Asylum officers at the U.S. border have been handed down a new set of guidelines that will likely lead to more migrants being deported before they’ve had a chance to argue their cases in front of an immigration judge.
A memo by the U.S. Citizen and Immigration Services, whose officers conduct the initial “credible fear” interview for asylum seekers, reinforces that asylum seekers claiming they are fleeing domestic or gang violence should generally be denied, and it notes that officers may use an illegal border crossing to weigh against a migrant’s asylum case. Issued Wednesday, the memo has already brought criticism from immigration attorneys.
“These individuals wouldn’t have had an opportunity to obtain a lawyer or provide evidence to corroborate their claims,” said Laura Lynch, a senior policy lawyer with the American Immigration Lawyers Association. “This memo… is effectively shutting off access to asylum in the U.S.”
The guidelines issued largely formalize a decision made by U.S. Attorney General Jeff Sessions last month. Sessions ruled in an asylum appeal that most victims of gang or domestic violence alone were not eligible for asylum under federal law, reversing long-standing U.S. policy.
Sessions said a group of married Central American women who were trapped in abusive relationships — one of whom was beaten and raped by her husband and unaided by police — did not apply to current laws.
“The mere fact that a country may have problems effectively policing certain crimes or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim,” he wrote.
Under U.S. law, migrants who demonstrate they have a fear of persecution in their home country on the basis of race, religion, nationality, membership in a particular social group or political opinion can be granted asylum and remain in the country. Both those who cross the U.S.-Mexico border illegally or who arrive at ports of entry without valid visas are placed into detention and, usually after several days, given a credible fear interview.
This is built as a screening process, Lynch said, with lower standards to determine if migrants may enter the full asylum process, which includes a final hearing and determination by an immigration judge. Historically, a large majority of asylum seekers have passed the credible fear interview, but most cases that are then brought before judges are ultimately rejected.
Advocates claim that having initial screeners weed out domestic violence victims prevents women from having their day in court.
"It doesn’t matter if many claims will fail ultimately," said Archi Pyati, policy chief for the Tahirih Justice Center. "What matters is that if even one that would have otherwise succeeded, that woman now will be turned away and could face death at the hands of her abuser back home. That is blood on our hands and we should not be allowing that to happen."
The memo appeared to go beyond Session's decision, as well. In his June decision, Sessions noted that the government doesn’t have to grant asylum to all eligible migrants, giving both immigration judges and asylum officers discretion to determine whether the migrant should be deported. In referencing the statement, the memo said the way a migrant enters the country can be a factor in how a screening officer exercises that discretion.
“Personnel may find an applicant’s illegal entry, including any intentional evasion of U.S. authorities, and including any conviction for illegal entry where the alien does not demonstrate good cause for the illegal entry, to weigh against a favorable exercise of discretion,” the memo states.
The Department of Justice has separately considered implementing a policy that would bar asylum for those prosecuted after illegally entering the country, Vox reported late last month. The regulation would have to be posted to the federal register for 90 days to allow for public comment.
The latest government data on credible fear interviews only runs through January, so it’s unknown if Sessions’ June decision has already affected the number of individuals who fail at this initial step in the process. But at the family detention center in Dilley, Katy Murdza told The Texas Tribune last week that the number of rejections has already gone up.
Murdza, an advocacy coordinator who works with women and children inside Dilley, said in the few weeks since the June 11 decision, 25 of her organization’s clients have failed to demonstrate “credible fear” in their initial interviews — nearly half the number of rejections the organization’s clients saw in the previous six months combined.
“We’ve definitely had waves of negatives before, but it is significant to see this many,” she said.
Chuck Roth, the director of litigation at the National Immigrant Justice Center, said the new guidelines are the next step in President Donald Trump’s effort to remove due process and quickly deport those seeking asylum.
The Trump administration has taken multiple steps to narrow the asylum process since he took office last year. Sessions has also announced new quotas for immigration judges and barred them from a process of taking cases off their calendars. And reports from the border have shown that those who try to enter legally at the ports of entry are also being turned away.