President Trump said last week that he wanted the Department of Homeland Security to go in a “tougher direction.” He and top immigration adviser Stephen Miller appear to be trying to get rid of anyone who might tell them that “tougher direction” might be a bad idea — or illegal.
First, Trump withdrew the nomination of Ron Vitiello to permanently head Immigration and Customs Enforcement. Then on Sunday night, he pressured Homeland Security Secretary Kirstjen Nielsen to resign and named Customs and Border Protection Commissioner Kevin McAleenan acting secretary in her stead. (The official who was supposed to succeed Nielsen under federal vacancy law, Undersecretary Claire Grady, resigned Tuesday evening — presumably so that McAleenan could serve as acting secretary instead.)
The administration appears to be putting out rumors that two more DHS figures — the general counsel and US Citizenship and Immigration Services director — are “heading out the door.”
Neither has left yet, and USCIS officials told staff on a call Tuesday that director Francis Cissna is not resigning — raising the possibility that the rumors are coming from somebody who wants both top officials gone.
This wasn’t just a personality clash. According to multiple reports, there are things Trump wanted done that Nielsen wouldn’t do. Reports from Axios published Tuesday morning, and from NBC News and other outlets later in the day, identify both a new agenda that the White House wants to move forward with ASAP (leading with making it harder for asylum seekers to pass their initial screenings to avoid immediate deportation) and some options the administration wants to keep on the table — like reinstating a version of the family separation policy of 2018.
Some of the policies being tossed around are general wish-list items, such as finalizing a regulation that would make it easier to deny green cards to legal immigrants who might use public benefits.
But many of them specifically target the people currently coming to the US without papers — an unprecedented number of families, many of them seeking asylum.
The general vibe of the post-purge asylum crackdown is that the White House is tired of hearing from DHS officials that the things it wants to do are illegal. The general counsel, John Mitnick, is supposed to be in charge of evaluating legality of policy — and a White House source described Mitnick as a “chickenshit lawyer” to Philip Wegmann of RealClearNews for his uneasiness about White House ideas.
Cissna, meanwhile, is generally seen as an immigration hawk who shares the Trump/Miller agenda of cracking down on asylum seekers and reducing legal immigration into the US. But as one source (who asked to remain unnamed so as not to get in the middle of the personnel dispute) described him to Vox, “Francis is a careful, by-the-book lawyer and not likely to push the envelope.”
Miller, who has no legal training, is ready to start pushing that envelope.
It’s not yet clear whether the officials left at DHS will be willing to do the White House’s bidding. Even if they were, it’s not clear whether any of the policies they want would, in fact, be deemed legal by federal judges. But it’s very clear that the White House is no longer interested in being told not to try.
The White House’s frustration with Cissna, who is someone generally on their side, is apparently rooted in the role his agency plays in the process for immigrants who come to the US seeking asylum without papers. The administration appears to believe that more migrants should be deported without being allowed to apply for asylum at all.
The Trump White House has long maintained that there is widespread “fraud” among asylum seekers. Officials routinely argue that only 10 to 15 percent of Central American asylum applicants are ultimately given asylum by a judge, using it as evidence not only that the remaining 85 to 90 percent aren’t ultimately eligible for asylum but that many or most of them were lying their way into the US the whole time. (The real approval rate might be as high as 24 percent — and even that is somewhat misleading because it doesn’t count other forms of legal status that applicants might get.)
So the administration’s proposed solution is to get tougher with the screening interviews people have to pass in order to apply for asylum to begin with.
Somebody who comes to the US without papers is eligible to be deported without trial unless they tell an official they’re afraid of being returned to their home country. If they say that, US law requires the government to give them an interview with a trained asylum officer to see if they have a “credible fear of persecution” that could make them eligible for asylum in the US.
The “credible fear” standard written into US law is deliberately generous. The standard for ultimately approving an asylum application, as a Supreme Court case put it, is that there’s a one-in-10 (or higher) chance that the asylum seeker would be persecuted if returned to their home country. The standard for credible fear, which allows them to apply in the first place, is only a “significant possibility” that the migrant would ultimately meet that one-in-10 standard.
Asylum officers are supposed to “take into account the credibility” of the asylum seeker, “and other facts known to the officer,” in making their assessments. This is where it seems like the White House wants to get tougher; a White House official told Axios that they want to “apply greater rigor and scrutiny to these [asylum] claims rather than credulously accepting what’s said.”
But right now asylum officers don’t simply “accept what’s said.” Training put out by the Trump administration in 2017 encourages asylum officers to probe the asylum seeker’s credibility, and requires asylum seekers to meet a higher standard to prove their identity than had been required under Obama. It didn’t affect approval rates.
The White House might try to sway asylum officers — one idea is to force them to compare asylum seekers’ testimony to State Department country reports, for example — but it can’t force them to flunk a certain number of asylum applicants.
“I think they’ve hit the limit of everything they can do on the credible fear side” under existing law, one congressional staffer told Vox.
The White House appears to disagree.
In particular, they believe that having Customs and Border Protection officers do the screening interviews, rather than professional asylum officers from US Citizenship and Immigration Services, will result in fewer people being found “credible” and passing the screening.
Last week, an official in the Border Patrol agents union told the Washington Times that they would start conducting some screening interviews in as little as two weeks. But more recent reports don’t have that timeline.
The law doesn’t bar Border Patrol officers from doing this, but it does say that the person conducting the screenings has to have “had professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators of applications.”
Given that asylum officers — the “full-time adjudicators” — are given several-weeks-long training courses and weekly professional development seminars, it’s extremely unlikely that an already overloaded Border Patrol corps will be able to meet that standard.
Additionally, asylum seekers are allowed to appeal to an immigration judge if they fail their screening interviews. And while judges are overturning fewer negative determinations than they used to, they may well have a more lenient credibility standard than Border Patrol agents do.
The most well-developed policy option on the table is something it and DHS have been considering, on and off, for several months: a partial reinstatement of widespread family separation for families who enter the US without papers.
This doesn’t appear to be something the White House is pushing for as actively as it’s pushing for changes to asylum screenings. But reports earlier in the week indicated that Trump has become re-enamored of family separation, and that Nielsen refused to put it back on the table — while McAleenan, her temporary successor, hasn’t ruled it out.
Bringing back some family separation would be possible despite a court ruling preventing the government from deciding to separate parents and children. That’s because of the way that court ruling, made by Judge Dana Sabraw in June 2018, interacts with a 2015 ruling that prevents the government from detaining families indefinitely.
The government is allowed to ask parents to choose between detention or separation — a possibility the Trump administration refers to as “binary choice.”
As a ruling in July put it, “Detained parents may choose to exercise their Ms. L right” — their right to stay with their children, under the ruling Sabraw issued last summer — “or to stand on their children’s Flores Agreement rights” not to be detained indefinitely. So parents would be forced to choose to either waive their children’s rights and be detained indefinitely, or waive their own rights and get separated.
The administration was openly considering this plan in fall, as the number of families apprehended at the US-Mexico border began to reach unusual levels. Now the numbers are truly unprecedented. But the administration hasn’t pulled the trigger on “binary choice” even as the numbers have become truly unprecedented.
Possibly, ICE simply doesn’t have the space to implement binary choice, because it only has a few thousand spaces in family detention facilities — if half of the 53,000 parents and children apprehended in March chose detention over separation, ICE would have to release most of them anyway. That may explain why it’s not the White House’s first choice right now. But it appears to be one the White House wants back on the table.
In theory, the administration doesn’t need to use “binary choice” to expand family detention. It just needs to finalize a regulation already in the works.
The Flores agreement, the lawsuit (first settled in 1997 and modified in 2015) that stops the federal government from keeping children in indefinite detention, was supposed to be a stopgap until Congress or the executive branch came up with laws or regulations (respectively) to address the needs of children in immigration custody. Instead, several presidents just let the court agreement serve that purpose.
But last fall, the Trump administration published a draft regulation that would allow families to be detained together for as long as necessary until their court cases were completed.
Before finalizing the regulation, the administration is obligated to read through the public comments submitted on the draft, and to address anything important raised in them. But it doesn’t need to change the regulation just because a lot of people disapprove of something.
The public comment period closed before the midterm elections. Several months later, the final regulation still hasn’t been published, and it’s not clear why.
It’s possible that Judge Dolly Gee (who has overseen the Flores settlement since its inception) will rule that the regulation doesn’t address her original concerns about care of children, and will stop it from going into effect. But the administration would be able to appeal that, just like they appeal every other adverse court ruling on immigration. The fact that they haven’t tried might be explained, again, by the lack of capacity — or by someone in DHS objecting who might now have left.
The last part of the asylum crackdown, as identified to Axios, involves giving fewer work permits to asylum seekers while they are waiting for their cases to be approved or denied.
Under federal regulation, an asylum seeker can apply for a work permit five months (150 days) after sending in her full asylum application. The work permit isn’t valid after her asylum claim is denied, and she has to demonstrate that she’s still seeking asylum if she tries to get it renewed. But given the length of time that immigrants who aren’t in detention have to wait for resolution of their asylum claims, that could be years.
The administration believes that work permits are a “pull factor” encouraging asylum seekers to come. That’s probably true, though it doesn’t necessarily mean they’re not also victims of persecution. But the regulations are pretty clear about asylum seekers being allowed to apply for work permits, and any direct order from USCIS to start denying those permits would probably be struck down as a violation of the regulations.
It’s not clear if the White House envisions passing a new regulation — which would take months — or if it wants USCIS to just quietly start denying work permits based on whether the applicant is an asylum seeker who just got to the US or has some other form of legal status. We may be about to find out.
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