WASHINGTON, January 23, 2019 — Despite promises to the contrary, legislation Republicans are promoting as a “compromise” to reopen the government is actually a vehicle for sweeping changes to the American asylum system.
Administration officials have spent the days since President Trump announced the proposal promoting it as a bipartisan compromise, packed with incentives meant to lure Democratic support. The Senate is expected to take up the measure sometime on Thursday, which will be the 33rd day of the longest partial government shutdown in American history.
One provision that White House officials have touted as a concession to Democrats would provide for a temporary extension to the Deferred Action for Child Arrivals program, which allows certain people whose parents brought them to the US illegally as children to obtain temporary work and residence permits. Also included is language to extend Temporary Protected Status to a small number of foreign nationals from disaster-stricken countries.
Democrats have universally panned both the DACA and TPS provisions as fixes to the president’s own messes, created when he and his administration unilaterally ended both programs during his first year in office.
The DACA extension, however, became a moot point this week after the Supreme Court declined to hear the Justice Department’s appeal of a lower court decision which allows existing DACA recipients to renew their permits.
Although the DACA and TPS provisions give the appearance that Republicans are giving away something in a form of legislative horse-trading, buried towards the end of the bill is language that would take away processes and programs supported by Democrats and immigration advocates.
The asylum provisions contained in the Central American Minors Protection Act would render unaccompanied minors from South and Central America ineligible for asylum unless they apply at processing centers in their home countries or at to-be-determined locations. Arriving in the United States without a parent or guardian would also render one ineligible for asylum.
The bill would also strip courts and immigration judges of any jurisdiction to review most asylum denials, while handing that duty over to Department of Homeland Security officials answerable only to the executive branch. It would also expand the circumstances under which an asylum seeker’s claim could be deemed frivolous, a determination which can carry severe sanctions.
One Justice Department official close to the process said the attempt to deny asylum seekers due process is more of the same for the Trump administration.
“They believe that these people are not Americans and are not entitled to the same rights that Americans have. They would like to write asylum out of the law because they do not believe America will survive if we give away too much of our pie,” said the official.
The official suggested the current “border crisis” is a direct result of the administration’s deliberate overloading of the immigration court system in hopes that the public will accept the whole system being thrown out and replaced by one in which almost no one can find refuge in the United States.
“They do things to make it almost impossible for someone to win their case, because they don’t believe these people should be allowed to remain in the United States,” the official said. “They don’t have the votes to change it so they’re delegitimizing it and making it dysfunctional.”
The official was particularly concerned about the possibility of the law being changed to put asylum determinations under the purview DHS officials, and noted that when DHS officials make removal decisions, their rejection rate is “very high” compared with the immigration courts.
“The law…does not lend itself to rushing through these situations,” said the official, who pointed to the president’s recent televised speech in which he once again ridiculed the idea of giving asylum seekers access to immigration courts.
“This administration is completely at odds with the existing legal structure. They do understand the law, but they don’t believe the fundamental basis of it is correct.”
Corroborating the Justice Department official’s clams, one former Immigration and Customs Enforcement official who spoke with BeltwayBreakfast also suggested that the end goal is actually to overwhelm the system. At that point. there will no longer be enough resources to provide asylum-seekers and other immigrants with the due process rights they are owed under current law.
But a senior DHS official whom the administration made available to reporters late Tuesday said the purpose of the legislation is not to limit anyone with “legitimate” claims of asylum.
“We believe that the provisions will actually encourage more people with legitimate claims to asylum” by making it easier for them to apply, he said, adding that it is “apparent to everyone” that there are “widespread” frivolous claims.
American Immigration Council Policy Analyst Aaron Reichlin-Melnick disputed the administration’s claim that many asylum claims are fraudulent.
“Just because somebody loses their asylum case, that doesn’t mean that they didn’t have a fear of persecution in their home country. It’s just that their fear may have fallen within grounds that didn’t qualify for asylum under the law,” he said, noting that the attorney general already has great discretion to interpret the statutory ground on which asylum is granted.
Reichlin-Melnick said the proposed changes reflect a disdain for the idea that asylum seekers are entitled to due process.
“The administration has characterized the basic fundamental principle that America will act as a refuge for those fleeing persecution as a loophole,” he said. “Everyone has the right at least to go through the asylum process and the administration would prefer to cut off access to the asylum process rather than deal with all asylum seekers in general.”
Tennessee-based immigration lawyer Greg Siskind suggested that the asylum provisions in the White House bill show that the Trump administration isn’t serious about actually reforming the immigration system or reopening the government, particularly since they’ve appeared in several previous immigration bills.
“They’re poison pills,” Siskind said. “For Democrats, it would be politically disastrous to vote for them to sign off on that stuff, so it makes one wonder what their purpose is other than to antagonize.”
Siskind echoed the sentiments of the Justice Department and ICE officials by suggesting that the Trump administration don’t want anyone to be able to apply.
“They don’t want people applying for asylum — that’s the bottom line,” Siskind said. “There’s just one thing after another that’s designed to make the U.S. asylum system as unattractive and unavailable as possible.”
Despite the administration’s hopes that sufficient Democratic votes could be found to end debate on the measure, the bill has encountered a reception as chilly as the subfreezing temperatures that have gripped Washington in recent days. Without Democratic support, the Republican proposal is not expected to garner the 60 votes Senate rules require to end debate on Thursday.
Asked about her expectations for Thursday’s vote, White House Press Secretary Sarah Huckabee Sanders was far from confident, telling reporters that she hopes the bill would be successful.
Sanders appeared to preview the administration’s strategy for confronting the bill’s eventual failure by suggesting the sole responsibility for a lack of a deal would fall on Senate Democrats.