Asylum Officers Speak Out Against Trump Program That Attacks Refugees

The Trump administration launched what it terms its Migrant Protection Protocols (MPP) program in January and has been expanding it ever since. MPP sends people seeking asylum back to Mexico to wait while their claim is processed through the immigration courts, something which commonly takes at least six months and often years. Previously, people would be released to family members already in the U.S. or sponsors like churches and community organizations. The program directly involves asylum officers, who are trained to determine if people seeking asylum have a reasonable fear of being persecuted, tortured or killed if they are returned to their own countries.

This corps of asylum officers is not an armed force and is distinct from Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). One of their main jobs is to ensure the U.S. is upholding international and U.S. law concerning refugees. This includes the fundamental principle of refugee law called non-refoulement -- that a government must not send a migrant back to a country where they would be persecuted or imperilled.

Asylum officers are being forced to play a very different role under the MPP process. Trump's MPP program is eliminating these officers' discretion and creating difficulties for Central American asylum seekers, who, when rejected, are sent back to Mexico, not their home countries. Under these protocols, the Trump administration has started sending these asylum seekers back to Mexico after initial processing -- first a handful a week, then dozens, now hundreds -- with instructions to show up at a port of entry at a particular date for a hearing before an immigration judge on their asylum case. Lawyers and human rights advocates say there is no way for immigrants to obtain U.S. lawyers while in Mexico; that they may not be able to return to the U.S. in time for their hearings; that northern Mexico is not necessarily a safe place to be for Central Americans fleeing persecution; and thus the U.S. is violating the principle of non-refoulement.

Asylum officers are speaking out against MPP and the current process where their discretion is being eliminated and people with legitimate fears about staying in Mexico are being sent back. Many asylum officers think that their personal integrity and that of their office is at stake. They worry that they are being used to whitewash the program, and do not have as much power to allow migrants to stay in the U.S. if they are in danger as the Trump administration claims they do.

Under the new rules, officers effectively have no power to decide whether asylum seekers can stay in the U.S. to await an asylum hearing. One officer described the interviews as just for show. Another officer explained that he had listened to a Central American's story of threats from drug cartels during his journey through Mexico en route to the U.S., and believed the man's life was in danger. Yet under MPP he "wasn't even allowed to make an argument" that the asylum seeker should be allowed to stay in the U.S. to pursue his case.

Normally, after a screening interview, the officer summarizes the facts of the case and reads them back to the applicant. Then the officer writes up a legal analysis as to whether the interviewee is describing persecution (of a specific ethnicity, nationality, political opinion, religion, or "particular social group") or torture, and how likely it is that they would face such persecution or torture if returned to their home country. Typically the interviewee must show "credible fear" of torture of persecution, a standard designed to err on the side of non-refoulement. The officer submits the legal analysis with their final ruling on whether the interviewee should be allowed to avoid deportation and seek legal status in the U.S.

Under MPP, the traditional screening standards no longer apply. Instead, migrants have to show that they are "more likely than not" to face persecution in Mexico in order to be kept in the U.S. before their hearings. That is a higher standard than either "credible fear" or "reasonable fear" and not one which asylum officers are familiar with. The officers say that in practice, it is all but impossible for applicants to meet this standard. The legal standard requires such specific and persuasive testimony that no one can satisfy that burden, they say.

Moreover, as one officer put it, asylum seekers are "scared, unprepared, exhausted" -- and do not understand they could be sent back to Mexico. As well, CBP agents, typically the first U.S. immigration authorities that these asylum seekers encounter when they cross into the U.S., do not ask asylum seekers whether they are afraid of being returned to Mexico, and will only refer them to an asylum officer if they voluntarily mention they are afraid of return. CBP agents have told asylum officers that they are "instructed not to ask" about fear of return to Mexico. One CBP agent told an asylum officer, "We don't want to spoon-feed them" anything that would facilitate them seeking asylum.

Asylum officers said interviewees did not understand why they were being asked about Mexico and only stress that they are afraid of being returned to their home country. They seem to know far less about Mexico than the officers interviewing them, meaning they cannot give detailed enough answers to make a persuasive case to stay in the U.S.

As one officer emphasized, exhausted and confused immigrants simply "don't have the tools" to give that testimony and satisfy doubts about whether they would face persecution in Mexico. They certainly do not have the ability to articulate a "particular social group" they were being targeted as a member of.

Under MPP, asylum officers are not being asked to synthesize answers or provide any legal analysis; they are just checking boxes on a form and submitting it to their supervisors for review. The training asylum officers are given to elicit testimony and translate it into legal language has been cast aside.

As a result, approvals are rare. The ones that are granted are scrutinized by higher-ups. Normally, if a supervisor disagrees with a final decision, they can ask the asylum officer to go back and redo it. The head of the officers' union, who has been an asylum officer since the creation of a dedicated asylum corps in the early 1990s, has had only three cases where a supervisor disagreed with his assessment, and "in none of those cases," he says, "was I forced to do something I didn't believe in."

Under MPP, officers said that decisions to let an asylum seeker stay are often reviewed and blocked or overturned by asylum headquarters. Officers have also reported that a supervisor was told not to issue any positive MPP decisions without checking with the other officers on their team, and with headquarters. In two cases, officers said that both the asylum officer conducting the interview and the supervisor agreed that an interviewee who had been kidnapped by cartels while travelling through Mexico should not be sent back, but headquarters overruled them.

The asylum corps already considered their authority as a trained force was being eliminated while asylum law was being violated. They have also had to implement other Trump administration decisions, for example those eliminating domestic and gang violence as a basis for claims.

Asylum officers are also concerned that they will be replaced. The Trump administration recently issued orders for yet more restrictions and higher requirements. The president and DHS are also reportedly laying the groundwork for CBP agents -- who are assumed to be "tougher" on migrants and have no training concerning refugees -- to conduct those interviews instead. The asylum officers know that CBP is not in a position to uphold refugee law, and that removing them is part of the whole process now underway to undermine international law. Many want no part of it and certainly do not want their names used to justify these attacks. More and more are speaking out and demanding that refugee law and their authority to determine eligibility for asylum be respected.

A federal court temporarily blocked the new MPP policy of forcing asylum seekers to return to Mexico and remain there while their cases are considered. However, an appeals court issued a stay, so the program remains in force.

(Voice of Revolution. Photo: political hispanic)

This article was published in

Volume 49 Number 17 - May 11, 2019

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Asylum Officers Speak Out Against Trump Program That Attacks Refugees


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