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‘Expedited Removal’ process as cold as ICE: Response to Jeh Johnson

I remember the look of dread on Mariana’s face when I told her I was returning to Miami.  I met with her on my first day in Texas, volunteering at the Karnes family detention center with the non-profit Refugee and Immigrant Center for Education and Legal Services (RAICES).  Mariana, a 30-year-old Salvadoran with a seven-year-old son Rafael, had sought RAICES’ assistance because an Asylum Officer (AO) decided that there was “no significant possibility” that the young mother had a “credible fear of persecution” and was deserving of asylum.

But she was terrified for good reason. Her brother had been forced to join Marasalvatrucha – aka MS-13, a predominantly Salvadoran gang with ties to one of the world’s most violent drug cartels – when he was 15 and now, three years later, he was trying to get out.  MS-13 members threatened to kill his family, so he told them:  “It is too late for me, but not for you.  You need to leave El Salvador.” Mariana fled with Rafael and both were picked up at the U.S.-Mexican border; her parents went into hiding; her brother later fled.

{mosads}A “credible fear interview” (CFI) is the heart of ICE’s “expedited removal” procedure, an alternative to a full-blown asylum hearing where an immigrant has time to seek legal counsel, gather evidence, and present her case. Mariana’s testimony at her CFI focused primarily on a strange man who had tried to break inside her home in El Salvador. Later, when evidence of the deadly peril she faced from MS-13 emerged, the threat was deemed a fabrication.

Herein lies a concern about fraud that has led to the failure to comprehend the various reasons why asylum seekers, particularly women, do not always reveal the most intimate details of their lives to asylum officers.  Unsure of their questioner’s purpose and fearing reprisal for naming names, immigrants are often hesitant to immediately disclose the basis of their very well-founded fears. The process bears an uncanny resemblance to the prompt outcry requirement in rape law.

If the asylum seeker passes her CFI, she can apply for asylum and is eligible for release.  If she fails, like Mariana did, she gets a rudimentary hearing before an immigration judge, who can overturn or affirm the asylum officer’s decision.  Once the immigration judge affirms, there is no appeal, the asylum seeker has no right to apply for asylum, and is subject to immediate deportation unless the Asylum Office decides that there was some defect in the process.  Judge McPhaul, who affirms virtually all negative CFIs, affirmed Mariana’s too, leaving her with few options.

The RAICES family detention team, under the direction of Manoj Govindaiah, particularly law fellow Andrea Meza, and law student Hudson Kyle, did not give up.  They learned from her family that Mariana’s brother had fled. They confirmed that she suffered from PTSD. They filed several Requests for Reconsideration with the Asylum Office, each with more evidence. They filed a Civil Rights complaint.  Despite compelling evidence that Mariana and her family had been targeted by MS-13, her claim was still rejected, and late last week, she was deported back to El Salvador.

In a piece in The Hill, Homeland Security Secretary Jeh Johnson described family detention as a “critical” tool for screening immigrant families to evaluate whether they are a flight risk or have legitimate claims to asylum. But the reality is that bona fide refugees are regularly sent back to their persecutors. Johnson justifies U.S. policy by emphasizing that, “We don’t have open borders, and if we ceased removals, we’d have a humanitarian crisis.”  Detention of asylum seekers is used as deterrence, violating all notions of due process. What Johnson didn’t say is that the willingness of AOs and judges to dispatch imperiled asylum seekers back into the arms of the gangs they fled constitutes a humanitarian crisis of its own.

There is something wrong with a system that would deport Mariana and her son back to El Salvador without an opportunity to even apply for asylum. This week a member of RAICES team spoke with Mariana in El Salvador.  This is what Mariana said: 

The truth is, I left feeling very bad about Karnes, because for me it all was so unfair.  They think you’re inventing stories, and all that made me feel bad, but I was telling the truth.  Only you can know that anguish, and it is not easy to talk about, you know the reality of your country…   I don’t know why they didn’t give me the opportunity to explain my case… 

I haven’t returned to my home in El Salvador.  At the moment I am renting a room in the center of El Salvador.  I can’t sleep at night because I know that the maras are waiting for me.  And when they see me, I am not going to be alive to tell about it. …

Although Jeh Johnson and the bureaucrats who deported Mariana and Rafael will never give the young mother and son another thought, when Mariana is gunned down by MS-13, it will have been our own system that quite deliberately placed her within their sights.

Lauren Gilbert is a law professor at St. Thomas University School of Law and a member of the American Immigration Lawyers Association.  Mariana and Rafael are pseudonyms to protect the identity of the deportees in this case.    

The views expressed by authors are their own and not the views of The Hill.


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