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Seeking Asylum Is Now More Confusing

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Araceli Gomez-Aldana
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For migrants seeking asylum, the process can be confusing and long. 

For many people, reading and hearing about asylum process the terminology and policy can be difficult to sift through.

To clear things up and help explain some terms and processes we spoke to Lisa Koop, an immigration attorney and associate director of legal services at the National Immigrant Justice Center (NIJC). Koop heads NIJC’s Indiana office and is an adjunct professor at the University of Notre Dame Law School.

Thank you for joining us. First, can you tell us who is eligible for asylum and how would they prevail in their claim?

Lisa Koop, Associate Director of Legal Services
Credit UNIVERSITY OF NOTRE DAME, THE LAW SCHOOL

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Koop: “Sure, someone who is seeking asylum in the United States will need to establish that they’ve experienced harm that raises to the level of persecution, so serious harm in the past or that they have a well-founded fear of persecution in the future. And that harm or persecution has to be connected to something about them that they can’t change.

So some characteristic like their race or religion, nationality, their political opinion, which we often think about when we think about asylum claims or their membership of a particular social group. So by that it could be if you are a member of an LGBTQ community, if you are women that has experienced domestic violence, if you are someone that has resisted gang membership, that might be a quality about you that has caused other people to seek to harm you that you are either unable to change or shouldn’t be required to change.”

Now, asylum is not granted to people looking for a better life or higher income, correct? It’s strictly reserved for people who fear harm, like you mentioned, have experienced persecution and meet the burden of proof to win asylum? 

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Koop: “I think there is a bit of misconception floating around that it’s really easy to win asylum; that if you say certain magical words then you almost automatically win and that’s not the case.

In my 20 years of work on asylum cases, we put together really substantial applications with my students at Notre Dame law school. We’ll spend a semester working with our clients to develop an affidavit and we’ll put together usually several hundred pages of supporting documentation and we’ll get forensic medical exams to show, ‘yes, this woman really was attacked by someone who sliced her with a machete and the wound that she has is reflective of that type of harm.’ And sometimes we’ll have experts from the countries of origin say ‘yes, this really does unfold this way in this particular country or this particular region.’ And then when people finally go before a judge then they usually have about a three- or four-hour trial before an immigration judge.

So it’s never been an easy thing to win asylum, but it’s a really important form of protection that we need to leave available to people who actually need it.”

U.S. Attorney General Jeff Sessions recently put new limits on who can seek asylum, specifically migrants fleeing domestic abuse or gang violence. How does that affect your work? 

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Koop: “Yeah, so the Attorney General issued a decision called “Matter of AB” in which there is a lot of language that suggests that people who are fleeing domestic violence, people who are fleeing violence by gangs, basically should have a really hard time winning asylum. And the decision attempts to make the legal argument that this is private harm, or this is generalized harm.

And we would take issue with that because we think, for example, that domestic violence is a public health issue and domestic violence in many circumstance is anything but private harm, depending on the context and the culture, and the ability and willingness of law enforcement to investigate and prosecute and provide protection. [And we feel that many of our clients will continue to meet the asylum standard when they are fleeing that type of harm, because they meet those elements of asylum and] So this decision is definitely a road block. I think it signals to immigration judges that there is an expectation that they will deny those cases, but I think a clear application of the law will reveal that many of those cases remain viable.”

A term we have been hearing a lot is “port of entry. ” How are migrants suppose to know where there are ports of entry and what happens if they don’t enter through a port of entry?

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Koop: “People are probably to some degree aware that there’s probably some formal border crossing, and that’s what the port of entry would be. And, to the extent that it’s available for people to cross and enter the United States through a port of entry and declare they are seeking asylum, that’s a proper way to do it.

What we are seeing, though, are individuals who are approaching the ports of entry and being told ‘sorry, come back another day’ or ‘sorry, America is full. We aren’t able to take your asylum application.’ And so people are making the decision to enter across the desert, of coming as unauthorized immigrants and entering the United States that way.

And the significance of that is the recent zero tolerance policy, by which the administration was seeking to criminally prosecute anyone who entered the United States other than through a port of entry. But nonetheless, we were allocating all kinds of federal resources towards prosecuting women and men who came seeking to be recognized as refugees for their manner of entry. Which of course gave rise to the recent family separation crisis where once parents where charged criminally they were taken into federal criminal custody and their children were placed elsewhere in federal custody with the Office of Refugee Resettlement.”

Have things changed since President Trump began implementing the administration’s “zero tolerance” policy?

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Koop: “Yeah, so prior to the implementation of the zero tolerance policy, when individuals entered the United States and declared themselves asylum seekers, they typically went through the ‘credible fear process.’ Sometimes they were held in detention.

Sometimes they were held in family detention, and sometimes they were released to an address that they would give to the federal government. And usually there would be, there were other mechanisms in place to secure compliance.

After zero tolerance, because people were being charged criminally for entering the United States, the administration used that as a justification to separate children from their parents; because their parents were being taken into criminal custody and the administration would claim that in order to take the parents into criminal custody they had to seperate them from their children. Which also I think was a very calculated effort to deter people from entering the United States to seek asylum.”

With the new policy, what happens once asylum seekers are detained? Can they be detained indefinitely?

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Koop: “So most asylum seekers, if they are detained, can be detained for the duration of their asylum process, and sometimes if they don’t win in the initial stages and have to appeal that can amount to months and even years in immigration detention.

There’s no set end point or limit on when immigrants have to be released from detention. There are some circumstance where you can challenge your detention and argue against indefinite detention. But the government has a lot of discretion to keep people in detention unless and until they win their cases. There’s been a lot of talk about the government's ability to keep children in family detention for somewhere around 20 days, and that is related to a class action settlement agreement that suggests that children shouldn’t be held in detention for extended periods and ought to be released after somewhere in the ballpark of 20 days.

So that’s been the administration justification for separating parents from children--the argument that ‘well if we aren’t able to detain the children indefinitely then we have to take them from the parents so that we can keep the parents in jail for the duration of their cases’.”

During a rally in South Carolina President Donald Trump said “ I don't want judges. I want ICE and Border Patrol agents, that's what I want,” when responding to the suggestion that he hire more immigration judges. Can you explain what “due process is?”

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Koop: “Yeah, our immigration courts are severely underfunded and our judges have really crushing caseloads and a shortage of clerks and legal assistance to help them process their caseloads.

So what that means, in Chicago where many asylum applicants from Indiana would have their cases being heard, if you are lucky, you might get a hearing date in 2020 at this point more likely 2021. And so the notion that, rather than dealing with these backlogs, we should just deport everybody instead of having them go before a judge is a real assault on the rule of law, on what our immigration laws require, what the constitution requires, what the international obligations require.

So to the extent that the administration is referring to this expedited removal process and more quickly deporting people, that should never include asylum seekers because they should always have that protection, that ability to present their claim, have that initial preliminary interview and then proceed before an immigration judge. It’s not within the authority of the Executive Branch to close off access to asylum in that way.”

Right. What would you say to people who believe that we can’t open our doors to everyone? If people are seeking asylum should we hear all of the cases?

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Koop: “I don’t think that the two options available to us in our country are open borders or completely shutting the door. There’s a happy medium. We as a nation have struggled to find that.

I think we'll continue to have rigorous debate about where those lines should be, to what extent should people be allowed to come to the United States and seek protection? It’s arguably one of our founding principles. It’s something that has been a part of our legal system and I would argue our beliefs and our values as a nation for as long as we have been a nation.

So I think it’s critically important that we protect access to asylum and the integrity of our immigration system overall. So due process not only for asylum seekers, for anybody facing deportation, banishment, possibly permanent family separation, being removed from a community where they’ve built their life.”

Thank you for coming to Fort Wayne and joining us here at WBOI.

Koop: “It’s my pleasure. Thank you very much.”