Terror showed in the young Salvadoran’s face as she told her story. After testifying against a gang member, she had moved to a new town. But her efforts to evade the gang failed. One day, after dropping her children off at school, she found herself being chased on foot by knife-wielding youths. She dove into a ditch, huddling in the cold mud for hours. Once she dared to surface, she left her children with a relative and fled the country.
Like dozens of asylum-seekers my students at the University of Arizona and I have interviewed over the years, “Mirna” may have entered the US without inspection at a port of entry (I don’t recall). Reasons for doing so include ignorance of the asylum process, fear of detention and/or separation from one’s children, frustration and exhaustion after long waits under harsh conditions at the border, and having been illegally turned away by US border agents (often to face dangerous conditions in Mexico).
By law, it makes no difference: One may seek asylum if she either is “physically present in the United States,” or arrives at the border, “whether or not at a designated port of arrival.”
Tossing the law aside, on Friday President Trump issued a proclamation barring asylum applications by anyone crossing the southern border without inspection. With a nod to prohibitions under international law against returning refugees to persecution or torture, the proclamation (and accompanying regulations) allows for hearings — but only for those who satisfy a higher screening threshold than the one Congress established for asylum.
Even refugees clear-headed, articulate and fortunate enough to pass that test would have to convince a judge that there is over a 50 percent chance of persecution in order to avoid deportation.
The rest would be deported, including those whose risk of dire harm or death qualifies them for protection under the post-Holocaust international definition of a refugee that Congress incorporated into U.S. law nearly 40 years ago.
And unlike with asylum, even winning the case would provide the person with no legal status and no means to petition for the spouse or minor children left behind.
Under the Constitution, Congress makes the laws and the President executes them. So the president’s attempts to justify his actions by reference to a general authority to suspend the entry of certain classes of people – as he succeeded in doing with the Muslim ban – cannot withstand scrutiny given the specific language Congress used to safeguard asylum-seekers.
Nor do the stated justifications for this maneuver suffice. Trump has decried an “invasion” by foreigners bent on taking advantage of a robust U.S. economy. But several studies, as well as the experiences of those working directly with asylum- seekers like Mirna, belie that claim. High rates of murder, rape, extortion and other violence by gangs, cartels and domestic partners — all unchecked by underresourced, intimidated and often corrupt police and judicial officers — are what propel a large portion of Central American asylum-seekers to abandon their homes and loved ones.
Investing resources in the asylum system, taking measures to increase court-appearance rates and the complex process of working to restore security and create economic opportunities in Central America are better answers than cutting off protections and funneling asylum-seekers into harm’s way at the border.
Even without these hurdles, Mirna only won asylum on appeal. With them, she might never have had a hearing, and likely would have been returned to the hands of the gang. Even if she had a hearing and won, under the new rules, she would have been condemned to life without her children.
Congress has spoken: American is better than this.