The Coming Asylum Squeeze

Albin Lohr-Jones/Pacific Press/Sipa via AP Images

Demonstrators hold aloft signs at the rally against Donald Trump's proposed ban on asylum for Muslim immigrants.

A growing number of the Central Americans showing up on the U.S. southern border are fleeing for their lives, not coming in search of American jobs, as president-elect Donald Trump likes to suggest. But under a Trump administration, those fleeing violence for asylum here may soon find the U.S. is no longer a safe haven.

Trump has pledged to deport between two and three million undocumented immigrants with “criminal records.” That’s a shift from the mass deportations he had pledged on the campaign trail, but still a goal that immigration experts say could not be achieved without sweeping raids and violations of due process. Among those who will bear the brunt of Trump’s plan will be immigrants validly seeking asylum in the U.S.

El Salvador, Guatemala, and Honduras now have some of the highest murder rates in the world. The number of asylum seekers coming to the U.S. from those three countries has more than tripled in three years, hitting more than 49,000 in 2015, according to the most recent available data. That they’re real refugees—and not economic migrants—is further substantiated by striking new findings that show sharp increases in the number of Central Americans seeking asylum in neighboring countries.

At a press conference in April to call for urgent action, the UN Refugee Agency announced that Mexico had seen a 164-percent increase in asylum applicants from those three nations between 2013 and 2015. In Costa Rica there were more than 2,200 such applications last year, up 176 percent since 2013. In Belize, it was more than 600 applicants, 10 times more than in 2014. In that context, the president-elect’s call to deport millions of immigrants carries particular menace. 

To be sure, Trump’s plan may face some hurdles. Some experts say the deportation infrastructure can’t handle the up to three million Trump has promised to deport. The shortage of immigration judges, for example, will make it prohibitively expensive to carry out mass deportations, said Julie Myers Woods, former head of the Immigration and Customs Enforcement agency under George W. Bush, on NPR in November.

But the dearth of judges won’t matter if the new administration does an end-run around the immigration courts, as appears likely. Trump’s immigration advisers are reportedly planning to expand the use of expedited removals, which generally aren’t subject to review by an immigration judge.

“I think their go-to will be to get rid of the lawyers and judges,” says Stephen Manning, a member of the American Immigration Lawyers Association’s Amicus Committee.

Under expedited removal, immigrants without papers can be deported by border patrol agents if they’re apprehended within 14 days of entering within 100 miles of a U.S. border. But the administration has the authority to expand that zone without congressional approval, says Hiroshi Motomura, immigration and citizenship law expert at the UCLA School of Law. For example, the administration could rewrite the regulations to apply expedited removal to anyone detained within 500 or 1,000 miles of a border, effectively covering most of the country.

Such a move would almost certainly be challenged in court, Motomura says—previous Supreme Court decisions provide more procedural due process protections in the interior of the country than near the border. But in the interim, thousands of people could be deported under new rules.

Even under today’s far more restrictive 100-mile rule, expedited removal often pushes the envelope of what’s permitted. Border patrol agents are technically required to ask detainees questions about whether they fear returning to their home country. If the answer is yes, detainees are supposed to get a hearing in front of an asylum officer to determine whether that fear is credible. If the officer’s decision is favorable, the detainee goes before an immigration judge for a more in-depth hearing.   

In reality, many border patrol agents appear to be circumventing that process by not asking the required questions, or by inventing detainees’ supposed responses. That’s according to a report on expedited removal released in August by the U.S. Commission on International Religious Freedom.

In 2014 and 2015, commission staff visited five ports of entry and four border patrol stations. They toured the facilities, met with officers, and observed a few in-person interviews.

Even in these few observations, the visitors found disturbing patterns. In one interview with a detainee, they noted, agents didn’t bother to ask whether the man in their custody was afraid of returning to El Salvador. He’d brought with him a letter from a Salvadoran police officer documenting that he’d been threatened by gang members. But an agent took the letter and never returned it. On the detainee’s form, agents ultimately noted that he had no fear of returning home.

In another case, an agent noted that a female detainee was coming to the U.S. to work, even though the woman had told the officer that she was afraid to return to Guatemala. Asylum officers themselves told commission staff that events like that were “a common occurrence,” and that they were seeing many forms with identical answers—indicating that border agents were cutting and pasting prepared text rather than reflecting migrants’ actual responses.

Despite these problems, the Obama administration has kept its door open to experts from the commission and human rights groups, who have offered input on how to improve practices so that bona fide refugees aren’t turned away. In 2014, U.S. Citizenship and Immigration Service staff met with commission staff about their concerns, and the administration increased the number of asylum officers.

“No level of border security, no wall, doubling the size of the border patrol, all these things will not stop the illegal migration from countries as long as a seven-year-old is desperate enough to flee on her own and travel the entire length of Mexico because of the poverty and the violence in her country,” Homeland Security Secretary Jeh Johnson said in August.

But that door will close if Trump’s choice to head the Justice Department, hardline immigration opponent Jeff Sessions, is confirmed. Under Sessions, there’s little if any chance that border agents will get more oversight. “I think it’s a mistake to assume that rule-of-law principles will matter,” says Manning. 

Still, an administration that condones harsher expedited removal practices may well set up an interesting conflict among Republicans, since the victims of removal rule abuses include Christian refugees fleeing religious persecution.

For example, the Commission on International Religious Freedom’s August report documented the case of a border patrol supervisor who said he was skeptical of the persecution claims of Christian refugees from China, because “Chinese individuals often say they are Christian but cannot even name the church they attend.” Commission staff had to tell him that there was a good reason for that—many Chinese Christians are forced to worship in homes, not churches.

That hasn’t stopped some Republicans from advocating both anti-immigrant policies and religious freedom. Republican Senator Tom Cotton, of Arkansas, for example, has been a persistent critic of immigration reform. But in March he sponsored the Religious Persecution Relief Act, which would give religious minorities fleeing ISIS and other groups in Syria priority status to resettle in the U.S.

Cotton’s office didn’t respond to a request for comment about whether he supports the recommendations of the commission’s August report, which include more training and better oversight of border patrol officers on expedited removal procedures. The Family Research Council also did not respond to a request for comment.

Denying valid asylees, whether Christian or not, has disturbing consequences. A forthcoming report by one researcher at San Diego State University documented as many as 83 murders of deportees sent from the U.S. back to El Salvador, Guatemala, and Honduras between January 2014 and September 2015. In August of 2014, the head of the morgue in the Honduran city San Pedro Sula told The Los Angeles Times that one of the children who’d turned up in his morgue dead of gunshot wounds had been deported from the U.S.

“There are many youngsters who only three days after they’ve been deported are killed, shot by a firearm,” morgue operator Hector Hernandez told the Times. “They return just to die.” 

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