Republican lawmakers are suddenly very concerned with asylum fraud. Senate Judiciary Committee Chairman Lindsey Graham is proceeding with a partisan asylum reform proposal because his discussions with Senate Minority Whip Dick Durbin are “going nowhere.” President Donald Trump believes current asylum laws are riddled with “loopholes” that allow illegitimate asylum-seekers to “abuse” the system. Thus, Graham wants to authorize the detention of asylum-seekers—including families and children—for longer periods, because of the “tsunami of people coming and gaming the system.” Graham’s legislation would require Central American immigrants to apply for asylum in their home countries or Mexico and extend current detention requirements. Some Republicans on the committee have sought an even more hard-line approach.
This suspicion of asylum-seekers flies in the face of the United States’ responsibility to uphold human rights. I was privileged to be part of the legal team in the 1987 Supreme Court precedent-setting asylum case Immigration and Naturalization Service v. Cardoza-Fonseca. Writing for the majority (with Justice Antonin Scalia concurring*), Justice John Paul Stevens recognized the United States’ international humanitarian obligations to asylum-seekers by interpreting the law’s “well-founded fear of persecution” standard generously: “One can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place. … There is simply no room in the United Nations’ definition for concluding that because an applicant only has a 10% chance of being shot, tortured, or otherwise persecuted, that he or she has no ‘well-founded fear’ of the event happening.”
After handling asylum cases for more than 40 years—including Central American migrants in the 1980s as well as today—I can attest to the fact that my clients are not “gaming the system.” The law school clinic that I help to direct accepts clients in order and does not cherry-pick those with the “best” claims because all are desperate for assistance.
Take the case of our client Alberto, a teenager from Guatemala. His friend Eddie was attacked and beaten up badly for refusing to join the 18th Street Gang. Afterward, Eddie hid at his mother’s house and stopped playing soccer with Alberto because the gangsters were always at the field looking for him. His family reported this to the police, and within two weeks, Eddie was shot and killed. Then the gang came after Alberto, threatening to kill him if he did not join the gang, so he fled to the United States. Another client is Julia from El Salvador. She refused to dance with a gang member at a community event. He wanted her to be a gang “girlfriend.” Days later in the plaza, the gang member drove his car right at Julia, knocking her unconscious and causing internal injuries and permanent damage to her right leg. Another client from Guatemala, Cesar, did join a gang while imprisoned for non-gang activities. He is tattooed head to toe. After getting out of prison he tried to disavow his gang affiliation to no avail; he was immediately targeted by the gang he tried to quit as well as by the rival gang. These asylum applicants fled to the United States out of fear of certain death. They are not trying to abuse the system. Put yourself in their shoes—you would have fled to the United States as well to seek protection.
My conversations with asylum-seekers who are not my clients yield consistent findings. While volunteering to meet with caravan members gathered in Tijuana at the end of February, I heard the same stories of desperation and fear. In March, I traveled to Honduras, consulting with human rights activists who introduced me to families contemplating the trek to the United States because of persecution by local officials as well as cartel and gang members. In June, when I interviewed children in Border Patrol custody in Clint, Texas, over and over again, I heard stories of the need to flee because of the pervasive violence in their countries.
We should be granting protection to these Central American migrants. They are not coming for the adventure. Many are getting discouraged or turned away by strict policies implemented by the Trump administration at the border. For those who get to apply for asylum, only about one in five Central Americans get approved. The asylum process is complicated for a person to navigate on their own. An applicant is five times more likely to prevail with an attorney, but the government does not provide a free attorney, and legal services programs are not able to handle the pressing need for legal representation across the country.
Perhaps it is human nature for adjudicators to be skeptical that the alleged danger is real. But that is not what the court demanded in Cardoza-Fonseca. Asylum reform is needed, but not in the direction that Trump and Graham would lead us. Something more needs to be done to ensure that the principles of our nation’s international refugee obligations will be followed.
Correction, July 30, 2019: This piece originally misstated that Scalia joined the majority opinion in INS v. Cardoza-Fonseca. He concurred in the judgment but did not join the majority opinion.