A 14-year-old Salvadoran girl on the MS-13 gang’s death list with two murdered uncles and a dad who disappeared. A Somali woman who survived political violence and rape by militia members. A transgendered Central American woman who fled life-threatening violence from police, gangs and her own family. These are the stories from a few asylum-seekers with whom I have worked in the past decade, as an immigration lawyer and law professor.
It is easy for me to imagine the impact of President TrumpDonald TrumpHarris stumps for McAuliffe in Virginia On The Money — Sussing out what Sinema wants Hillicon Valley — Presented by Xerox — The Facebook Oversight Board is not pleased MORE’s recent asylum memorandum, if it becomes reality. (Note: This is a big “if,” as most proposals must go through an official rule-making process, which can take years and which certainly will be challenged in the courts.)
On April 29, Trump ordered the Departments of Homeland Security (DHS) and Justice to act within the next 90 days to:
- expedite asylum proceedings and decisions;
- force asylum-seekers who pass an initial “credible fear” test into “asylum-only” court proceedings;
- charge asylum-seekers fees — to apply for asylum, as well as to ask for work permits; and
- prohibit asylum-seekers who entered without permission from getting work authorization at all.
The memo also suggests redeploying DHS employees to “improve” asylum fear interviews at the border.
Though the president claims he is fighting exploitation within the system, advocates have denounced the proposals, calling them “cruel” and “disgraceful.” Could these procedures safeguard the asylum process, or are they a “full-throttled attack” on immigrants? Examining each proposal makes the answer clear: under this proposed regime, asylum-seekers, especially the most vulnerable, will be more likely deported, regardless of the strength of their claim.
1) Expediting asylum proceedings and decisions: Asylum cases often take years from start to finish, because of court backlogs and demands on applicants to file extensive documentation. Despite an existing law directing judges and asylum officers to issue decisions within 180 days, things usually move more slowly. While speeding up decisions within this timeframe sounds like it could be a good thing, as written, it would mean railroading large numbers of asylum-seekers through a system without necessary capacity. In recent years, “rocket dockets” that prioritized Central American cases resulted in chaotic courts, nonprofit attorneys stretched beyond their limits and, ultimately, more unrepresented immigrants.
Because there is no guarantee of an appointed attorney in immigration court, many applicants whose cases are expedited would be forced to navigate the asylum process alone, trying to complete complicated forms, craft a legal argument and amass evidence on their own, all on a truncated timeframe. It is no surprise that study after study shows us that representation is perhaps the single most important factor in winning an asylum claim. Forcing judges to speed up asylum cases will simply ensure that more asylum-seekers are unrepresented.
2) Forcing asylum-seekers who pass an initial “credible fear” test into “asylum-only” proceedings: This idea is straightforward. It has the sole effect of barring asylum-seekers at the border from applying for other immigration protections in court for which they otherwise may be eligible, and which may be a pathway to permanent residence and citizenship.
3) Charging fees: Under this proposal, immigrants would have to pay a fee just to ask for asylum, and pay for a work permit. This policy is out of tune with human rights practices around the world and U.S. history. Asylum protection, which was born out of the Refugee Convention, is a human right and, therefore, it has never been contingent on paying a fee in the U.S.
Asylum-seekers already have overcome overwhelming odds as they fight for their lives; putting a price tag on seeking asylum will make protection out of reach for many. Years ago, I represented a political activist from Somalia who became homeless after arriving in the United States. The after-effects of being tortured resulted in his living on the streets, eventually taking shelter in a dank convenience store basement, as his health deteriorated to the point of hospitalization. After winning asylum and finding a supportive community, he was able to build a sustainable life — none of which would have been possible if he had to pay upfront.
4) Barring some asylum-seekers from ever getting a work permit: Under this proposition, asylum-seekers who enter without permission are barred from getting a work permit while their case is pending. This proposal is not the president’s first attempt to punish asylum-seekers who enter outside a port of entry. Many of the administration’s asylum practices are being challenged in the courts for depriving these asylum-seekers access to the system, including turning them away at the border, threatening them with family separation if they pursued asylum, and detaining them in Mexico.
5) Redeploying DHS employees to interview asylum-seekers: Currently some asylum-seekers, including those at the border, must pass a credible fear interview before an immigration judge can adjudicate their full asylum claim. This interview must be conducted by an asylum officer, who is specially trained in asylum laws and interviewing practices for survivors of trauma and torture; interviewers who lack this training could undercut access to asylum.
Taken together, these proposals are not just the latest in a series of attacks on asylum-seekers. They constitute a systematic effort to undermine the integrity of the immigrant justice system. Instead of ensuring that claims are fully heard and fairly decided, this proclamation simply works to restrict access to protection, subverting the purpose of our asylum system, which was put into place by Congress to protect those who have suffered the most.
Laila L. Hlass is a law professor at Tulane University School of Law, where she teaches immigration law. Follow on Twitter @Prof_Hlass.