E.g., 11/12/2018
E.g., 11/12/2018

House Bills Would Largely Dismantle Asylum System at U.S.-Mexico Border

Commentary
June 2018

House Bills Would Largely Dismantle Asylum System at U.S.-Mexico Border

Rep. Bob Goodlatte (Photo by Gage Skidmore)

The House is set to vote next week on two Republican bills that would largely dismantle the U.S. asylum and protection system at the southern border, even as the Trump administration is drawing significant criticism for enforcement policies that are separating arriving parents from their children, including some seeking asylum. The Securing America's Future (SAF) Act, introduced by House Judiciary Committee Chairman Bob Goodlatte (R-VA), has generally been viewed as a border-security measure that would also grant limited status to Deferred Action for Childhood Arrivals (DACA) beneficiaries. Far less examined are provisions that would significantly narrow grounds to apply for asylum, eliminate protections for the vast majority of unaccompanied minors, and unilaterally declare Mexico a safe third country. The result would be a sharp reduction in the number of people permitted to seek humanitarian protection in the United States.

The bill, introduced in January and not taken up in committee, will be voted on by the House as part of a deal to resolve GOP infighting over how to address the immigration status of DREAMers—young unauthorized immigrants who were brought to the country as children. Moderate Republicans and the entire House Democratic Caucus came within two signatures earlier this week of forcing House leadership to call up legislation permitting legalization for DREAMers. Seeking to head off votes viewed as risky for Republicans heading into mid-term elections, House Speaker Paul Ryan defused the rebellion by announcing consideration next week of two immigration bills: Goodlatte's SAF Act and a measure described as a less-hardline compromise. A draft circulating Thursday of the Border Security and Immigration Reform Act of 2018 is near-identical to the SAF Act with respect to asylum and unaccompanied minor provisions.

Passage of the bills is far from assured, but their consideration offers insight into the policy priorities of the House Freedom Caucus and other conservatives.

Safe Third-Country Agreement

Both bills would allow the Department of Homeland Security (DHS) to deport an asylum applicant to a country deemed by the U.S. government to be a “safe third country,” regardless of whether the United States has such an agreement with the country. Typically accomplished through bilateral or multilateral treaties, safe third-country agreements require asylum seekers to lodge their protection claim in the first safe country of arrival. For example, under terms of the U.S.-Canada Safe Third-Country Agreement, refugees who arrive in Canada but then seek to apply for asylum at the U.S. northern border are generally returned to Canada.

The Trump administration has raised with Mexico the idea of developing a safe third-country agreement, though the discussions appear to be very preliminary in nature. A unilateral declaration likely would create a diplomatic row between the two countries, as Mexico is not required to accept the repatriation of non-Mexican nationals. Mexico resisted when confronted with a similar prospect in 2017, when President Trump signed an executive order on border security ordering DHS to return certain foreign nationals to Mexico while their removal proceedings are pending in the United States. Mexican officials said they would not accept such repatriations, and the provision has not been enacted by the United States.

In the event of a unilateral safe third-country designation, as contemplated under Goodlatte and the second bill, all asylum seekers approaching the southern border would be turned away, except for those demonstrating a well-founded fear of persecution in Mexico. This would likely drastically reduce the number of requests to pursue asylum from Central Americans, which reached nearly 20,000 in the first four months of fiscal year (FY) 2018.

Raised Credible Fear Standards

Both bills would also make it more difficult for asylum seekers not sent back to Mexico to move forward with the asylum application process in the United States. Under the current system, before officially applying for asylum, a person must first pass a credible fear interview in which an asylum officer determines whether there is a “significant possibility” the applicant will qualify for asylum. To qualify, they must demonstrate that they fear persecution if returned to their country of origin as a result of their race, religion, nationality, political opinion, or membership in a particular social group. Most asylum seekers pass these initial interviews: in FY 2017, 76 percent of those receiving a credible fear interview were approved (61,000 of 80,000 credible fear decisions made). Interviews are meant to screen out obviously frivolous claims and identify any possibly meritorious claims that should be heard in front of an immigration judge—an intentionally low bar.

Under the SAF Act and the Border Security and Immigration Reform Act, asylum seekers would have to convince asylum officers that it is “more probable than not” that their claims of fear are credible, in addition to there being a significant possibility that they can establish eligibility. This higher standard could exclude people who have not had time to gather evidence that would show their credibility or recover from trauma that could cause inconsistencies or omissions in their claims, but who may have presented a more convincing case in a full hearing.

Eliminating Protections for Unaccompanied Minors

Both measures would eliminate protections currently offered to unaccompanied child migrants from Central America. Recognizing their increased risk for trafficking or persecution, children from noncontiguous countries (i.e. any country other than Mexico and Canada) who approach the southern border without a parent or legal guardian are permitted to enter and are placed with sponsors—typically parents, relatives, or close family friends—or in an Office of Refugee Resettlement (ORR) facility, while applying for asylum or a different immigration benefit before an immigration court. Unaccompanied children from Mexico or Canada are given cursory interviews to ensure they are not victims of human trafficking and do not have credible fears of persecution before they are returned to their home country.

By eliminating the protections offered to children from noncontiguous countries, guaranteed under the 2008 Trafficking Victims Protection Reauthorization Act (TVPRA), the Goodlatte legislation and the second bill likely would result in a major decrease in the number of unaccompanied minors permitted into the United States pending a review of their case. Of the more than 40,000 unaccompanied children referred to ORR in FY 2017, fewer than 1,200 were from Mexico.

Increased Detention of Children

The bills would also subject more children to detention, and for longer periods of time. The measures would change the interpretation of the 1997 Flores settlement that sets out the standards for detaining immigrant children, including that they should be held in the least restrictive conditions and should be released as soon as possible to a sponsor. A federal judge ruled in 2015 that the Flores settlement provides the same protections for unauthorized immigrant children arriving with their parents as it does for unaccompanied children—causing many children and their accompanying parents to avoid detention and instead get a notice to appear later in immigration court. The two bills would undo that decision by clarifying that the Flores protections do not apply to children who arrive with their parents. As a result, unauthorized immigrant children accompanied by parents could be detained in U.S. Immigration and Customs Enforcement (ICE) facilities—potentially for months if the parent fights removal and remains in detention.  

The SAF Act would also effectively increase detention of unaccompanied minors. Parents and other relatives who have had an unaccompanied child released to their care since June 15, 2012, and future potential sponsors, would be required to submit extensive personal information to DHS and ORR. DHS would be required to investigate the immigration status of sponsors and initiate removal proceedings against any unauthorized immigrants. This provision accelerates efforts currently underway by the Trump administration to investigate the immigration status of such sponsors. The second bill contemplates similar information sharing as the SAF Act, but does not explicitly require its use for enforcement purposes. Those SAF Act requirements likely would chill unauthorized immigrant sponsors, and even some with legal status, from coming forward to sponsor unaccompanied minors, leaving them in ORR custody.

DACA and DALCA

Sweeping in nature, the SAF Act would also cut family-based legal immigration, eliminate the Diversity Visa program, prohibit “sanctuary” policies, and direct the construction of physical barriers at the Southwest border, among many other provisions. Regarding DREAMers, the SAF Act would provide a temporary, renewable legal status for a subset of DACA recipients, but no path to citizenship.

The second bill up for consideration next week would provide legal status and eventually a path to citizenship for DACA recipients in exchange for the demands the White House made in January: increasing border security (including some changes to protections for unaccompanied minors), reducing legal family migration, and eliminating the Diversity Visa program.

The measure would include one significant addition (not in the SAF Act): it would offer a pathway to legal status to children of some legal temporary workers, some of whom have been waiting years for green cards due to backlogs—a group referred to as DALCA members. While they entered the country as children under a temporary legal status derived from their legally admitted parent, they become unauthorized when they age out of their status at 21 while, in some instances, still in the green-card queue. Though it is not possible to precisely estimate the DALCA population, tens of thousands likely would become eligible for legal status under this provision.  

The question for members of Congress, facing a near-insurrection by colleagues and strong public support by Democrats and Republicans alike to resolve the fate of DREAMers, is whether the price tag is too high, considering the sweeping restructuring the two bills would impose on the legal immigration and humanitarian protection systems.