Rather than deport, administration should confirm due process for asylum seekers

Set the politics aside. Set even the humanitarian crisis aside.  

From a policy perspective, America is better than the way the Obama administration is treating people who have fled violence and persecution in Central America.  

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As Homeland Security Secretary Jeh Johnson confirmed Monday, his department has begun to carry out plans to deport Central Americans with orders of removal by a federal immigration judge. Immigration and Customs Enforcement officials detained more than 120 people following raids in Atlanta and elsewhere over the weekend, according to reports

Charles Kuck, a high-profile immigration attorney in Atlanta, told the Wall Street Journal, “We had a mother and her three children taken by ICE, pretending to be looking for a ‘criminal’ and asked to enter the house to check whether he was there.” 

In April 2015, U.S. Citizenship and Immigration Services’ Asylum Division found that among 1,305 families held in federal family detention facilities, 88 percent had a credible fear of persecution or torture, should they be returned to their home countries. Of the 1,305 families, 92 percent were from El Salvador, Guatemala and Honduras. 

And, by the way, the overwhelming majority of people from Central America involved in these cases willingly turned themselves in at the border. An asylum seeker wants the protection and safety that we take for granted in America. And applying for asylum is a right under U.S. law: The Refugee Act of 1980 permits people, both within the United States and at our borders, to apply. 

“Everyone has the right to seek and to enjoy in other countries asylum from persecution,” states the Universal Declaration of Human Rights, which the United Nations General Assembly adopted in 1948.

In the face of this kind of need, the last thing we should be doing is deporting families because of a limited and flawed asylum process and a dysfunctional immigration system that prioritizes expensive deportation and detention.  

Instead, the Department of Homeland Security should take the following steps:

1.       Provide clear and adequate information to families about their rights and responsibilities in the immigration system.

2.       Offer community-based services to facilitate appearances in court.

3.       Take the extra step to provide appointed counsel to families who would otherwise go without representation.

4.       Consider alternate routes to protect deserving asylum seekers, such as through humanitarian parole, deferred enforced departure, and temporary protected status. 

Any removal orders issued for children and families who failed to appear in court cast a darker pall on the administration’s approach. Most such people lack legal representation. Did DHS adequately explain their obligation to appear or their right to receive a fair hearing on asylum, withholding of removal, and related claims? 

Data indicate a huge difference for people who come to court with legal representation: According to the Transactional Records Access Clearinghouse, a majority of asylum seekers with legal representation were granted asylum in the 2010 fiscal year, while only 11 percent of those without attorneys were granted asylum. The pattern repeats itself for unaccompanied children: Government data released in 2015 show that 69 percent of child migrants with legal counsel had removal proceedings terminated or closed, compared with 7 percent of children without lawyers.  

These children and their parents should be treated as an exceptionally vulnerable population. They should not be removed without confirmation that they had legal representation, adequate time and notice for preparation, and a full, objective and timely hearing. Deportation without due process is not a humane response for these parents and children, nor is it an effective deterrent.  

To deport children and families to the violence they fled, without confirming the due process and protection we all cherish, is un-American.

Noorani is the executive director of the National Immigration Forum.

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