Unsafe Third Countries

The Trump administration won’t let asylum seekers into the United States. Tens of thousands wait for their next U.S. immigration court dates in danger and squalor in Mexico. Under the Remain in Mexico (Migrant Protection Protocol) policy, they are allowed into the United States for each court hearing and then taken back to Mexico until the next hearing.

Now the Trump administration has begun sending plane-loads of asylum seekers to Guatemala. They plan to send more to Honduras, beginning this week. Under international law, they can’t send asylum seekers back to the countries that they fled, so they are shipping Hondurans and Salvadorans to Guatemala. They plan to send asylum seekers from Guatemala, El Salvador, México, Brazil and Nicaragua to Honduras.

The game of musical chairs that sends Mexican asylum seekers to Honduras and Honduran asylum seekers to Guatemala, and so on, is a cynical and heartless circumvention of international and U.S. law.

Refugee Resettlement: Who Gets to Say Yes or No?

In September, President Trump ordered that states and counties opt in if they want to allow refugees to be resettled in their counties. If they do not act affirmatively to opt in, they will be treated as refusing refugee resettlement.

Across the country, most states and counties that have considered refugee resettlement have said yes. Republican as well as Democratic governors in 42 states have said yes to refugee resettlement. Only two counties (Beltrami in Minnesota and Appomattox in Virginia) and the state of Texas have said no to refugee resettlement.

County Choices: Yes, No, Don’t Know

Saying yes to refugees does not mean that refugees will be resettled in a county. Most counties never receive any refugees. Since 2015, only 25 of Minnesota’s 87 counties have received any refugees.

Suicide on the Border

We do not know what drove him from his home to the border, seeking asylum and safety in the United States. We do not know if he was pursued by gangs or drug cartels. We do not know whether he sought help from Mexican police or not. We do not even know his name. 

What we do know is that U.S. officials would not even listen to his story. They would not allow him to ask for asylum or to plead his case before a judge. They turned him back on the bridge between Reynosa, Mexico and Pharr, Texas. That’s when he took his knife and cut his own throat and died, right there on the border on Wednesday afternoon. 

DHS Secretly Changes Asylum Rules

Through two new policies—Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP)—the Trump administration is circumventing normal process in order to speedily deny and deport asylum seekers. Both new policies were secretly piloted in El Paso beginning in October, and now appear to have been expanded to the Rio Grande Valley. PACR is used for non-Mexican asylum seekers, and HARP is used for Mexican nationals seeking asylum.

Under both PACR and HARP, asylum seekers are held in Customs and Border Protection (CBP) custody, with extremely restricted access to telephones. They have no way to contact family members or lawyers. A lawsuit filed by the ACLU challenging PACR and HARP further describes the process:

“8. Under PACR and HARP, an asylum seeker in CBP custody is given only one window of approximately 30 minutes to one hour to call family members or retained counsel, or to call prospective attorneys from a limited list provided by CBP. There is no callback number or other means by which lawyers may attempt to reach clients or prospective clients. The result is that it is functionally impossible for an asylum seeker in one of these programs to contact an attorney.

“9. Even when an asylum seeker does manage to contact an attorney, PACR and HARP ensure that the asylum seeker does not have a meaningful opportunity to consult with that attorney. CBP denies attorneys physical access to its facilities, precluding all in-person meetings. CBP also does not provide for any regular telephonic access and provides no guarantee that the consultation will be confidential.”

These asylum seekers are required to present their cases to Customs and Border Protection (CBP) officers to show that they have a credible fear of returning to their home countries. This is a change from previous procedure, in which they were interviewed by asylum officers. That’s an important difference: asylum officers are trained to evaluate asylum claims and know what the asylum law requires. CBP officers are trained as law enforcement officers, to arrest and detain immigrants. The Washington Post quoted Astrid Dominguez, director of the ACLU’s Border Rights Center:

“This is yet another example of Border Patrol carrying out a pilot project in secret, circumventing Congress and public scrutiny. Border Patrol is fast-tracking deportations while holding migrants at detention facilities . . . and barring oversight to ensure fair and humane treatment. Given Border Patrol’s track record of abuse, the last thing the agency should be allowed to do is shove migrants through a life-or-death decision-making process devoid of basic due-process protections.”

Circumventing the Federal Regulation Process

Before PACR and HARP, asylum seekers were transferred from CBP custody to Immigration and Customs Enforcement (ICE) custody for credible fear proceedings, allowing access to counsel and interviews with trained asylum officers. They were allowed a minimum of 24-48 hours in ICE custody before the credible fear interview. The entire implementation of PACR and HARP is secretive and outside normal legal processes.

When Congress passes legislation and the president signs it, that legislation becomes law. Then federal agencies make rules to carry out the intent and purpose of the law. PACR and HARP were implemented without going through the regulatory process.

“Federal regulation, like taxing and spending, is one of the basic tools of government used to implement public policy. In fact, the development and framing of a rule has been described as ‘the climactic act of the policy making process.’ Another observer described the rulemaking process as ‘a ubiquitous presence in virtually all government programs…. The crucial intermediate process of rulemaking stands between the enactment of a law by Congress and the realization of the goals that both Congress and the people it represents seek to achieve by that law.’ Regulations generally start with an act of Congress, and are one of the means through which statutes are implemented and specific requirements are established. Federal agencies usually issue more than 3,000 final rules each year on topics ranging from the timing of bridge openings to the permissible levels of arsenic and other contaminants in drinking water.”  [internal citations omitted]

In implementing PACR and HARP, DHS simply ignored the entire normal system of rulemaking. Failure to promulgate regulations means that the policies remain shrouded in secrecy rather than spelled out in federal regulations. This failure also completely circumvents the requirement for consideration of public comments, though it’s doubtful that DHS pays much attention to public comment anyway.

The regulatory changes promulgated by the current administration frequently violate laws or the Constitution. Ignoring the regulatory process goes one step further toward lawlessness.

Trump Administration’s Continuing Attack on Refugees and Asylum

In the past few weeks, the Trump administration has moved to bar refugees and asylum seekers, closing the door on people whose lives depend on finding safe haven. In a cascade of awful, the administration:

1. Said it will accept a maximum of 18,000 refugees in the current fiscal year, a historic and reprehensible low;
2. Ordered that asylum seekers, for the first time ever, be required to pay a $50 application fee;
3. Said that asylum seekers will not be allowed to seek employment for at least the first year that they are present in the United States;
4. Greatly expanded the categories of people barred from being granted asylum, including, among many others, anyone with a DUI conviction and people accused of domestic violence, even if they are not convicted;
5. Began deporting asylum seekers to Guatemala, one of the most dangerous countries in the world, and a country without a functioning asylum system of its own.

Besides these new moves, the administration continues its metering and Remain-in-Mexico programs.

Yes, You Can (Make a Difference)

I read a lot of awful news every day, which sometimes leaves me feeling hopeless and powerless. That doesn’t help me or anyone. So I trot out all the old-but-true cliches:

• Better to light one candle than to curse the darkness.
• Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.
• We are called to be faithful, not successful.
• You may say I’m a dreamer, but I’m not the only one.

Sooner or later, something clicks, and I remember that I can’t do everything, but I can do something, and I start moving again. In that spirit, I urge you to get moving today on three specific actions that can make a difference.

Minnesota Immigration News: December 15, 2019

“The inn is not full in Minnesota,” wrote Governor Tim Walz last week. Affirming Minnesota’s long tradition of welcoming refugees, he told Homeland Security Secretary Mike Pompeo that Minnesota will continue to accept refugee resettlement: 

“Refugees strengthen our communities. Bringing new cultures and fresh perspectives, they contribute to the social fabric of our state. Opening businesses and supporting existing ones, they are critical to the success of our economy. Refugees are doctors and bus drivers. They are entrepreneurs and police officers. They are students and teachers. They are our neighbors.“