When attorney Scott McVarish had a client facing “expedited removal” it was usually because they’d been deported once before, and immigration officials had deemed a second trial to be a waste of resources. Since President Donald J. Trump assumed office, McVarish says the U.S. government has increasingly used the process known as expedited removal to quickly deport asylum seekers.
“Expedited removal is definitely being used a lot more now than previously … and using it for people who are seeking asylum, and that actually contravenes a treaty that we entered into through the United Nations,” says McVarish, who practices immigration law in Los Angeles.
Under the Refugee Act of 1980, which meets standards set by the UN, asylum seekers cannot be deported if they face legitimate persecution at home. But immigration lawyers and nonprofit groups have told WikiTribune that asylum seekers in the United States are nevertheless currently subject to expedited removal.
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Asylum seekers who have recently arrived in the country can avoid expedited removal if they can prove they face a “credible fear” in their respective home country. But what constitutes a credible fear is left up to the interpretation of immigration officers and elastic White House policy.
As the number of credible fear cases has skyrocketed, the Trump administration has used executive orders to restrict the parameters of “credible fear,” thus reducing the type of threats that might be considered eligible for asylum.
Sessions implements new rule
A prime example of the tightening of asylum eligibility rules came in June, when Attorney General Jeff Sessions removed domestic abuse and gang violence as justifications for receiving the coveted legal status.
“An alien may suffer threats and violence in a foreign country for any number of reasons relating to her social, economic, family or other personal circumstances. Yet the asylum statute does not provide redress for all misfortune,” read the Department of Justice ruling.
Sessions never explicitly said the ruling was enacted to increase the use of expedited removal. However, Sessions has criticized the backlog of asylum cases in immigration courts, and eliminating “gang-related violence” as a credible fear can be construed as an attempt to curb the influx of migrants fleeing violence in Central America. Vox reported the White House is considering passing a regulation to enforce Sessions’ directive.
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[Help WikiTribune report on cases where an asylum seeker faced expedited removal because they claimed gang violence or domestic abuse as their credible fear.]
The Center for Immigration Studies, a conservative group that advocates for less immigration, told WikiTribune it hoped the ruling was “a start” to more aggressive action in limiting the credible fear standard, which was awarded in 88 percent of cases between 2009 and 2017, according to a speech given by Sessions.
“There is the disturbing dissonance between the percentage of aliens who are deemed to have established credible fear on one hand, and the significantly lower number of aliens who actually were granted asylum,” said Dan Cadman, fellow at the Center for Immigration Studies.
There has been a recent dramatic spike in asylum seekers who met the credible fear standard, according to U.S. Customs and Immigration Services. In fiscal year 2017 (October 2016 to September 2017) over 60,000 asylum seekers faced credible fear, up from roughly 5,000 in FY 2009.
Sessions and anti-immigration groups argue the high-volume of cases are the result of migrants “gaming the system.” Though researchers and advocacy groups dispute that fraudulent applications are on the rise, instead citing gang violence in Central America as creating credible fear, and thus legitimate cases of asylum (Center for Migration Studies).
Trump expanding expedited removal
According to a 2017 Washington Post report, the Trump administration has considered expanding expedited removal powers, which currently apply only to migrants without proper documentation who are detained within 100 miles of the border and have been in the country for less than 14 days.
Under the proposal, expedited removal could be used anywhere in the country, and could apply to any migrants who’ve been in the country for less than two years.
Cadman says he supports this concept. He sees it as an effective way to deport undocumented individuals who spend months in the United States, then claim asylum once apprehended. Under the Immigration and Naturalization Act, a migrant must claim asylum within their first year in the country.
[Help WikiTribune report on other ways the Trump administration is expanding expedited removal.]
History of expedited removal
Expedited removal and the “credible fear” interview were established in 1996 under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), after a wave of migrants created political furor within Congress and then Clinton administration, according to The New York Times.
Immigration had became a hot button issue in the 1990s in the United States, with both major political parties eager to show they were serious about border security and combatting frivolous asylum claims. Similar to today, many of the asylum seekers were from Central America (The Washington Post).
Instead of gang violence, 1990s refugees were largely fleeing civil war between rebel factions and national militaries. In the cases of Guatemala and El Salvador, the United States funded the governments’ side of the war, creating what some called a moral obligation for the United States to protect those escaping the violence (The New York Times).
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Despite the political support for IIRIRA, humanitarian groups expressed concern over the hastened deportation process at the time. After roughly 60,000 people were deported in a span of six months following passage of the law, Human Rights Watch noted that migrants who faced expedited removal “have virtually no due process rights at all.”
Power of the attorney
The White House’s power to change asylum eligibility through executive order has made negotiating immigration law an incredibly unpredictable business.
“It’s almost as if the changes are more about trying to make the process as difficult as possible in order to discourage people from applying,” says Greg Siskind, a Memphis-based immigration lawyer.
The shifting landscape of asylum policy, however, is evidence of how necessary legal representation is in this process. The American Immigration Council found that detained immigrants with legal representation were four times more likely to be released, which is critical for gaining asylum.
All asylum seekers must be immediately detained under the Illegal Immigration Reform and Immigrant Responsibility Act, before going through a “credible fear” interview, essentially a test to see if they sincerely face danger in their home country. The interview is administered by an immigration official, which many asylum advocates criticize as open to human error. Language barriers and deeply seated trauma often jeopardize asylum seekers’ cases, because they are unable to communicate the peril they face at home, according to the American Immigration Council.
If an immigration official determines a migrant faces legitimate persecution at home, the asylum seeker avoids deportation and is scheduled an asylum hearing in front of a judge. If not, they’re subject to expedited removal, the same as an undocumented immigrant the second time they’re arrested.
Current law makes it illegal to deport child asylum seekers who aren’t from Canada and Mexico – this was part of the legal basis behind the Trump administration’s controversial policy to separate families at the southern border. Had the existing policy been kept in place, a parent could have been quickly deported while their child went through the traditional asylum procedure.
Scott McVarish, who has represented a mother from Central America who was separated from her children upon crossing the U.S. border, says that he knows how to stop expedited removals in California, where he practices law.
“I know to go to the Ninth Circuit and get an emergency stay to stop expedited removal,” he says. “For an immigrant without an attorney … I would say it’s absolutely impossible.”