The End of Asylum at the Border

06-25-2020

Christian Chavez / Associated Press

The Trump administration has used the COVID-19 pandemic to gut the right to asylum and implement far-reaching changes to our immigration system. The latest tools in its arsenal are expulsions of anyone seeking to cross the border under Title 42 of the US code and a raft of new asylum regulations that will make protection effectively impossible to win.

 

While some alterations to the immigration system are necessary to adapt to COVID-19 and keep people safe, the public health situation is worsened by turning vulnerable people back into crowded and unsafe conditions in Mexico and deporting people to countries that do not have the capacity to deal with outbreaks. A comprehensive approach rooted in public health guidance would make it possible for asylum seekers and migrants to enter the country and be processed and reunited with family in a safe and dignified manner that respects their human rights.

 

This is not the first time in our history as a country that the specter of disease has been used to discriminate against immigrants. During the typhus epidemic of the early 1900’s, Mexican border crossers were regularly forced to strip and be doused in dangerous chemicals meant to kill lice. The process was humiliating, dehumanizing and extremely dangerous to their health. In the 1920’s, border authorities in El Paso began using the chemical agent Zyklon B to “delouse” border crossers. The Nazi regime in Germany later used Zyklon B in concentration camps, and German officials specifically praised its use in El Paso. As we examine new policies that use public health to further criminalize migration, it is important to remember this history of human rights violations.

 

Expulsions 

The Centers for Disease Control and Prevention (CDC) issued an order on March 20 that uses Title 42 of the US code, also known as the Public Health Service Act, to immediately turn people away when they attempt to cross the border, including those who express fear of return and vulnerable populations such as unaccompanied children. The order uses the pretense of public health to argue that expulsions will help stop the spread of COVID-19 despite the fact that the virus is already circulating widely throughout the US. As of this writing, there have been approximately 43,000 expulsions at the southern border, including 2,175 children. 

 

Part of the administration's argument is that allowing immigrants into the country would necessitate placing them in a “congregant setting” (Border Patrol custody) that would heighten their risk of contracting and spreading COVID-19. This argument has been used repeatedly over the years to justify restrictive immigration policy despite the fact that it is a problem of the government’s own making. Border Patrol holding stations are small, crowded and ill-equipped for human habitation because they were never designed to hold people for any length of time, especially families and children. The government has declined to upgrade its facilities and processes to account for the new realities of migration and ensure that people can be treated with dignity during immigration processing and swiftly released to family members. 

 

The CDC order was extended indefinitely in mid-May and will likely remain in place until (and if) a new administration takes power next year. 

 

Unaccompanied Children 

Unaccompanied child migrants have long been granted special protection because of their unique vulnerability, particularly to human trafficking. Children who arrive at the border alone are normally permitted entry and housed in nonprofit shelters overseen by the Office of Refugee Resettlement (ORR) until they can be reunited with family members and sponsors in the US. In May of this year, only 39 children were admitted to the US and referred to shelters by ORR, leaving thousands more who were turned away and denied any form of protection. On June 24, a judge blocked the deportation of a Honduran teenager under Title 42 and agreed with attorneys in the case that the CDC exceeded its authority in using public health laws to expel asylum seekers and children from the country.

 

The CDC order that permits children to be expelled without any form of due process or protection is a violation of the 2008 Trafficking Victims Protection Act. It puts children directly in harm’s way as they are forced to navigate trauma, danger, the threat of disease and being alone in a foreign country.

 

In addition to expelling children who arrive at the border, the US has also swiftly deported hundreds of children who were already present in the US, sometimes without notifying their families. 

 

New Asylum Rules 

The latest proposed changes to the asylum system, which will likely go into effect after a public comment period ends on July 15, would end protection as we know it and make asylum almost impossible to win. This is the latest move in a concerted attempt to end asylum and close the door to all forms of immigration. 

 

Among the regulations: 

  • Limits the definition of persecution to “an extreme concept of a severe level of harm,” making it more difficult to prove persecution in court

  • Expands the asylum ban so that anyone who transits through a third country (not just those who transit through Mexico) on their way to the US would need to first apply in that country, even if they know they cannot be safe there 

  • Allows judges to make decisions on asylum cases without giving asylum seekers a court hearing or an opportunity to testify 

  • Expands asylum officers’ ability to dismiss cases as “frivolous”

  • Rejects asylum applications based on being a victim of gender-based violence, terrorism, gangs or rogue government agents 

  • Counts living unlawfully in the country for at least a year before applying for asylum, having a criminal conviction (even if it was reversed or expunged) or failure to pay taxes (despite a lengthy waiting period to receive a work authorization) as “adverse” factors that could harm applications 

 

Collectively, these changes mean that the asylum system as we know it does not currently exist. A new administration would have the power to reverse many of these policies and reinstate a robust system of asylum that would ensure that human rights and due process are upheld and people are treated with dignity while seeking protection. For now, thousands of people face an uncertain future as their hopes of finding safety in the US are placed on hold.

 

What You Can Do 

One important way you can protest the new asylum regulations is to submit a public comment. By law, the government must solicit and respond to comments regarding new proposed regulations. Expressing dissent through this channel can be an important way to have your voice on the record and comments can be helpful to litigation. Comments are due by July 15 and you can submit here. You do not have to be an immigration expert to provide meaningful comments. You can be a member of the clergy, an engaged parishioner or simply a caring neighbor. Providing comments like these is an opportunity to express your faith through civic engagement.  If you need help, feel free to contact hhollandbyrd@hopeborder.org.

 

The Catholic Legal Immigration Network will be hosting a webinar tomorrow, Friday, June 26, regarding the new proposed rules if you want more detailed information. You can also use the templates provided by CLINIC to get started. 

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