Looking North from the Refugee Caravan
I just returned from a lightning-quick trip to Puebla, Mexico to spend 3 days with a team of colleagues from all over the US and Mexico to meet the migrant caravan and provide workshops and legal consultation concerning their options surrounding political asylum. The caravan, in case you haven’t been paying attention to the news, is mass of migrating Central Americans, at one point 1500 strong, organized by a group called Pueblos Sin Fronteras and moving across Southern Mexico towards Cuidad Mexico and, eventually in some cases, to Tijuana, where they will turn themselves in to ask for political asylum in the US. The caravan’s existence set off a shit-storm of a temper tantrum from President Trump with everything from inane claims like everyone was being raped on the caravan, to the very real and troubling deployment of the National Guard to our border. Going to Puebla afforded me an extremely unique and privileged chance to see this caravan up front, to meet hundreds and hundreds of brave people, and to gaze upon our border from the South. It is not fair and nor am I at all qualified to represent the goals of Pueblos Sin Fronteras or the experience of the migrants themselves, but I can discuss what I saw and what I learned from the perspective of an asylum lawyer who works deep in the trenches of the American immigration detention system.
It is important to point out that not all the people in the caravan are eligible for political asylum. There were some cases I heard that I would consider a slam-dunk in asylum court. There were some cases that I listened to and could say without qualification would fail. The vast majority of people I talked to were somewhere in between and their success would depend on so many factors: where they are detained, the court they wind up in, the judge who hears the case, if they could find a lawyer, and just how much suffering they would be willing to endure. Everyone had the same question: what will happen to me and my children if I turn myself in at the US and ask for asylum? They wanted to know how it would end for them and, much more importantly, their kids. Did I mention that there were children everywhere? They were underfoot and draped all over their parents and screaming in the workshops, eating oranges and sniffling, and laughing and dancing and grappling for places in line when someone brought a bounce-house to the park outside the church where they were sleeping. This is who our National Guard is theoretically being deployed to protect us from: criminals in pokemon tee shirts.
To that point, something that is easily lost among people discussing border politics, is that asking for political asylum at a Port of Entry is absolutely legal. This is not a grey area. Many people who believe this point is debatable simply don’t understand the international conventions governing the treatment of refugees — but many people just accept that asylum seeking migrants are breaking the law because we are constantly inundated with racist and xenophobic propaganda that tells us that anyone trying to enter our country must be a criminal. And then they call asylum seekers “illegals” and nod their heads smugly at the fates that person might meet in the US: separation from their children, extended detention, grotesque denial of medical care, to name a few. If you want to claim that a Honduran asylum seeker deserves to be separated from her four-year old child on our border, go ahead, but do not hide behind the argument that she deserves it because she broke the law because that simply is not true.
Now even though refugee conventions allow people to legally turn themselves in and request asylum, the question of whether they are actually eligible for asylum and the protection of the United States is not as easily answered. Generally speaking, people who turn themselves in at a Port of Entry are given the designation, Arriving Alien, detained, and put through a fairly intense interview called a Credible Fear Interview with United States Citizenship and Immigration Service’s (USCIS) Asylum Office. If an asylum seeker cannot pass an interview establishing a threshold level of fear to return to her home country, and a judge affirms the decision, then she will be removed. If she does pass the Credible Fear Interview, then she will have the opportunity to having a full individual hearing in front of an immigration judge to prove her eligibility for political asylum.
The laws surrounding who is eligible for political asylum and why are incredibly complex. I took an entire semester of law school to simply understand the one sentence definition of a refugee as it is codified in US law:
The term “refugee” means: any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion
It is a lot. It would take pages of incredibly dry explanation to even begin to orient the average person to the nuances of it. The most important principal to understand, though, is that violence, or a threat of violence, is not usually enough keep someone safe from her country. There has to be a nexus between whatever fear a person has and their identity whether due to race, religion, nationality, political opinion, or, cryptically, a particular social group. If this is confusing that is because the laws of refugee and asylum are incredibly confusing and, not surprisingly, almost impossible to navigate without the help of an expert lawyer. Yet the vast majority of asylum seekers do not have counsel when they appear in front of a judge. In immigration court, our government is not obligated to provide a lawyer. This lack of obligation is so vigorously celebrated by our government that we often see toddlers alone in court. In fact, immigration court can often feel so void of due process that it has led scholars to describe asylum hearings as “death penalty cases in traffic court setting”. I wish this were an exaggeration.
Even more chaotic is detention. Not all asylum seekers stay detained up until their individual hearings. But many do. When someone turns themselves in at a Port of Entry, they are categorically ineligible for a bond from a judge. Their custody is at the un-reviewable discretion of ICE and even though there is a mechanism to release them called “parole”, ICE is not required to do it. You can imagine how problematic this is when ICE is under the control of the Trump Administration. Over the last 16 months there has been a sharp decline of parole out of ICE prisons. I have yet to have an asylum seeking client paroled out of the prison I work in, in spite of the fact that I work in a prison that detains mostly transgender women, some seriously vulnerable people who very much deserve parole. ICE recently rescinded a memo that recommended parole for pregnant detainees, essentially making it easier to keep pregnant women detained. The result of all of this is inhumane lengths of detention, often in disgraceful corporate prisons with wild histories of human rights abuses. More and more, according to reports from the border, our government is opting to separate children from their parents, which makes the already scary potential of detention a total waking nightmare.
I began my work in detention and asylum during the Obama administration when he shockingly chose to revive the practice of family detention in response to the 2014 “surge” or unaccompanied minors from Central America that flooded our Southern border. I saw and continue to see Obama’s actions as an unspeakably cruel attempt to deter lawful asylum seekers by creating conditions of suffering that would be a more unbearable choice to the threat of living in Central America. What I am starting to understand is that Obama’s actions, as deplorable as they were, were simply a starting point for an experiment in cruelty that Trump and Sessions are now extending to their inevitable extremes: to detain a pregnant woman in all her holiness; to rip a child from his fathers arms on an international border; to refuse to release a person with life threatening illness. These are things designed to give a refugee fleeing for the life of her children pause when deciding whether or not to assert her completely legal human right to ask for protection. And indeed it is giving people pause. I felt like the grim reaper when I was in Puebla. Families wanted me to tell them that they would pass through our border and be sent to live with a loved one in the States while they awaited their asylum hearing. They wanted to be assured that nobody would take their babies from them. They wanted to know that they would find a lawyer. They wanted to be assured that, for perhaps the first time in their life, a judge would listen to them and take their lives seriously. We could ensure them of none of this. Instead we opted to present the worst case scenario: your children will be taken from you; you will be detained for months, maybe years; you will not find a lawyer; you will suffer. I know that the worst-case scenario is not what will happen to all those migrants — many of them will succeed — but we wanted them to accept that it could and if they could not live or survive with those conditions, then to seriously consider if they were ready to turn themselves in. Not only am I not sure I can keep you safe from your countries, I told them. But I am also not sure I can keep you safe from mine.
In 1939, when persecution by the Nazis was on the cusp of turning into genocide, a boat full of Jewish families called the MS St. Louis, fleeing Europe, was turned away from the US and sent back. Records suggest that over 250 of those people died in the Holocaust. I think about this event when I consider that the 1951 Refugee Convention, to which the US is bound, was an effort to establish legal responsibilities to refugees at our shores and on our borders even when we feel no moral responsibility to help. It is devastating to me, looking North from the refugee caravan, that our country feels so little moral responsibility to help our terrified and fleeing neighbors — so little moral responsibility that we are actively designing insufferable punishments to avoid fulfilling our legal responsibilities. Even sadder, we feel entitled to their suffering as if it is a debt they owe us for daring to dream of a safer life and expecting us to comply with our legal duty to let them try for it. My hopes are with the migrants, especially the littlest among them, and along with my hopes come my deepest apologies that I can keep them no safer from my own cruel country than I can from the ones they are fleeing. I don’t yet know how it will all end up for them. I hope they find rest.