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February 16, 2020

Frontliners lament uphill battle to preserve safe haven in US for asylum-seekers

A panel of immigration experts traced the growing efforts of the current administration to severely limit , or  even stop, the flow of asylum seekers to U.S. while impeding their access to lawyers — from increasing restrictions at border stations, the expanding network of immigrant detention centers around the country and the growing thicket of litigation aimed at blocking the administration’s efforts.   

The discussion on Feb. 14 at the ABA Midyear Meeting also included an examination of modern anti-immigrant sentiment set in motion in the late 1970s, according to panelist Oscar Chacon, co-founder and executive director of Alianza Americas, an umbrella group of immigrant-led and immigrant-serving organizations.

The 90-minute program, entitled “The Fight to Preserve Safe Haven in the United States of America” was sponsored by the ABA Commission on Immigration.

Moderator Karen T. Grisez, who serves on the Immigration Commission and is public service counsel in the Washington, D.C., office of Fried, Frank, Harris, Shriver & Jacobson, managing the office’s pro bono program that includes immigration cases, opened the discussion with a review of the development of asylum law in the United States.

“Basic U.S. definition of a refugee is someone who is outside their country of nationality and unable or unwilling to return, and who has a well-founded fear of persecution on account of race, religion, nationality, political opinion or membership in a Particular Social Group [PSG],” she said. “The feared persecutor must be a state actor or entity that the home government cannot or will not control.”

The United States codified refugee protection in this country in the Refugee Act of 1980, and significant amendments were made in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  While the governing statute has not been amended since 1996, Grisez said, recent changes to procedures for applying and the ability to actually receive protection “have changed a lot.”

Recent techniques aimed at blocking and banning people from the U.S. to seek asylum, she said, include metering, used by Customs and Border Protection to limit the number of people who can request asylum at a port of entry at the U.S.-Mexico border; the Migrant Protection Protocols policy (commonly referred to as the Remain in Mexico policy)  that requires asylum seekers who seek asylum at or near certain border points to go back to Mexico and wait there for their U.S. immigration court hearing; flawed video-conferenced hearings; and restrictions on access to counsel at the tent courts that hear the MPP cases. 

Drilling down into  what asylum looks like at the border,  Laura Pena, pro bono counsel for the ABA Commission on Immigration who is based at ProBAR, the ABA’s largest asylum project, located in the Rio Grande Valley, described the human effect of recent actions. She said the metering process forces some families, who often are fleeing extraordinary violence in their home countries, into trying to enter the country illegally, resulting in tragic deaths, such as in the case of a father and young daughter who drowned while attempting to cross the Rio Grande river. 

Under the Remain in Mexico policy, Pena said, more than 55,000 people – including 16,000 children and 500 babies – have been forced to return to Mexico to await their immigration proceedings. Many are living in dangerous and unhealthy conditions.

Despite the decreased flow of asylum seekers at the U.S.-Mexico border, the actions have not reduced the number of people being held in U.S. detention centers, according to panelist Denise Gilman, who teaches and co-directs the University of Texas Law School’s Immigration Clinic where she works with students to handle immigration cases with a focus on asylum and detained cases in removal proceedings.

“Detention is expanding at the very same time that we’re also blockading people physically at the border.” One of the reasons, Gilman said, is money. Private prison companies that profitably operate detention centers “are not inclined to let that go just because the administration has happened on a new set of policies that will blockade people at the border,” she said, “… so you’re seeing more detention centers springing up in areas where there are fewer attorneys’ services and the like, and you’re seeing, at the same time, lengthier periods of detention.”

Further hampering asylum seekers’ access to due process are videoconferencing facilities that limit asylum seekers’ ability to testify regarding often-harrowing circumstances in their home countries that caused them to flee, Gilman said. As well, there is the lack of lawyer-client meeting space, she said.  

Turning to the status of litigation, Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project, detailed a number of lawsuits filed by her organization and others to stop the administration’s ever-evolving actions. The litigation process, she said, is “beginning to feel like a game of whack-a-mole.”  

Unfortunately, she said, the litigation needs to be a part of a multi-pronged strategy.  “It is really hard to get people motivated in the way they were about family separations when all of this horrendous conduct is happening in Mexico and is not being well publicized by the press,” she lamented.

Chacon said the decades-long attempts to label newcomers as “scum” and “dirt” has had a significant impact.   

“When a given society permits the demonizing and dehumanization of a certain social subject, you can easily do as much harm as you want to that particular social subject, and nobody will care, he said, “because you have done your homework on the front end by basically dehumanizing the people against whom you are bringing the kind of pain – the kind of hardship – that we’re talking about here.”

Looking for signs of hope, audience member Christina DeConcini, a member of the Immigration Commission's Advisory Committee,  praised the growth of ProBAR, which has expanded from a handful  of lawyers providing legal services to migrants on the Texas border to more than 175 staff members including 40 attorneys.  Pena remarked on the number of ordinary citizens who are realizing what’s happening and traveling to the border to help asylum seekers. “So that is giving me hope in the American spirit.”