Nine years ago, a Guatemalan woman named Irene said, she watched as gangs murdered her husband in front of her when he refused to pay them a “tax,” or extortion fee, to keep the family musical-instruments business open. Some of the assailants were imprisoned, and she continued to run the shop on her own.
Recently, though, the menace resumed, she said. The perpetrators, fresh out of prison, threatened to kill Irene if she did not pay. Fearing for her life, she fled to the United States with her 17-year-old daughter. They arrived at the southwest border seeking asylum on June 13.
Under the Trump administration’s zero-tolerance border enforcement policy, the 47-year-old woman was detained and her daughter was sent to a shelter. A few weeks later, Irene had her initial interview with an asylum officer, the first hurdle applicants must clear in the asylum process.
The officer, who conducted the interview over the phone, determined that Irene had not proved a “credible fear” of persecution if she returned home. Irene was dumbstruck. What was their definition of fear?
“I can’t go back to my country,” Irene, who asked that only her first name be used because she feared reprisals, said this week in a phone interview. “They’ll kill me if I go back.”
Immigration attorneys and advocates report that asylum applicants in recent months are failing their crucial initial screenings with asylum officers at the border in record numbers, the first sign that the Trump administration is carrying out promises to reduce the number of people granted asylum in the United States and limit the conditions under which it is granted.
New reports that people are being rejected at the border with only a cursory review of their claims has raised an alarm among immigrant advocates, who warn that many of those with legitimate claims are being sent home to face danger, or even death, despite international laws that guarantee the right of the persecuted to seek sanctuary in other countries.
Behind the new practices are recent changes to asylum adjudication unveiled by Attorney General Jeff Sessions in June. Critics have said those changes render it all but impossible for those fleeing domestic abuse, gang brutality and other violence to win protection in the United States.
Mr. Sessions’s decision was codified in a memo issued in July to the officers at U.S. Citizenship and Immigration Services who conduct credible-fear interviews at the border.
The memo told them that applicants must show that their home government either condoned the behavior that the applicants said they were fleeing or was helpless to stop it. It also instructed officers to consider whether “internal relocation,” rather than asylum in the United States, would be a reasonable option for a claimant.
“Over the years, grounds for qualifying for asylum have greatly expanded far beyond what Congress originally intended,” said Michael Bars, a spokesman for the agency. “Many petitioners understand this, know how to exploit our system, and are able to enter the U.S., avoid removal, and remain in the country.”
Data suggests that the number of people succeeding in making a case for credible fear began to decline sharply earlier this year, even before Mr. Sessions announced his new legal guidance.
According to figures collected and released by the Transactional Records Access Clearinghouse at Syracuse University, which tracks immigration statistics, findings of credible fear in immigration court began to “plummet” in what appeared to be a “dramatic change” during 2018. During the six months ending in June, only 14.7 percent of the case reviews in immigration court found the asylum seeker had a credible fear. Approval levels were twice that level during the last six months of 2017, the researchers found.
Eileen Blessinger, the attorney representing Irene, the Guatemalan woman, tweeted a photograph on July 12 of a stack of papers. “This is what 29 blanket credible-fear interview denials looks like,” she wrote, noting that among her clients who had been detained apart from their children, “every single separated parent” who was interviewed had received a negative determination.
She said that the trend has persisted since last month’s tweet.
“I haven’t met a single person in the last few weeks who passed their credible-fear interview,” said Allegra Love, executive director of the Santa Fe Dreamers Project, who leads a team of lawyers assisting migrants in detention in New Mexico. She added, “We have never seen such a high volume of denials.”
On Tuesday, the American Civil Liberties Union filed a lawsuit in federal court challenging the new policies, which it argues violate due process “in numerous respects” and effectively close the door to asylum to people fleeing domestic abuse and gang brutality.
The lawsuit, filed in the Federal District Court for the District of Columbia, asks the judge to declare the new credible-fear policies illegal and to enjoin the government from applying the new standards.
“This is a naked attempt by the Trump administration to eviscerate our country’s asylum protections,” Jennifer Chang Newell, the managing attorney with the ACLU’s Immigrants’ Rights Project, said in a statement. “It’s clear the administration’s goal is to deny and deport as many people as possible, as quickly as possible.”
Even before President Trump’s crackdown on immigration, only about 20 percent of asylum seekers in recent years ultimately won their cases and earned the right to remain permanently in the United States. But the process can take months or years, enabling tens of thousands of people to live freely in the United States while their cases wend through the courts, especially families, because children cannot be indefinitely detained.
Historically, about 80 percent of applicants pass their initial credible-fear screening, allowing them to remain in the country for the rest of the asylum process, according to government data. That is because the credible-fear interview is a cursory assessment to determine whether a person has a chance of winning his or her case if given the opportunity to gather evidence and develop legal arguments to present before an immigration judge.
If an asylum officer decides that a person has not met the credible-fear standard, the applicant can ask for the decision to be reviewed by an immigration judge, a hearing that takes only a few minutes and results in an immediate ruling. If the judge in that case overturns the interviewer and finds a basis for a fear of persecution, the applicant can enter the immigration court system for a full trial.
Immigration lawyers and legal experts say that many migrants who in the past would likely have qualified for asylum are now being swiftly rejected.
In one case presently underway in Texas, a Honduran woman identified as K. Yadira told authorities that, over a nine-month period, she was driven to a motel and sexually assaulted at gunpoint by a man who she believed worked for the police. He threatened to kill her child every time she tried to resist him. When she moved three hours away to evade him, she said, the assailant found her.
In early June, Ms. Yadira fled Honduras with her 10-year-old son and headed to the United States. A few weeks later, from a detention center in South Texas after being separated from her child, she had a credible-fear interview over the telephone. The asylum officer determined that she did not meet the threshold to pursue protection before a court.
When Ms. Yadira appealed the decision, a judge affirmed it. Mother and child, who are now being held together in a family detention facility in Dilley, Tex., could be deported at any time.
To qualify for asylum, applicants must prove a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, which is broadly considered to include people who share a common characteristic that endangers them, with no likelihood of protection from the government. Legal scholars have debated its application; in the past, such groups as relatives of dissidents, L.G.B.T.Q. people, victims of domestic violence and people fleeing violent gangs have all qualified.
Officials now are saying that violence perpetrated by people unassociated with the government does not fit into any of those categories under the Trump administration’s new guidance.
“Our nation’s immigration laws provide for asylum to be granted to individuals who have been persecuted, or who have a well-founded fear of persecution, on account of their membership in a ‘particular social group,’” a Justice Department spokesman said. “But most victims of personal crimes do not fit this definition — no matter how vile and reprehensible the crime perpetrated against them.”
Ms. Yadira’s lawyer, Kate Chaltain, said she feels certain that, had her client been interviewed before Mr. Sessions’s changes, she likely would have passed her initial screening.
“She was told that she has no credible fear even though the officer believed what she said and that she faced further harm,” Ms. Chaltain said.
On Ms. Yadira’s official “record of negative credible-fear finding,” reviewed by The New York Times, the asylum officer had ticked the box next to a line that said, “There is no significant possibility that you could establish in a full hearing that the harm you experienced or the harm you fear is on account of your race, religion, nationality, political opinion or membership in a particular social group.”
The officer had also ticked the box next to the line that said, “There is no significant possibility that you could establish in a full hearing the entity that harmed you was/is an entity that the government was/is unable or unwilling to control. “
Paul W. Schmidt, who retired as an immigration judge in 2016, said it appears that the attorney general’s move to reinterpret judicial precedent was “very intentional — to undermine claimants from Central America.”
“Sessions has made it much, much more difficult to fit your case into a category for relief, even if you have suffered very serious harm,” said Mr. Schmidt, who served as chairman of the Board of Immigration Appeals from 1995 to 2001.
One case decided before Mr. Session’s decision provides an example of how such cases were often handled in the past. In 2015, a Guatemalan woman named Ana decided that she and her then 11-year-old daughter could no longer endure the relentless psychological and physical aggression inflicted on them by her former partner. They had reported the abuse to local police, to no avail, and finally journeyed north to seek refuge in the United States.
Ana passed the credible-fear interview and moved with her daughter to Kentucky, where a lawyer helped them make their case before an immigration judge.
In early June, a week before Mr. Sessions’s new legal guidance, Ana was granted asylum and the right to remain legally in the United States. “I thank God we can be where we are safe, instead of returning to danger,” she said.
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