DGTDO Monthly
Meeting: Local Lawyer Shares His Experience at the Texas Border
How
much do we really know about the Administration’s “zero tolerance” immigration
policy in action? We know about the trauma of the families that have been
separated at the border this summer. We know that Trump and Sessions are lying
about the real danger that these refugees pose. We also know that the zero-tolerance
policy has been ceased, but what are the current consequences and dangers? How
difficult is it today for people to meet the Administration’s immigration
regulations, and how are they still being used for Trump’s duplicitous
population goals?
Hunter
Wiggins, a Chicago-based lawyer and former federal prosecutor gave a fantastic
presentation at the Wednesday, Aug 8 monthly DGTDO meeting. He answered those
questions and more with data and statistics in layman’s terms, and gave us a
list of tangible solutions that we can help with.
Here's a list of actions we can take (link)
Wiggins
has nearly 25 years of legal experience including various pro bono immigration
cases. For over a year now, he has been traveling back and forth to Texas to
help women and families crossing the border understand their legal rights
regarding asylum for a project through his firm. His team then evaluates
whether or not they can help the families’ cases.
Here
are some highlights from Hunter’s presentation, outlined by our questions:
____________________________________________________________________________________
How easy is it to
get asylum in the U.S.?
●
Not easy - there
are two ways: 1. apply from outside the US to get a decision before coming
(affirmative asylum); and 2. Being in the country or appearing at the border
and applying defensively against being removed
●
US population - 325
million, 115,000 affirmative asylum applications from outside the country in
2016, 11,729 granted (10%). In 2016 there were also 66,00 defensive asylum
applications-- up from 48,000 inn 2012.
●
In 2017, 30,000
defensive cases (filed over different years) were decided by immigration
judges, up from 22,000 in 2016. Only 38% were granted, down from the 56% grant
rate in 2012. So, the total asylum grants in 2017 were about 23,000 out of
180,00 applications, about a 12.7% grant rate. Conversely, we removed 230,00
people for improper entry in 2016.
○ Compare
to the European Union (population: 742 million). In 2017, 46%, or 315,000 out
of 650,000 first time seekers were granted asylum. In total, 538,000 people
received asylum in 2017.
●
In 2016, 36% of
people granted defensive asylum were from China, 9% from El Salvador, 7% from
Guatemala, 7% from Honduras, 5% from Mexico.
●
Immigrants make up 15%
of our population, only up 6% since 1990.
○ Compare
to other countries’ percent immigrant population: Australia 28%, Canada 22%,
Switzerland 28%, New Zealand 25%.
●
Out of 50 million
immigrants in the U.S., the largest percentage are from Mexico, at 25%, then
China, India, and the Philippines at 5% each, and 4% from Puerto Rico.
○ 11.3
million (of the 50 million) are unauthorized - 6.6 million from Mexico, 700,000
from El Salvador, and 640,000 from Guatemala
■ About
half got here by overstaying a visa rather than improper border crossing
Why do we allow
people to apply for asylum?
●
We have pledged to
do so in international law and treaty as well as U.S. law, just like most other
nations in the world. The U.S. is signed to the 1967 Protocol Regarding the
Status of Refugees, and expansion of the 1951 Convention Relating to the Status
of Refugees and through the Refugee Act of 1980.
●
The Convention
stipulates that except for specific exceptions which don’t apply to the present
situation, ‘refugees should not be penalized for their illegal entry or stay.
As a country we are breaking these obligations when we criminally prosecute an
asylum seeker based on improper entry.
How did our
immigration process at the border work until recently?
●
When people arrive
between checkpoints or at a formal checkpoint, hey would almost always be
detained and sent through “expedited removal” proceedings, allowing the DHS
rapidly deport them.
●
In order to avoid
breaking treaty obligations, we must screen them for “credible fear” if they
express fear of persecution if they return home, or desire for asylum. Until
recently, people have been given a credible fear interview within 10 days by a
trained asylum officer when they are detained in immigration facilities.
○ If
a person passes, they have “significant possibility of establishing eligibility
for asylum. This also means that they aren’t subject to any bar from obtaining
asylum (such as previous crimes, posing national security, persecuting others,
etc.). They are then referred to immigration court and go through the legal
process.
■ Applicants
who pass their interviews can seek release on bond or personal recognizance as
they await final hearing, or can be detained the entire time that the case is
pending.
■ Families
are given lower bonds historically due to legal restrictions on children’s
detainment.
○ If
they fail their interview, they can appeal to an immigration judge. If the
judge concedes to the negative finding, the person is deported. If the judge
overrule is and finds credible fear, they go through the immigration court
process.
So what’s changed?
●
In May of 2018, the
DOJ began enforcing a zero tolerance policy to criminally prosecute every
violation of improper entry
○ This
caused the separation of nearly 3,000 minors to be separated from their parents
in a separate system falsely designated from “unaccompanied minors, while the
adults were forced into criminal detention.
○ The
DOJ chose to handle the criminal case first before the immigration process was
completed when they could have let the process run its course and then charged
the criminal case, keeping families together-- still “zero tolerance policy”
●
Most immigration
offenses (like overstaying a visa) are not crimes but civil offenses, and
improper entry is a federal Class B misdemeanor (time served = 3-10 days and
$10 fine)
○ Crimes
more serious than a Class B federal misdemeanor: minor in possession of or
drinking alcohol, using a fake ID or lending your real ID to someone to use,
reckless driving (+25 mph over the speed limit/swerving lanes without signaling
or any kind of “negligent” driving), vandalism, downloading a song or movie
without paying, borrowing someone’s Netflix password, and bringing fireworks
into Illinois from another state.
So why did the
administration do it the way they did?
●
Long term
consequence of being charged and convicted of improper entry: you start a
criminal record. Disqualification from asylum can happen if someone has done
“particularly serious crimes” which can be achieved through repeated improper
re-entry (which becomes a felony)
○ Administration
is currently trying to draft regulations to make a conviction for improper
entry = a complete bar from asylum
●
Short term
consequence of being charged and convicted of improper entry: govt chose to use
family separation as a policy tool because they hoped that it would discourage
people from coming.
○ The
administration also used it to get people to agree to be deported even when
they had valid asylum cases, even though they said in June that the idea that
the separation of children from parents was donne to deter asylum seekers was
‘offensive’.
■ Even
though in March 2017 John Kelly said that he was considering separatinng
children from parents ‘in order to deter more movement”
■ DHS
spokesman David Lapan said in March 2017 that DHS ‘continually explores options
that may discourage those from even beginning the journey.’
● When
the policy was instituted this year, they still did it, knowing trauma it would
cause youths, with no plan or intent to reconnect children to their parents,
according to the DOJ lawyers in the lawsuit against the Administration in
California.
○ “Unaccompanied
immigrant minors” are held in childrens’ shelters for the entirety of their
proceedings unless released to an outside sponsor (usually a relative or family
friend).
■ A
new HHS Rule was created in June that requires ICE to check the immigration
status of sponsors and anyone else living in the sponsor’s homes and get
biometric data of all of them before releasing the minor, discouraging some
potential sponsors from coming forward.
○ Recently,
the Office of Refugee Resettlement has stopped funding organizations
representing unaccompanied minors (7/10 win their cases with representation),
and the kids who do not know the process or speak the language are left to
represent themselves (9/10 lose without representation).
So where are we
now?
●
Administration has
ceased the zero tolerance policy, many of the 3,000 children have been reunited
with their parents, Administration has stopped separating families at the
border.
○ 700+
children are still separated, and half of their parents have already been
deported
■ The
Administration took the position that it had no obligation to reunite the
remaining separated children and that it should instead be done by non-profit
organizations. The judge disagreed and said the obligation was solely that of
the government, because they were the ones who forced the separation in the
first place.
Issue Two:
Indefinite detention
● Administration
has made it a policy priority to push for indefinite detention of all asylum
seekers, including children and families, which is currently not permitted
under the Flores order, which
remember limits child detention to no more than 20 days.
○ They
have tried many different ways to escape the Flores settlement requirements so
that it can keep children indefinitely detained:
■ Through
legislation, which has not passed, by asserting the right to do it to the judge
handling the lawsuit over the separated children, by asking the judge managing
the Flores settlement to permit it, which was denied, by drafting a regulation,
not yet public, asserting they have the right to do it. That regulation would
be challenged and almost certainly be found invalid by a court.
○ This
is a radical departure from recent history, where many individuals and families
were bonded out and therefore didn’t sit in detention indefinitely. And within
6 months the adult has the chance to be a productive working part of society.
● Detention
is MUCH more expensive than alternatives to detention, sometimes called ATDs.
These alternatives to detention allow the government to track asylum seekers
who are out pending their hearing. These are often paired with bond, which as I
mentioned can average about $8000, the loss of which can be a powerful
deterrent by itself.
○ DHS
estimated in its proposed FY2018 budget that it costs $134 per day to hold a
person in regular detention, $319 for an individual in family detention. The
average cost of per ATD participant in various programs would be $4.50 per day.
■ A
2014 Government Accounting Office report concluded that the daily rate for ATD
was less than 7% of that for detention.
■ individual
would have to be on ATD for 1,229 days before time on ATD and time in detention
would cost the same amount. And that doesn’t take into account the possibility
of a work permit after 150 days where a person could begin to pay into the
economy.
If ATDs are so much
cheaper and they work, why doesn’t the government pursue them instead of
seeking more detention?
● Why
does the government fight bond in every case and want everyone detained? This is where the conversation gets more
difficult. Is it because we think these asylum seekers are more dangerous?
○ In
March 2017 the Cato Institute did a study and white paper on immigration and
incarceration. The data showed that 1.53% of native-born Americans are
incarcerated.
■ For
legal immigrants, the number is .47% (less than a third)!
■ For
illegal immigrants, the rate is .85%. But if you remove just immigration
related offenses (not crimes to people or property) - the number is closer to
.50%. But even taking the .85% number, you get a blended immigrant
incarceration rate of .58%.
■ the data also shows that immigrants are: more
entrepreneurial, more church going, less likely to have children out of
wedlock, far less likely to commit crime, and, according to a review done by
Harvard and Tufts University analyzing 16 different peer reviewed studies,
immigrants use substantially less healthcare per person than native born
Americans.
● In
fact, they have contributed $14 billion more to the Medicare trust fund than
they have used
● There’s
no evidence that all the pain done to separated families did anything to reduce
attempted family border crossings. In July, 9,258 family members were caught
improperly crossing the southern border, the highest family member number for
July since 2012.
Recent
Developments:
1) Administration plan to shrink the number
of refugees from 110k two years ago, to 45k this year to 25k next year;
2) Threatened policy to prevent legal
immigrants from obtaining green cards or citizenship if they’ve ever used SNAP,
SCHIP, or even purchased subsidized health care under the Affordable Care Act;
3) In the Matter of AB – the attorney
general unilaterally overturning judicial precedent, now being challenged in
court
4) In an undisclosed memo, Attorney
General Sessions directing ICE officers at pick up do CFI interviews and
require migrants to assert their PSG at the border
What are the
solutions?
- Stay up on the facts and don’t
assume things are over.
- Support legal aid and
organizations that represent detainees, like RAICES and Texas Civil Rights Project, or
legal aid in Rio Grande or El Paso.
- Give money to organizations
like RAICES that help put up bond
for detainees.
- Require the truth and call out
untruths from public speakers.
- Consider becoming foster
parents or foster parent qualified.
- For churches or any large
group, but especially churches, consider taking a trip down to the towns
on the Mexican border: Nogales, Tijuana, Nuevo Laredo, and serve with
other non profits and Mexican churches who are doing triage care for
migrants stuck on the other side of the border in very dangerous
circumstances, often without money for food or shelter.
- Participate in demanding change
from our government. These outcomes are the result of choices exercised by
the government in our name. Contact your elected officials and very simply
say: I care very deeply about this
issue. Until I hear you say something and see you do something to put a
stop to what is happening, I will work to elect someone who will.
- Finally, again editorializing.
the white American church – particularly the white evangelical American
church - has to stop being comfortable treating black and brown children
like they’re worth less than our own.
