Making the Case for Asylum Seekers

The KBI’s commitment to asylum seekers remains steadfast as research reveals the great need for advocacy in this area and a new legal fellow takes up the challenge of helping to build strong cases for those seeking asylum.

As part of its humanitarian aid and advocacy efforts on behalf of migrants, the Kino Border Initiative has worked with partner organizations to promote the rights of asylum seekers. This month, the KBI expands this programming with its first legal fellow, co-sponsored by the Florence Immigrant & Refugee Rights Project (FIRRP). The fellow will provide legal representation to asylum seekers who arrive at the KBI comedor and shelter, and support research and advocacy to improve the asylum process and advance asylum law.

ASYLUM: SOME BACKGROUND

The option to enter into an asylum process is recognized as a basic human right. As established by the United Nations in 1951, a person qualifies for asylum when they demonstrate a well-founded fear of persecution in their home country, currently or in the future, based on race, religion, nationality, social group, or political opinion. The U.S. agreed to this Protocol and further formalized these requirements in the Refugee Act of 1980. Nevertheless, there have been inconsistencies in applying the law and in providing people with access to the asylum process. For example, research from the KBI and other organizations shows that Customs and Border Control (CBP) and Immigration and Customs Enforcement (ICE) repeatedly fail to screen for asylum claims or screen inadequately, and many individuals and families who express fear of returning to their homelands are deported back to the dangerous situations they fled. Between November 2015 and March 2017, the KBI filed 22 complaints on behalf of individuals who expressed fear of returning to Mexico, but were turned back or deported without being interviewed by an asylum officer.

The reasons people seek asylum are varied, but ultimately arise from scenarios in which individuals not only fear for their safety, but their lives. Violence in various forms—murder, rape, extortion, incarceration and torture, armed conflict—perpetrated by criminal gangs, tribal adversaries, or state-sanctioned forces and targeting specific groups, create untenable conditions in which to live, work, and raise children. A general rise in violence, such as the spike in homicides in Mexico, is not sufficient to meet the criteria for asylum; asylum applicants must show that they are particularly targeted for one of the reasons listed in the U.N. Protocol, and that the country where they live is unable to protect them.

And so the woman threatened by a group who tortured and killed her brother, a man suffering persecution and harassment for his sexual orientation, and a woman from a town where gangs are targeting and raping women—to name a few cases in which the KBI filed complaints for failure to provide asylum access—all have grounds to submit asylum claims. Though they each expressed fear about returning to their home country of Mexico, they were deported without ever being screened by an asylum officer who, unlike CBP agents or ICE officials, is specially trained for this sensitive task.

OBSTACLES TO SEEKING ASYLUM

Obstructing access to the asylum process or providing misinformation about it is human rights violation and a life-and-death matter, plain and simple. There is no way to track exactly how many potential asylum seekers are turned away at the border, poorly screened, or deported without screening, but based on data collected from intake surveys at the comedor during the first eight months of 2016, the KBI estimates that approximately 40 Mexican individuals are deported to Nogales, Sonora each month without being afforded an interview with an asylum officer and despite reporting violence as their main reason for migration. And this statistic does not include potential asylum seekers from other countries of origin who experience similar obstacles.

Through testimonies from those deported and other data, the KBI has identified three major sources of obstruction for asylum seekers, and therefore, areas for more focused attention and action: (1) inadequate screening and rejection of initial claims by CBP; (2) the nature and conditions of long-term detention in ICE facilities; and (3) access to legal representation.

At the border and in the short-term detention facilities run by CBP, a number of factors converge, complicating or preventing initial access to the asylum process. They include:

• Detention conditions in which individuals are held for several days as they await expedited removal, a consolidated process that rushes people through deportation proceedings without adequately considering grounds for claims. The cells are sparse, intimidating, and lacking the privacy in which those detained can feel encouraged to report fear. Moreover, according to KBI statistics, 14% of men and 20% of women report experiencing verbal abuse while in CBP custody, subjecting them to further intimidation.
• Poor training of CBP staff who often fail to identify or report expressions of fear. While an asylum officer is the official tasked with investigating asylum claims and conducting credible fear interviews, CBP agents can ensure that people are appropriately referred to the asylum process through specialized training in trauma awareness, greater sensitivity (for example, having female officers interview female migrants), and more widespread use of language services when indigenous individuals are interviewed.
• Willful dismissal or discouragement of asylum claims. Even when detained individuals express fear, CBP agents often ignore these indicators, discourage claims, or provide false information about the asylum process, such as asserting someone’s ineligibility or directing them to present themselves at a port of entry. Greater oversight, video recording, and spot checks for compliance would help deter these abuses, and will be even more necessary with the planned expansion of CBP, a concern for training since the rapid addition of 5,000 more agents means qualification and training standards may fall.

Some of these obstacles also apply in the detention centers operated by ICE, but long-term detention presents other stresses and issues for those detained. Detentions have become more prolonged (averaging 404 days, and costing taxpayers $158 per day for each detainee), due in part to the unprecedented backlog in immigration courts. In addition, conditions are worse, as privately-run centers make expenditure decisions about staff supervision, health care, and occupancy based on profit rather than humane treatment. Family members are often separated and sent to different facilities, routing their asylum cases separately when they’d be strongest if considered together. The KBI and other organizations call for the elimination of detention as the primary means of securing court appearances, and espouses the use of community-based compliance methods, such as release on recognizance and posting bond.

Finally, many asylum seekers fail to submit claims to begin with or lose their cases when granted a hearing due to a lack of legal counsel and expertise. Access to attorneys with the knowledge and experience to build a compelling asylum case and navigate the intricacies of asylum law is one of the major prerequisites to a successful asylum claim. Migrants in detention are four times more likely to be released if they have legal representation. Of those who remain in detention, 21% who have legal representation qualify for legal relief compared to 2% without legal representation.[1] This is a major reason for expanding advocacy to include the new KBI/FIRRP legal fellow who will represent asylum seekers served by the KBI and in need of counsel.

In addition, informed and strategic legal defenses help to advance asylum law and the manner in which future cases are tried by establishing new precedents. For example, seeking asylum based on domestic violence proved impossible for decades—domestic abuse survivors were not recognized as a persecuted group. But a landmark case in 2014 brought by a U.C. Hastings legal team changed that by winning asylum for a Guatemalan woman who suffered brutal assaults, rapes, and burns by her husband. Her lawyers asserted that the government failed to intervene or protect the woman, thereby discriminating against her and violating her human rights. At that time, the Board of Immigration Appeals issued the precedent decision of recognizing domestic violence as grounds for asylum and women who flee such persecution as members of a particular social group. With up to half of detained immigrant women fleeing domestic violence (based on estimates from advocacy organizations), this precedent supports asylum seekers and their lawyers in litigating these cases and, ultimately, in saving lives.

For the KBI, this legal realm—working on individual asylum cases while establishing law-reforming, life-altering precedents—is the next area of dedicated advocacy on behalf of asylum seekers. While continuing to work toward more compassionate immigration law through legislative means, the KBI recognizes that some of the most powerful changes can come about in a courtroom. As the new legal fellow joins the KBI staff, we enhance our ability to more directly serve those fleeing violence and persecution, and help them attain safer, better lives in the U.S.

[1] According to data from the Executive Office for Immigration Review.