A Biden plan should not deprive them of a day in court.
by James Goodman
December 17, 2021
Kino Border Initiative
Asylum seekers march to protest border closure on November 8 in Nogales, Mexico.
When Rosario went to the police station in southern Mexico to file a report about a criminal gang continuing to threaten her family, she says an officer advised: “Your best bet is to leave.”
And that’s what her family did, in late August. The twenty-four-year old Rosario, her husband, two children, two brothers, and her parents fled their hometown. They have joined thousands of others waiting in the Mexican town of Nogales, bordering Arizona, for a chance to seek refuge in the United States.
“Will we meet migrant families and individuals with cruelty and deterrence, or will we meet them with the humanity and due process that they deserve?”
“We are human beings, and we need asylum,” Rosario tells The Progressive in a telephone interview. Like many asylum seekers, she wants to be identified by her first name only.
Crammed in a single rented room, Rosario’s family is struggling to survive, helped by a free daily food pickup at the Kino Border Initiative’s Migrant Outreach Center. Adding to Rosario’s sense of vulnerability are the shouts she hears from local residents: “Go back from where you came.”
This cloud of uncertainty—and danger—hovers over Rosario’s family because President Joe Biden is unwilling to rescind the Trump border closures for asylum seekers.
Another peril: the court-ordered restart of Remain in Mexico. This is a program—established under the Trump Administration—that requires asylum seekers to stay on the Mexican side of the border while they await resolution of their cases.
Not only have the courts revived this punitive program, but Biden has expanded its reach.
No wonder there’s disappointment and frustration with Biden’s asylum policy, at a time when Republicans want to get rid of asylum altogether.
“Will we meet migrant families and individuals with cruelty and deterrence, or will we meet them with the humanity and due process that they deserve?” asked Women’s Refugee Commission senior policy adviser Ursela Ojeda, at a recent news conference denouncing the Remain in Mexico policy.
It’s a good question.
Biden’s border plan, drafted by the Department of Homeland Security and the Justice Department, would bring on 800 new asylum officers and new staff for hearings. But it’s a fix to a broken immigration system that advocates such as the Harvard Immigration and Refugee Clinical Program say would deny many asylum seekers “their day in court.”
“I was asking for mercy. I didn’t want to go back to my country because they’d kill me.”
The plan, which recently concluded its public comment period, doesn’t require Congressional approval because it’s a package of regulations and procedures. Implementation, according to The Washington Post, is expected in the spring.
It would be a key part of the revamping of asylum at the border that would have asylum seekers stay at government sites. Various services would be provided while they await the outcome of their cases.
At a recent Senate Judiciary oversight hearing, Homeland Security Secretary Alejandro Mayorkas referred to Biden’s plan as a way to “streamline” the asylum process with “the prompt approval of those who qualify and the prompt removal of those who do not.” Republicans tried to pummel Mayorkas with inane statements, with Senator Marsha Blackburn, Republican of Tennessee, blurting out: “If you want to talk about getting to root causes, build a wall.”
Fundamentally, the Biden plan would replace immigration judges with asylum officers in deciding the fate of many asylum seekers. It would apply to adults and families detained by Border Patrol.
The plan would allow asylum officers to grant asylum. But there would also likely be many denials of meritorious asylum cases—without a court proceeding. The asylum seeker would be expected to know how to initiate an appeal. Restrictions would be placed on the judicial review.
“The right to seek asylum from persecution is a fundamental human right,” says Azadeh Shahshahani, legal and advocacy director of Project South. “The Biden Administration must do everything it can to support asylum seekers and ease their path to seek refuge instead of putting up additional hurdles.”
But proving persecution—especially by gangs collaborating with government—requires time to prepare. And that’s especially true for a traumatized asylum seeker arriving with little more than a knapsack. Over the last two decades, the denial rates for asylum seekers from Haiti, Guatemala, El Salvador, Honduras, and Mexico—nations in the center of the immigration debate—have been 80 percent or higher.
The plan would try to reduce the backlog of more than 1.4 million cases in immigration court but at the cost of meaningful judicial review.
“It really doesn’t spell out what this review looks like,” says Victoria Neilson, a managing lawyer for the Catholic Legal Immigration Network. “It seems, reading between the lines, that it just means a transcript of the [asylum] interview would be produced and the judge will read it and just say, ‘Everything looks fine.’ ”
There might not be any direct communication with the judge, Neilson notes, unless the asylum seeker takes the initiative and convinces the judge a hearing is needed, with new evidence.
Under the current system, asylum officers screen undocumented immigrants detained by Border Patrol. If a screening finds a credible fear of persecution, the case goes to immigration court—not to an asylum officer—for an asylum proceeding.
If the asylum officer does not find credible fear, the asylum seeker continues on a fast track to deportation unless an immigration judge overturns that finding.
As it is, asylum officers have been the subject of a good deal of criticism.
“There are strong cases getting negative credible fears. And they are botching the interviews,” says Mich González, the Southern Poverty Law Center’s associate director for detention.
Just this past June, twenty-six immigrant rights’ groups and lawyers filed a complaint with Biden officials about problems with asylum officer interviews, such as only allowing one or two sentence answers to questions.
And that happened this past October to Haitian asylum seeker Estevenson, who in mid-September was detained by Border Patrol after he crossed the Rio Grande near the Del Rio
“I just want to be heard,” Estevenson tells The Progressive. He wants to be identified by just his first name to protect his identity.
Estevenson, as the transcript of his credible fear interview shows, told the asylum officer how in 2016 his politically active father was kidnapped (and never seen again) by gang members. They hit Estevenson’s right arm with a machete and both of his feet with an iron rod, and Estevenson continued to get threats. He fled Haiti in 2017.
The asylum officer found Estevenson believable but inexplicably concluded that he didn’t pass the credible fear test needed to place him in immigration court for the resolution of his case.
“I was asking for mercy. I didn’t want to go back to my country because they’d kill me,” says Estevenson, who was stunned by the officer’s ruling.
Now represented by Louisiana-based immigration lawyer John Sharby Guevara, thirty-three-year-old Estevenson successfully appealed the asylum officer’s findings and the judge moved his case to immigration court.
As it now stands, immigrants can go to an asylum office and seek asylum. If it is not granted, the case gets thrown into immigration court, where immigration judges often grant relief. That happened in 83 percent of these judicial reviews in fiscal year 2016.
Immigration court judges are appointed by the attorney general and, under Trump, became an arm of immigration enforcement. Various attorney general directives restricted the ability of immigration judges to close cases and greatly narrowed what could be considered as grounds for persecution.
At the same time, Trump’s “zero tolerance” mindset encouraged Border Patrol and Immigration and Customs Enforcement agents to arrest, detain, and deport. As a result, the immigration court backlog more than doubled.
Attorney General Merrick Garland has rescinded many of the most egregious directives and restored prosecutorial discretion to ICE prosecutors. But creating barriers for asylum seekers to have their cases aired in immigration court should not be on the Biden Administration’s agenda.
Instead, it needs to close more cases in immigration courts that have no good reason to remain open. Such a change requires rethinking the role of ICE prosecutors. As Neilson of the Catholic Legal Immigration Network puts it, “There has to be a cultural shift to understanding ICE’s role is not to deport but to get a just result.”
James Goodman is a freelance writer based in Rochester, New York.
December 17, 2021
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A Biden plan should not deprive them of a day in court.