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Asylum Seekers under the Trump Administration: Expedited Removal, Credible Fear and Parole

Since the Trump Administration took office in January 2017, there have been three important changes to the administration of US immigration law that taken together will drastically effect asylum seekers. First, by executive order dated January 25, 2017 the Administration put an end to the policy of catch and release, limiting parole to those arriving aliens who demonstrate urgent humanitarian reasons or a significant public benefit. Second, on February 13, 2017, the United States Citizenship and Immigration Services issued updated asylum division lesson plans materially changing how asylum officers make credible fear determinations for asylum seekers. Third, DHS announced an expansion of the expedited removal program by implementation memo dated February 20, 2017.

The End of Catch and Release

Under the Obama administration, the Department of Homeland Security instructed U.S. Customs and Border Protection to follow a tiered system of enforcement. It separated immigrants into three categories. First, those who posed a threat to national security, border security, or public safety. Second, those who are misdemeanants and new immigration violators. Third, all other immigration violators. Customs and Border Protection was instructed that immigrants in category three should not be detained and deported, and that officers should focus their limited resources on immigrants in the first two categories.

The practical effect of this system of prioritization is that many immigrants fleeing violence and persecution from Mexico, Central America, and South America would be paroled into the United States and placed in removal proceedings. Being paroled and given a court date allowed those asylum seekers the time and ability to gather evidence in support of their claim and seek the help of an attorney. If they had family members already living in the United States, they would often have their case transferred to that jurisdiction.

In the January 25, 2017 “Executive Order: Border Security and Immigration Enforcement Improvements” the Trump administration instructed the Department of Homeland Security to terminate the practice known as catch and release. It went on to state that DHS “shall take appropriate action to ensure that parole authority under section 212(d)(5) of the INA (8 U.S.C. 1182(d)(5)) is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.”

Under these guidelines, asylum seekers would be paroled only in the most extreme of circumstances. Because the asylum seeker is an arriving alien, the immigration court does not have jurisdiction to grant him a bond if he is not paroled by immigration officials. The immigrant must then present his case from within the detention center. The asylum seeker must rely on family members on the outside to help collect evidence and seek the assistance of a lawyer. The case will be docketed quickly, often without enough time to adequately gather supporting documentation and line up expert witness testimony. For the immigrant who does not have the support of family members, the ability to present an adequate case for asylum is nearly impossible.

Changes to the Credible Fear Interview

When an asylum seeker arrives at the US border without authorization to enter the United States, he can make the claim that he is fleeing persecution. The first step toward receiving asylum is an interview with an asylum officer. The asylum officer is tasked with interviewing the asylum seeker and making the determination whether the immigrant can establish a credible fear of persecution. If credible fear is granted, the asylum seeker moves on to the immigration court where an immigration judge will make the determination whether he will receive asylum in the United States.

On February 13, 2017, the United States Citizenship and Immigration Services published updated Asylum Division Officer Training Course (ADOTC) lesson plans for Credible Fear of Persecution and Torture Determinations, and Reasonable Fear of Persecution and Torture Determinations. The lessons plans were revised to be consistent with the Trump administration’s January 25, 2017 Executive Order.

The update included a number of revisions, but there are three particularly notable changes. First, language was removed stating that if the asylum officer has a reasonable doubt as to the outcome of a credible fear determination, the asylum seeker likely merits a positive credible fear determination. Second, language was added that reasonable fear of persecution may be found only if there is a reasonable possibility that the asylum seeker will be persecuted in the future, regardless of the likelihood that the asylum seeker will face other serious harm upon return. Third, language has been altered to instruct asylum officers not to take into account the cultural differences, stress, and language barrier when assessing an asylum seekers demeanor.

While these changes may seem insignificant at first glance, they set a very different tone for how asylum officers should make a credible fear determination. Each change reframes the level of deference an asylum officer should give the asylum seeker, placing a thumb on the scale against a finding of credible fear. It is important to keep in mind that these are determinations made quickly, without access to a lawyer, based on statements from an asylum seeker who is traumatized and typically not fluent in English.

Expansion of the Expedited Removal Program

Expedited removal is a process by which an immigrant is denied entry or physically removed from the United States without going through removal proceedings in immigration court. On February 20, 2017, the Department of Homeland Security issued a policy memorandum detailing the implementation of the January 25, 2017 Executive Order. Among other policies, the memorandum outlined how the Department of Homeland Security will expand the scope of the expedited removal program.

Expedited removal was established in 1996 with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. While the law allows for the use of expedited removal against entrants who have been physically present in the United States for up to two years, to date it has only been used against immigrants encountered within 100 miles of the border and within 14 days of entry. The Trump administration has expanded the program to aliens who have been in the United States for the maximum statutorily permitted period of two years.

With the expansion of the expedited removal program, many migrants fleeing violence who have valid asylum claims could be incorrectly marked for expedited removal. Especially in combination with the overhaul of the credible fear interview, the Trump administration’s plan to expand the expedited removal program to the broadest extent allowed by law risks the removal of the most vulnerable immigrants without access to a lawyer or the review of an immigration judge.

The Interplay of Trump’s Immigration Overhaul for Asylum Seekers

The interplay of the strict use of parole authority, the changes to the credible fear interview, and the expansion of expedited removal are hard hitting on asylum seekers. Broadly speaking, these changes will result in many asylum seekers having no access to an attorney, limited time to prepare to present their claim for asylum, and a much greater chance of being mistakenly sent back over the border despite having a valid asylum claim. Asylum seekers without family in the United States or other outside resources to rely upon will be at great risk of being steamrolled by the immigration system.

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