A shifting border policy
Examining how the Trump administration’s asylum and zero-tolerance immigration policies have affected the southern border crisis
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In February 2018, the U.S. Citizenship and Immigration Services (USCIS) quietly changed its mission statement, removing a description of the United States as “a nation of immigrants.” The change reflected a shift in our government’s philosophy regarding immigration from one of welcoming strangers to that of border protection.
Under the administration of President Donald Trump, that philosophy calls for tough measures to strengthen border security and crack down on illegal immigration. Both are necessary to fix our country’s broken immigration system, but in reality, the government’s blunt-force, zero-tolerance approach does not appropriately match the reality of the situation at the border.
Though it’s true that apprehensions of illegal immigrants at the U.S.-Mexico border spiked last year (396,579 total in fiscal year 2018), the numbers still aren’t as high as they were in the 1980s, 1990s, and early 2000s, when apprehensions often exceeded 1 million per year. What’s different now is the number of families and unaccompanied children from Central America (instead of single Mexican men) crossing the border and turning themselves in to U.S. Border Patrol to ask for asylum.
According to a Department of Homeland Security (DHS) report, USCIS received almost 140,000 asylum applications in 2017, which is 21 percent more than in 2016 and the highest level since 1995. The number of asylum applications from El Salvador, Guatemala, and Honduras spiked 800 percent, from 3,523 in 2012 to 31,066 in 2017—and more than half of those requests came from unaccompanied children.
Many say they’re fleeing persecution, gang violence, and extreme poverty. The Border Patrol processing centers are designed for temporary detention and rapid turnover, not for housing hundreds of vulnerable parents and children who might need urgent medical care. Meanwhile, pending asylum cases in the already jammed courts were topping 280,000 at the end of 2017. This shift in population and needs, along with a backlogged court system, exemplifies the border crisis we see today.
The Trump administration has been skeptical about immigrants’ asylum claims—with Trump saying smugglers are helping them “game the system” and suggesting crime will rise if we let them in. That perception has shaped his numerous policies aimed at deterring people from coming to the United States.
The approach hasn’t really worked. Instead, some of the Trump administration’s policies may have instead exacerbated the situation at the border by snowballing a humanitarian dilemma into a crisis and chipping away at the legal framework of our asylum system. The changes in border policy are so frequent that even immigration lawyers are having trouble keeping up, and many migrants find the current system bewildering.
Here’s a timeline and analysis of several major Trump administration immigration policy decisions that have made the greatest impact on asylum-seekers and the U.S. asylum system, along with other decisions revealing the far-reaching effects of the administration’s “zero-tolerance” philosophy. (This timeline does not include every policy change, such as the drastic cuts to the refugee resettlement program and the elimination of the Central American Minors program.)
January 2017: Expanding deportations
The backlog of cases in immigration court has grown to more than 1 million active cases. Although the Trump administration blames the influx of Central American migrants, the backlog has grown three times faster than the number of new cases entering the system. While the number of completed cases has increased, thanks to President Trump hiring more immigration judges nationwide, the number of pending cases has also skyrocketed. In some courts, judges have their calendars booked with hearings all the way out to 2023.
In one of his earliest actions after being elected, President Trump ordered prosecutors to seek to deport illegal immigrants regardless of whether they had serious criminal records. The result has been a worsening of the court logjam. Previous administrations have prioritized deporting people with major criminal histories or security risks. Now U.S. Immigration and Customs Enforcement arrests about 4,200 illegal immigrations without a criminal record each month, funneling many more people into the court system.
Later—on Sept. 18, 2018—Attorney General Jeff Sessions removed the authority of immigration judges to suspend or terminate cases. That meant judges could no longer set aside less urgent cases to manage their overloaded dockets. Now prosecutors must pursue every deportation case, and judges are forced to proceed with almost every case, creating ripple effects across the court system and increasing the backlog. This move was just one out of several changes (including establishing “numerical performance metrics” for judges) that the Trump administration has made to strip immigration judges of their independence.
April 11, 2017: Prosecution for aiding illegal migrants
The desert along the southwestern border is a graveyard for thousands of migrants who tried to cross it but died of dehydration and exposure. To save lives, some American volunteers leave canned food and jugs of water in those parched lands.
Under an order from Attorney General Sessions that required federal prosecutors to prioritize cases of “transportation or harboring of aliens,” some of these U.S. citizens now face up to 20 years in prison. The people facing charges include four women, all volunteers of the humanitarian aid group No More Deaths, who were charged with misdemeanor crimes for entering a protected wilderness to drop off water and food. Another No More Deaths volunteer faces three felony counts, including conspiracy to transport and harbor migrants. And a Texas county attorney is under investigation for stopping by a road to help three migrants, including one who doctors later said may have died otherwise.
Since Sessions’ order, the number of people facing federal charges for transporting and harboring migrants jumped to about 4,500 in fiscal year 2018—more than a 30 percent increase from 2015.
July-October 2017: A secret pilot program
The DHS official has confirmed that the Trump administration quietly ran a pilot program for a “zero tolerance” approach to illegal migrants in El Paso in mid-2017. During this period, officials separated hundreds of children from their parents.
In March 2018, the ACLU filed a class-action lawsuit against the Trump administration, charging that officials had acted illegally by separating children from parents who had crossed the border unlawfully and then sought asylum. According to court records, a Justice Department attorney admitted the government didn’t have a plan to reunite parents with their children. This testimony happened in early May, days before the administration implemented the family separation policy borderwide. To the government, the pilot program was a “success” because there was a drop in border apprehensions during that time period.
April-June 2018: “Zero tolerance” implemented
Under the same “zero tolerance” policy that it tested in El Paso, the Trump administration directed federal prosecutors along the southwest border to crack down on illegal crossings. It also began regularly separating children from adult parents who crossed the border illegally. The exact number of kids removed from their families is unclear, but the administration later acknowledged in court that in total it had separated more than 4,500 children from their parents. The family separations drew outrage across the political spectrum, pressuring President Trump to sign an executive order ending the blanket practice in June 2018. Even so, the House Committee on Oversight and Reform recently reported that, after Trump officially ended the policy, the government separated more than 700 additional children from their families.
President Trump has pointed out that the practice of separating families also occurred before his presidency—and he’s right: It dates back, at the latest, to the George W. Bush presidency. But under Presidents Bush and Barack Obama, the practice happened only rarely, typically when border officials doubted the familial relationship between a child and the accompanying adult, or if they suspected the parent of a major crime. Even so, the government tried to reunite families as quickly as possible.
What the Trump administration did was unprecedented: It separated any parent from a child simply for crossing the border illegally, an act that carries a misdemeanor charge for a first entry and a felony charge for an illegal reentry. Officials sent parents to jail, then reclassified their children (some younger than 2 years old) as “unaccompanied” and sent them to federally run shelters across the country—all without having any plan for reuniting these families. That’s drastically different from taking away children from parents who have committed murder or arson. Top officials have stated that the Trump administration enforced this practice with the goal of deterrence. The result: thousands of kids lost in the system.
April 2018: Metering asylum requests
The Trump administration officially began enforcing a “metering system” in April 2018, requiring U.S. Customs and Border Protection (CBP) to limit the number of people who can request asylum at a port of entry each day at the southern border. That means CBP officials now turn away people who show up legally at the port of entry to seek asylum, saying there is “limited processing capacity” and telling them to wait in Mexico.
The Obama administration used the metering system back in 2016 when thousands of Haitians arrived at the border seeking asylum. But officials used it only for a brief period before clearing the backlog and ending the practice. The Trump administration is the first to use the metering system so extensively and consistently. As of this May, an estimated 19,000 asylum-seekers were waiting in Mexico due to the metering system. With the increasing backlog, they’re waiting weeks and months just for the chance to request asylum.
Shelters in Mexico are filled beyond capacity. Immigrants with money rent rooms in motels or apartments. Those without money sleep on the streets. Many have complained of corruption (Mexican administrators demanding bribes from asylum-seekers) and of people missing their spot on the waitlist.
According to a September 2018 report from the U.S. Department of Homeland Security’s inspector general’s office, the metering system may have actually “led asylum-seekers at ports of entry to attempt illegal border crossings.” For every one person waiting in Mexico, several more are hopping the border—many crossing dangerous territories that occasionally result in deaths. A recent example is Óscar Alberto Martínez Ramírez and his 23-month-old daughter Valeria: A picture of them floating dead in the Rio Grande in June horrified the world.
April 11, 2018: Funding cut to the Legal Orientation Program
The Legal Orientation Program began under President George W. Bush in 2003. Since immigrants don’t have a right to an attorney but are allowed to have one, this program provided some basic help by informing detained immigrants of their options and operating an immigration court help desk program. The program cost $8 million a year and, according to a 2012 audit by the Justice Department, actually saved the government $18 million by reducing the length of immigration court cases and detention. Trump completely halted the program.
April 13, 2018: Deporting potential child sponsors
Tens of thousands of children cross the border without their parents. In fiscal year 2018, Border Patrol apprehended more than 50,000 unaccompanied children along the southern border.
Previously, when CBP found unaccompanied children at the border, they would transfer them to the care of the Office of Refugee Resettlement. ORR then looked for sponsors who would agree to take custody of the children while they went through court proceedings. That approach frees up shelter space and saves the government money by not having to detain and feed the kids. Usually, these sponsors are the children’s parents, relatives, or family friends. Many are illegal immigrants, but ORR did not ask their legal status because it prioritized quick and safe placements for the kids.
That changed after the Trump administration sent an April 2018 memo to various departments—including CBP, ICE, and ORR—mandating that they share information on potential sponsors and every adult member in the sponsors’ households. The result was that ICE began arresting people who came forward as sponsors, detaining about 170 from July to November 2018, the majority of whom were illegal immigrants with no criminal record.
That move placed potential sponsors in an agonizing dilemma: They could step forward, risking likely detention and deportation, or they could leave the child to languish in government custody. Many potential sponsors ultimately backed off.
Recognizing the unintended consequences of this policy, the Trump administration has been gradually rolling it back. As of June 2019, it no longer required immigration record checks on potential sponsors who pass background checks by the FBI.
June 11, 2018: Narrowing asylum statutes
In 2014, an immigration judge granted a Guatemalan woman asylum after she claimed a decade of abuse from her husband. She showed acid burns on her body and said her husband had punched her while she was eight months pregnant, resulting in a premature birth to a baby born with bruises. That case set a legal precedent. Since then, many immigrants have won asylum in the United States by claiming domestic abuse or gang violence in their home countries.
Former Attorney General Jeff Sessions overturned that precedent in June 2018, calling it a set of “powerful incentives” for people to “come here illegally and claim a fear of return.” He ruled that the asylum statute would no longer apply to victims of “private criminal activity.” The rule made it much harder for most Central American asylum-seekers fleeing gang violence or gender-based violence to win their case in the United States. (Legally, though, they’re still entitled to seek asylum.)
April 2019: Border Patrol officers screen asylum-seekers
In order to stand before a U.S. immigration judge, every asylum-seeker must first pass a vetting interview to show he has a “credible fear” of returning to his country. Previously, USCIS asylum officers well versed in U.S. and international refugee law conducted all of these interviews.
Beginning earlier this year, Homeland Security officials empowered certain Border Patrol agents to screen asylum-seekers as well. This shift in duties is significant: An asylum officer is trained to interview traumatized individuals, detect fraud, understand conditions in other countries, and focus on refugee protection. A Border Patrol agent, however, isn’t trained to assess asylum cases but to enforce the law and catch “bad guys”—traffickers, smugglers, and terrorists. Lawyers and advocates worry this new policy means that asylum interviews will take the tone of a criminal interrogation, even though asylum-seekers are not charged for illegal entry if they win their case.
DHS says it’s assigning border agents because it needs more manpower for asylum screenings. It says the selected border agents will undergo five weeks of training with USCIS. Still, internal emails leaked to NBC News suggest that Trump administration officials had something else in mind: They thought asylum officers, who were approving 9 out of 10 asylum-seekers during vetting interviews, were too soft. The officials hoped border agents would approve fewer migrants. (It’s been widely documented that Border Patrol and CBP tend to have a culture of negative attitude toward migrants.)
October 2018: Termination of Safe Release
For about a decade, under the so-called “Safe Release” program, Border Patrol and ICE agents provided asylum-seekers with a phone so they could call family or friends who might agree to sponsor them while they await court proceedings. Officials also helped transport them to bus stations or airports after their sponsors booked tickets.
That all ended in October 2018, when the Trump administration ended the Safe Release program without warning, leaving asylum-seekers stranded in U.S. border cities and counties. Soon after, amid all the ensuing local chaos, the administration declared a national emergency at the border.
So far, several border regions, including San Diego County and New Mexico, have sued the Trump administration, saying they’ve spent hundreds of thousands of dollars sheltering and assisting these asylum-seekers, something that was previously the job of federal agencies. (I’ve previously written about the chaos in border towns and how local churches stepped up to help.)
January 25, 2019: “Remain in Mexico” policy
The official term for the Trump administration’s controversial “Remain in Mexico” policy is the Migrant Protection Protocols (MPP). Within eight months of its implementation in January of this year, more than 42,000 asylum-seekers were sent back to Mexico to await legal proceedings for their cases. The result has been humanitarian and legal chaos.
I’ve written about some of the real dangers migrants face when sent back to notoriously dangerous border cities in Mexico: Migrants, visibly distinguishable for the way they look, dress, and act, are easy targets for criminals, especially when they have no shelter, no local contacts, and no protection. Human Rights First has so far counted more than 110 publicly reported cases of rape, kidnapping, sexual exploitation, and violent crime against asylum-seekers returned to Mexico under MPP. And that’s excluding many more incidents that migrants don’t report due to fear and distrust of the local police—a problem so bad that Mexican law enforcement officials have begun visiting migrants shelters, urging migrants to report crimes to them.
I’ve also written about the legal problems that arise from MPP: These migrants have virtually zero chance of finding a U.S. attorney to represent them. As of June, only 1.3 percent of migrants with pending MPP cases have found a lawyer. Given how complicated immigration law is, having no legal representation drastically decreases an asylum-seeker’s chance of winning his case, no matter how strong it is.
Perhaps because the vast majority of these migrants have no permanent address in Mexico, CBP officials are writing “unknown address” on at least some asylum-seekers’ paperwork, which means any mail regarding their cases or court dates will go nowhere. And should migrants fail to show up at court because of unsent notices, the judge will permanently bar them from asylum in the United States. That’s already happened to dozens of asylum-seekers under MPP.
Undoubtedly, more will fail to show up. Partly due to concerns about crimes in border cities, Mexican officials are now busing migrants south to places like Monterrey (about 140 miles from the border) or even Mexico City (700 miles), making it incredibly difficult for asylum-seekers to find the means to get to court in the United States.
Many judges, officials, lawyers, and advocates say that MPP is violating U.S. law that provides safeguards for asylum-seekers and refugees. Lawyers tell me that even though asylum-seekers are permitted interviews to show they have a credible fear of returning to Mexico, the standard for proving that has been raised so high that it’s almost impossible to meet. Those being sent back include eight-month-pregnant mothers, people with disabilities, and people who had been kidnapped or raped in Mexico. At least one U.S. lawmaker has asked an inspector general to investigate the situation.
July 2019: “Safe third country” deals
By law, the United States cannot deny entry to people who request asylum. Even if they cross the border illegally, it is legal for them to gain temporary entry by seeking asylum. The Trump administration is trying to circumvent that law by preventing individuals from reaching U.S. soil, or by creating a way to deport them without a hearing.
Most asylum-seekers from Central America pass through Mexico to get to the United States. People from El Salvador and Honduras pass through Guatemala, and Nicaraguans go through El Salvador. Using the threat of tariffs, the Trump administration strong-armed Guatemala and El Salvador into accepting so-called “safe third country” agreements. Honduras recently signed a similar deal. Under safe third country agreements, asylum-seekers must request asylum in the first “safe country” they enter. If they don’t, and continue to the U.S. border, the United States will return them to the “safe country.” By these agreements, the United States is denying asylum to the majority of Central American migrants.
The Trump administration has also tried to pressure Mexico into signing a safe third country deal. Instead, Mexico has promised to cooperate with the “Remain in Mexico” policy and to ramp up security at its southern and northern borders.
Trump has defended the safe third country agreements, saying they’ll “put the coyotes and the smugglers out of business” and “provide safety for legitimate asylum-seekers, and stop asylum fraud.” Meanwhile, he’s also trying to cajole Brazil and Panama into signing a similar agreement.
Here’s what’s iffy about the agreements: Under their terms, participants must have asylum systems meeting international standards showing that they can offer protection to people seeking refuge. Both Guatemala and El Salvador have some of the highest rates of homicide, gender-based violence, and corruption in the world, leading tens of thousands of their own citizens to flee to the United States. Mexico has its own problems with violence in certain regions, and its under-resourced asylum agency is already over capacity (asylum filings in Mexico spiked more than sevenfold since 2014).
Some analysts, pointing to similar examples in the European migration crisis, say safe third country agreements may only exacerbate the migration crisis. Opponents of the agreements say they could backfire by encouraging people to stay illegally in the United States rather than apply for asylum. Others might simply seek alternative migration routes to America.
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