represents. This is a difficult time for asylum seekers, and sometimes, among desperate people, there is an inclination to attack each other. Mr. Ahmed should resist this temptation. Instead of undermining his fellow asylum seekers, he should stand together with them. By supporting each other, we can improve the asylum system for all. 

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Of Caravans and Consequences

by Jason Dzubow

As thousands of asylum seekers approach the Southern border in “caravans,” the Trump Administration is reacting harshly. Border Patrol Agents fired tear gas at men, women, and children. The crossing at San Ysidro has been closed, resulting in significant economic losses in San Diego (businesses on the U.S. side earn between $10 and $15 million per day from Mexican consumers). And U.S. immigration authorities are essentially denying migrants’ right to apply for asylum by insisting that they can process only 60 to 100 cases per day.

DHS Secretary Kirstjen Nielsen writes that the “caravan… entered Mexico violently and attacked border police in two other countries.” She states that the caravan is well organized and includes more than 8,500 individuals, with more on the way. Most of the migrants are men, she writes, and the “limited number of women and children in the caravan are being used by the organizers as ‘human shields’ when they confront law enforcement.” Secretary Nielsen claims that, “we have confirmed that there are over 600 convicted criminals traveling with the caravan flow.” How this has been “confirmed,” she dos not say. Secretary Nielsen also states that most migrants are coming here for jobs or to reunite with family members, and notes that, “Historically, less than 10% of those who claim asylum from Guatemala, Honduras, and El Salvador are found eligible by a federal judge.”

I hear that the U.S. Border Patrol is recruiting new agents in the Andaman Islands.

Others who have witnessed the migration paint a somewhat different picture. For example, a photojournalist who traveled with the caravan in Mexico estimates that 25 to 30 percent of the migrants are families with children. Other members of the group are elderly. “Though many were fatigued and battered by the experience,” he writes, “they often expressed a good deal of hope for what awaited them at the border.” Another journalist who interviewed migrants found that the people he spoke to were fleeing violence in their home country.

So there is disagreement over who the migrants are, and why they are coming here. But what are the legal, policy, and political implications of the caravan?

First, anyone who arrives at a U.S. border is entitled to apply for asylum. The law on this point is pretty clear–

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section….

The Trump Administration wants asylum seekers to wait outside the U.S. while their cases are decided. Whether this is lawful is not so clear. The law seems silent on this point, though the Attorney General has the authority to “establish a procedure for the consideration of asylum applications.” Arguably this would include where the applicants must wait while their cases are adjudicated. My guess is that this “wait in Mexico” policy–like most of the Administration’s other policies–will be subject to a court challenge.

There are also practical and policy implications for how we deal with the caravan. The Trump Administration claims that it only has the capacity to process 60 to 100 cases per day. This, I don’t believe. Statistics from the Asylum Division show that in FY 2018, Asylum Officers conducted an average of 253 credible and reasonable fear interviews per day (assuming the Officers are working 365 days per year), and in the busiest month (June 2018), they conducted an average of 318 interviews per day (again, working every day). Admittedly, these figures are for all parts of the country, but they illustrate the government’s capacity to deal with a crisis if it chooses to.

At the present rate, the government will need 3 to 5 months to screen the current group of people waiting at the San Ysidro crossing (assuming that no more asylum seekers arrive there). Whether Mexico has the will, ability or legal obligation to accommodate large numbers of people waiting for asylum in the U.S., I do not know. Rumors of an agreement between the Trump Administration and the incoming Mexican President are still unconfirmed, but even if Mexico agrees to host the migrants, it is unclear whether they can deal with so many people.

The legal effect of the long wait is clear: Some asylum seekers will be denied their right to seek asylum in the U.S. The practical effects are also pretty obvious. The Mexican side of the border is unsafe and economically weak. The migrants will have a hard time remaining there while they wait for decisions. Imposing cruel conditions on people fleeing persecution seems an inhumane way to deter people from exercising their legal right to seek asylum, but that has been the modus operandi of the current Administration.

I imagine there will also be political and economic consequences for our country if large numbers of Central Americans get stuck on the Mexican side of the border. Besides straining relations with Mexico, we set a bad example. If the U.S. rejects these relatively few refugees, will other countries follow our lead and deny protection to people fleeing persecution? Will they use violence to keep refugees out? The implications for international humanitarian law are potentially dire.

While I am no fan of the Trump Administration’s border policies (or most of its other policies), it is not enough to criticize without offering an alternative. That is easier said than done. Compared to migrations in the past, the current numbers are relatively modest. Indeed, the overall number of illegal entrants for 2017 is significantly down from peak periods in 2014 (for Central Americans – down 41%) and 2007 (for Mexicans – down 80%). Nevertheless, our country’s tolerance for immigration seems lower, and something needs to be done.

One idea (possibly DOA from a political standpoint) is to make the argument that screening and admitting asylum seekers is good for us. First, helping people who are fleeing harm is the right thing to do. Also, asylum seekers are less likely to commit crimes than the average American, they tend to use fewer public benefits, and they are a net economic gain for our country. Certainly, we should be working to convince the general public that a more liberal immigration policy would be beneficial.

But in examining policies solutions, we need to keep in mind that most Central American asylum seekers will not qualify for protection. This is not because their countries are safe. Rather, it is because the type of harm most Central Americans face does not easily fit within the legal framework of asylum (also, many such applicants lack legal representation and cannot properly present their cases). Unless this changes, it makes sense to process the cases as quickly and fairly as possible, and to return those who do not qualify for protection.

Also, we need to decide where and how people will wait for their decisions. How many asylum seekers abscond rather than appear for hearings? Are some types of migrants (families, for example) less likely to abscond than others? Do we need detention or “wait in Mexico” at all? If so, do alternatives to detention (such as ankle bracelets) work? How can large numbers of refugees be kept safely for a period of months? These are not easy questions to answer, but the answers are knowable and I have little doubt that we can manage the border humanely and honorably, if we so choose.

In the wake of Democratic successes in the 2018 election, politicians may conclude that they have more to gain by working towards immigration reform than by using immigrants as boogeymen to rally voters. But compromise is not easy. It requires that we all do something that is not very American: Accepting less than everything we wanted. I doubt that any reform would give us the immigration system that I envision, but I still feel hopeful that we could end up with something better for our country–and better for immigrants and asylum seekers–than we have now.

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We Have a Refugee Crisis in America, Too

by Jason Dzubow

My friend and office mate Sheryl Winarick is an immigration attorney, advocate and entrepreneur based in Washington, DC and Austin, TX. Before starting her own immigration law practice in 2007, she spent eight years working for national non-profit organizations–Catholic Legal Immigration Network and the Justice For Our Neighbors program of the United Methodist Committee on Relief. She is currently in Residence at the TED office in New York and serves on HIAS’ Public Policy Committee. Here, she writes about her experience as an attorney-volunteer assisting refugee women and children at the Southern border:

Sheryl Winarick, do-gooder.
Sheryl Winarick, do-gooder.

Stories of the European refugee crisis continue to flood the headlines, but mass media seems to forget we have a refugee crisis in America, too. Since the beginning of fiscal year 2014, over 120,000 unaccompanied children and an additional 120,000 people in family units–mostly young mothers with children–have arrived at the U.S. border seeking protection from violence in Central America.

In March, I spent a week volunteering for the Refugee and Immigrant Center for Education and Legal Services (RAICES)–one of several partner organizations that comprise the CARA Pro Bono Project. I was assigned to represent women and children before the immigration court in San Antonio, Texas. Karnes County Residential Center, operated by the U.S. Department of Homeland Security, houses these refugees in harsh conditions while they wait for a judge to determine their fate. Their stories are tragic, as is the reality that most of these desperate human beings do not qualify for protection under U.S. law, despite the well-documented probability that they will face severe violence and harm if they are returned to their countries of origin.

General violence, extortion, corruption and impunity are endemic in countries like Honduras and El Salvador. However, in order to qualify for political asylum, an applicant must demonstrate that the persecution or harm she fears is targeted against her specifically “on account of” her race, religion, nationality, political opinion, or membership in a particular social group (PSG). Usually, PSG is the only hope, and eligibility hinges on a combination of the facts unique to each case, access to representation, and the appointed judge’s interpretation of PSG (which is not strictly defined).

As I sat in the courtroom while my clients spoke to a judge via video conference from the Karnes detention center, I imagined how they must feel and the thoughts that might race through their minds. Karnes is about 60 miles southeast of the court in San Antonio, so it made more sense for other RAICES volunteers to prepare them for court. That means they had never met me in person, and here I was representing them in what could be the most important hearing of their life.

How could they comprehend who I am, why I am there, and how I could know best what to say to the judge? Imagine, these desperate women, completely dependent on the help of strangers speaking a strange language in a strange land. They don’t understand our legal system, and how can they possibly trust institutions of justice here in the U.S. when parallel institutions in their own countries are so corrupt? To make matters worse, the first thing we do to them (and their 3, 4, 5-year-old kids) is lock them up in detention facilities. The only truth they know is that they had no choice but to leave home if they wanted to live and to give their children a fair shot at life.

There are no easy answers. My hope is for our elected officials and for individuals like you and me to confront our collective reality with courage and compassion. People all over the world are wrestling with these very real issues daily; some of us from the comfort of our homes and others from jail cells in unfamiliar places. We must seek solutions for those in need and fight for rights and dignity for all people.

For a minute, close your eyes and imagine if this was your story, simply to be born into a hostile environment. Say a prayer for those in need, definitely give thanks for the freedom and relative comforts you enjoy, and do whatever you can to make a positive impact in this world we share.

This article originally appeared on the HIAS website.

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An Interview with “Juan” – Unaccompanied Minor, ISIS Supporter, and Ebola Carrier

by Jason Dzubow

In a recent press conference, the dynamic duo of Congressman Steve King and rich guy Donald Trump made some pretty frightening claims about the young people who have lately been arriving at our Southern border. Mr. King told the audience that America is becoming “a third-world country” because of “the things that are coming at us from across the border,” including illegal drugs, Central American children of “prime gang recruitment age,” ISIS… and the Ebola virus. These are some pretty serious charges, and so we here at the Asylumist decided to investigate for ourselves. What we found will shock you.

King and Trump: A couple of cards. Probably jokers.
King and Trump: A couple of cards. Probably jokers.

After flying down to Texas, I went to a detention facility that must remained unnamed. There, I met a 14-year-old boy, who we will call Juan. Juan hails from El Salvador–or so he says–and claims that members of a gang attacked his house, threatened his family, and tried to kill him. He then fled to the United States. It’s a sad tale, but is it true? I suspected that there was more to the story. You see, Juan has brownish skin, so he is likely a Muslim. Plus, when I met him, he was sweating. This, despite the fact that the detention facility is kept at a balmy 52 degrees Fahrenheit. In my book, Sweating = Ebola. I had some hard questions for Juan:

ASYLUMIST: Salaam Alaikum.

JUAN: [stares blankly]

ASYLUMIST: Salaam Alaikum.

JUAN: I am not sure what you are saying to me.

ASYLUMIST: Yeh, right. So tell me Juan, if that is your real name, why did you come to the United States?

JUAN: Actually, Juan is not my name. You just started calling me Juan for some reason. My real name is Alberto.

ASYLUMIST: For purposes of this interview, we will call you Juan. So tell me, Juan, why did you come here?

JUAN: In my town, the gang is very powerful. If you don’t join them, they threaten you, take your money, even kill you. Gang members have targeted my family because we are Evangelical Christians and we refuse to join the gang. My father is a Minister. Because we refused to join, the gang set our house on fire, they fired a gun through our window, they threatened me many times with guns and knives. Finally, they tried to kill me, so I had to…

ASYLUMIST: Blah, blah, blah. Everyone knows that you can’t get asylum in the U.S. if you are fleeing gang violence. There’s no nexus. It will open the floodgates. We have enough problems here already. We don’t need gangbangers like you messing up our country.

JUAN: But I am not a gang member! And I heard that in some cases, when a person is threatened on account of his religion, he can receive asylum in the U.S. even if the persecutor is not the government. There is a case about that called Matter of S-A-. Also, the gang targeted my whole family; not just me, and “family” is a protected category under U.S. asylum law. One case that discusses family as a social group is Lopez-Soto v. Ashcroft. Besides these published decisions, there are many unpublished decisions where people like me have received asylum in the United States.

ASYLUMIST: You seem to know a lot about asylum for a 14-year-old Salvadoran boy. Very suspicious. Let’s shift gears. Why are you so sweaty?

JUAN: I don’t have Ebola.

ASYLUMIST: Ah Ha! I didn’t even mention Ebola. Why would you bring it up unless you had Ebola. Thou protesteth too much, dear Juan. Excuse me while I relocate myself outside your six-foot danger zone.

JUAN: You mentioned it at the very beginning! And I really don’t have Ebola. I’ve been detained here for two months. If I had Ebola, I’d be dead by now.

ASYLUMIST: You’re spitting when you talk. Please stop that.

JUAN: I was not spitting.

ASYLUMIST: If you don’t have Ebola, how do you explain the sweating?

JUAN: Maybe because I am stressed. I fled my country and I’m away from my family for the first time. The gang tried to kill me. Now, I’ve been detained for the last two months.

ASYLUMIST: I’m not buying it. Didn’t you come here to take our jobs and our women, collect welfare, and spread Ebola and Jihad? Is that a prayer rug you’re sitting on? And what’s that book next to you? It looks like a Koran.

JUAN: Huh?

ASYLUMIST: You’re sitting on a Muslim prayer rug. And that book looks like a Koran.

JUAN: No, I am sitting on a towel. There was no bed space for me, so they gave me a towel to sleep on. It is not very comfortable.

ASYLUMIST: And the book?

JUAN: Pep Comics # 224. It’s about Jughead Jones and his dog named Hot Dog. The dog used to belong to Archie, but somehow Jughead got him.

ASYLUMIST: I see. Anything else you want to add before I leave this godforsaken place?

JUAN: I am just hoping to get my case heard. I am afraid to return to my country. I want to live safely and in peace. I don’t have any diseases and I am not a terrorist or a criminal. I really don’t understand the United States. You are so powerful, and yet you are afraid of a 14 year old boy. I hope you will help me. And why are you on the floor in the fetal position?

ASYLUMIST: Please don’t unleash your Jihadi Ebola attack on me! Ahh! Run away!  

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Towards a New Definition of “Refugee”

by Jason Dzubow

There are, in effect, two definitions of “refugee.” There is the legal definition from the 1951 Refugee Convention (codified in U.S. law at INA § 101(a)(42)), and then there is the lay person’s definition.

The legal definition of refugee includes:

any person who is outside any country of such person’s nationality… and who is unable or unwilling to return to… that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion

The lay person’s definition is much broader and includes basically anyone who has been forced to flee from their home due to war or an environmental or man-made disaster. Many people who have been displaced by conflict or catastrophe are refugees under the lay definition, but not under the legal definition.

Refugees or "refugees"?
Refugees or “refugees”?

The mass movement of people–especially young people–escaping violence and poverty in Central America has gotten me thinking about these definitions. As our country struggles to respond to the influx, I wonder whether we need a new definition of “refugee.”

Under current U.S. law, if a person is physically present in the country and meets the legal definition of refugee, he will receive asylum. This is quite a nice benefit to receive. People who get asylum are able to remain here permanently. They can eventually become residents and later citizens. They can travel, work, and attend school. They can sponsor certain family members to join them in the United States. They are sometimes eligible for government assistance. These generous benefits are a “pull” factor because they encourage refugees to seek asylum here (as opposed to staying put or seeking asylum somewhere else). The benefits also create an incentive for people to file fraudulent asylum claims.  

To guard against fraud, we have created an elaborate bureaucracy to evaluate the veracity of asylum claims. We have Asylum Officers, Immigration Judges, the Board of Immigration Appeals, the various DHS Chief Counsels’ offices (basically, the prosecutors in Immigration Court), the Forensic Document Lab, and an extensive system of security background checks. All this costs money and takes time. But I can imagine an alternative to this system.

We could simply categorize as a “refugee” anyone who says that they are afraid to return home. In other words, if someone requests asylum in the United States, they would automatically be granted asylum. This sounds like a stupid plan, you say? Everyone and their brother would seek asylum here, including terrorists and criminals. Worse, it would put asylum lawyers out of business. Maybe so, but indulge me for a moment.

There are some obvious benefits to this idea. For one thing, it would completely eliminate the bureaucracy associated with adjudicating asylum applications. Second, we would never mistakenly return a legitimate refugee to her country. Third, people who do not meet the legal definition of refugee, but who fear return for some other reason, could find refuge in the U.S.

There are also some obvious drawbacks. First, if everyone who asked for asylum got it, very likely the number of asylum seekers would increase. Second, terrorists and criminals might exploit the asylum system to enter the United States. Third, we would lose the ability to control who and how many people come to our country.

But what if we could reduce the drawbacks and keep the benefits?

The main question is how to deal with the likely increased demand under this new system? The easiest way to reduce the “pull” of asylum would be to reduce the benefits of asylum. Basic economic theory suggests that if it is easier to obtain asylum, more people will come here, but if the benefits are reduced, less people will come here. So in order to offset the increased number of asylum seekers caused by reducing the barriers to asylum, we would need a corresponding reduction in benefits. How much of a reduction will provide this balance, I don’t know. But let’s say we reduce the benefits to the bare minimum: People who come here for asylum will be placed in a refugee camp indefinitely, they will receive only the supplies they need to survive, and they can leave only to return to their home country or to resettle in a third country. This is more-or-less the situation for Syrian and Iraqi refugees in places like Jordan and Turkey. My guess is that if this regime were strictly enforced, the overall effect would be to reduce the number of people seeking asylum in the U.S. In other words, the ease of obtaining asylum would be more than offset by the lack of benefits. If this is correct, it means we could offer something more than the bare minimum benefits without causing a major increase in the number of people seeking asylum here. The difficult question is how to find the equilibrium.

Another important drawback to my system is that it might attract criminals and terrorists. Of course if these people were confined to refugee camps, their ability to harm us would be quite limited.

Finally, my system might cause us to lose control of our border, since anyone claiming asylum would get it. But again, if the asylum seekers were confined to camps, and then resettled by the UN to third countries or to the United States, we might actually end up with a better controlled border since we could admit as many or as few people for resettlement as we choose.

Depending on the number of people arriving at our borders, it may be impossible to offer them the full range of benefits and due process protections that we have previously given to asylum seekers. But I don’t think we’re there yet–although there has been an increase in the number of asylum seekers arriving in the U.S., the numbers are still nothing close to what countries like Jordan and Turkey have been experiencing. However, if we continue seeing large numbers of people arriving in the U.S. to seek asylum, we may need to start considering alternatives to our current system.

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