Fighting the wrong battles won’t solve the problem of or for all these refugees.

Sunday, December 15th, 2019
By: Jonathan MontagJ.D.

Popular support for President Trump is based on his immigration stances. A Frontline documentary lays it out. Others attribute the attraction of Trumpism to social concerns – an opposition to LGBT rights, sex education, and promiscuity and its horrid result, babies.  There may be some truth to this, though Trump is an odd person to choose as the leader of the chastity and anti-abortion movement – a thrice marrried, pussy grabbing, porn star-shtupper who likely has left his weight of 1/2-Trump DNA in medical wastebaskets. Having married two foreign women, taken advantage of foreign labor, both documented and undocumented, and having staked out various sides of the immigration issue, like Dreamers, it certainly is not consistency on either of his flagship issues that his fans admire most.

The war against immigration, as discussed in a recent article, takes many fronts: De novo evaluations of renewal applications for employment-based applications, emphasizing fraud prevention, tightening of public charge rules, reversing positions on what qualifies for skilled employment, slowing down of adjudication speeds, and reducing access to competent customer assistance. The normal way the system has worked has been upended. What was a given in the past is not how things are done today. Every day immigration lawyers find new obstacles to helping foreigners enter and remain in the United States.

None of the changes have been more prominent than in keeping out those who the MAGA’s consider the most undesirable – Muslims and refugees (in the general sense). Hence attempts to cancel Temporary Protected Status,  the travel bans, and the drastic cutting of the numbers of refugees who can enter the United States.

Harshest is the efforts to stop people from seeking asylum in the United States. So many efforts to stop asylum seekers have been implemented and fought in the courts, that it is hard to keep track of them all. There is metering, stricter initial screening of asylum claims, barring of asylum to certain types of claims, particularly domestic violence and fear-of-gangs claims, people who entered without inspection, barring asylum to people who crossed through other countries on their way to the United States, family separation, and on and on and on.

And arguably the harshest of the harshest policies, the Migrant Protection Protocols program (MPP). This, the most double-speaky term you may ever encounter, is the program that forces asylum applicants to wait in Mexico for asylum hearings in the United States, a program with such heinous consequences that it is hard to describe its outcomes without triggering Godwin’s Law.

Nearly every one of these Draconian changes in policy has been met with lawsuits with the hope that even if a pro-Trump Supreme Court ultimately allows these changes, by the time these cases wind their ways to the Supreme Court, Trump will be gone and the policies withdrawn.

The legal fights are inspirational. The old-timers fighting to maintain long-ago won rights for children, the middle-agers trying to hobble the administration at every turn, the latest cohort of immigration litigators filing lawsuits around the country deserve our admiration and support. Praise is also due to those entering the trenches to represent the applicants in immigration court.

Ah, if only I could end it here. Black Hats versus White Hats. The wrinkle is that the asylum laws are tough. It is hard to win an asylum case in immigration court. Asylum is granted to people who have a well-founded fear of persecution. The persecution has to be based on the victim’s race, religion, nationality, membership in a social group, or political opinion. The persecution has to be by the government, a quasi-official group, or persons or groups that the government is unwilling or unable to control.

Asylum seekers need to provide available corroboration, be perceived as credible – particularly retelling their story over and over with no deviations, the applicant must be worthy as a matter of discretion, have applied within a year of arrival to the United States, not been denied asylum before, not had been firmly resettled elsewhere, not committed serious crimes, not have been a persecutor of others, not ever supported terrorists, even when coreced to contribute money or support. A frightening holding about being barred for asylum because of providing coerced assistance can be found here.

What you need to win is an air-tight case – one where there is ample persecution and it is clearly carried out by the government or the government clearly is unable or unwilling to stop it, and it is clearly on account of the victim’s race, religion, nationality, membership in a social group, or political opinion – a good client who can tell the same story over and over without any variation, a client who has saved or collected proof of his persecution, and a good judge who does not look for any reason to deny a case – a judge who believes people actually are persecuted abroad and need protection, rather than presuming all asylum seekers are schemers merely seeking a better life in the United States.

Because of all these difficulties, the asylum approval rate in 2018 in immigration court is about 33 percent while 65 percent denied.  For the MPP cases, there have been 11 grants of asylum in over 47,000 cases.

To be clear, asylum-seekers, after enduring the long treks from all over the world to the U.S. Mexican border which includes across-the-world flights to South America and then arduous air, land and sea voyages through South and Central America and through Mexico, dependent on smugglers and endangered by criminals and predators, and then enduring weeks and months in crime-infested Mexican border cities, nearly never win their cases.

There are many reasons why. Much is made of the lack of representation as a factor. Those represented by attorneys win cases more than those that do not. In 2018, represented non-citizens won 38 percent of their asylum cases, while unrepresented non-citizens won 10 percent of their asylum cases.  While the 4 to 1 advantage for those represented certainly has to do with the advantage of having someone who knows what an asylum application needs to contained to be considered sufficient, it also has something to do with having an attorney evaluate what claims are not winnable at all either because of the client’s ineligibility or the viability of the asylum claim. (Which is not to say that immigration lawyers do not file non-viable applications for tactical or their own financial reasons.)

Of the 1,109 aliens represented in MPP cases, 10 (fewer than 1 percent) have won. Of the 46.204 unrepresented aliens in MPP cases, 1 has won. Assuming screening by the attorneys representing the lucky 1,109 was made and many of the dead-loser cases were screened out, this success rate is far beyond paltry.

Even factoring in all the due process obstacles to a fair hearing, this low success rate has to be explained by more than because the process is unfair. A lot has to do with the viability of the claims. Central American asylum seekers are fleeing crime, particularly gang crime. These types of claims are seldom cognizable under asylum law which requires the nexus to race, religion, nationality, membership in a social group, or political opinion. Another prevalent but difficult claim is domestic violence, usually battered spouse claims. In litigation for decades, the viability of domestic violence claims have always been difficult. Recently, the Attorney General has sought to make them even less viable.

While domestic violence claims are compelling – the capacity of Central American men to dole out violence on their families is staggering (not to imply that Central Americans men or men in general have a monopoly on abominable domestic violence) – legally, it is has been hard to fit domestic violence into the “particular social group” definition. A big problem is circularity, i.e., defining the social group without including the term “domestic violence.” One such candidate was, “”Married women in Guatemala who are unable to leave their relationship.” Another was “Guatemalan women who have been involved intimately with Guatemalan male companions, who believe that women are to live under male domination.”  Similarly, crime and gang violence claims are difficult to fit into the social group framework. Attorney General Barr is working to close any small cracks in the door that could allow for crime and gang-based claims, such as this decision earlier this month.

The problem with fighting all these battles to defend the asylum system for the current groups of Mexican and Central American asylum seekers and economic migrants from around the world is that the system by and large cannot help them. They are coming to the United States for protections not available to them under the law. From the immigration attorney’s perspective, this creates a world of ethical concerns. Should American immigration attorneys represent aliens seeking asylum grounds that are hardly ever successful? Is it ethical to charge desperate people money to represent them in lost causes? Is it worth the risk of the danger to attorneys to travel to Mexico? Is it ethical to practice American immigration law in Mexico without a license to practice in Mexico? Is it ethical to practice American immigration law in Mexico without a visa to work in Mexico? Is it ethical to participate in a deficient process whether or not a bad outcome is nearly a foregone conclusion?

The problems that are causing people to flee to the United States are not limited to problems of race, religion, politics, nationality, and social group. They are problems caused by, among other things, war, poverty, corrupt government, and climate change, as I discussed here and here. These populations flows are not unique to America’s borders. It’s a global phenomenon. Policy makers (politicians) need to understand the causes of these flows and find ways to solve the problems that cause them. Slamming the door on people seeking protections that are not available to them does not solve the problem for people in misery, but neither does prying the doors back open for people who ultimately will not benefit from those reopened doors. Posted December 15, 2019.


 

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