The news is full of stories about how families with children and unaccompanied minors are flooding into the United States from Latin America. It is bad times in Latin America. Families are coming to America fleeing crime, violence, and the impacts of climate change. News reports indicate that people are operating under the misconception that the laws have changed and they are welcome in the United States. Changes in administrative practice may have helped foster that opinion. Some people attribute the misconception to the President’s Deferred Action for Children Arrivals (DACA) program. The participation rate in the program is far lower in the United States than was expected. One likely reason is the lack of knowledge of the program. If news of DACA has not percolated through the Latin communities of the United States, why would we expect it to have percolated throughout Latin America? In 1997, new laws created harsh punishment, a ten year bar, for people who cross into the United States illegally after being here illegally for more than a year and departing or having been deported, but 17 years later it seems most Hispanics in the United States are not aware of it and, based on the large numbers of aliens directed to go abroad to get a visa by United States attorneys when the alien is ineligible for a visa for ten years, even many immigration attorneys seem unaware of it as well.
What has changed is how America is handling people coming to our borders. To get the complete picture, we need to go back to 1997. In that year, along with the “10 year bar” laws I just referred to, Congress changed the rules about how people coming to the border without proper documentation are handled. Before 1997, these people would be arrested and sent to an immigration judge. There an alien could ask for asylum. Asylum is hard to get. Being afraid of death in your home country is not a reason to get asylum. Being so poor you (or your children) will die is not a reason to get asylum. Being so sick you will die is not a reason to get asylum. A person can only get asylum if they demonstrate an objectively reasonable well-founded fear of persecution based on race, religion, nationality, political opinion, or social group. While, as I have written, social group is a hot topic, but fear of crime, violence, corruption, hunger, or disease are not in the vast majority of cases bases for social group or any other kind for asylum. Consequently, the vast majority of asylum cases were denied. The problem was the time it took. Back before 1997, like now, the immigration court system was severely backlogged. It was neither humane of feasible to keep people detained while they pursued their cases, so people were released and were able to fight their cases for years while free. In 1997, Congress tried to stop this system. It created a new system where aliens who did not have the proper documentation to enter the United States could be deported at the border by immigration officers at the border. The immigration court was cut out of the system. Once the program was inaugurated, officers at the border quickly racked up far more deportations per year than immigration judges did. Asylum seekers coming to the border could still seek asylum. In that case, the alien was mandatorily detained (“Pending the credible fear determination by an asylum officer and any review of that determination by an immigration judge, the alien shall be detained. Parole of such alien in accordance with section 212(d)(5) of the Act may be permitted only when the Attorney General determines, in the exercise of discretion, that parole is required to meet a medical emergency or is necessary for a legitimate law enforcement objective.” 8 CFR 235.2(b)(4)(ii)) and was interviewed by an asylum officer. The asylum officer listened to the alien’s asylum claim in a process called the “credible fear interview.” If the asylum officer believed that the claim had merit, then the person was able to see an immigration judge and could seek asylum. After a successful result of a credible fear interview, the alien could also be released from detention. If the alien’s credible fear interview was not successful, the alien was allowed to see an immigration judge who would assess the credible fear determination of the asylum officer. If the immigration judge agreed with the asylum officer, the alien was deported. If the immigration judge disagreed with the asylum officer, the alien was allowed to present his case to the immigration judge in a full-blown removal hearing. The goal was to winnow out the lame asylum claims and expedite the removal of people coming to the border without valid asylum claims.
Then, the world fell apart. The United States liberated Iraq from the tyranny of Saddam Hussein, causing huge flight from Iraq, particularly of the Iraqi Christian population, who while they may have been able to endure the oppression of Saddam and his Ba’ath Party, could not endure being blown to bits or decapitated in a sectarian civil war. The Mexican government decided that governing in cooperation with drug cartels was no longer feasible, and went to war against the cartels, leaving many Mexicans caught between the cartels and the army and the police not knowing who worked for whom. Again, like with the Iraqis, while they may have been able to endure living in a corrupt, criminally co-opted state, they could not endure being tortured and killed by the police, the army, and the cartels. A lot of the rest of the world was not doing to well either. Latin American countries were suffering from drug crime and dictators. These dictators suppressed revolutions, but while they may have pacified the country from revolutionaries, pacification did not bring peace to the people, who faced corruption, political violence, and crime they could not endure. Somalia, without a government since 1990, was still spewing out asylum seekers caught in the middle of tribal warfare. People were coming to the border and our government had to react. Under President George W. Bush, the government chose the option of insisting that virtually all asylees coming to the border remain detained. With the flood of people coming to the border, it began taking months for credible fear interviews and months and months longer for asylum hearings. Appeals could take years more. That was a lot of people to detain – including families and children. News stories came out of people detained for nearly endless periods while pursuing asylum. These were people whose claims were that they were fleeing for their lives ended up locked up for months and years by the very country they thought was their salvation. Conditions such as overcrowding, the absence of health care, and abuse were criticized It was like Julie Andrews and the von Trapps spending two years in a harsh detention center after fleeing Austria. It was putting a black shadow on the Shining Beacon on the Hill. And make no mistake, these asylum seekers were not being housed in country clubs. They were housed in jails with criminals. Kids were held separately from their parents and had limited access to their parents. Reports of what was going on were chilling.
Along came a new President and new policy. The near-mandatory detention scheme of President Bush made way for the release of asylum seekers. Still, court backlogs were long. People were free from detention, but they still had wait long periods fighting their cases. Being free gave them more incentive to fight longer, but many would have fought anyway as the alternative was return to the death they were fleeing, though because of the bad situation on the ground in the countries they came from and sometimes because of poor relations between the home countries and the United States, people could not be returned anyway. Since a deportation officer could not accompany a deportee to Baghdad or Mogadishu and would not be allowed into Tehran or Hanoi, many would be able to stay – win or lose. We at least had the initial credible fear screening, at least. Except, there was a scarcity of asylum officers and wait times for the credible fear interview was months and months. Even though those who passed their credible fear interviews could be released, those waiting for these interviews still were supposed to be detained. That ended up meaning prolonged detention that many considered obscene and un-American. Customs and Border Protection began releasing families before the credible fear interviews with the goal of having the interview later. But that soon broke down and they started sending these families directly to immigration court. Wait! you say. The law forbids this. Wouldn’t immigration judges conclude that they lacked jurisdiction over a case until the regulatorily mandated credible fear process was completed? Indeed many immigration judges did and immigration courts terminated cases. This left large numbers of new-comers under no one’s supervision. Well, this could not go on, obviously, so the Board of Immigration Appeals came to the rescue. It determined that language in the statute that said an alien “shall” be placed in expedited removal proceedings where the exception to removal is a credible fear interview does not really mean “shall,” writing in Matter of E-R-M- and L-R-M-, “It is common for the term ‘shall’ to mean ‘may’ when it relates to decisions made by the Executive Branch of the Government on whether to charge an individual and on what charge or charges to bring.” Thus, Customs and Border Protection was now free to release arriving families and send them to immigration court without the credible fear screening process. So instead of being detained and undergoing a credible fear screening, aliens with families are released at the border and given papers to go to immigration court, beginning a process that can take years. Many do not even receive hearing notices as Immigration and Customs Enforcement, which takes care of the cases once the aliens are released at the border by Customs and Border Protection, in many cases is not even issuing hearing notices. Whether it’s because ICE is too is slammed with cases to process them or it is cynically delaying cases so aliens will miss the opportunity to apply for asylum is hard to know. An alien must apply for asylum within one year of entering the country and the application, if a person is in removal proceedings, must be filed at a hearing at the application in court. If the alien is not scheduled for a hearing, he cannot file his asylum application in immigration court. Thus, the opportunity to seek asylum disappears. A savvy alien who does not receive a court date can file an asylum application with U.S. Citizenship and Immigration Services, but when someone is told to wait for a court date, most likely that is what the person will do. And that is not all.
In the olden days, an asylum seeker was eligible for a work permit. The alternative would be that Julie Andrews and the von Trapps would be free in Switzerland but without any way to support themselves. Under rules initiated in 1995, Julie Andrews and the kids were out of luck. A law change made asylum seekers ineligible for work permits until their asylum applications were pending for 180 days. The clock started when the asylum application was filed. Immigration judges often found reasons to stop the clock, essentially making it impossible to ever get a work permit. This was designed to have a dampening affect on attracting asylum seekers to the United States and the filing of frivolous asylum applications for those who were here. (A class action lawsuit led to a court order that stopped a lot of the clock-stopping shenanigans.) This too has changed. The alien families released into the United States were released under the government’s parole authority to parole people into the United States for humanitarian purposes. These humanitarian parolees could obtain work permits from USCIS. Though ineligible to receive permission to work as asylum applicants, they were able to receive work permits as humanitarian parolees. Clients would come to my office and I would explain how the system worked including how they would have to wait many months and potentially never receive a work permit, at which point they would pull one out of their wallets. “Fat lot you know,” they likely were muttering under their breaths in Spanish, Arabic, Chaldean, or Somali. Indeed. The result of release, a work permit, and an interminable removal process makes the costs and risks of coming to the border and asking for asylum acceptable to more wretched people.
So are all these changes – not detaining families, sending people to court without credible fear interviews, not filing cases with the immigration court, the monumental wait times to resolve cases, and the issuing of work permits to parolees the President’s fault? Actually, I think the fault lies in a Congress that knows of no government program, except for actual defense spending, and not the mere defense of the border through effective administration of the immigration laws, that deserves proper funding. Had Congress funded family-appropriate and less jail-like detention space which was the topic of much discussion but less action in the early years of the Obama administration – after much investigation, the San Diego detention center did put umbrellas in the sun-drenched area where families wait to see their relatives – the hiring of enough asylum officers to complete credible fear screenings, enough immigration judges to expeditiously handle asylum claims, and enough appellate board members at the BIA and appellate judges at the courts of appeals, things would have been different. Instead America is getting what it paid for. Posted June 22, 2014.