The Growing Threat to the US Asylum System: An Analysis of the Trump Administration’s Expansion of Detention and Expedited Removal

In the past four to five years, the United States has seen roughly a 400 percent increase in arriving asylum-seekers, mainly from the Northern Triangle states of Central America. US and international law allow persons fleeing persecution and arriving at a border and port of entry to seek asylum. Asylum-seekers are doing nothing wrong or illegal when they exercise this right. However, the recent executive orders issued by President Donald Trump will prevent them from pursuing their claims and will deny them meaningful access to protection. Rather than seeking to address the causes of their flight, the administration has focused on creating more restrictive legal standards, increasing detention, constructing a wasteful border wall and, most recently, has threatened to separate parents from their children at the border. This blog will focus on the planned expansion of detention and expedited removal, two of the most egregious measures in the administration’s executive orders and the Department of Homeland Security (DHS) memoranda.

First, the executive order on border enforcement calls for massive expansion in the incarceration of immigrants that will bring high financial and human costs. The memorandum calls for the detention of nearly all unauthorized individuals who are apprehended by DHS and makes no exceptions for asylum seekers or other vulnerable persons. Already, DHS spends more than $2 billion per year to detain immigrants. The fiscal year (FY) 2017 supplemental funding request by President Trump includes $1.15 billion for additional detention beds. This funding will overwhelmingly go to private corrections companies, even though their detention centers have long been condemned for violations of human rights, including sexual abuse and lack of adequate medical care. The expansion of detention will erode the rights and well-being of tens of thousands of people.

The Catholic Legal Immigration Network, Inc. (CLINIC) partners on a unique project, the CARA Pro Bono Project, to represent detained mothers and children in the nation’s largest detention center in Dilley, Texas. Among other problems, CLINIC and its partner agencies have witnessed: inadequate medical care; traumatized children; mothers denied access to project attorneys; and a lack of adequate interpreters for speakers of indigenous languages. Expanding an already flawed detention system will result in traumatizing many more people, removing many persons with valid asylum claims, and causing others to abandon their claims rather than remain in detention.

The executive order calls for more asylum officers and immigration judges to be added to detention centers at the border, which indicates that many more asylum-seekers, including women and children, will be detained while their claims are being adjudicated. US immigration courts are already so backlogged that it is not unusual for a case to be scheduled for 2020 or even beyond. Thus, CLINIC is very concerned about the prolonged detention of asylum-seekers and its negative impact on the well-being of persons seeking protection and the integrity of the US asylum system. Only 14 percent of detainees can secure legal representation, and expanded detention will increase the average length of detention. It is hard to gather documents, build a case, and establish trust with often traumatized clients who are detained in faraway detention centers. As a result of the expansion of this system, fewer asylum-seekers will have access to legal representation and a fair chance to present their legitimate claims.

Second, the executive order directs DHS to increase the use of expedited removal. Expedited removal is a fast track deportation procedure that allows DHS to remove individuals within hours of their apprehension without affording them the chance to appear before an immigration judge or consult with legal counsel. At present, expedited removal covers unauthorized people apprehended at a port of entry or within 100 miles of the border who cannot prove they have been continuously present for at least 14 days. The administration plans to extend this process to persons who cannot prove they are legally present or that they have resided anywhere in the United States for at least two years.

Under the law, persons subject to expedited removal who request asylum or express a fear of returning home, are entitled to an interview by an Asylum Officer to determine if they have a “credible fear” of persecution. Yet border officials do not uniformly adhere to the law, often refusing to refer those who request asylum or express a fear of return to a “credible fear” interview. The US Commission on International Religious Freedom (USCIRF) issued a report last year detailing its continued concerns with this process, including officers not recording migrants’ stated fear of return. Thus, even before these recent executive orders, CLINIC was seeing an erosion in access to asylum.

The executive order on border enforcement calls for a heightened credible fear standard – asylum officers will be instructed to evaluate credibility under a higher standard and credibility determinations will no longer need to be “relevant to the claim” – which will make it even more difficult to pursue asylum claims. US Citizenship and Immigration Services (USCIS) has already modified its Asylum Division Officer Training Course to be consistent with the executive order.

An expansion of expedited removal, combined with greater detention, will invariably result in a significant decline in access to asylum and an increase in errors, abuses, and deportations of lawful permanent residents and citizens who cannot prove their status. As a practical matter, it will be harder for the government to train and monitor all officers on the stricter “credible fear” standard, and it will be more difficult for advocates to monitor abuses, given the fast turnaround in removing people. An expanded expedited removal process will also eviscerate due process for thousands of noncitizens in the United States, including those with deep roots in our communities.

These measures have been justified as necessary to protect the nation and uphold the rule of law. However, they instead offend the rule of law by stripping due process from the removal adjudication system, placing immigrants in dehumanizing detention centers, and returning bona fide asylum-seekers to situations of persecution and violence. Expedited removal should be restricted, not expanded. No asylum seeker should be turned away, and every asylum-seeker should be represented and get their day in court.