This blog post is an excerpt from the recently released book ‘Banned: Immigration Enforcement in the Time of Trump’ by Shoba Sivaprasad Wadhia. Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and Founding Director of the Center for Immigrants’ Rights Clinic at Penn State Law in University Park, Pennsylvania, and author of ‘Beyond Deportation’.
Within days of taking office, President Donald J. Trump published or announced changes to immigration law and policy. These changes have profoundly shaken the lives and well-being of immigrants and their families, many of whom have been here for decades, and affected the work of the attorneys and advocates who represent or are themselves part of the immigrant community. Banned examines the tool of discretion, or the choice a government has to protect, detain, or deport immigrants, and describes how the Trump administration has wielded this tool in creating and executing its immigration policy.
Banned combines personal interviews, immigration law, policy analysis, and case studies to answer the following questions: (1) what does immigration enforcement and discretion look like in the time of Trump? (2) who is affected by changes to immigration enforcement and discretion?; (3) how have individuals and families affected by immigration enforcement under President Trump changed their own perceptions about the future?; and (4) how do those informed about immigration enforcement and discretion describe the current state of affairs and perceive the future? Shoba Sivaprasad Wadhia pairs the contents of these interviews with a robust analysis of immigration enforcement and discretion during the first eighteen months of the Trump administration and offers recommendations for moving forward.
The story of immigration and the role immigrants play in the United States is significant. The government has the tools to treat those seeking admission, refuge, or opportunity in the United States humanely. Bannedoffers a passionate reminder of the responsibility we all have to protect America’s identity as a nation of immigrants.
Refugee Policy in the Time of Trump
On January 27, 2017, President Trump signed an executive order (EO) that suspended the refugee admissions program for 120 days, cut refugee numbers in half, and suspended refugee admissions of Syrians indefinitely.
After a federal court blocked the refugee ban from taking effect, President Trump signed a second EO on March 6, 2017, again suspending the refugee admissions program and cutting refugee numbers but without an indefinite ban on Syrian refugees. After the 120 day period expired in October 2017, the Trump administration issued another EO22 and policy memorandum that suspended refugee admissions for nationals of eleven countries and the entirety of “derivative” refugee admissions for ninety days.
Leaving aside the legality of President Trump’s EOs as they pertain to refugees, the fact is that the president holds enormous discretion in setting refugee numbers each year. Under the immigration statute, the president, in consultation with other federal agencies, is charged with setting the “ceiling” on refugees each year. On October 4, 2017, President Trump used his statutory authority to propose a ceiling of 45,000 refugees for 2018. Midway through the fiscal year, refugee advocates pointed to the “exceptionally low” number of refugee arrivals. Said Mary Giovagnoli, executive director of Refugee Council USA,
At a time when the world faces its worst refugee crisis since World War II, the United States is failing in its very limited commitment of admitting 45,000 refugees by September 30 of this year. At the sixth- month mark, the Refugee Admissions program has admitted and resettled only 10,147 refugees thus far, making it seemingly impossible to resettle 45,000 refugees by the end of the fiscal year. Travel and refugee bans, administrative obstacles, and duplicative vetting requirements have slowed the flow of refugees to a trickle, threatening to devastate the U.S.’ refugee Resettlement Program.
That there are fewer refugee arrivals than proposed admissions is not new. Prior administrations have sometimes failed to admit as many refugees as the annual limit would allow. Novel is the 45,000 ceiling on refugee admissions and the influence of the EOs on actual arrivals. As described in one report, “The lack of these arrivals, at a time they were legally ordered to resume, is just one window into how the Trump administration has slowed the resettlement process through administrative obstacles, lack of proper staffing and ‘enhanced security measures.’”
Compared to the Trump administration, President Obama had a more humanitarian- driven outlook on refugees and expressed his commitment to admitting refugees from Syria. President Obama proposed a ceiling of 110,000 refugees for fiscal year 2017 and furthermore committed to admitting 10,000 refugees from Syria. Further, the Obama administration engaged in public education about the structure of the U.S. refugee resettlement program. Government official 3, based in the Midwest, who served during the Obama administration, said,
I think it would be fair to say that at least during the Obama administration, most of that discretion was rooted in humanitarian concerns, and when things got particularly nasty in Syria, President Obama courageously increased the refugee quota for fiscal year 2017 from the usual 70,000 to 110,000; then the election came, and just a couple months later, President Trump, almost immediately upon taking office, reduced the quota, not only back down to the usual 70,000 but down to 45,000, which is the lowest refugee quota in the history of the refugee admissions program under the Refugee Act of 1980, and he did so at precisely the time that the number of refugees and displaced persons in the world were at record high levels. It was very traumatic.
Asylum in the Time of Trump
Most of the asylum rules have been in place since 1996 when Congress imposed significant changes to the immigration statute. What has magnified in the time of Trump is the degree to which the Trump administration is using its discretion to modify its policies about the treatment of asylum seekers at the border and also overturn or roll back positive case law.
Zero Tolerance Policy
In May 2018, Attorney General Jeff Sessions announced a “zero tolerance” policy for those crossing the borders without proper documents. Said Sessions, “I have put in place a ‘zero tolerance’ policy for illegal entry on our Southwest border. If you cross this border unlawfully, then we will prosecute you. It’s that simple.” This policy extended to asylum seekers. It is not uncommon for a person fleeing persecution and related harms to unlawfully enter the United States.
Prosecuting anyone who enters the United States irregularly can complicate an asylum claim because of the time, expense, and chilling effect of prosecution as well as the criminal bars to asylum. Because asylum is a discretionary remedy, those who apply despite these impediments may be more susceptible to being denied asylum as a matter of discretion notwithstanding their eligibility for asylum under the statute. Finally, statements like the ones uttered by Sessions create a perception that anyone crossing the border unlawfully is suspect as opposed to eligible for protection under our immigration laws.
A blanket policy of prosecution is troubling to the rule of law and leads to a failure of discretion in a universe of limited resources. It also means that people who are legally eligible to apply for asylum may be prosecuted criminally before having the opportunity to do so. Under the immigration statute, any person present in the United States has the right to apply for asylum. When delivering testimony to the House of Representatives, DHS reported that 638 parents who crossed the border with their children were prosecuted in a two- week period in May 2018.
Related to the “zero tolerance” policy was a new practice by the Trump administration to separate parents and their children at the border. According to the fact sheet issued by the Department of Homeland Security (DHS) on June 15, 2018, DHS “may separate a parent or legal guardian from his or her child for several reasons, including situations where DHS cannot ascertain the parental relationship, when DHS determines that a child may be at risk with the presumed parent or legal guardian, or if a parent or legal guardian is referred for criminal prosecution, including for illegal entry.” When President Trump spoke about family separations, he suggested that he was required to so by law: “I hate the children being taken away. The Democrats have to change their law— that’s their law.” This statement is misleading as there is no statute, regulation, or case law that requires family separation. As with the policy choice by Sessions to refer irregular entrants for prosecution, the administration’s decision to separate parents and children is a policy choice.
The public outcry against family separations at the border was significant and further heightened when media outlets began sharing the recordings of separated mothers and their children, some as young as four months old. DHS reported to the Associated Press that more than 2,300 children were separated from their parents. The government reported to the press in July 2018 that nearly 3,000 children were separated from their parents. As a parent, I could not help but see my own young children in the faces of those separated.
Due in large part to the public outcry against these separations by a cross- section of voices that included the American Academy of Pediatrics, former first ladies, former U.S. attorneys from Republican and Democratic administrations, and celebrities, President Trump signed an EO on June 20, 2018, titled “According Congress the Opportunity to Address Family Separation.” The EO states in part, “The Secretary of Homeland Security (Secretary) shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members.” The EO did not specifically address how and if families already separated would be reunited, nor did it spell out how the newly developed plan for “family detention” would be carried out. Further, because of existing case law that prohibits children from being detained for prolonged periods or placed in restrictive settings it is unclear whether the administration as a legal matter can keep families in detention for prolonged periods. One confirmation the EO did provide is that the Trump administration policy of family separation was truly a policy choice.
Three days later, on June 23, 2018, DHS issued a “fact sheet” that discussed the mechanism in place between DHS and the Department of Health and Human Services to reunite families. The fact sheet titled “Zero Tolerance Prosecutions and Family Reunification” suggested a commitment by the Trump administration to continue prosecuting parents who entered the United States unlawfully while also attempting to reunite families. At the same time DHS issued the fact sheet, attorneys on the ground were reporting conversations with parents in detention facilities who were not yet reunited with their children and who, in many cases, were uninformed about the whereabouts of their children.
The American Civil Liberties Union (ACLU), individual plaintiffs, and state attorneys general filed litigation challenging the administration’s family separation and detention policies. Following a motion by the administration to dismiss a lawsuit filed by the ACLU, a federal district court judge allowed the case to proceed and expressed his grave concerns about the allegations put forth by the ACLU in its complaint. On June 29, 2018, Judge Dana Sabraw issued a nationwide injunction in the case. The injunction required family reunification in most cases for children within thirty days of the order, and for children under the age of five, within fourteen days of the order. On July 16, 2018, the same judge blocked the federal government from deporting parents separated from their children until July 23, 2018. July 26, 2018, was the court- ordered deadline for reunifying all qualifying families, but this process was complicated by many factors. For example, many parents were deported before reunification and after signing forms they did not understand.
On June 26, 2018, a group of seventeen state attorneys general led by the state of Washington filed a lawsuit in a federal district court in Seattle. The suit alleged that the policy of family separation “violates immigrants’ Fifth Amendment rights to equal protection under the law, due process. . . . The policy also runs afoul of the federal Administrative Procedure Act and U.S. asylum laws.” The states called for the court to issue an order stopping the practice of family separation and “forcing the government to reunite families.”
The state attorneys general lawsuit included several testimonials by parents seeking asylum and separated from their children. As described by one woman fleeing domestic violence,
On May 20, I was detained. I requested asylum and they took me to the “icebox” (la hielera), where I spent one day with my daughter . . . who is six years of age. We slept on the floor there, with only the aluminum blanket. . . . On May 22nd, they took me to the court, when I got back, they had taken her away. . . . The officer kept saying that I wasn’t my daughter’s mother. . . . What worries me the most about my daughter is the separation. . . . It is difficult for her to eat. She always cries. The day I called, she couldn’t speak. My life is my daughter.
In the end, calculating the chilling effect of the Trump administration’s zero tolerance and family separation policies on asylum claims cannot be measured. For the parents referred to the Department of Justice (DOJ) for prosecution, the criminal process itself may have chilled their desire to undergo a potentially second incarceration by DHS while pursuing their asylum claims. Further, as noted by the complaint filed by the seventeen state attorneys general, the government’s family separation policy prolongs the asylum process. When the government fails to “expeditiously conduct credible fear interviews, which trigger the detained immigrants’ rights to appear before an immigration judge,” the immigrants do not timely present their asylum cases and do not receive individual custody hearings to seek release.
Rolling Back Asylum Standards
In the time of Trump, Attorney General Sessions used his certification authority to roll back BIA case law that has developed around asylum and domestic violence. In the landmark decision Matter of A- R- C- G-, the Board of Immigration Appeals (BIA) held, “Depending on the facts and evidence in an individual case, ‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal.” The victory in Matter of A- R- C- G- was preceded by more than twenty years of advocacy by asylum organizations and attorneys.
One closely watched case certified by Sessions was Matter of A- B- .The case involved a woman from El Salvador who experienced severe physical and emotional abuse at the hands of her domestic partner. She was granted asylum pursuant to Matter of A- R- C- G-.
In forecasting how Sessions’s decision in Matter of A- B- may affect asylum seekers, the nonprofit organization Tahirih Justice Center warned, “This decision could effectively shut the door on the most vulnerable and traumatized victims of persecution seeking protection. It would make it impossible for incoming survivors of violence to gain access to immigration judges and would reduce the number of individuals granted asylum by an asylum officer or immigrant judge.”
On June 11, 2018, Sessions issued his decision in Matter of A- B- and specifically overruled Matter of A- R- C- G-. Sessions criticized Matter of A- R- C- G- for creating a new basis for asylum based on “private violence.” His use of “private violence” is misleading and ignores a standard for asylum that protects those who are persecuted by groups and individuals the government is unwilling or unable to control. In many asylum cases involving domestic violence, the perpetrator involves a private actor such as a spouse or family member of domestic partner against whom the victim is unable to obtain state protection.
In less than twenty- four hours from the release of Matter of A- B-, immigration attorneys, advocates, and former immigration judges criticized the decision and pointed to legal and moral flaws that include the reliance on case law from 1975, the characterization by the attorney general that domestic violence is a “purely personal” matter, and the suggestion by the same that Matter of A- R- C- G- applied a “scant” analysis. On the topic of discretion, Sessions also scolded immigration judges for failing to deny more cases for asylum as a matter of discretion pursuant to case law. Importantly case law makes it clear that the egregious nature of the persecution suffered by as asylum seeker should almost always outweigh the adverse factors when calculating discretion. Matter of A- B- does not foreclose an asylum seeker from making a claim based on domestic violence or gang violence as there remains a related body of case law and standards that agencies and courts must continue to follow. But the case certainly raises the challenges faced by asylum seekers and immigration attorneys seeking to make social group claims based on these grounds.
Reading and analyzing Matter of A- B- was a personal and professional challenge because of the presentation of the facts and the misstatements of law by Sessions. I have taught asylum law at U.S. law schools for more than a dozen years and also worked with individuals who have fled unimaginable violence at the hands of their domestic partners and without state protection. Matter of A- B- brings U.S. asylum case law back to a different time. According to gender studies expert and law professor Karen Musalo, Matter of A- B- “basically throws us back to the Dark Ages, when we didn’t recognize that women’s rights were human rights.” Said Philip G. Schrag, co- director of Georgetown Law’s immigration clinic, “Our attorney general’s view of the law, apparently, is that domestic violence is a purely private affair, unrelated to social norms or patterns in countries in which such violence is endemic.
By characterizing domestic violence as “private criminal activity,” even when the police can’t prevent or stop it, he also apparently intends to bar the victims from winning asylum.” My analysis of Matter of A- B- is similar and raises immediate concerns as I consider the cases I manage that rely on Matter of A- R- C- G-.
Adding heartbreak was the administration’s implementation memos on Matter of A- B-. In a memorandum dated July 11, 2018, the U.S. Citizenship and Immigration Services (USCIS) issued guidance on processing reasonable and credible fear interviews in light of Matter of A- B- . The USCIS memo reiterated the holding of Matter of A- B-and highlighted that the social group in Matter of A- R- C- G-, “married women in Guatemala who are unable to leave their relationships,” would be insufficient for an asylum claim. The USCIS guidance further narrowed claims involving “private actions” and generally made it more difficult for an asylum seeker to prevail on domestic violence or gang- based claims for asylum. Finally, the guidance cramped the use of discretion in asylum claims in contradiction to long- standing case law suggesting a more generous interpretation, directing USCIS officers to weigh facts such as a conviction for illegal entry against a positive use of discretion.
As a final nail in the coffin, the USCIS guidance included legally questionable demands on officers that include, requiring applicants to prove elements for asylum at the fear stage despite a legal structure that requires this to be done by an immigration judge. For example, part 4 of the guidance requires asylum officers to exceed their role in fear interviews by forcing asylum seekers to prove eligibility up front— that is the job of the immigration judge. Fear interviews have long been defined by law and interpreted as a screening mechanism with a standard that is intentionally below the asylum standard an immigration judge will use in deciding if protection should be granted.
In the same week, the head of Immigration and Customs Enforcement (ICE) lawyers known as the Office of Principal Legal Advisor (OPLA) issued guidance for litigating cases in light of Matter of A- B-. The OPLA guidance stated in part that “OPLA attorneys should not take a position on the cognizability of such ‘gender alone’ formulations until further guidance is disseminated.” The OPLA guidance also reminded attorneys that Sessions overruled A- R- C-G- and that any “private criminal victimization (including domestic violence), even when widespread in nature, is insufficient to establish eligibility for asylum or statutory withholding of removal.”
Changes to refugee admissions and asylum laws in the time of Trump have been significant and have often relied on discretionary choices. Some of these choices have and will continue to be challenged in the courts. As a country that has signed international treaties and codified protections in the immigration statute, no person who fears return should be turned away in the style used by the Trump administration.
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