Jurisprudence

Trump’s New Plan to Make Asylum-Seekers Suffer As Much As Possible

Border Patrol agents and other law enforcement officials engage in a training exercise in San Ysidro, California, on Nov. 22.
Border Patrol agents and other law enforcement officials engage in a training exercise in San Ysidro, California, on Nov. 22.
Sandy Huffaker/AFP/Getty Images

On Thursday, the Trump administration announced it was taking the “unprecedented action” of establishing a new set of restrictions on asylum-seekers attempting to enter the United States at the southern border. These restrictions, which were first described in the press last year as a “Remain in Mexico” policy, are now dubbed “migrant protection protocols.” Instead of being allowed to enter the United States to pursue asylum claims either while living freely in the U.S. or while held in immigration detention, asylum-seekers will be returned to Mexico to wait for their asylum hearings. It remains unclear how this policy will play out, as the three-page policy memo offered no substantive administrative guidance to officers charged with implementing the changes, which are reportedly set to begin in California before expanding across the entire border.

It is also unclear what type of status, if any, migrants waiting in Mexico will have while they wait for their asylum claims to be decided, or how the asylum-seekers will be able to obtain counsel or prepare their immigration cases while kept outside the country. The policy seems designed to make seeking asylum so arduous, so difficult, and so hopeless that migrants give up on attempting to seek refuge at all.

This strategy of making the lives of immigrants so horrific that they give up on dreams of living in the United States without being formally forced away isn’t new. In fact, such “attrition through enforcement” has been one of the most prevalent strategies of hard-line anti-immigration groups. The idea of attrition through enforcement has been attributed to both Kris Kobach, the erstwhile Kansas secretary of state and leader of Trump’s defunct Commission on Election Integrity, and Mark Krikorian, executive director of the anti-immigrant Center of Immigration Studies.

At its most basic, attrition through enforcement seeks to avoid the expensive and controversial spectacle of mass deportations by making life so difficult for immigrants that they “self-deport,” as former GOP presidential nominee and current Utah Sen. Mitt Romney famously described it. This has involved deterring new immigration, increasing deportations, and “most importantly” increasing the rate of individuals leaving the United States without official deportation orders. Attrition through enforcement was first conceived of as a federal strategy, but its supporters quickly realized that there were more ways to make life miserable for undocumented immigrants.

State-level restrictions, which are much easier to pass and implement than national initiatives, quickly became the preferred method of punishment and deprivation. Kobach, in particular, became something of a national traveling salesman, selling local anti-immigrant legislation to cities and states and then raking in hundreds of thousands of dollars when municipalities ended up hiring him to defend themselves in federal lawsuits, which inevitably found the laws to be unconstitutional. In 2006, he convinced Valley Park, Missouri to adopt a strict anti-immigrant ordinance that punished employers for hiring undocumented workers. Farmer’s Branch, Texas, approved a similar ordinance that punished landlords for renting to undocumented immigrants on Kobach’s suggestion. The same thing happened in Fremont, Nebraska. All of these laws were rendered unenforceable either by the courts, or by logistical challenges.

Kobach was also largely responsible for Arizona’s controversial SB 1070, which made it a criminal act to exist in Arizona without legal status, required local law enforcement to attempt to verify the immigration status of Arizona residents, and criminalized housing, hiring or transporting undocumented residents. Part of SB 1070’s written intent was “attrition through enforcement,” by “discourage[ing] and deter[ing] the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” SB 1070 litigation reached all the way to the Supreme Court, where most of the law was invalidated.

He was also behind Alabama’s HB 56, which required that police attempt to determine immigration status during legal stops, prohibited undocumented immigrants from receiving state or local public benefits, and required public primary schools to determine the immigration status of all students. Undocumented students were outright barred from attending public universities and colleges. It also made it illegal to rent property to undocumented immigrants, or to transport or house undocumented immigrants. The courts blocked parts of HB 56, and Alabama eventually rescinded other provisions of the law after public backlash.

What all of these laws have in common is that they sought to decrease the number of immigrants without actually changing federal immigration law itself. They amounted to a campaign of targeted harassment against Hispanic and Latino residents in the hopes of making their lives so miserable that they simply left. They were also eventually almost entirely gutted by federal courts after prolonged and expensive legal battles.

Although most of these laws objectively failed, Kobach was brought on as an immigration adviser to Trump. In his new position, he continued to tout the benefits of “self-deportation,” telling Fox News, “The jobs are going to dry up, the welfare benefits are going to dry up, and a lot of people who may not be criminal aliens may decide, ‘hey, it’s getting hard to disobey federal law,’ and may leave on their own.”

Now, the administration is taking its own attrition through enforcement efforts to a new level. In addition to attempting to force the “self-deportation” of those without legal status in the interior of the United States, they are now pushing attrition on those engaged in the perfectly legal act of seeking asylum.

It is clear that the new policy is designed to make the lives of these asylum-seekers so miserable that they give up. The policy advisory itself boasts that “migrants with non-meritorious or even fraudulent claims will no longer have an incentive for making the journey,” presumably because they will be forced to wait in notoriously dangerous Mexican border cities for what could be years to make their case in court. There is no guarantee that the waiting asylum-seekers will be given permission to work or provided with shelter or food assistance from Mexico. Asylum-seekers are already subject to deplorable conditions, and at least two have been killed while waiting to enter the United States.

The underlying intent of the remain in Mexico policy, just as with Kobach’s misguided state policies, is for asylum-seekers to simply give up and leave, which would presumably shrink the immigration court backlog and avoid the other controversial enforcement mechanisms Trump has struggled to implement, like family separation and detaining unaccompanied minors in rural tent camps.

The problem with this plan is twofold. First, the new implementation will undoubtedly be delayed by courts as the protocols seem to contradict our immigration law and international human rights law. Under the Immigration and Nationality Act, asylum-seekers who pass their credible fear interview should be allowed to remain in the United States while their claims are pending. Section 235(b)(2)(C), which allows the United States to return “aliens arriving from contiguous territory” to that territory and which DHS cites as the legal basis for the new protocol, doesn’t actually seem to apply to asylum-seekers, whose presence in the U.S. is governed by a different section of the INA. Additionally, the policy may violate our obligations under the Refugee Convention and U.N. Convention Against Torture, which prohibit us from returning individuals to countries where they face a threat to their life or freedom, or where they could be tortured.

The bigger problem for attrition through enforcement is that asylum-seekers are not a pest that can be eliminated with more violence. Asylum-seekers are leaving their home countries because they have no choice, because they are desperate for a chance, no matter how small, of safety. So long as human misery and oppression exist, so will asylum-seekers arriving at our doorstep. The only question is for how long we will continue to offer cruel and ineffective attempts at attrition to block their access to the United States instead of implementing meaningful, humanitarian resettlement policies.