‘Credible fear’ for US asylum harder to prove

Will Weissert and Emily Schmall | Associated Press

Los Fresnos, Texas – Patricia Aragon told the U.S. asylum officer at her recent case assessment that she was fleeing her native Honduras because she had been robbed and raped by a gang member who threatened to kill her and her 9-year-old daughter if she went to the police.

Until recently, the 41-year-old seamstress from San Pedro Sula would have had a good chance of clearing that first hurdle in the asylum process due to a “credible fear” for her safety, but she didn’t. The officer said the Honduran government wasn’t to blame for what happened to Aragon and recommended that she not get asylum, meaning she’ll likely be sent home.

“The U.S. has always been characterized as a humanitarian country,” Aragon said through tears at Port Isabel, a remote immigration detention center tucked among livestock and grapefruit groves near Los Fresnos, a town about 15 miles from the Mexico border. “My experience has been very difficult.”

As part of the Trump administration’s broader crackdown on immigration, Attorney General Jeff Sessions recently tightened the restrictions on the types of cases that can qualify someone for asylum, making it harder for Central Americans who say they’re fleeing the threat of gangs, drug smugglers or domestic violence to pass even the first hurdle for securing U.S. protection.

Immigration lawyers say that’s meant more asylum seekers failing interviews with U.S. Citizenship and Immigration Services to establish credible fear of harm in their home countries. They also say that immigration judges, who work for the Justice Department, are overwhelmingly signing off on those recommendations during appeals, effectively ending what could have been a years-long asylum process almost before it’s begun.

“This is a direct, manipulated attack on the asylum process,” said Sofia Casini of the Austin non-profit Grassroots Leadership, which has been working with immigrant women held at the nearby T. Don Hutto detention center who were separated from their kids under a widely condemned policy that President Donald Trump ended on June 20.

Casini said that of the roughly 35 separated mothers her group worked with, more than a third failed their credible fear interviews, which she said is about twice the failure rate of before the new restrictions took effect. Nationally, more than 2,000 immigrant children and parents have yet to be reunited, including Aragon and her daughter, who is being held at a New York children’s shelter and whose future is as unclear as her mother’s.

In order to qualify for asylum, seekers must demonstrate that they have a well-founded fear they’ll be persecuted back home based on their race, religion, nationality, membership in a particular social group or political opinions. The interviews with USCIS asylum officers, which typically last 30 to 60 minutes, are sometimes done by phone. Any evidence asylum seekers present to support their claims must be translated into English, and they often don’t have lawyers present.

The agency has funding for 687 asylum officers this fiscal year, but only about 510 are actually working at field offices nationwide. About 75 percent of USCIS’ total asylum staff members were on detail to detention facilities in border states at the end of June.

In 2010, the Obama administration began allowing many immigrants passing credible fear interviews to remain free while their asylum cases progressed. The number of asylum seekers spiked, with federal authorities referring nearly 92,000 people for credible fear interviews during the 2016 fiscal year, compared to about 5,000 nine years earlier.

After complaining that the asylum system had become “overloaded with fake claims,” Sessions last month set new case precedent by reversed the granting of asylum to a woman with the initials A.B., a Salvadoran who fled more than a decade of domestic abuse. “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” the attorney general wrote in a 31-page decision.

A USCIS memo published Wednesday codified the policy change, saying that when persecutors aren’t “affiliated with the government,” applicants must show that their home country “is unwilling or unable to protect” them. It further instructs case officers to consider whether asylum seekers could relocate within their home countries.

“The asylum officer conducting credible fear (interviews) has been instructed to apply A.B., so when the person says, ‘My boyfriend or my husband beat me’ it’s, ‘So what, you lose,’” said Paul W. Schmidt, a former immigration judge in Arlington, Virginia, who retired in 2016. “It then goes to the immigration judge, who has just been ordered to follow Sessions’ precedent – and most of them want to keep their jobs and they just rubber stamp it, and there’s no meaningful appeal.”

The top countries for people referred for credible fear interviews are from El Salvador, Honduras and Guatemala, where the MS-13 gang is seeking to dominate the drug and human-trafficking trades. USCIS says more than three of four asylum seekers cleared initial screenings from October 2017 to January, which are the latest statistics available and don’t reflect the changes since Sessions’ ruling.

“Migrants know they can exploit a broken system to enter the U.S., avoid removal, and remain in the country,” USCIS spokesman Michael Bars said in a statement. He added that “changes to asylum interview scheduling have been able to help slow” a growing case backlog.

Adam Dobson, a Boston-based attorney who recently volunteered to help asylum seekers at the Port Isabel lockup, said one key change is how immigration courts hear cases, no longer taking them in order from oldest to newest.

“The supposition is that if you resolve these cases and dismiss them soon enough, it’s easier to dismiss because they’ve established fewer roots in the community,” Dobson said.

Other lawyers for seekers who failed their credible fear interviews say immigration judges sometimes move up appeals of those decisions without warning, hearing them before attorneys arrive. Other times, attorneys are present but are barred from speaking.

“In the old days, they’d catch somebody, force them to take voluntary deportation and then they would be put on the bus,” said Eli Kantor, a Beverly Hills, California, immigration attorney. “That’s what Trump wants, where people won’t see a judge or have due process. They’d just pick them up and send them back the same day.”

William Silverman, of the New York law firm Proskauer, spent a week in June at the Dilley family immigration detention center southwest of San Antonio, where he represented four Central American children ages 5 to 10 who appeared on their own for appeals after they and their mothers failed credible fear interviews.

He said the judge, speaking to the children via closed-circuit television, denied their appeals and told each kid “good luck in your home country.”

“Some of the kids were not old enough to fully understand the consequences,” Silverman said. “But the oldest boy, as soon as the judge spoke, he didn’t say anything but slouched over and put his head down. He looked completely dejected.”