• A Broken Asylum System, and How We Ended Up With Kids in Cages

    July 17, 2019 // 8 Comments »


    How did we end up with kids in cages? We put them there, across multiple administrations, and created a politicized immigration and asylum system that constrains better options. So time to stop saying this isn’t who we are and start looking beyond the hysteria.

    There are givens. Immigration restrictions are not inherently racist. All countries have borders. They have to so they can make decisions about who can enter their country and who can be a citizen.

    No nation allows people to simply move in. Every border globally is designed to place a barrier in between those allowed and those who are not. At the same time, most economies depend on the cheap labor of immigrants. For most of the developed world, labor needs are worked out via a points system that admits a regulated number of workers with designated skills coupled with border enforcement. The U.S. instead focuses on “reunification,” with family members legally in the country petitioning for relatives with unknown skills to immigrate (do we get the brother with the 4.0 GPA or the one with 3.0 murders under his belt?) Our borders have historically then been left porous to ensure an adequate number of exploitable workers. But since the number of people drawn to work usually exceeds the demand, our immigration laws also place speed bumps in front of the many, many people around the globe who want to try their luck. Inevitably you end up with kids in cages.

    Bill Clinton’s 1996 Illegal Immigration Reform and Immigrant Responsibility Act set new records for immigrants detained. Next up was George W. Bush’s 2005 Operation Streamline, a zero-tolerance plan to prosecute all illegal entrants. But to avoid the logistics and negative optics, the program made exceptions not written into the law for adults traveling with children. Nature finds a way, and more and more economic migrants arrived with somebody’s child in hand as a Get Out of Jail Free card. Fewer kids in cages, but more illegals.

    Obama initially prosecuted only those found illegally entering more than once. Caught off guard by an influx of asylum seekers from Central America, the administration in 2014 established then-legally permitted family detention centers to hold parents and children — potentially indefinitely — in cages as a means of deterring others. There were also children held alone in cages when they arrived without parents, or in the hands of human traffickers, or when their parents were criminally dangerous. The program ended only because of a 2016 court decision ordering the release of most of those hostage families and largely prohibiting family detention facilities. Adult men, women, and children, would be caged separately in the future.

    The whole Obama program got little media attention, although kids were in cages, mostly at the same facilities in use today. The holding facility at Clint, for example, currently a focal point for progressives, has been open since 2013. It was set up specifically for children. Fort Sill, Oklahoma, housed Japanese-American detainees during WWII, 1200 immigrant children during the Obama years, and will reopen to again take in immigrant children for Trump. Immigrant rights activists dubbed Obama “deporter in chief” for having deported more immigrants than any president. He still holds the title because his administration deported more migrants per year than Trump.

    While many children at the border are with parents, others arrive with human traffickers, some on their own. “Children” can include everyone from infants to 17 year old “boys,” and the dangers of housing those vulnerable people among adults of all types should make it obvious why the law is written as it is. While on the face a nice solution sounds like “parents with their own kids,” imagine the terrible things that can happen when children and adults are detained together.  Also under Trump, parents arrested at the border are criminally charged with illegal entry. Due process laws do not allow children to be kept with the parent because the child is not being criminally prosecuted.

     

    Trump set out in April 2018 to prosecute every illegal crosser, first or tenth time, with or without kids, the letter of the law. There had been a growing rise in the number of people from the Northern Triangle (Honduras, Guatemala, and El Salvador) along with Mexico. For example, the border patrol detained 6,405 unaccompanied children in May 2018, up from 4,302 in April. In comparison with May 2017, the number of unaccompanied children soared by 329% and parents migrating with kids as a family surged by 435% in 2018.

    By law now children and adults cannot be detained together; it was allowed during the Obama years and earlier under the Flores Settlement. Most parents arrested at the border are criminally charged with illegal entry. Due process laws do not allow children to be kept with the parent because the child is not being prosecuted. Overall, interpreting what these laws say must be done versus can be done to end up at what should be done draws some very fine, politically-motivated legal lines.

    What is clear is by ending the various catch-and-release, and ignore and don’t catch policies of his predecessors, Trump triggered the next variation on an old problem. With no legal avenue to immigrate for work, and with border enforcement stopping many from simply walking north and blending into the estimated 11 million illegals already in the U.S., a vast number of economic migrants now ask for asylum. They are aided by for-illegal profit asylum cartels, staff from a Democratic Congresswoman’s office, and volunteer American lawyers.

     

    Asylum applicants must demonstrate if sent home they would be persecuted on account of race, religion, nationality, political opinion, or social group. The definition of those five protected grounds has varied based on American domestic politics. For example, since 1994, LGBT status has been a possible grounds of asylum. Victims of domestic violence were granted consideration for asylum under the Obama administration, rolled back under Trump. However, asylum never has been and was never intended to stretch to security or economic situations affecting blanket-like most everyone in a country. “Wanting a better life” has never been grounds for an asylum claim.

    However, economic immigrants without legitimate claims to asylum have long taken advantage of slow processing by American authorities. A Mexican man caught on the border who says he came just to work may be sent back almost immediately. However, should he make a claim to asylum, the U.S. is obligated to adjudicate his case, however frivolous (there are potential expedited processes.)

     

    The 1996 Illegal Immigration Reform and Immigrant Responsibility Act requires those seeking asylum be detained while their cases are processed. But for logistical and political reasons, prior administrations simply released most asylum seekers into American society to wait. Asylum seekers become eligible for work authorization if their case has been pending for more than 150 days, as almost all do. Trump has directed the letter of the law be followed, ending this catch-and-release system. He also has negotiated for many asylum seekers to wait out their cases in Mexico instead of working the while in the U.S.

    The problem is the backlogs are unresolvable. Affirmative asylum seekers, such as most of those now at the border, apply administratively through DHS. The number of such pending cases as of January 2019 was 325,277, more than 50 times higher than in January 2010. Defensive seekers are those applying for asylum once facing deportation or removal for some reason, including being denied under an earlier affirmative application. These cases go through the courts. As of July 2018, there were over 733,000 pending. The average wait time for a hearing was a staggering 721 days.

    The approval rates for asylum claims are low, and always have been. Some recent figures for Mexican claimant approvals are 12%, Salvadorans 21%, Honduras 22%, and Guatemalans 26%. Those countries account for more than 40% of asylum applications, and have for some time. The high refusal rates, while up under Trump, are not at odds historically. In 1984, only 3% of asylum cases from El Salvador and Guatemala were granted, even as U.S.-sponsored wars raged there. Approval rates for all nationalities over the past decade average only 28%, skewed high over recent years by waves of cases designed to pander to general U.S. voters (Chinese pro-democracy applicants) and evangelical voters (Chinese anti-One Child Policy applicants.)

     

    But as we talk there are still kids in cages. None of this is to defend the conditions in detainee camps. Those are a result of a sudden shift in implementation of immigration law coupled with a lack of infrastructure planning, driven by a president who impulsively wants to be seen as “tough” facing down a problem, all backed by an asylum system no longer suited for the conditions imposed on it. Conditions can be quickly improved, and the House just voted $4.6 billion to do that.

    But we need also acknowledge the dangers in 2019 of hysteria, driven by media and progressive politicians exploiting the situation to paint themselves as liberating another concentration camp on the road to Berlin, when the immediate solutions are more in line with hygiene kits and child care workers. And no whataboutism. Under Obama we tolerated kids in cages. Without that tolerance then we would not have the intolerant situation now.

    But there are deeper dangers. Progressives don’t want to fix Trump’s logistical mistakes (AOC and others voted against the recent humanitarian funding increases.) The camps must not be made more humane, they say, they must be closed. Deportations must not be limited, they must be ended by decriminalizing illegal entry. Free medical care for illegal immigrants. Asylum to economic migrants. Abolish ICE. Open borders.

    Meanwhile, Trump’s immigration policies resonate with important sectors of the public. Some 60% of likely voters support efforts to “prevent migrants from making fraudulent asylum claims and being released into the country.” This does not grow from racism or white supremacy (Latinos support much of the Republican immigration agenda), though using those words is an easy way to blame people impacted by decades of imposed change and delete them from the conversation on how to do better.

    The driver seems to be the imposition by elites of an uncounted number of illegal immigrants with unknown skills and unknown criminal backgrounds to have an unknown impact on the places they choose to settle. Do we get the guy with the 4.0 GPA or the one who committed 4.0 murders? We are destined — required — to take the bad with the good, scatter them around the country, and hope for the best.

    So when economic turmoil in Mexico during the early 1990s pushed migrants north, just as war in Central America drove them in the 1980s, and gang violence does today, in America there is no plan. Tired, consumed, with resources stretched, there was a backlash building Trump sensed and acted on. As Trump was unprepared at the border and told DHS to make do, America for decades has been unprepared and told to make due. A de facto open border similar to 2015 Europe imposed by progressives would have the same effect here as there, leading to a new, even more conservative backlash.

     

    The peak year for legal immigration to America was 1907. Your great-grandfather entered an agricultural and rapidly industrializing nation desperate for workers with no time to waste putting kids in cages. To get them out today we need more than olde timey nostalgia and modern outrage. We need a 21st century asylum and immigration policy.

     

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    Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

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    Is it still a secret if everyone knows?

    April 27, 2011 // Comments Off on Is it still a secret if everyone knows?

    secretsIs it still a secret if everyone knows?

    Such is the dilemma Wikileaks poses for the government. Fearful to verify that anything on Wikileaks is authentic, and doubtless seeking to preserve the ironic freedom to prosecute anyone, someone, somewhere, someday for the leaks, the US Government insists on treating information available to anyone with Internet access as still highly classified.

    It works like this. The latest tranche of files from Wikileaks, published this week by the New York Times and others, includes extensive information from (ok, allegedly) Guantanamo. Sit down in an Internet café in Karachi or Kabul and read to your heart’s content interrogation notes and prisoner records. This is of course presuming you are not a defense attorney for one of those held in Guantanamo.

    If you are a defense attorney, then the US Department of Justice has already informed you that the documents remain legally classified even after they were made public. Because you the lawyer were granted a security clearance to enable you to even meet with your client, you are obligated to treat the readily available files “in accordance with all relevant security precautions and safeguards,” handling them, for example, only in secure government facilities. Somehow, if DOJ caught you working with the files in an Internet café, you could lose your security clearance.

    These kinds of fear-mongering rules have lead to some bizarre situations. A friend at ICE says that visa extension applications that include Wikileaked docs as proof of persecution, printed off the web, have to be treated as classified inside the office and stored accordingly to avoid a security violation by the ICE worker (not the potential beneficiary, who is somehow not covered by the security laws.) Another colleague who has legitimate access to classified material told me that he finds the search functions for Wikileaks available through the Guardian newspaper so superior to the government’s internal search tools that he now routinely looks for documents online, makes notes, and then later doubles back to cite official references in his in-house drafting.

    The State Department issued very clear guidance to its employees about viewing Wikileaked material on their work computers:

    Personnel are reminded that unauthorized disclosure of classified documents in the media (print, blog, website) does not mean that the documents have been declassified. You must continue to abide by the classification markings on any documents in your possession and handle them with the appropriate protections, even when they have been posted on Internet websites.

    If a State Department employee wants to save some of the documents for a clearly work-related reason, s/he “should put all saved documents in a computer directory folder that begins as ‘Wikileaks published material’. Any classification markings on the downloaded material should be retained. If any such material is printed out, however, it must be handled as a classified document and stored in a classified container.”

    So, if you download a still-classified document from the web, you can store it on your unclassified computer. However, if you print that same document out, it must be stored in a safe rated for classified material. Got it?

    The State Department has also used its firewall software to block some Wikileaks sites inside Foggy Bottom, including of course the main Wikileaks page, but also a number of blogs (a favorite, Toms Dispatch, is among the blocked sites months after a limited reference to the leaked data.) One is tempted to shout “Censorship!” but realistically it is just likely bureaucratic idleness about adjusting the software. Bigger media outlets, such as the New York Times and the Washington Post, which routinely publish Wikileaked material, are not blocked.

    Many State employees, spooked over fear of security violations, only access routine articles on Wikileaks from their home computers. The New York Times reported that in December, Columbia University warned international relations students that commenting on the documents disclosed by WikiLeaks online or linking to them might endanger their chances of getting a government job. The same month, the United States Agency for International Development told workers that viewing the documents on an unclassified computer at work or home could violate security rules that govern their employment. In February, an Air Force unit cautioned that employees and even their family members could be prosecuted under the Espionage Act for looking at the WikiLeaks documents at home.

    People end up going along with these makes-no-sense rules. Fear is perhaps the most powerful tool available in a police state, and as effective a means of control as any taser. My dog won’t leave the yard for fear of being whacked with a rolled up newspaper, even when no one is around to enforce the rules. We don’t have or need a fence. She has learned that getting along under an authoritarian regime means remembering to allow fear to control her, however absurd the rules and however unlikely the punishment.

    Woof! Good doggy gets a Scooby snack!



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    Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

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