Immigrants are already being turned away at the border under Attorney General Jeff Sessions’ recent reinterpretation of asylum law. And advocates for them fear there may be no end to it anytime soon.
In fact, immigration attorneys fear tens of thousands of migrants could be sent home to life-threatening situations before the courts are able to catch up.
Signs have already popped up across the border that their fears are being realized.
Over just a few days in immigration court early this month near Harlingen, Texas, CNN witnessed multiple judges upholding denials of claims of credible fear of return home, explicitly saying that gang violence and such fears do not qualify.
Immigration Judge Robert Powell at Port Isabel Detention Center, for example, upheld two denials of credible fear for immigrants, one man and one woman, paving the way for their immediate deportation.
Tightly clutching a rosary, the woman, Marcella Martinez, begged the judge to reverse the decision. With tears in her eyes, Martinez asked to provide testimony to the court.
“I can’t go back to Honduras” she said. “I was threatened over the phone, and need to stay here for the opportunity.”
The judge found, nevertheless, that Martinez didn’t enter anything into evidence that would qualify as going beyond the burden of proof required for her initial fear assessment. He informed her that the decision of denial was affirmed.
She exited the courtroom sobbing.
In another courtroom, Immigration Judge Morris Onyewuchi heard the case of Sergio Gavidia Canas, who had an attorney. But the judge said that because of the scope of proceedings, the attorney could not advocate on Canas’ behalf.
Canas, an El Salvador native, said he feared for his life back home, as he had been threatened and beaten by three gang members in front of his currently detained minor daughter.
He said he was a proud owner of a bus company in his native country, and that a gang had come to him demanding the transport of weapons and drugs. When he refused, he was severely beaten in front of his child.
He added that his initial asylum interview took place when he was distraught and worried about his daughter, which is why he didn’t provide this additional information at the time.
The judge indicated that “gang threats don’t fall under the law for asylum” and upheld his denial.
Sessions’ consequential decision
Sessions sent a shock wave through the immigration advocacy community last month when he reversed a previous immigration court opinion that victims of gangs and domestic violence can qualify to stay in the US under asylum protections for immigrants fearful of persecution in their home countries.
Using his position’s unique power over the immigration courts, the attorney general ruled that most such victims will not qualify, a decision immigration judges nationwide were immediately bound to follow.
But Sessions’ decision went beyond the courts and crime victims. He wrote that his interpretation of the law should also apply to the first interviews asylum seekers at the border are given to allow them to pursue their claims in court. He also suggested that immigrants who enter the country illegally could be rejected because they did, even if their claims are otherwise valid.
Sessions’ critics say his moves could be illegal, in addition to objecting to them on moral grounds. Experts point to provisions in international and domestic law that make clear that asylum-seekers do not need to make the claim at a legal border crossing for it to be valid.
Those suggestions were implemented in full Wednesday, when US Citizenship and Immigration Services issued guidance to its officers in the field to follow all of Sessions’ suggestions — including essentially placing the burden on migrants to explain their full, complex legal arguments for their asylum claims immediately after crossing the border.
Impacts already seen
But immigration advocates say they have already seen the results for weeks now, as they describe clients being denied credible fear in unprecedented numbers.
Historically, roughly 80% of initial asylum screenings, known as credible fear interviews, have been granted, according to government data.
In the last few weeks, attorneys describe that number plummeting, at the same time that thousands of parents were separated from their children at the border.
Immigration attorney Eileen Blessinger tweeted a picture of a stack of denial papers, saying “every single separated parent” she represents was denied. “This is what 29 blanket credible fear interview denials looks like (some are just one page from judge),” she wrote.
“The amount of denials we’re seeing, I really think that they’re trying to do mass deportations,” Blessinger told CNN. “No one knows of anyone getting approved.”
McAllen, Texas-based immigration attorney Carlos Garcia described a similar observation to CNN.
“This is for me, based on the number of years I’ve been doing this, I haven’t seen the denials at this rate ever,” Garcia said. “In years past I would say the numbers were much larger, the approval rates were much higher. In addition, not just years past, months past. As soon as just a couple of months ago.”
In addition to the court proceedings CNN observed, Sessions’ ruling has already had an impact at the appellate level of the immigration courts, the Board of Immigration Appeals. Under the law, the immigration courts are entirely run by the Justice Department, including the hiring of judges by the attorney general.
In an unpublished opinion by the board just days after Sessions’ decision, obtained by CNN from an attorney familiar with the case, Judge Linda Wendtland wrote that a Guatemalan woman who had suffered “repugnant abuse” from her partner back home could not qualify for asylum. “The Attorney General has foreclosed the respondent’s arguments,” she wrote in the roughly two-page opinion. The bureau does not publish its decisions publicly unless they set policy precedent.
Government spokesmen defended the practices.
“Our nation’s immigration laws provide for asylum to be granted to individuals who have been persecuted, or who have a well-founded fear of persecution, on account of their membership in a ‘particular social group,’ but most victims of personal crimes do not fit this definition — no matter how vile and reprehensible the crime perpetrated against them,” a Justice Department spokesman said. “The Department of Justice remains committed to reducing violence against women and enforcing laws against domestic violence, both in the United States and around the world.”
“Many petitioners aware of the low credible fear standard are able to enter the US, avoid removal and remain in the country,” Citizenship and Immigration Services spokesman Michael Bars said. “They’re then referred to an immigration judge and released on a promise to appear for a court date weeks, months or years down the line regardless of whether they plan to show up. This exacerbates delays and undermines those with legitimate claims. USCIS is committed to fair and accurate adjudication of each petition according to the law.”
Uphill climb to stop it
Experts who work with immigrants say they fear that it will take weeks to months for any court challenge to reach a point that it could be stopped — and thousands if not tens of thousands of immigrants could be affected in the meantime.
Last month, more than 40,000 people either crossed the southern border illegally or showed up at a legal crossing without paperwork. Nearly 80,000 asylum interviews were conducted in fiscal year 2017, which had the lowest numbers of border crossings in 40 years.
“More people are going to be assassinated, more people are going to suffer from domestic violence, more people are going to die,” Garcia said. “That’s the reality.”
Immigration attorneys around the country are hurriedly gaming out plans to challenge the guidance in court, but because of the way the legal system is structured, it could take time.
First, they will have to find immigrants who have been harmed by the plan who they can represent. Then they’ll have to file something in the courts — but they may have to start in immigration court. If that’s the case, it could require attorneys to work their way through that system before they can appeal to a federal judge, who would have the power to issue a nationwide order blocking the implementation of the guidance.
“We can think of all kinds of theories and some of them may work, getting through the administrative process, but the reality is some people are going to die because of what Sessions did,” said David Leopold, a former president and general counsel of the American Immigration Lawyers Association.
Greg Chen, director of government relations for the immigration lawyers’ association, agreed the process could take weeks to months and could be hampered by having to find people who are actually harmed. He said association attorneys and other advocates would likely need to send researchers into the field near and across the Mexico border to try to find people affected, as they could be deported far too quickly to find attorneys in the US.
Ur Jaddou, a former chief counsel at US Citizenship and Immigration Services who’s now at the immigration advocacy group America’s Voice, compared the situation to the recent practice of separating families at the border in order to prosecute the parents.
“Just as it was like a black hole when families were apprehended at the border and then separated … it was this black hole for people for attorneys to find them. It’s very similar,” Jaddou said. “So that really is going to take lawyers being in the place where these people are apprehended, and that’s not easy, as we’ve learned through family separation.”