Cathryn Miller-Wilson

DACA, proposed asylum regulations, USCIS's massive lay-off of close to 14,000 officers and its request for money from Congress, enforcement efforts of the Flores settlement and the limitation of use of habeas corpus for immigrants in detention have all been decided or proposed in the last three weeks. So much has been happening so swiftly, that immigration attorneys are challenged in keeping up and the public is unaware of the almost daily attacks on our immigration system and its consequent suppression of votes and impact on our economy. This article, in the interest of space, will focus on the proposed anti-asylum regulations. But be mindful that there is so much more of our immigration system under attack.

Notice of Proposed Rulemaking, RIN 1125-AA94, suggests several changes which, if implemented, will destroy the ability of those fleeing persecution to seek asylum in the United States. The proposal applies to everyone, not simply those on our southern border. It applies to the 300,000 persons whose applications are pending as well as to any future applicant regardless of where or how they enter the country. In addition, the following harmful changes are proposed:

• No longer requiring hearings—under current rules asylum applicants must be given an opportunity to present live testimony about their case. As asylum seekers come from different cultures, are likely to have language barriers in making their case on paper and have no right to counsel or to an interpreter to help them prepare their paperwork, this change prevents any real ability for an asylum-seeker to be understood;
• Mandatory denial of asylum to those who have passed through at least two countries in order to get to the United States or stayed in one other country for at least 14 days prior to entering the United States (without regard to whether those countries would provide any safety for the applicant);
• Mandatory denial for anyone who has ever failed to pay taxes, paid taxes late or failed to report income to the IRS (regardless of the fact that asylum seekers cannot vote—taxation without representation—and are not work authorized);
• Mandatory denial for anyone who has been "unlawfully" present in the United States for at least one year (even though what constitutes "unlawful" presence is disputed since the current law says that those seeking asylum can lawfully enter between points of entry and those that try to enter at a port of entry are being turned away due to the other anti-asylum rules that have already been put into effect by the administration and which are currently being litigated in the federal courts);
• Expanding the grounds for declaring an asylum claim "frivolous" and then banning any applicant whose claim is declared "frivolous" from getting any form of immigration relief, not just asylum;
• Redefining the term "persecuted" to cover only "extreme" harms—a much higher standard than what currently exists.
• Redefining what it means to be persecuted on account of political opinion. Opposing the proliferation of gangs and terrorist groups in countries where governments have been infiltrated by, corrupted by or simply completely failed to stop these groups would no longer be grounds for asylum in the United States.
• Redefining what it means to be persecuted on account of belonging to a particular social group. Particularly vulnerable groups, such as minors and women, would no longer have grounds for asylum in the United States. This includes women fleeing sex slavery at the hands of ISIS and children fleeing transnational gangs who murdered their family members in front of them to get them to join the gangs;
• Expanding the definition of "firmly resettled" in a third country, resulting in a bar of asylum if the petitioner had resided in a third country for a year or more even if the asylum seeker was able to prove that he or she was stuck in the third country because of being trafficked there, because he or she could not afford to leave or had remained there thinking that it was safe only to then experience threats to their safety making it necessary leave and seek asylum in the United States.
• Shifting the burden to the asylum seeker to prove that they could not have resettled somewhere else to avoid persecution without regard to factors like where extended family and therefore extended networks of support might reside, languages spoken by the applicant, job and educational background of the asylum applicant as well as ability to get to the United States, all of which may have made the choice of the United States a safer option for the applicant;
• Making standards for passing border screenings and eligibility for other humanitarian remedies such as the Convention Against Torture impossibly high;
• Changing procedural processes so that after an asylum applicant passes the first stage of asylum proceedings, they would be placed in an asylum-only court proceeding which would prevent them from applying for any other form of immigration relief for which they might be eligible.

It is obvious that these rules, if they go into effect, would mean turning our backs on hundreds of thousands of people, including children, who have nowhere to go. What is less obvious is the impact that these policies will have on everyday Americans.

As stated, these rules will apply to the 300,000 persons whose applications are pending. These are parents of U.S. citizen children, employers of U.S. citizen workers, contributors—through taxes and consumer spending—of millions of dollars to the U.S. federal, state and local economies. They are also essential workers—those who have received temporary work authorization because they filed their asylum applications more than six months ago—and therefore are providing healthcare to our sick, delivering groceries to us, driving us in Ubers, Lyfts and taxies and cleaning our subway cars.

And who are those that have not yet filed for asylum but who are already here, intending to seek it, or outside our country seeking to enter? They are relatives of American citizens who stayed in their countries of origin as long as they could before the persecution that they suffered got too much for them to remain. They are future business owners and entrepreneurs, future factory workers and farmworkers, future doctors and nurses and social workers, future parents of Fortune 500 company leaders, future interpreters and innovators.

The economic contributions of immigrants, needed now more urgently than before, are clear. But preventing asylum-seekers from coming and gaining legal status, has much deeper impact than the broad negative impact it will have on the U.S. economy. Asylum-seekers, like any person, are connected and engaged in intricate webs of relationships. Deporting asylum-seeker breadwinners plunges their American citizen spouse and children into poverty. Families lose their houses and their income when a family support gets deported. Preventing the children, nieces, nephews or grandchildren of American citizens from receiving asylum in the United States, plunges those citizens into deep, debilitating, depression, anxiety and fear. Preventing an asylum-seeker parent from entering the United States prevents their American citizen grandchildren from knowing their grandparent, from receiving support from grandparents when their parents are working. Over and over again, a decision to keep out or deport an individual negatively and permanently impacts our own families and our own communities.

In other words, when our government creates stricter immigration laws that render it impossible for immigrants to gain legal status, enforcement of those laws plunges whole families, neighborhoods and towns into poverty. Actively impoverishing its citizens is not something that a government is supposed to do. Neither is creating an ever larger class of residents with second class status who are obligated to pay taxes but cannot vote, who are obligated to be self-sufficient but not permitted to work, who are obligated to live in fear, vulnerable to discrimination and exploitation, simply for the hope of a better future for their children and to avoid certain persecution in their countries of origin.

Our country's economy has been devastated by a pandemic; its sins of enslavement, torture, mass incarceration and oppression of our own citizens must be paid for if we are to move forward; and, our birthrates have been on a downward spiral for more than a decade. Immigrants who have fled torture, have participated in national reconciliation efforts, have survived persecution, extreme fear, economic deprivation and disrupted education are our future as much as are our children. We cannot expect to survive, let alone thrive, without the infusion of new cultures, new ideas, new languages, and the grit and determination of persons who are willing to risk everything for the hope of a better tomorrow.

While the comment period for these regulations closed July 15, there is no deadline to call and write your Congressional representatives and demand Congressional action to stop the administration from creating and proposing rules and policies that are harming us. The executive has tremendous power in immigration matters but that power can be checked through legislation passed by Congress. Immigration should not be considered the third rail of politics. It is the connective tissue for all that we care about—the economy, health care, taxes. If you want your representatives to be working on those three issues, than the first step is to ensure a more open and fair immigration system.

Cathryn Miller-Wilson, is the executive director of HIAS Pennsylvania, a nonprofit immigration legal services and refugee resettlement agency that has been providing assistance to immigrants, asylum seekers and refugees since 1882. She can be contacted at [email protected].