Refugee Wars
I drove along I-35 South from San Antonio to Dilley, TX, to spend a week with 30 other volunteers, advising intending refugees from Central America how to navigate the U.S. asylum system. We were headed to the South Texas Family Residential Center (STFRC), the largest immigrant detention center in the United States. Over the next week we volunteers listened to many women explaining horrific situations which had caused them to flee their countries with their children and why they were afraid to return.
While we were helping these women and children, the then-Attorney General of the United States was working hard, and his successor continues to work hard, to thwart asylum seekers by upending decades of U.S. law on refugees.
I have practiced law for 36 years, 30 of them specializing in immigration. I have handled some asylum cases, but in recent years have focused on employment-based and family-based cases, known as “legal immigration.”
Applying for asylum is legal too. It just happens that some of the applicants are undocumented, meaning present without legal status.
My fellow volunteers were about one-half attorneys, in practices ranging from Corporate to Housing to First Amendment. The others were non-legal professionals of all ages, including an architect, a cultural photographer, and recent university graduates. We were there to learn firsthand the reality of immigration detention near our Southwest border.
In my practice, I have always striven to ensure clients are able to exercise their rights under laws the Congress has enacted. In 1980, Congress enacted The Refugee Act, joining 145 other nation-signatories to the United Nations Protocol Relating to the Status of Refugees, so that foreign persons in the United States may try to escape persecution in their homelands. Undocumented or not, persons who express a fear of returning to their countries have a due process right to some sort of hearing.
Our country may only cease assisting refugees if Congress changes the law. In 1996, Congress limited the right to apply for asylum by enacting an “expedited removal” (deportation) procedure. So long as someone, apprehended within a certain time period and a certain distance from the border, did not express a fear of persecution, a low-level immigration officer may return her to her country without further proceedings. But those expressing such a fear are entitled to consideration of their asylum claims.
We were to work in the STFRC detention facility Monday through Friday, nearly twelve hours a day. But our week began on a Sunday in December with a 4½-hour training session led by staff attorneys and managers of the Dilley Pro Bono Project (DPBP). This is a coalition of organizations which joined forces to oppose the insidious practice of family detention, begun by the Obama Administration in June 2014. I share this goal.
STFRC houses a special population, women who are detained with at least one child. Before we arrived at STFRC, the DPBP staff sent us a podcast discussing how we could avoid “secondary trauma” through exposure to the traumatic events of our clients. We would meet with them face-to-face over long days. My plan was to avoid internalizing their suffering by maintaining a professional distance and providing clear-headed advice.
Professional distance was helpful in interviewing women who had trekked across Mexico with a child to avoid decades of domestic abuse or a threat to kill a child who refused to join a gang or to kill a parent who could not afford to pay extortion. The stories were endless: criminals threatening to kill people who moved to another village out of concern they would share gang information with others; an elementary-aged girl whose father beat her mother in front of her and threatened to kill them both; women forced to choose between being enslaved and routinely raped or fleeing the country.
Contrary to my expectations, few if any of the women we interviewed seemed to be “economic refugees” just coming to the U.S. for work. Nor did they reflect the recent characterization of them as invading criminal hordes whom we should fear.
In the end, I believe we made a meaningful difference in their lives. The staff trained us how to prepare these women for their Credible Fear Interviews, or CFIs. The Asylum Officer takes verbal testimony from a victim and then decides whether there is at least a 10% likelihood she would succeed in a full asylum application. Certain applicants, such as those who have previously been deported and then re-entered the U.S. without permission, have a higher bar of proving a 51% likelihood, known as “reasonable fear,” at a Reasonable Fear Interview, or RFI.
Upon a positive CFI or RFI finding, a woman is released from detention to join a sponsor, usually a friend or family member. Later, she may make her full, written application for asylum before an Immigration Judge. Then she will be given a trial with the opportunity to submit supporting evidence, the testimony of witnesses and an appeal of a negative decision. Those with a negative finding will be deported without being able to file a full asylum application.
The staff also taught us the rules of an ICE facility: ICE prefers we not refer to it as a “jail”, “prison”, or even “detention facility.” The 300 or so clients seen by the project that week did not complain of poor treatment, though behind-the-scenes, the DPBP staff regularly raise medical concerns with ICE. We spent all our time in or near a modular office-trailer ICE sets aside for legal visitation.
I went to Dilley with an interpreter, as required for volunteers who do not speak Spanish – volunteers also have the option of paying for a phone interpreting service. Edward, my interpreter, is a 26-year old product manager in New York who hopes to attend law school. He and I conducted the CFI preps together. He expanded into a full-fledged participant, contributing much to the cases, including gently questioning a young girl about her father’s beatings and threats to kill her mother.
Edward and I met with twelve women, several times with most. It took us between one and five hours to complete the difficult task of figuring out why each had fled to the United States and feared returning to her country. Some were shy or had complicated histories. Many appeared to have suffered extreme trauma: they were shaking and beaten down.
Put simply, in order to qualify for asylum, one must prove she will be harmed seriously (persecuted) if returned to her country, that the government is “unwilling or unable” to protect her, and that moving to another part of the country will not solve the problem. The women we interviewed could clearly prove these elements, since they each suffered abuse or realistic death threats. The police were indifferent at best, generally afraid to become involved with gangs, and sometimes even supportive of violent husbands, telling victims this was their lot in life. For most of these women, relocating was unrealistic financially and would not provide an escape from abusers who could hunt them down.
Most importantly, the asylum statute requires a victim to prove that her persecution is due to her race, religion, political opinion, nationality or her membership in a particular social group. The Immigration Courts have defined the latter category, rather vague sounding, as groups having an “immutable characteristic” shared by all members that they cannot change. In 2014, the Board of Immigration Appeals held that “married women in Guatemala who are unable to leave their relationship” qualified as a “particular social group” for asylum. Persons undergoing severe threats by criminal gangs could qualify too, particularly if their situations were inescapable.
But recently the United States Attorney General has worked hard to exclude victims of “private criminal activity” from qualifying for asylum. Just months ago, Jeff Sessions overruled the 2014 precedents, stating “[g]enerally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.” In order to make such claims, the new standard requires a higher level of proof that the government “condoned the private actions or at least demonstrated a complete helplessness to protect the victim.” Asylum Officers were instructed to apply the tougher standards in their Credible Fear determinations.
Flash forward to Monday morning at 8:00 a.m. Thirty volunteers, most not having dealt with victims of trauma, having been trained the night before, now faced their female detainee clients with trepidation – would we know what to do and be capable to assist them?
Of my twelve cases, four were based on domestic violence, the rest on threats by a gang. Five were from El Salvador, three each from Guatemala and Honduras, and one from Mexico. Almost all appeared severely traumatized. These women, most of whom had barely any education, found it difficult to understand and to express why they had been beaten, raped and held as virtual prisoners in their homes.
Under the new, tougher Sessions test, fewer women would qualify for asylum based on being in an abusive relationship they could not leave. We needed to get more specifics from them about the police’s inability or refusal to protect them from abuse. And we needed to figure out if their abuse fell under one of the qualifying grounds of race, religion, political opinion or membership in a particular social group. Had some expressed a feminist political opinion by insisting on decent treatment by their husbands? Or been punished for wanting to go to church or expressing religious views at home? Were some at risk because of a relationship to another family member, a still-recognized “particular social group?”
We had to assist them to speak in their own voices about their real experiences and we could not put words in their mouths. Though I have not been trained and might be unequipped to judge the credibility of trauma victims, it was not difficult to believe these women. We had to obtain an accurate history of years of severe physical, mental and emotional abuse in a brief meeting. Their stories remained consistent and seemed conveyed without guile. It would be the Asylum Officer’s job to determine each woman’s credibility in her upcoming CFI.
One client had to attend an RFI, since Customs and Border Protection had deported her, after which she reentered without permission and was apprehended. Since her story was complicated and she had to meet the higher, 51% burden of proof, I accompanied her to her RFI. The first question out of the Asylum Officer’s mouth was “have you ever used someone else’s name?” Based on the direction of the DPBP staff, I had advised the client to be up-front in admitting her attempted “immigration fraud.” She explained she had intended to present herself honestly at the Port of Entry to request asylum, but a coyote (someone paid to transport migrants to another country) had told her asylum was a myth, that she would be separated from her daughter and they would be raped. The coyote had terrified her and then sold her the documents.
Before leaving Dilley, we were told that we could check online to find out the results of our efforts within a week of each client’s CFI or RFI. It is now more than 2 weeks later and all of my clients have received positive findings!
Nearly 90% of asylum seekers succeed in their CFI interviews and are released to make full applications. Far fewer are granted asylum later, depending on their qualifying reasons for applying. Not surprisingly, success is hugely determined by the presence of legal representation. The other major determinant is the Immigration Court deciding a case. For example, Immigration Judges in New York grant 75% of the applications, but those in Atlanta only grant 10%.
Whether or not the Immigration Courts grant our clients asylum, we gave them the opportunity to escape detention during the application process, which can take years. It is good to know that volunteers, with the support of our judicial system, can have this impact.
Practitioners are fighting the Sessions limitations in court. Only days after we left Dilley and returned home, U.S. District Court Judge Emmet G. Sullivan, in a case brought on behalf of twelve asylum applicants, women and children whose claims were based on domestic violence or gang threats, issued a permanent injunction against the tougher standards. Objectionably, the Attorney General had ordered Asylum Officers to ignore judicial precedents of the U.S. Courts of Appeals if they conflicted with the AG decision.
Now the Department of Homeland Security has moved to force asylum seekers to remain in Mexico during the processing of their claims. Stay tuned.
Information about volunteering with the Dilley Pro Bono Project or donating to the cause can be found on the Immigration Justice Campaign website. One need not be an attorney to be trained and to participate in this effort to combat family detention.
