The U.S. asylum system is broken. How could it be reimagined? – The San Diego Union-Tribune

The U.S. asylum system is often cited as part of a noble legacy tied to the message on the Statue of Liberty, offering freedom to the huddled masses.

But the truth is much more complicated and decidedly less noble.

Over its 40-year history, the U.S. asylum system has never meted out refuge evenly or in the full spirit behind its creation.

As The San Diego Union-Tribune has reported over the last year in an in-depth investigation, disparities, capriciousness and bias plague the system, subjecting asylum seekers to excruciating waits and making it difficult to predict the outcome of even the strongest cases.

Those shortcomings, partnered with policies meant to deter people from coming, have meant that many people fleeing the worlds atrocities are sent back to danger. Some are returned to their deaths.

While the problems are longstanding, theyve intensified under the Trump administration, which defined itself largely by extreme deterrence policies that have ultimately taken away any meaningful chance at asylum.

The incoming Biden administration has indicated it will undo many of the widely criticized programs created under President Donald Trump, including the Remain in Mexico program, which forces asylum seekers to wait in Mexico as their cases are processed in the U.S.

But, it remains unclear whether the 46th U.S. president will be able to use the moment to break with the United States past in a profound way.

To do so will take a re-examination of more existential questions about the countrys global obligations to protect refugees, as well as a reimagining of many of the processes that make up the asylum system today.

Claudia Hernandez (left) along with her 6-year-old daughter, Angelina, and friend Fernanda Zuniga (right) ended up waiting by a port of entry in early 2019 for their chance to request asylum after they lost their temporary shelter in Mexico.

(Nelvin C. Cepeda / The San Diego Union-Tribune)

The decision on whether to protect people fleeing harm used to be made from crisis to crisis, and on the whims of elected officials.

The modern conceptualization of refugees and asylum was born in the aftermath of the Holocaust.

Even then, the United States resisted providing shelter.

After the atrocities of the Nazis were widely known, then-President Harry Truman still had a difficult time convincing Congress and the American public that the United States should take in Jewish refugees, according to Edna Friedberg, historian at the U.S. Holocaust Memorial Museum.

It wasnt until 1968 that the United States signed onto a United Nations agreement regarding its role in identifying and protecting refugees as part of a collective global commitment.

It would be 12 years before the country codified this obligation into law. That legislation created the asylum system a screening process to identify refugees from among the migrants at and inside the United States own borders.

It also outlined how the United States, through the U.S. Refugee Admissions Program, would resettle refugees who were identified in other countries screening systems, such as those who fled violence in Vietnam, Cambodia and Laos and were waiting in refugee camps.

In order to balance these obligations with countries desires for control of their borders, the international definition of a refugee is specific and restricted.

States give up a certain amount of sovereignty over their borders in order to place themselves under obligation to protect vulnerable people, but the obligation is kept as narrow as possible, said Larry Gollub, a retired asylum officer.

Refugees are people who have fled their countries because of persecution based on race, religion, nationality, political opinion or membership in a social group such as the LGBTQ+ community.

But there are many people who flee harm or hardship whose life experiences do not match this definition. There is also a lot of room for interpretation and political agenda, creating a haphazard and inconsistent system.

A hand from the Mexico side of the border reaches through the fence that separates Tijuana from San Diego at Border Field State Park, where families who cannot cross visit each other through the barrier.

(Nelvin C. Cepeda / The San Diego Union-Tribune)

Making the asylum system live up to its obligations in a more humanitarian and efficient way is feasible through a wide variety of changes.

Some could be accomplished at the discretion of the president; others would require an act of Congress and likely bipartisan support.

While some of the changes would require more funding for a particular agency or process, there are also opportunities to shift funding away from policies that dont help the system function as smoothly or fairly as it could.

Its not necessarily all about needing more money invested its about political will, said Michelle Bran, director of the migrant rights and justice program at the Womens Refugee Commission. You think about the things that weve done as a nation in terms of response to challenges, and this is so minor in comparison.

Changes both big and small have been discussed at length by experts in asylum law and human rights, attorneys, judges, former and current government officials, and people who have journeyed through the system themselves as refugees.

Here are their suggestions.

MOVE IMMIGRATION COURT TO THE JUDICIAL BRANCH

Immigration judges are not traditional judges. Instead, they work under the executive branch of government under the presidents authority. They are employed by the attorney general at the Department of Justice, the same prosecutorial agency that argues against asylum seekers appeals in federal court.

This presents, critics argue, a clear-cut conflict of interest.

It also means that the presidential administration has a lot of power to influence the courts decisions based on its political agenda.

That was especially apparent under the Trump administration when attorneys general used their powers to redecide cases and fundamentally changed accepted asylum precedents.

They made it much more difficult for women fleeing domestic violence in countries that dont shelter them from that abuse to get protection in the United States. They also made cases of people fleeing gang violence already a tough scenario to prove under U.S. asylum law nearly impossible.

The National Association of Immigration Judges, the American Immigration Lawyers Association and the Federal Bar Association have all advocated for years for immigration courts to become free of the political sway of the executive branch by moving to the judicial branch.

The system needs independence, said Jeremy McKinney of the American Immigration Lawyers Association. Its time for the Department of Justice and the immigration court system to get a divorce.

Moving the court would require an act of Congress, but past efforts at legislation have not gained much support. Interest among some Democrats to take up the issue appears to be growing.

DIVERSIFY AND TRAIN IMMIGRATION JUDGES

The majority of immigration judges previously worked for the Department of Homeland Security as opponent attorneys arguing against asylum seekers in immigration court.

The Union-Tribune reported in August that immigration judges with this work history were about 1.4 times more likely to order asylum seekers deported than judges with different backgrounds, based on an analysis of immigration court outcomes from fiscal 2009 through fiscal 2018.

Immigration attorneys have long criticized the executive branchs hiring practices for immigration judges. That concern only grew under the Trump administration as the Department of Justice promoted judges who ordered deported high percentages of asylum seekers. Those judges now decide asylum appeals.

In its proposal to move immigration court to the judicial branch, the Federal Bar Association calls for a reimagining of the hiring process that would limit any one presidential administrations influence and incorporate suggestions from local communities.

Newly hired judges, as well as veterans, could also be given thorough trainings of asylum law to try to equalize some of the disparities in their outcomes and lean more toward a mindset often embraced by asylum officers that decisions should be made with an abundance of caution.

REDUCE THE COURT BACKLOG

At her home in Santee, Carmen Kcomt plays her late fathers favorite song from memory on the piano. Kcomt came to the U.S. in the early 2000s from Peru. She had to flee because she was the judge in a paternity case involving the then-president and was facing threats and attacks.

(Nelvin C. Cepeda / The San Diego Union-Tribune)

The number of immigration court cases has swelled in recent years to well over 1.2 million with an average wait of more than two years, according to the Transactional Records Access Clearinghouse of Syracuse University, or TRAC.

Many of those cases are asylum seekers.

The backlog contributes to issues within the asylum system, including forcing refugees to wait in a hellish limbo.

Its horrible, said Santee resident Carmen Kcomt, who won asylum in 2008 from Peru after waiting for four years through multiple rejections and appeals. You feel like you are a hybrid, not belonging to anywhere. You cannot go back. You cannot stay.

Fully funding an effort to reduce the backlog could gain bipartisan support, even from those who take a deterrence perspective. Reduced wait times discourage people from using the asylum system as a way to forestall deportation if they are not actually fleeing harm, according to many former government officials.

While the Trump administration hired judges and increased the courts budget to $673 million in 2020 from $422 million in 2016, many support staff roles such as clerks and translators were left out, and many judges retired over objections to the administrations practices.

The Biden administration could further clear the backlog by working with Congress to create programs other than the asylum system to grant permanent residency to people who meet certain criteria essentially resetting the system.

This solution would likely be controversial in todays political climate, but it is not unheard of; it has been done before.

In the 1990s, the asylum system also got bogged down with cases.

In 1997, Congress ended up granting certain Central Americans the ability to stay in the United States without going through the asylum process, a system reset to clear out old cases and make sure newly filed cases could be processed fluidly. It gave green cards to just under 200,000 people, according to data from U.S. Citizenship and Immigration Services.

Charlene DCruz, director of Project Corazon with Lawyers for Good Government, said that Congress should consider doing a similar reset and start with people who were put into the Remain in Mexico program. There are more than 65,000 people with cases pending in the programs border courts, according to TRAC.

The Trees of Life art installation that lines much of Managua, Nicaragua, was implemented by President Daniel Ortegas wife, who is also the vice president. To pro-democracy protesters, these trees represent a lavish excess in spending when many Nicaraguans live in poverty. Many of these Trees of Life were taken down by protesters in 2018.

(Nelvin C. Cepeda / The San Diego Union-Tribune)

Congress could also consider creating a way to grant refugee status to groups of people fleeing a particular situation, such as the political oppression in Nicaragua under the regime of President Daniel Ortega or the discrimination and attacks faced by English-speaking Cameroonians.

This strategy is already used in other countries including Kenya, where the United Nations High Commissioner for Refugees has been invited by the government to manage the process of identifying refugees.

PROVIDE LEGAL AID TO ASYLUM SEEKERS

Since immigration is considered a civil matter rather than a criminal one, people in immigration court have a right to be represented by an attorney if they can afford one but not at the U.S. governments expense if they cannot.

In 2018, during the height of the public outcry over families being separated at the border, reports of toddlers standing alone before judges around the country astonished many Americans who were not familiar with U.S. immigration court practices.

Giving asylum seekers more access to legal representation would make the system fairer, many advocates say, and could make it more efficient, too, saving the government money on other immigration court costs.

The attorney general could set up programs that provide lawyers to asylum seekers or even to everyone in immigration court proceedings starting with the most vulnerable among them such as unaccompanied children.

Some states and local governments, including California and New York, have implemented programs to provide attorneys to some of the unrepresented at immigration courts in their area.

If funding attorneys for everyone is not politically feasible at the federal level, the attorney general could increase funding for legal orientation programs that support asylum seekers who have to represent themselves.

These programs, operated by nonprofits in some detention centers, help people understand whether their cases match asylum criteria, how to fill out an asylum application and other basic legal questions that can seem impossible to figure out without an attorneys knowledge.

A 2012 audit of orientation programs that receive funding from the Department of Justice found that they saved the federal government a net of $17.8 million per year because they help people move through the court system more quickly.

Bidens attorney general could also revive a program that provided case management services to asylum-seeking families.

The program, which operated as a pilot from 2016 to 2017, matched families with social workers who helped them find lawyers, housing, schools and more while they waited for their cases. It reported 99 percent compliance with monitoring requirements and immigration court hearing attendance. It was shut down by the Trump administration.

END THE DETENTION OF ASYLUM SEEKERS

Otay Mesa Detention Center holds asylum seekers and other immigration detainees in custody in south San Diego.

(Nelvin C. Cepeda / The San Diego Union-Tribune)

Asylum seekers, even those with no criminal history, often spend years in the prison-like conditions of U.S. detention centers after fleeing traumatic persecution in their home countries.

Attorney Elizabeth Lopez of the Southern California Immigration Project said that rethinking practices of detaining asylum seekers would be in her top changes for the system a change that either Congress or the White House could put in place.

But, Lopez said, that would have to be paired with either giving asylum seekers work permits right away so that they can support themselves or creating services to assist asylum seekers with housing, food and medical care if they are not allowed to work. Those adjustments would require congressional action.

Ruth Hargrove, another San Diego attorney, hoped politicians on both sides of the aisle could support this change because holding asylum seekers in custody for years is expensive, in addition to going against humanitarian principles, she said.

It costs roughly $3,500 to hold an asylum seeker in detention for one month, based on fiscal 2019 costs reported by the Department of Homeland Security. The government budgeted more than $3 billion for immigration detention in fiscal 2020.

Plus, detention often is not necessary to ensure compliance. A study from TRAC last year found that more than 80 percent of migrant families likely asylum seekers showed up for their immigration court hearings, and that number rose to more than 99 percent for families who had attorneys to help them.

The federal government has several alternatives to detention programs, such as requiring check-ins with federal officials, to help ensure that people show up for immigration court hearings at much lower costs than detention.

Hargrove recently helped a Cameroonian asylum seeker get released from detention after about 20 months inside.

There are all of these people languishing in prison, and their only crime is that they were trying to avoid death and torture in their home country, Hargrove said. I cant even tell you the sense of betrayal that my client has. He really thought that America was going to save him, and no one was more surprised than he that he was immediately put in chains.

ACT AS AN EXAMPLE FOR OTHER WEALTHY COUNTRIES

A Tigray boy who fled the conflict in Ethiopias Tigray region carries water at Umm Rakouba refugee camp in Qadarif, eastern Sudan on Nov. 27, 2020. More than 50,000 people have fled from Ethiopia into Sudan since the beginning of November.

(Nariman El-Mofty / The Associated Press)

Where asylum seekers go to be recognized as refugees is often a matter of geography.

Countries neighboring current conflicts and crises tend to receive the most if those countries allow them in.

About 85 percent of people forcibly displaced from their countries are living in places designated as developing economies by the United Nations.

Only some refugees in these countries end up resettled, chosen to move to a wealthier country.

In the past decade, even with the cuts to refugee resettlement put in place by the Trump administration, the United States resettled roughly 420,000 refugees who were waiting in limbo in other countries, according to data from the United Nations High Commissioner for Refugees, or UNHCR. Thats more refugees than any other nation resettled.

But those numbers are small compared with the number of forcibly displaced people around the world, particularly those who need more stable protection than what is being provided in countries that require refugees to remain in camps or relegate them to second-class status.

The United States like other wealthy nations often gives money either to UNHCR ($1.7 billion last year) or directly to these developing countries to help with refugee situations rather than resettling more refugees.

There are currently roughly 33.8 million people who have been forcibly displaced outside of their countries of origin, according to UNHCR. Thats less than 1 percent of the worlds population.

Many refugee advocates emphasize that this is the highest number of displaced people on record. Their goal in that message is to encourage more aid.

But, according to researcher Benjamin Thomas White of the University of Glasgow, the levels of displacement are not an unprecedented crisis, and making the situation seem worse than ever can actually contribute to a push for xenophobic policies.

We live in a period where the world is much wealthier than in the past, White said. Our capacity of supporting is much greater.

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The U.S. asylum system is broken. How could it be reimagined? - The San Diego Union-Tribune