Anti-Immigrant Policies, How They Hurt Us and What to Do About It

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.