by Monica E. Glicken
Introduction
Asylum is a humanitarian grant of legal protection to those who cannot return to their home country due to persecution. It became a part of American law after World War II, as the United States discovered that thousands of the asylum seekers it had turned away had suffered or perished under the Nazi regime. In one famous case, the American government refused entry in May of 1939 to the SS St. Louis, which carried over 900 passengers seeking asylum from Nazi Germany. Daniel A. Gross, The U.S. Government turned away thousands of Jewish refugees, fearing that they were Nazi spies, Smithsonian (Nov. 18, 2015), www.smithsonianmag.com/history/us-government-turned-away-thousands-jewish-refugees-fearing-they-were-nazi-spies-180957324/. It was later discovered that over 25% of the SS St. Louis passengers died during the Holocaust. Id.
In a speech to Congress on May 24, 1952, President Harry S. Truman made the case for continuing America’s commitment to displaced refugee populations:
Our common defense requires that we make the best possible use not only of the material resources of the free world but of our human resources as well. Men and women who cannot be productively employed in the free countries of Europe because of conditions there are a net loss to the strength of the free world. In other countries, where they are needed, these same people could add to the output and growing power of the free nations.
Harry S. Truman, Special Message to the Congress on Aid for Refugees and Displaced Persons (March 24, 1952), available at http://www.presidency.ucsb.edu/ws/index.php?pid=14435&st=displaced+persons+act&st1.
Today, U.S. asylum laws reflect America’s “mandatory duty . . . not to return an alien to a country where his ‘life or freedom would be threatened’ on account of [his race, religion, nationality, membership in a particular social group, or political opinion].” INS v. Cardoza-Fonseca, 480 U.S. 421, 429 (1987).
“Sara’s” story represents a client of PLC; the events are real but the name has been changed.
“Sara” arrives in California on a flight originating from Europe. She shows the Customs and Border Patrol (CBP) officer her passport and tourist visa. The CBP officer looks her up and down, asks her a few questions. What is the purpose of her visit? Where will she stay?
Something about her answers, or her tone of voice, or the look in her eyes, gives the CBP officer pause. He takes her aside for additional questioning. He searches her luggage. He finds a packet of papers that look foreign and bear a seal. “What is this?” he asks.
“A police report that I filed in Europe,” she answers.
“Against whom?”
“Against someone I encountered there, someone I knew from my country. Someone who did very bad things to me.”
“Are you afraid to return to your country?”
“Yes. Yes, I am.”
With that answer, the course of Sara’s travel—indeed, of her life—changes forever.
Lack of resources for asylum seekers to seek entry as refugees
Some refugees apply for and obtain that status from outside the United States. “Asylum” is the legal term for a grant of refugee protection to an individual who is already located within the United States, including at an airport or land border. 8 U.S.C. § 1158.
At the present time, overseas refugee processing into the United States is extremely limited. Our State Department currently operates nine Resettlement Support Centers around the world. Claire Felter & James McBridge, How Does the U.S. Refugee System Work?, Council on Foreign Relations (Oct. 10, 2017), www.cfr.org/backgrounder/how-does-us-refugee-system-work. These centers represent the only venues through which people abroad can obtain approval to enter the United States as refugees.
It is estimated that, in 1990, approximately 120,000 were admitted in this manner. Id. For fiscal year 2017, President Donald J. Trump capped this number at 45,000; he is considering lowering it to 25,000 for next year. Julie Hirschfeld Davis, White House Weighs Another Reduction in Refugees Admitted, N.Y. Times (Aug. 1, 2018), www.nytimes.com/2018/08/01/us/politics/trump-refugees-reduction.html.
Given the scarcity of resources and infrastructure dedicated to overseas refugee processing, it is not a realistic option for most who are seeking refuge in the United States.
A person’s manner of entry is irrelevant to asylum
Legally, the way that an individual enters the United States is irrelevant to their claim for asylum. Anyone “who is physically present in the United States or who arrives in the United States,” no matter how, is eligible to apply for asylum. 8 U.S.C. § 1158(a).
The law recognizes the reality that those fleeing persecution are often unable to enter with proper documents. “When a petitioner who fears deportation to his country of origin uses false documentation or makes false statements to gain entry to a safe haven, that deception does not detract from but supports his claim of fear of persecution.” Gulla v. Gonzales, 498 F.3d 911, 917 (9th Cir. 2007) (internal quotations and citations omitted); see also Matter of Pula, 19 I&N Dec. 467 (BIA 1987).
Processing and detention of arriving asylum-seekers
A CBP officer informs Sara that they will detain her. She is allowed one phone call, during which she lets her American hosts know what has happened.
That night, she arrives at an Orange County jail. She is assigned a jumpsuit and number. Her belongings, including the police report, are taken from her.
After several days, she is interviewed by an immigration officer. Sara tells about the armed group who targeted her family for extortion, who returned on numerous occasions to rape her when her family did not comply. She tells about her attempts to move away. She tells about escaping to Europe for a short time, but then encountering one of her persecutors in the street. If she were to return now, she knows they would find her and kill her for her defiance.
The officer tells Sara that she will receive a decision soon. Sara goes back to jail.
Under the immigration laws, an “arriving alien” is a person who presents themselves at a port of entry, or who is encountered very close to one. 8 U.S.C. § 1225(a)(1); 8 C.F.R. § 1.1(q). Generally, if an arriving alien does not present a proper entry document, the authorities will deport them using the “expedited removal” procedure. 8 U.S.C. § 1225(b)(1).
One exception is when an arriving alien expresses a fear of return to their country. If that happens, the individual’s “expedited removal” is put on hold. They are detained without bond in the custody of the Immigration and Customs Enforcement (ICE). 8 U.S.C. § 1225(b)(1)(B)(iii)(IV).
Arriving asylum-seekers defend themselves in an initial Credible Fear Interview (CFI) before an asylum officer. 8 U.S.C. § 235(b)(1)(A)(ii). The officer questions the individual in depth about their claimed fear of return, then makes an initial determination as to whether the claim seems credible and worthy of review.
If the asylum-seeker passes their CFI, they do not receive any lawful status; they are merely allowed to continue before an Immigration judge, who will ultimately decide their fate. Id. If the Immigration judge grants the application, the individual will receive indefinite asylum status, which can lead to a green card and eventually U.S. Citizenship. If the Immigration judge denies their application, the asylum seeker will be deported from the United States after that decision becomes final.
Recent changes relating to arriving asylum-seekers
A week later, Sara receives good news: she passed her interview. The bad news: she is staying in jail. She receives a form letter stating that ICE has denied her request for “parole.”
At any time during the screening process, ICE may in its discretion grant a temporary release of the asylum-seeker under “parole,” such as when “urgent humanitarian reasons” and “significant public benefit” justify it. 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. 212.5(b).
Since 2009, once an arriving asylum-seeker has passed their CFI, established their identity, and shown that they do not represent any danger, ICE’s policy has been to release the person on parole. U.S. Immigration and Customs Enforcement Directive 11002.1 (Dec. 8, 2009), www.ice.gov/doclib/dro/pdf/11002.1-hd-parole_of_arriving_aliens_found_credible_fear.pdf.
Beginning in early 2017, attorneys in the field noticed a change in how ICE was treating arriving asylum-seekers. Whereas ICE would have routinely released someone like Sara before, suddenly they were not releasing anyone. See Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018). A class action lawsuit was filed in order to challenge this new policy of blanket parole denials. See Id. Now, under an injunction, ICE must make individualized, case-specific analyses before denying parole. Id.
Detention of children and families seeking asylum
Even while attorneys sought solutions for clients like Sara, another wave of immigration detentions soon gained national attention. In 2018, under the current administration’s “zero-tolerance” policy, ICE began pursuing criminal prosecutions of all immigrant parents apprehended at or near a port of entry—including those seeking asylum. In addition, ICE forcibly separated parents from their accompanying children. M.M.M. v. Sessions, 2018 U.S. Dist. LEXIS 139655 (D.D.C. Aug. 17, 2018). The children were placed into the foster care system as “unaccompanied minors,” and were forced to defend themselves without counsel in Immigration Court. Id.; see also L. v. ICE, 2018 U.S. Dist. LEXIS 107364 (S.D. Cal. June 26, 2018). The parents, meanwhile, faced separate “expedited removal” proceedings while detained. Id.
Class action lawsuits ensued. On June 26, 2018, a federal judge ordered ICE to reunify the affected families within a maximum of thirty days. L. v. ICE, 310 F. Supp. 3d 1133 (S.D. Cal. 2018). To date, the government estimates that over 400 children still remain separated from their parents. See Joint Status Report, L. v. ICE, No. 18-428, at page 2 (S.D. Cal. Sept. 6, 2018), www.documentcloud.org/documents/4835053-Status-Report.html.
On September 7, 2018, DHS proposed a new rule that would authorize indefinite detention of arriving immigrant children alongside their parents, in facilities that are not state-licensed to care for children. Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 FR 45, 486 (Sept. 7, 2018) (to be codified at 8 C.F.R pt. 212, 236 and 45 C.F.R. pt. 410). If adopted, this would represent a striking departure from decades of agency practice arising out of litigation. Flores v. Sessions, No. CV 85-4544-DMG, 2018 U.S. Dist. LEXIS 115488 (C.D. Cal. Jul. 9, 2018).
Detention of asylum-seekers and access to counsel
In jail, Sara’s health begins to deteriorate. She cannot sleep. She cannot eat. She keeps catching respiratory infections.
She represents herself in Immigration Court. The judge gives her seven days to return with a lawyer. He hands her a twelve-page form and informs her that, with or without a lawyer, she must complete the form, produce her evidence, and have everything translated into English by next week.
She is fortunate to have American friends who deposit small sums into her account, which allows her to make one-minute calls back home. Sara asks her relatives to send documents to her in jail. She submits multiple requests for access to her suitcase, which contains the police report.
At court, Sara turns in the paperwork she prepared. She did not receive the documents from her family; she did not get access to her belongings. She is her only witness.
The judge denies her application and gives her a maximum of thirty days to file an appeal, or she will be deported.
In Damus v. Nielsen, the plaintiffs alleged several “harmful effects of immigration detention on the health and well-being of asylum-seekers.” 313 F. Supp. 3d at 342.
Detention has a related negative impact on the asylum-seeker’s chances for legal success, as well. Particularly for new arrivals, detention creates significant obstacles to obtaining counsel, gathering evidence, and navigating the legal system.
This lack of access to counsel has a direct impact on case outcomes. In 2017, Immigration judges denied asylum in 90% of unrepresented cases, compared to 54.4% of represented cases. Recent TRAC reports reinforce the conclusion that asylum decision-making remains arbitrary and unfair, U.C. Hastings Center for Gender and Refugee Studies (Dec. 12, 2017), cgrs.uchastings.edu/our-work/recent-trac-reports-reinforce-conclusion-asylum-decision-making-remains arbitrary-and.
Conclusion
The government’s policies and procedures relating to the processing and detention of arriving asylum-seekers remain in flux. What is clear, however, is that stories like Sara’s rarely have happy endings.
It is also clear that outcomes drastically improve when asylum-seekers have lawyers. The Public Law Center (PLC), Orange County’s pro bono law firm, represents a variety of asylum-seekers, both detained and non-detained. PLC also trains, mentors, and supervises attorneys who are interested in pro bono representation of these and other immigration cases. In coalition with others throughout the United States, PLC seeks to assist every “Sara” and separated family caught in this ever-changing immigration landscape.
Monica E. Glicken is the Directing Attorney of the Immigration Unit at the Public Law Center. To learn more or to volunteer, please contact Leigh Ferrin at lferrin@publiclawcenter.org or Monica Glicken at mglicken@publiclawcenter.org.