The next battlefield at the border is in asylum interview rooms.
The Trump administration’s goal has been clear: It wants as few people as possible coming to the United States without papers. And if they do come, it wants to deport them as quickly as possible.
That goal might finally be within their grasp.
The administration has treated immigrants who come without papers punitively — separating families for several weeks, seeking to keep families in immigration detention indefinitely, detaining asylum seekers without a chance at parole — in the hopes of deporting them efficiently and deterring other people from coming in.
Despite the crackdown, the administration still couldn’t eliminate the extra protections in place for asylum seekers, children, and families that the administration calls “loopholes” or “catch and release.”
But now it may finally have cracked the code. Lawyers representing asylum seekers report that very few of their clients are passing the very first step in the asylum process, the initial screening interviews that would allow them to stay in the US to apply for asylum. Those rejections consequently set them up to be deported without trial. “Everyone is getting denied,” Texas lawyer Carlos Garcia told the Houston Chronicle last week.
They’re still coming into the US, but without an interview approval, the US is able to send them back within days.
The question is whether the anecdotes reflect a meaningful and permanent shift in who’s allowed to enter the asylum process.
Asylum officers have been given instructions by Attorney General Jeff Sessions that are designed to nudge them toward rejecting more migrants. But line officers still have discretion over individual cases — and they don’t necessarily share the administration’s instincts toward mass rejection. Right now, the main battleground in the Trump administration’s ongoing war on asylum is in the interview rooms of the asylum corps.
Jeff Sessions’s crackdown: victims of gang and domestic violence “generally” shouldn’t get asylum
In early June, Attorney General Sessions issued a sweeping decision that had the potential to overhaul asylum policy.
In the case Matter of A-B-, he overruled an immigration court decision to grant asylum to a woman fleeing domestic violence and police indifference in her home country. In the process, he overruled a 2014 precedent that affirmed that “married women who are afraid to leave their husbands” in a particular country constituted a “particular social class” — one of the five kinds of groups that asylum law is designed to protect (along with race, religion, nationality, and political opinion).
And with sweeping rhetoric, Sessions declared that “generally,” people fleeing violence from non-government actors — whether it was domestic or gang violence — should not be granted asylum protections, or even pass their screening interviews.
But Sessions’s ruling wasn’t a memo to asylum officers about how to deal with claims. It fell to the Department of Homeland Security (which employs asylum officers under US Citizenship and Immigration Services) to figure out how to turn Sessions’s declarations about how the law ought to work into actionable policy.
USCIS’s initial guidance, circulated privately to officers but posted by Vox, was fairly cautious. Signed by the USCIS chief counsel, it emphasized that asylum officers should make decisions on a case-by-case basis rather than categorically denying any kind of claim, and it pointed officers to the past precedents Sessions had upheld instead of explaining which other precedents were now voided.
Its final guidance, however — which was unsigned — was much more aggressive. Echoing Sessions’s rhetoric, it deemphasized the need for case-by-case adjudication and made broad claims about what “generally” would or would not be accepted.
The new standards put the burden of proof on the asylum seeker …
Posted last Wednesday night (and initially reported by CNN’s Tal Kopan), the guidance sent out to asylum officers spelled out that the burden was on the asylum applicant — even in a preliminary screening interview — to show how her case conformed to Sessions’s interpretation of the law. Among other things:
- The applicant has to, herself, define the particular social group of which she’s a member, and on the basis of which she’s claiming asylum
- She has to show that group shares a “common immutable characteristic” that it would be near impossible to give up if asked
- She has to show how the group would be clearly recognized within society as a group of people — not just as individuals in particular circumstances, such as “women afraid to leave their husbands”
- She has to show either that she’s being persecuted by the government, that the government “condoned” the persecution, or that the government “demonstrated a complete helplessness to protect the victim”
Combined, the memo erects pretty high barriers to claims of domestic or gang violence — and shares Sessions’s conclusion that in general, few people will be able to clear them. “In general, in light of the above standards, claims based on membership in a putative particular social group defined by the members’ vulnerability to harm of domestic violence or gang violence committed by non-government actors will not establish the basis for asylum, refugee status, or a credible or reasonable fear of persecution,” the memo reads.
Additionally, it opens the door for asylum officers to deny an asylum seeker if she’s been convicted of illegal entry after crossing into the US between ports of entry (something that, in theory, the Trump administration is still seeking to prosecute all border crossers for under its “zero tolerance” policy) even if she meets all the above standards. The memo says that officers may decide an illegal entry conviction weighs against deciding to show discretion in an immigrant’s favor.
… but asylum officers still have discretion
Making a statement about what will “generally” happen, or declaring that a particular sort of claim is “unlikely” to be a good basis for asylum approval (or for passing a screening interview), is not the same as barring domestic or gang violence claims entirely. And saying that asylum officers “may” count an illegal-entry conviction against an immigrant isn’t necessarily saying they must.
When interviewing someone who’s crossed into the US without papers, an asylum officer’s job is to make a decision about whether that particular person has a “credible fear” of persecution based on membership in a protected group (the standard for the initial screening interview). That decision has to be based on the specifics of her case. It’s the asylum officer’s job to translate the facts of the case into the framework of asylum law.
The guidance memo is another step toward specificity in how officers are supposed to do their jobs. But that memo is still subject to interpretation by each field office and, from there, each individual officer. In practice, tightening the standards for approval during initial screening interviews might force officers to deny some asylum claims — but in other cases, it might just force them to do more work in their reports to document exactly how the migrant’s answers meet all the requirements.
Asylum officers who’ve spoken anonymously to Vox say that, especially when they’re conducting screening interviews, they simply do not share Sessions’s outlook toward asylum law — much less Trump’s apparent belief that no one who crosses illegally should get a chance at legal protection.
To Sessions, the primary job of asylum officers is to implement US asylum law as he sees it — with its fairly narrow definitions of what counts as a protectable “social group.”
“We understand all are due proper respect and the proper legal process, but we cannot abandon legal discipline and sound legal concepts,” he said in a speech to immigration judge trainees on the day he issued his decision in the A-B- case. “Asylum was never meant to alleviate all problems — even all serious problems — that people face every day all over the world.”
But to asylum officers who are doing the screening interviews — and who know that their decisions can make the difference between someone being allowed to stay in the US for months to put together a full asylum claim or getting deported within a matter of days — their job is to use US asylum law as a framework for enforcing the international legal principle of non-refoulement, which bars a country from sending back an asylum seeker to somewhere she could be in danger of persecution.
The reticence of asylum officers to enforce Sessions’s changes to the hilt isn’t a “deep state” desire to subvert the will of the president. It’s a response to the immense power and responsibility that officers carry in deciding who deserves a chance to make a full asylum claim. If officers are too strict, they could be sending someone back to her death. “No one,” one asylum officer told me, “wants that on their conscience.”
Have Sessions and company tightened the screws enough to get asylum officers going their way?
Typically, about 70 percent of asylum seekers pass their screening interviews. (The Trump administration usually cites this statistic as 80 percent.) The goal of the new guidance is to get that number down — to send more than 30 percent of asylum seekers back to their home countries without the chance to seek asylum before a judge.
Anecdotes suggest that approvals are declining. But it’s not totally clear whether the new guidance is the cause — some of the South Texas detention centers housing asylum seekers, according to Garcia, were experiencing low approval rates even before last week.
And there could be a major confounding variable. Many of the asylum seekers in question are parents who have been separated from their children. And paradoxically, the trauma of family separation, and their anxiety to reunite, might be keeping asylum seekers from presenting their claims to asylum officers in a compelling way.
In late June, the Huffington Post spoke to one Texas civil rights lawyer who said it was hard to prep her clients for their interviews because they were so distraught: “We are trying to ask them basic information but they are whimpering and they can’t talk.” She imagined asylum officers — who weren’t able to hug and comfort asylum seekers like lawyers could — might have similar difficulties just getting the facts. Fewer than half of her clients, even before the new guidance was issued, were passing their screening interviews.
As the administration moves away from family separation, that’s less likely to be an issue. Asylum seekers will have a better chance of presenting their cases as strongly as possible. By that time, asylum officers may have gotten a better sense of what room there is for positive discretion within the new memo.
If the guidance doesn’t ultimately achieve the desired effect, Sessions and company have another, blunter tool at their disposal: a draft regulation, obtained by Vox in late June, that not only would codify the current instructions about asylum claims based on domestic or gang violence but would require asylum officers to count illegal entry (as well as other things, like having spent two weeks in a second country before coming to the US) against an asylum seeker’s claim.
If Sessions’s June decision doesn’t have the imagined effect on the asylum corps, he may see the need to escalate — to replace statements about who “generally” ought to be allowed to stay with dictates about who can.
Author: Dara Lind