Narrowing Asylum Grounds, Family Separations and Supreme Indifference at the U.S. Border

Post by Jennifer M. Chacón. Jennifer is Professor of Law at UCLA School of Law. Her research focuses in the fields of immigration law, constitutional law and criminal law and procedure. Her work has been funded by grants from the National Science Foundation and the Russell Sage Foundation. She is a co-author of the 2017 casebook Immigration Law and Social Justice (Aspen Press) and of numerous articles, essays and book chapters on citizenship, immigration, border control and human trafficking. 

The plight of migrant babies and children who have been separated from their parents at the U.S.-Mexico border by the U.S. government has received global attention and widespread condemnation.  In this post, I try to set this latest wave of government conduct in the broader context of the administration’s immigration policies.

At the beginning of the Trump presidency, I briefly assessed the new administration’s immigration policies. 

As I wrote at the time:

‘In his first two weeks in office, President Trump and his Department of Homeland Security issued executive orders and memoranda that called for a temporary ban on the admission of certain foreign nationals and almost all incoming refugees, the addition of 15,000 new CBP and ICE agents, the broad extension of streamlined removal processes to many individuals formerly given more robust immigration court hearings, the greatly expanded use of immigration detention, the extension of priority removal status to many immigrants not covered by the Obama Administration’s priorities, federal funding cuts for jurisdictions that decline to cooperate with federal enforcement initiatives, increased delegation of immigration enforcement powers to state and local law enforcement agents, and an exploratory study of the construction of a wall on the U.S.-Mexico border.’

One would think that the administration had been responding to a migration crisis of cosmic proportions. But in fact, there was no crisis. After peaking near the turn of the millennium, rates of unauthorized entries into the U.S. have dropped consistently over time and economists project that the trend will continue regardless of U.S. immigration policies.

Some people do continue to come to the U.S., and a small number continue to enter without authorization, but this is not the same pattern of large-scale labor migration of the 1980s and 1990s. Those who are coming now are predominantly from Central America, and they are not coming in response to job opportunities, but rather, to escape violence – sometimes general and sometimes targeted – in their home countries.

Individuals fleeing gangs have long faced high hurdles when seeking protection under U.S. law, but those fleeing targeted domestic violence who lack recourse to official protection in their home countries have had, until recently, a chance of being granted asylum under a 2014 Board of Immigration Appeals decision known as Matter of A-R-C-G. The landscape for those asylum seekers changed precipitously on June 11, 2018, when Attorney General Sessions issued his ruling in a case called Matter of A-B, in which he overruled A-R-C-G. Sessions concluded that it was no longer enough for an applicant to show that she was targeted for violence in a country ineffective in policing domestic violence.

Sessions’ reasoning in A-B is difficult to credit given the clear language of the asylum statute affording protection to members of a particular social group when the government is ‘unable or unwilling to control’ the violence against them. It seems likely that some circuit courts ultimately will reject Sessions’ dubious interpretation of asylum law, which means that a more protective standard eventually will apply again in some federal circuits. But this is a process that will take time. Even when it comes, the corrective action will not be uniform and may never filter down to asylum seekers at the border who are applying Sessions’ newly created rules in proceedings where individuals are unrepresented by counsel and have limited ability to appeal adverse decisions. In the meantime, border agents will be applying an asylum standard that will exclude some migrants from protections to which they are rightfully entitled under domestic and international law.

Not only has the administration contracted the protections of the substantive asylum law, but it has also created problematic procedural hurdles for asylum seekers. Over the past few months, the Trump administration has forced asylum seekers between Scylla and Charybdis. Those who enter away from a designated point of entry or without authorization are being criminally prosecuted for illegal entry.  These prosecutions generally take place in deeply problematic en masse ‘Streamline’ prosecutions that should themselves be the focal point of criticism. The purported need to criminally prosecute all of these individuals was one justification that the government offered for separating parents from children. Sessions announced this “zero tolerance” policy on May 7, 2018, but by that time, hundreds of children had already been separated from parents. 

Sessions’ public framing of the zero tolerance policy suggests that individuals who made their asylum claims at ports of entry without first attempting surreptitious entry would not be criminally prosecuted and would not be separated from their children. Even if that were true, it would be problematic. Criminally prosecuting asylum seekers violates international law, even if those asylum seekers do not seek inspection at a port of entry.

But in fact, Sessions’ claim that the zero tolerance policy somehow protected legitimate asylum seekers from family separation is untrue for two reasons: first, government agents working at the border have made it extremely difficult for would-be asylum seekers to lodge their claims at ports of entry. These individuals face a choiceless choice: stay in Mexico under dangerous conditions and wait days and possibly weeks to lodge an asylum claim, or face criminal prosecutions by entering without authorization and then seeking asylum. As a practical matter, they may be pushed to enter unlawfully and face prosecution and separation. Second, there are documented cases where the government has separated children from parents who are not being criminally prosecuted. Indeed, the administration is apparently using the threat of family separation to pressure parents to abandon their asylum claims. 

In other words, family separation is not something that the administration imposes reluctantly in order to accomplish purportedly necessary criminal prosecutions, but is, instead, the administration’s core border enforcement strategy. Family separation is being used as both a specific and a general deterrent. As Adam Cox and Ryan Goodman have noted, this practice is not only morally wrong but also empirically dubious. There is simply no evidence that family separation deters migrants from seeking to protect their children from horrific violence. Even if there were, it is difficult to understand why the U.S. government should pursue it. 

In the face of protest and backlash, the administration revised its family separation policy. But the resulting Executive Order neither retreated from its zero tolerance criminal prosecution policy nor sought to create alternatives to detention for families. Instead, it ordered that families be detained together rather than separated. And it is now arguing in Court that such detentions cannot be time limited.  In order to avoid family separations, the administration argues, it will need the authority to detain children and parents indefinitely.

This is all nonsense. Previous academic work on migration suggests that the Trump administration is not deterring anybody with its problematic criminal prosecutions of asylum seekers. And the administration is not fooling anybody with its too-clever-by-half arguments that families either need to be separated or jailed together indefinitely – as a general rule, neither is truly needed. Rather than expending exorbitant funds on sketchy private detention facilities and military holding centers, the U.S. could instead channel adequate funding into the immigration adjudication system to clear its massive backlog of immigration case and provide for fair and timely hearings for asylum seekers. Notwithstanding hysterical rhetoric to the contrary, there is solid evidence that individuals who are released prior to their hearings will show up for those hearings. 

But by creating a false notion that the border has descended into uncontrolled chaos, ginning up its own homespun chaos and then equating the migrants in the ‘chaotic’ region with animals and infestations, the administration is playing on racialized fears to give credence to erroneous claims about a massive national security threat allegedly posed by a few thousand weary migrant families at our southern border.

The administration’s executive orders of January 2017 are now working together. The travel ban order and litigation laid the groundwork for the administration to act with virtually unchecked severity along our Southern border. In upholding Trump’s travel ban in Hawaii v. Trump, the Supreme Court made it clear this past week that it will do nothing to impede immigration control efforts undertaken in the name of national security, no matter how overtly racist the administration’s justifications may be.

Now the administration is trying to generate the illusion of a national security crisis on the Southern border. As in the travel ban litigation, some lower courts have seen through the administration’s dissembling and delay – as beautifully illustrated here, here and here). This means that lawyers still have a chance fight for the rights of the clients. But the administration’s course is set for continued and often unchecked inhumanity at the U.S. border. And the Supreme Court has made it clear it will not stand in the way.

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How to cite this blog post (Harvard style) 

Chacón, J. M. (2018) Narrowing Asylum Grounds, Family Separations and Supreme Indifference at the U.S. Border. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/07/narrowing-asylum (Accessed [date]).