NOI 10: Why Changing the Chief of the U.S. Asylum Office Won’t Fix Anything

Administrative shuffling hasn’t helped in the immigration courts, and it won’t work in the asylum office. Today we start our discussion of U.S. asylum law.

Editor’s Note: Originally published at: https://jacobtingen.com/2019/noi-10-why-changing-the-chief-of-the-u-s-asylum-office-wont-fix-anything/2494

Jacob Tingen: We’re back with Nation of Immigrants. Welcome to episode 10. It’s been an exciting time as we get to talking about all of these different immigration issues. And today, as I checked the headlines, I saw that they’re changing the Chief of the US Asylum Office. And I wanted to talk about what that might mean for our asylum process and actually take this as a springboard to start talking about asylum.

Jacob Tingen: Asylum is one of those forms of immigration relief that people can apply for. That to me is very meaningful and it should mean a lot to US citizens because it goes to this whole idea that people are coming here for protection from persecution on the basis of race, nationality, political opinion or, one of the principles that this nation was founded on, the freedom to exercise their religion. That’s why asylum is so meaningful to me, and I think to many others. I think it will be meaningful to you too. But let’s start with this discussion of why the Chief of the US Asylum Office has been reassigned and what that means, and just get started with our silent conversation. Welcome to Nation of Immigrants.

Announcer: You’re listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Announcer: A podcast about US immigration law, with your host Jacob Tingen.

Jacob Tingen: Okay, so welcome again to Nation of Immigrants. Like I said, we’re talking about people who have been reassigned because of … What’s interesting is that some of the headlines will just tell you the Chief of the US Asylum Office has been reassigned. Other headlines will tell you why. One of the reasons is that there was an internal email that this particular government employee sent out. It didn’t seem particularly critical to me. We have, I guess, the condemning language here, and I’ll read it to you. It throws a little bit of shade, but it’s not super critical. Basically it’s complimentary of the people who work in that agency. But here it goes. In July and over the summer, there were some policies that were announced by the Trump administration in an attempt to limit who could apply for asylum.

Jacob Tingen: What it focused on was people who came to our border, but who traveled through Mexico, shouldn’t be able to qualify for asylum. Trump made a push where he issued an executive order. It ultimately got struck down and said that we can’t claim that Mexico is a safe third country, and just because people have walked through that they can’t apply for asylum here. That’s not in accordance with our laws.

Jacob Tingen: But consistent with this change, of course, that would require some shuffling and some adaptation by the asylum office. So this Chief of the US Asylum Office said in an email, “We are once again being asked to adapt and to do so with very little time to train and prepare.” That’s an accurate statement. Perhaps maybe the administration thought where he said once again as critical, but it’s a fair statement. Then he says, “If I didn’t know that we have some of the most dedicated, most adaptable and most talented public servants presently serving in the federal government, I would be concerned about being able to implement these changes on such short notice.”

Jacob Tingen: But in effect, he’s saying that he’s not concerned because they have the best talented, most adaptable, most dedicated public servants. It seems to me that the email was more directed towards the staff and saying, “Hey, look, we’ve got some changes coming. I know it’s going to be tough, but we can do it.” But this email apparently was interpreted to be critical of the administration and critical of its policies. So that seems to be the underlying reason as to why the asylum division chief, John Lafferty, is being reassigned to the Potomac Service Center in Arlington, Virginia.

Jacob Tingen: That’s the headline and that’s the news and that’s what’s happening. But I wanted to spend some time talking about asylum generally, and frankly go back to what was happening over the summer. So again, I mentioned this in our episode about the myth of the immigration line that some people just assume that there is a line that people can get into and come here legally, and there’s not.

Jacob Tingen: It seems that the Trump administration tried to make it seem that that’s the way it would be when it comes to asylum. There was an executive order that was issued that said, “If you come across our border not at a port of entry, and we find you inside the US, you’re no longer eligible to apply for asylum. But if you come to a port of entry, then you would remain eligible for asylum. You’d have to make your case to an asylum officer at the port of entry. Then if you pass that initial interview, you’d be allowed entry to the country,” is how it was working.

Jacob Tingen: So he issued this executive order, and there were caravans coming, and we can talk about caravans and other day, it’s not central to what we’re talking about today. We’re talking about asylum generally. So this caravan was coming and they said, “All right, well if this is the rule, we’re going to head to a port of entry. We’re not just going to cross the border. We’re going to head to a port of entry, we’re going to do it right. The U S government is going to do right by us. We’ll get our interview. We’ll be allowed in, and we’ll be given due process and the chance to ask for asylum.”

Jacob Tingen: Upon arrival at the port of entry, they were told, “Well, this is a long line. It’s going to be a while. You might have to wait in Mexico for several years while we figure out what to do here.” Now, I don’t know about you, but that seems unfair to say, “Hey, play by the rules.” And then when you play by the rules, you closed the door. But that’s what the Trump administration attempted to do. Now of course, the idea that people who crossed the border, not at a port of entry, wouldn’t be eligible for asylum, is not correct. That was struck down by the ninth circuit.

Jacob Tingen: So people have still been able to get across. Then of course, there’s been a big debate over why should Mexico keep US asylum seekers in Mexico, and how should this process all kind of work out? Some of the responses by administration officials that were not emailed around were reported in another article. It’s interesting, some officials said this is flatly inconsistent with our treaty obligations, flies in the face of decades of case law, destined to be enjoined or striked down immediately. That turned out to be true. Then another DHS official said the move was a bad idea, that it would backfire. Here’s what’s interesting, and I kind of want to talk a bit about this. So as this administration continues to pervert the 1980 refugee act and its later amendments by passing regulations that burden its own employees with overly cumbersome ill-conceived new standards.

Jacob Tingen: Then it goes on to say, “This rule does nothing to fix our broken immigration system, which is at its breaking point because of the administration’s mismanagement.” So one of the things that I’ve talked about when we talked about prosecutorial discretion, and we talked about deferred action, is that there were release valves for an overburdened system that the Obama administration was taking advantage of that Trump is clamping down on because he viewed them as loopholes.

Jacob Tingen: The end result is that it’s actually making our immigration system less efficient. It’s making our country less safe, and it’s leading to results that I don’t think Trump intended. And yet, I guess the administration feels forced to say, “Well this is the way it’s got to be because this is the territory they’ve staked out,” even though it’s not leading to the results that they want.

Jacob Tingen: All right. Let’s talk about asylum. Why do people get to come into our border, come across our border, and come into our country when they present for asylum? What’s actually happening? What’s the process? What’s in theory supposed to happen? So let’s talk a little bit about the credible fear review process, because I think that’s a good place to start. When an immigrant fleas their country and comes to our country, if they don’t have valid paperwork to enter our country, and let’s assume they come up to a port of entry prior to this policy by Trump where they have to wait outside in Mexico. But let’s assume that they come to our country and they come up to a port of entry. If they don’t have the proper paperwork, they can tell an immigration official, I’m afraid. I can’t go back.

Jacob Tingen: If I go back, they’ll kill me. At that point, the border official or the government official that talks to him at the port of entry should pull this person aside and give them what’s known as a credible fear review. It’s basically an interview with an officer to determine if they might be able to prove in court later on a full asylum case. What it is not is it’s not a hearing. The officer at the border isn’t supposed to make a decision on their asylum claim. He’s supposed to make sure that they’re telling the truth.

Jacob Tingen: If they express fear, and that fear and the story that’s told to support it is internally consistent and believable, and it seems like there could be a chance possibly that they might be able to prove their case in a court, in the immigration courts, then that person is allowed into the country. Frequently when they come in through a port of entry, that person has given parole, which is a form of legal status for a temporary period of time.

Jacob Tingen: Then at that point if they file for asylum before that time period expires, then they don’t accrue unlawful presence and they haven’t broken any of our laws. So many of these people who express fear, if they come to a port of entry have violated zero laws. It is not correct to call them illegal aliens because they haven’t done anything wrong. They haven’t broken any laws. This is why it’s important to use, correct language. Words matter. Undocumented immigrant is actually accurate for a person who does that. If they come across the border without lawful status, again, in our industry, we prefer the term undocumented immigrant, but there’s an argument that you could say, “Well, they crossed illegally.” And so if you said illegal alien, I’m still gonna disagree with you, but I get it. I think that that’s an important distinction.

Jacob Tingen: Let’s talk about people who cross without status and who don’t come through a port of entry. So someone who crosses without any permission that just come up to the border and just walk across, or swim across, or whatever they have to do to get here. So let’s say they come across and then they’re apprehended by immigration officials. By the way, many of these people don’t even know where a port of entry is. They’re just trying to get here. Many, many clients I know say, “Yeah, no, I came across and then I looked for ICE. It’s the desert, I needed help.”

Jacob Tingen: So they’re not even trying to avoid immigration. They want the process. They want to apply for asylum because they’re afraid. If you think that that’s a moral and they’ve broken some law and should be punished, I guess that’s your opinion. But I disagree. I don’t think that that’s necessarily immoral. And then the same procedure is employed for these people. If they express a fear, they’re taken aside, they’re given an interview. And if we determine that that fear is credible, depending on the circumstances and how much room we have in our immigration detention centers, they may very well be released into our community.

Jacob Tingen: They aren’t typically given parole. That’s normally reserved for people who come across at a port of entry. Then some of them are detained until they get a hearing before an immigration judge and can ask for bond. So what we see a lot of is that family units who come across are of course let go without being detained very long. Again, because the government isn’t able to detain children even though they’re trying to change that, that policy via regulation.

Jacob Tingen: But frequently we’ll see that women are essentially let go and men remain detained, whether or not there are children involved in the crossing. So a lot of times women and children are released into the country and men remained detained. Sometimes we’ll see a family unit cross and they’ll allow the mom and the kids to go and they’ll keep dad detained. I don’t know why they don’t keep the family unit together. If they’re going to release mom and kids, may as well release dad too.

Jacob Tingen: But they’ll make dad ask for bond and court and try to have to figure out how to pay that and get through that web. So that’s what happens when people cross the border. It’s this incredible fear review process. Now why a credible fear review, and this kind of goes to this whole catch and release thing. I’ve never really liked that term because we’re talking about human beings, not fish.

Jacob Tingen: This isn’t catch and release. These are people’s lives we’re talking about. But essentially, they come across the border. They are apprehended by ICE. We catch them, and then if they pass the interview, we released them. One of the questions is, well, why isn’t it a more stringent process? Well, here in our nation, we believe in due process, right? Due process demands that they have, for example, access to counsel, that there’s in theory and impartial judge, that they’re able to present evidence. And we acknowledge that immigrants and refugees who come across another country, who’ve come a long way and show up at our borders, that they may not have evidence, that they may not, at the time they’re crossing into our country, have everything they need to get a fair process in our court system to determine whether or not they should get asylum.

Jacob Tingen: So we give them a fear interview to make sure that they’re not lying and do our best to determine whether or not they’ve got a credible fear of returning to their country. If they do, we give them due process. We give them this American ideal that our court systems are fair and they’re going to be treated fairly in our country. That’s a good thing. So that’s kind of where I want to start our asylum debate. That is partly why the asylum division chief was reassigned because clearly, many of the officials took issue with this idea that people who come across our border and express a fear shouldn’t be eligible for asylum. And clearly they are. So the Trump administration is fighting this. They see it as a loophole that people use to get across. When if you hear these stories, you understand that there’s no loophole.

Jacob Tingen: These people are absolutely fleeing for their lives. As far as future asylum episodes and why people are fleeing here, I thought I’d spend some time talking about each country. That’s what we have to look forward to. I’m going to talk about in the Northern Triangle, which is Honduras, El Salvador, Guatemala. I’m going to talk about why Mexico isn’t considered a safe third country for many of these immigrants.

Jacob Tingen: I plan to talk about country conditions, access to health care and mental health. I’m going to talk about gangs, and why they exist and why they have such a strong presence in Central America. And then I want to talk also about why there are reports in the news that immigrants are not showing up for their first court hearing. While that’s true, in some cases, in many ways it is the government’s fault. And we’ll get into that.

Jacob Tingen: So asylum opening this topic opens up a whole can of worms and it’s an exciting topic for me. It’s meaningful. It’s powerful. Asylum stands for what America stands for. It’s unfortunate that we’re battling asylum seekers. That’s it for Nation of Immigrants. I did want to let you know, again, the podcast is now officially listed in iTunes and in multiple other places. I’ve got a page up on my website about nation of immigrants. So if you go to JacobTingen.Company, you can find us there.

Jacob Tingen: And then also we’ve set up a donation page. If you want to support Nation of Immigrants and the work that we’re doing, you can do that. We’re in the process of setting up a 501C3. But even now, donations that you give, we plan to put towards bills that immigrants would have to pay, so their legal bills and those kinds of things. Anyway, thank you again for listening and I hope to see you come back and watch and listen and comment moving forward. Thank you very much.

Announcer: Thank you for listening to Nation of Immigrants.

President Obama: America is a nation of immigrants. Subscribe to the podcast on iTunes. Watch the live stream on YouTube and Facebook, or visit JacobTingen.com to learn more.

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