Asylum Under Attack

FeaturedAsylum Under Attack

The current administration in Washington is waging an all-out war on asylum, which it falsely characterizes as a charade or loophole rather than an essential human right. While the war is focused on the influx of refugees at the southern border who flee violence and chaos in Central America, it threatens to demolish protections for refugees all over the world who come to the United States seeking safety. The Advocates for Human Rights deals every day with the desperate ones whose fates are at issue. Since policy affects real people, it is instructive to examine the government’s anti-asylum initiatives in juxtaposition with just one of the many stories in our case files, which is used with our client’s consent.

Maria was 11 years old and living with her family in Guatemala when a 22-year-old man began preying upon her, inducing her to engage in a sexual relationship with him. Her father forbade her from seeing the man, but he coerced Maria into returning to him by threatening to harm her family if she didn’t. The man kept her locked in a room in his mother’s house.

Having failed in the courts with previous anti-immigration tactics, the U.S. government just launched two new attacks on asylum by executive fiat, with other assaults being planned..

At the age of 14, Maria was forced to marry her abductor. She went to the police in Guatemala, but they told her this was a domestic matter that she should “work out” with her husband. When Maria’s husband found out she had gone to the police, he beat her. As time went on, the beatings continued.

First, the administration announced that there would be a great expansion of the use of the expedited removal process, by which immigration courts and asylum officers are bypassed completely and lower-level immigration officials are allowed to apprehend and deport undocumented immigrants with no due process so long as they have not been in the country for two years. The U.S. Commission on International Religious Freedom has sharply criticized the expedited removal process, finding that border officials often are biased against asylum claims and fail to take steps necessary to ensure that asylum seekers are protected from arbitrary expedited removal. Nevertheless, the administration has embraced it.

Maria became pregnant and told her husband. He continued to beat her, so badly that she lost the baby. She escaped and hid with a family member, but her husband searched for her relentlessly. With no other escape from her situation, and no possibility of help from her country’s government, Maria embarked on the arduous and dangerous journey through Mexico and across the U.S. border.

A second attack on asylum was the announcement of a new rule excluding people from asylum if they failed to first ask for asylum in a country through which they travelled. While this rule would affect all refugees, it is directed mainly at the Central American refugees who cross through Mexico and Guatemala before reaching the United States.

Non-profit advocacy groups promptly sued, challenging the administration’s third- country rule. Among other grounds, they argued that the rule violates an express Congressional prohibition against relying on the asylum procedures of any country unless we have in place with that country a “safe country” agreement, ensuring their asylum procedures provide an acceptable level of safety for claimants. No such agreement exists with Mexico. (On July 26, the U.S. entered into a purported safe country agreement with Guatemala, even though Guatemala does not come close to meeting the standards for a safe country and was in fact the country from which Maria fled due to the lack of any governmental remedy for the domestic violence that threatened her life.)

On July 24, federal district courts on opposite coasts issued opinions concerning the new rule. U.S. District Judge Timothy Kelly in the District of Columbia refused to enjoin the rule, essentially on a finding that the advocacy groups had failed to make a factual showing of standing to make their claims. The very same day, however, Judge Jon Tigar of the Northern District of California issued a lengthy opinion enjoining the rule, finding ample evidence that no reasonable asylum process was available in either Mexico or Guatemala. Appeals in both cases seem inevitable.

Maria found her way to The Advocates for Human Rights. Represented by Program Director Sarah Brenes, Maria won asylum. She is now living safely in the United States, where she is finishing high school and hopes to become a police officer.

Either of the latest attacks on asylum might have been used to deport Maria and send her back to her violent husband and a government unwilling to protect her. Can anyone believe that the United States would somehow have benefitted from that?

A humane asylum system is critical if we are to fulfill our legal and moral obligations to offer succor to the world’s most desperate. As many of us have been asking for some time now, what kind of country are we?

-James O’Neal, Board Chair of the Advocates for Human Rights

Advertisements
Featured

Understanding the Expansion of Expedited Removal

statue 2 web largeThe long-expected announcement of the expansion of expedited removal authority throughout the United States, just a week after the administration rewrote the rules on establishing a credible fear of persecution or torture, is like a 1-2 punch for due process and the right to seek asylum.

Expedited removal, a product of the 1996 Illegal Immigration and Immigrant Responsibility Act, gives low-level immigration officials the power of judge, jury, and executioner of deportation orders. This is particularly disturbing given the record of misconduct and lack of accountability that permeates federal immigration enforcement. Expedited removal authorizes immigration officers to summarily arrest, detain, and deport people believed to be in violation of two provisions of immigration laws. The American Immigration Council has a good primer on expedited removal here.

These provisions – INA 212(a)(6)(C) and (a)(7) – render people “inadmissible” to the United States based on misrepresentation or failure to have required documents for entry.

No actual proof of these violations is needed. There’s no appeal. The penalty: a five-year bar to returning to the United States on a visa.

These provisions are slippery creatures. Here’s how these laws work in practice.

A political dissident escapes their country after spending weeks in jail for attending a political rally. They have a visitor visa to the United States, granted to them so they can travel to this country for a conference of democracy activists, so they buy a plane ticket and head for safety. When they finally arrive at the U.S. airport, exhausted from a long flight and worn out after weeks of imprisonment and torture, they present their lawfully obtained visa to the immigration official. But, when they tell the officer that they want asylum, they invalidate their visitor visa because they say they want asylum, not just to visit. They have violated INA 212(a)(6)(C). Immigration officials arrest, detain, and interrogate them. They sit for hours without food or access to a phone. An immigration agent with little training on the political situation unfolding in this far-flung nation has the power to return them on the spot. No judge. No lawyer. No hearing.

Years ago, one of our volunteer attorneys called for help finding out what had happened to friend’s mother. The elderly grandmother had come to the U.S. for her annual visit. Her flight arrived, but she never came out of immigration control. Days later the woman made contact with her frantic children. She had been deported under the expedited removal laws. Apparently immigration officials saw other travelers with a similar last name on the flight who did not have visas. They accused her of being in cahoots with them. Eventually, after spending the night in an interrogation room at the airport, she was sent home with an expedited removal order. Five years of missed school plays and family celebrations were the result.

For years this extraordinary authority was limited to people arriving at airports and sea ports. Then the power expanded to people found within 100 miles of a U.S. border who couldn’t prove they had been in the country at least 14 days. (For my Minnesota friends, that meant that a visit to the North Shore could result in being pulled over, questioned by Border Patrol, and followed to your campsite – at least if you don’t “look Minnesotan” – as we documented in our 2014 report on immigration in Minnesota).

Now the Department of Homeland Security has expanded this sweeping power with plans to apply it to anyone, anywhere in the United States who cannot prove they have been here at least two years. Having lawful immigration status – or even being a U.S. citizen – is no guarantee that you won’t be questioned about your status or your documents. According to an NPR report, hundreds of U.S. citizens each year face detention and deportation. (And, let’s not forget, the United States has engaged in mass deportation of U.S. citizens to Mexico during the Depression, when “up to 1.8 million people of Mexican descent – most of them American-born – were rounded up in informal raids and deported in an effort to reserve jobs for white people.”)

The law treats people at the border differently. And bit by bit the “border” has expanded so that race-based traffic stops, document checks on trains and buses travelling in the northern part of the country, and roadblock checkpoints throughout the southwest all have become routine.

But the immigration law cannot override foundational constitutional protections against arbitrary arrest, incommunicado detention, disappearance, and torture.

So what should people do?

#1 Know your rights. Throughout the past weeks, as threatened ICE raids put communities on high alert, we saw examples of how making ICE play by the rules works to protect people. If you want a good overview of the constitutional limits on search and seizure, check out ICE’s own training on the Fourth Amendment. (Thanks Mijente and Detention Watch Network for forcing ICE to turn over it’s 2017 Operation Mega documents).

You have the right to remain silent. Immigration officials like to rely on people’s admissions of unlawful presence.

You have the right to refuse to let ICE into your home unless they have a warrant signed by a judge. ICE likes to show up with administrative warrants of arrest or removal, which are not enough to authorize them to enter your home.

Remember that even the draconian expedited removal procedures have a review process. People who fear persecution or torture have a right to a review of their claim. People who claim U.S. citizenship, lawful permanent residence, or refugee or asylum status have a right to a “claimed status review” before being deported under expedited removal laws.

#2 Plan ahead. You don’t have to carry a giant folder of documents with you, but gathering your important papers together and storing them in a safe place where a trusted person can access them is a smart move. Help people who may have trouble explaining or even knowing their status know what to do if ICE asks them questions.

#3 Sue. Seriously. Immigrant rights organizations around the country are planning litigation, but individuals whose rights are violated need to step forward. Violations need to be documented and accountability demanded.

#4 Speak out. The expansion of expedited removal was announced in the Federal Register on July 23, 2019. Public comments will be taken for 90 days. You may submit comments, identified by Docket Number DHS-2019-0036 using the Federal e-Rulemaking Portal at https://www.regulations.gov.

Call your congressional representatives at 202-224-3121 and ask them to restore due process by repealing the expedited removal laws.

By Michele Garnett McKenzie, Deputy Director of The Advocates for Human Rights

Featured

New Asylum Bar Takes Effect

Statue of Liberty_erik-lindgren-unsplashA new regulation by the Department of Homeland Security and the Department of Justice seeks to bar asylum to people who enter or attempt to enter the United States at the southern border if they do not first apply for asylum in at least one other country through which they traveled.  The Interim Final Rule published July 16 took immediate effect and allows only 30 days for public comment.

The new asylum bar is the latest in a series of actions designed to limit access to protection for refugees. The federal government has engineered a crisis at the southern border by starving the system of adjudicatory resources while exponentially expanding the capacity to detain people arriving in search of protection from persecution or torture. The government has used this engineered crisis to change unilaterally and without debate asylum eligibility rules.

The Advocates for Human Rights is deeply concerned about this restriction on the fundamental human right to seek and enjoy asylum from persecution. We are reviewing the regulation and monitoring its impact on our clients. Volunteer attorneys should watch for practice guidance and should reach out to The Advocates’ staff or consulting attorneys with questions.

What does the new rule do?

The new rule establishes a new mandatory bar to asylum for people who enter or attempt to enter the United States across the southern border if they did not apply for protection from persecution or torture in at least one third country through which they transited on their way to the United States.

Who does the rule apply to?

The new rule applies to anyone who enters or attempts to enter the United States at the southern border on or after Tuesday, July 16, 2019. This rule does not affect people who entered before July 16, 2019, or who enter or attempt to enter at other ports of entry.

Are there exceptions to the new rule?

There is a very limited exception for people who demonstrate that they are a victim of a severe form of trafficking in persons.

How can I help?

Speak out.

Comments to this rule, identified by EOIR Docket No. 19-0504, may be submitted via the Federal eRulemaking Portal: http://www.regulations.gov.

Call your congressional representatives at 202-224-3121 to ask them to protect the right to seek and enjoy asylum.

Volunteer.

We urgently need attorneys to represent asylum seekers. No immigration law experience is needed. You will get the training and support you need. Click here to get started.

Interpreters and translators make representation possible. Click here to help.

Human rights monitors are needed to observe immigration court hearings. Click here to learn more.

Donate.

The Advocates for Human Rights provides free legal help to more than 1000 victims of human rights abuses, including asylum seekers, victims of trafficking, and people in detention. We need your help now more than ever. Please click here to give.