Local Lawyer speaks at DGTDO Meeting

DGTDO Monthly Meeting: Local Lawyer Shares His Experience at the Texas Border

How much do we really know about the Administration’s “zero tolerance” immigration policy in action? We know about the trauma of the families that have been separated at the border this summer. We know that Trump and Sessions are lying about the real danger that these refugees pose. We also know that the zero-tolerance policy has been ceased, but what are the current consequences and dangers? How difficult is it today for people to meet the Administration’s immigration regulations, and how are they still being used for Trump’s duplicitous population goals?

Hunter Wiggins, a Chicago-based lawyer and former federal prosecutor gave a fantastic presentation at the Wednesday, Aug 8 monthly DGTDO meeting. He answered those questions and more with data and statistics in layman’s terms, and gave us a list of tangible solutions that we can help with. 

Here’s a list of actions we can take (link)
Wiggins has nearly 25 years of legal experience including various pro bono immigration cases. For over a year now, he has been traveling back and forth to Texas to help women and families crossing the border understand their legal rights regarding asylum for a project through his firm. His team then evaluates whether or not they can help the families’ cases.

Here are some highlights from Hunter’s presentation, outlined by our questions:


How easy is it to get asylum in the U.S.?

       Not easy – there are two ways: 1. apply from outside the US to get a decision before coming (affirmative asylum); and 2. Being in the country or appearing at the border and applying defensively against being removed

       US population – 325 million, 115,000 affirmative asylum applications from outside the country in 2016, 11,729 granted (10%). In 2016 there were also 66,00 defensive asylum applications– up from 48,000 inn 2012.

       In 2017, 30,000 defensive cases (filed over different years) were decided by immigration judges, up from 22,000 in 2016. Only 38% were granted, down from the 56% grant rate in 2012. So, the total asylum grants in 2017 were about 23,000 out of 180,00 applications, about a 12.7% grant rate. Conversely, we removed 230,00 people for improper entry in 2016.

       Compare to the European Union (population: 742 million). In 2017, 46%, or 315,000 out of 650,000 first time seekers were granted asylum. In total, 538,000 people received asylum in 2017.

       In 2016, 36% of people granted defensive asylum were from China, 9% from El Salvador, 7% from Guatemala, 7% from Honduras, 5% from Mexico.

       Immigrants make up 15% of our population, only up 6% since 1990.

       Compare to other countries’ percent immigrant population: Australia 28%, Canada 22%, Switzerland 28%, New Zealand 25%.

       Out of 50 million immigrants in the U.S., the largest percentage are from Mexico, at 25%, then China, India, and the Philippines at 5% each, and 4% from Puerto Rico.

       11.3 million (of the 50 million) are unauthorized – 6.6 million from Mexico, 700,000 from El Salvador, and 640,000 from Guatemala

       About half got here by overstaying a visa rather than improper border crossing

Why do we allow people to apply for asylum?

       We have pledged to do so in international law and treaty as well as U.S. law, just like most other nations in the world. The U.S. is signed to the 1967 Protocol Regarding the Status of Refugees, and expansion of the 1951 Convention Relating to the Status of Refugees and through the Refugee Act of 1980.

       The Convention stipulates that except for specific exceptions which don’t apply to the present situation, ‘refugees should not be penalized for their illegal entry or stay. As a country we are breaking these obligations when we criminally prosecute an asylum seeker based on improper entry.

How did our immigration process at the border work until recently?

       When people arrive between checkpoints or at a formal checkpoint, hey would almost always be detained and sent through “expedited removal” proceedings, allowing the DHS rapidly deport them.

       In order to avoid breaking treaty obligations, we must screen them for “credible fear” if they express fear of persecution if they return home, or desire for asylum. Until recently, people have been given a credible fear interview within 10 days by a trained asylum officer when they are detained in immigration facilities.

       If a person passes, they have “significant possibility of establishing eligibility for asylum. This also means that they aren’t subject to any bar from obtaining asylum (such as previous crimes, posing national security, persecuting others, etc.). They are then referred to immigration court and go through the legal process.

       Applicants who pass their interviews can seek release on bond or personal recognizance as they await final hearing, or can be detained the entire time that the case is pending.

       Families are given lower bonds historically due to legal restrictions on children’s detainment.

       If they fail their interview, they can appeal to an immigration judge. If the judge concedes to the negative finding, the person is deported. If the judge overrule is and finds credible fear, they go through the immigration court process.

So what’s changed?

       In May of 2018, the DOJ began enforcing a zero tolerance policy to criminally prosecute every violation of improper entry

       This caused the separation of nearly 3,000 minors to be separated from their parents in a separate system falsely designated from “unaccompanied minors, while the adults were forced into criminal detention.

       The DOJ chose to handle the criminal case first before the immigration process was completed when they could have let the process run its course and then charged the criminal case, keeping families together– still “zero tolerance policy”

       Most immigration offenses (like overstaying a visa) are not crimes but civil offenses, and improper entry is a federal Class B misdemeanor (time served = 3-10 days and $10 fine)

       Crimes more serious than a Class B federal misdemeanor: minor in possession of or drinking alcohol, using a fake ID or lending your real ID to someone to use, reckless driving (+25 mph over the speed limit/swerving lanes without signaling or any kind of “negligent” driving), vandalism, downloading a song or movie without paying, borrowing someone’s Netflix password, and bringing fireworks into Illinois from another state.

So why did the administration do it the way they did?

       Long term consequence of being charged and convicted of improper entry: you start a criminal record. Disqualification from asylum can happen if someone has done “particularly serious crimes” which can be achieved through repeated improper re-entry (which becomes a felony)

       Administration is currently trying to draft regulations to make a conviction for improper entry = a complete bar from asylum

       Short term consequence of being charged and convicted of improper entry: govt chose to use family separation as a policy tool because they hoped that it would discourage people from coming.

       The administration also used it to get people to agree to be deported even when they had valid asylum cases, even though they said in June that the idea that the separation of children from parents was donne to deter asylum seekers was ‘offensive’.

       Even though in March 2017 John Kelly said that he was considering separatinng children from parents ‘in order to deter more movement”

       DHS spokesman David Lapan said in March 2017 that DHS ‘continually explores options that may discourage those from even beginning the journey.’

       When the policy was instituted this year, they still did it, knowing trauma it would cause youths, with no plan or intent to reconnect children to their parents, according to the DOJ lawyers in the lawsuit against the Administration in California.

       “Unaccompanied immigrant minors” are held in childrens’ shelters for the entirety of their proceedings unless released to an outside sponsor (usually a relative or family friend).

       A new HHS Rule was created in June that requires ICE to check the immigration status of sponsors and anyone else living in the sponsor’s homes and get biometric data of all of them before releasing the minor, discouraging some potential sponsors from coming forward.

       Recently, the Office of Refugee Resettlement has stopped funding organizations representing unaccompanied minors (7/10 win their cases with representation), and the kids who do not know the process or speak the language are left to represent themselves (9/10 lose without representation).

So where are we now?

       Administration has ceased the zero tolerance policy, many of the 3,000 children have been reunited with their parents, Administration has stopped separating families at the border.

       700+ children are still separated, and half of their parents have already been deported

       The Administration took the position that it had no obligation to reunite the remaining separated children and that it should instead be done by non-profit organizations. The judge disagreed and said the obligation was solely that of the government, because they were the ones who forced the separation in the first place.

Issue Two: Indefinite detention

       Administration has made it a policy priority to push for indefinite detention of all asylum seekers, including children and families, which is currently not permitted under the Flores order, which remember limits child detention to no more than 20 days.

       They have tried many different ways to escape the Flores settlement requirements so that it can keep children indefinitely detained:

       Through legislation, which has not passed, by asserting the right to do it to the judge handling the lawsuit over the separated children, by asking the judge managing the Flores settlement to permit it, which was denied, by drafting a regulation, not yet public, asserting they have the right to do it. That regulation would be challenged and almost certainly be found invalid by a court.

       This is a radical departure from recent history, where many individuals and families were bonded out and therefore didn’t sit in detention indefinitely. And within 6 months the adult has the chance to be a productive working part of society.

       Detention is MUCH more expensive than alternatives to detention, sometimes called ATDs. These alternatives to detention allow the government to track asylum seekers who are out pending their hearing. These are often paired with bond, which as I mentioned can average about $8000, the loss of which can be a powerful deterrent by itself.

       DHS estimated in its proposed FY2018 budget that it costs $134 per day to hold a person in regular detention, $319 for an individual in family detention. The average cost of per ATD participant in various programs would be $4.50 per day.

       A 2014 Government Accounting Office report concluded that the daily rate for ATD was less than 7% of that for detention.

       individual would have to be on ATD for 1,229 days before time on ATD and time in detention would cost the same amount. And that doesn’t take into account the possibility of a work permit after 150 days where a person could begin to pay into the economy.

If ATDs are so much cheaper and they work, why doesn’t the government pursue them instead of seeking more detention?

       Why does the government fight bond in every case and want everyone detained?  This is where the conversation gets more difficult. Is it because we think these asylum seekers are more dangerous?

       In March 2017 the Cato Institute did a study and white paper on immigration and incarceration. The data showed that 1.53% of native-born Americans are incarcerated.

       For legal immigrants, the number is .47% (less than a third)!

       For illegal immigrants, the rate is .85%. But if you remove just immigration related offenses (not crimes to people or property) – the number is closer to .50%. But even taking the .85% number, you get a blended immigrant incarceration rate of .58%.

        the data also shows that immigrants are: more entrepreneurial, more church going, less likely to have children out of wedlock, far less likely to commit crime, and, according to a review done by Harvard and Tufts University analyzing 16 different peer reviewed studies, immigrants use substantially less healthcare per person than native born Americans.

       In fact, they have contributed $14 billion more to the Medicare trust fund than they have used

       There’s no evidence that all the pain done to separated families did anything to reduce attempted family border crossings. In July, 9,258 family members were caught improperly crossing the southern border, the highest family member number for July since 2012.

Recent Developments:

1)         Administration plan to shrink the number of refugees from 110k two years ago, to 45k this year to 25k next year;

2)         Threatened policy to prevent legal immigrants from obtaining green cards or citizenship if they’ve ever used SNAP, SCHIP, or even purchased subsidized health care under the Affordable Care Act;

3)         In the Matter of AB – the attorney general unilaterally overturning judicial precedent, now being challenged in court

4)         In an undisclosed memo, Attorney General Sessions directing ICE officers at pick up do CFI interviews and require migrants to assert their PSG at the border

What are the solutions?

  1. Stay up on the facts and don’t assume things are over.
  2. Support legal aid and organizations that represent detainees, like RAICES and Texas Civil Rights Project, or legal aid in Rio Grande or El Paso.
  3. Give money to organizations like RAICES that help put up bond for detainees.
  4. Require the truth and call out untruths from public speakers.
  5. Consider becoming foster parents or foster parent qualified.
  6. For churches or any large group, but especially churches, consider taking a trip down to the towns on the Mexican border: Nogales, Tijuana, Nuevo Laredo, and serve with other non profits and Mexican churches who are doing triage care for migrants stuck on the other side of the border in very dangerous circumstances, often without money for food or shelter.
  7. Participate in demanding change from our government. These outcomes are the result of choices exercised by the government in our name. Contact your elected officials and very simply say: I care very deeply about this issue. Until I hear you say something and see you do something to put a stop to what is happening, I will work to elect someone who will.
  8. Finally, again editorializing. the white American church – particularly the white evangelical American church – has to stop being comfortable treating black and brown children like they’re worth less than our own.