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In the United States, the Right to Asylum is Under Attack

by Amir Khouzam
July 23, 2019

Amir Khouzam is a humanitarian specialist who has worked in refugee protection with the UNCHR in Egypt and with Syrian civil society in protection policy throughout Syria. He was the managing editor for print and editorial at Columbia University's Journal of International Affairs from 2018 to 2019. This is his second piece published with frank news. 

With the rhetoric around immigration in the United States reaching new heights, it can be easy to overlook subtle changes in policy and official practice that can dramatically affect those most directly involved in immigration enforcement. Such is the case with an email outlining new policy directives for Asylum Officers at U.S. Citizenship and Immigration Services. “Our Southern border,” opens the email, credited to Kenneth Thomas Cuccinelli II, “is facing a daily crisis of aliens overwhelming our ports of entry, many of whom are attempting to enter and remain in the country in violation of our laws.”


Mr. Cuccinelli is the Acting Director at USCIS, the federal agency housed within the Department of Homeland Security that is tasked with executing American immigration policy. He assumed office on June 10th, following the resignation of former director Lee Cissna at the request of President Donald Trump. Mr. Cuccinelli is a long-standing supporter of the president and shares many of his extreme views. One of Mr. Cuccinelli’s first official acts was to blame a young man for his own death and the death of his daughter after they drowned while attempting to cross the Rio Grande.  In his previous job as Attorney General for Virginia, he defended anti-sodomy laws, sued the Obama Administration’s Environmental Protection Agency, and pushed for legislation to prevent children of undocumented migrants in the United States from attending university

But the recent note to his employees tasked with processing and filing legal claims of asylum threatens to do serious harm to some of the most vulnerable subjects of American immigration policy. 

The email, in which the acting director thanks agents for their service to the United States and reminds them of their oath to defend the constitution, is an alarmist call to action against abuses of American law.

Upon reading the email it would be easy to assume that the act in question – claiming asylum in the United States, by those who may have crossed the border under irregular or unclear circumstances – is a crime. In fact, the opposite is true. 

It is legal to claim asylum.

The Trump administration clearly does not appreciate this reality. The email makes no mention of it and instead goes to great lengths to obscure it, with urgent language and misleading statistics. 

Among its claims are that USCIS agents are being too lenient in granting positive ‘credible fear’ determinations following initial screening sessions with migrants. This is not true. 

Credible fear screenings, conducted by federal officials when people first enter the United States seeking asylum, are organized around three major questions: has the applicant ever been harmed in their home country; have they or their child ever been threatened with harm, and; have they been harmed as a result of discrimination based on religion, race, nationality, social affiliation, or political opinion. 

These are broad questions by design, and most people have historically received positive determinations. That is because the screenings are not themselves determinant of whether applicants have a legitimate claim of asylum. They are instead an opportunity for immigration officials to decide whether an individual should be deported immediately, or be granted an asylum hearing in front of a judge. Given the circumstances most asylum seekers are fleeing, a high rate of positive determinations has been consistent across both recent Republican and Democratic administrations. 

But there are strong indications that, contrary to Mr. Cuccinelli’s claims, fewer people than ever are receiving positive results due to new obstacles put in place by the Trump Administration. Its zero-tolerance policy and practice of separating families, draconian interpretations of whether or not minors at the border are ‘unaccompanied’ even when they arrive with close relatives, and a new directive that precludes people from claiming violence at the hands of gangs as a legitimate fear from which to flee have all contributed to heightened rates of early denial, long before a judge has looked at a claim. 

This leads to Mr. Cuccinelli’s second misdirection. In his email, the acting director suggests that of those who are granted positive results and permitted to remain in the United States, most skip town, disappearing into the masses of Undocumented America. This is a false claim and a pernicious one, that is no more true for having been repeated by the Vice President of the United States on live television. This year, the Washington Post fact-checked Vice President Pence’s claim that 90 percent of applicants do not show up to their asylum hearing by referring to the Department of Justice’s very own statistics, which showed that in 2018 about 40 percent of applicants skipped their hearings. Even these numbers are an anomaly: from 2013 to 2017, the no-show rate was between 5 and 11 percent. 

But these facts and the lies and misdirection Mr. Cuccinelli deploys instead are academic. At the core of the issue is a simple reality.

The Trump Administration is asking immigration agents to break the law. They are requesting that federal officials refuse more people their legal right to claim asylum, and they are couching this request in peaens to patriotism and the constitution. 

Mr. Cuccinelli calls the American immigration system ‘abused.’ Rather it is abusive, as we have seen this week, and last week, and long before that, with children separated by their parents, and adult detainees held in overcrowded and underserviced facilities, forced to drink from toilets and denied access to showers.

Recent images of Vice President Mike Pence standing stone-faced in front of desperate and detained men have rightly dominated the news cycle. But it is important too that we take notice of the less public forms of abuse being exercised by the American government. In Mr. Cuccinelli’s email is contained a naked appeal to American officials to ratchet up the abuse, to formalize it, to deny more people the protections that both international and American law says is their right.

Hope for the sanctity of asylum lies for now in the integrity and good judgment of immigration officers, who Mr. Cuccinelli himself acknowledges have the power to grant or deny temporary reprieve. But what this email reveals is that formal American institutions are now actively at cross purposes with whatever humanitarian, legal, and empathic instincts their staff might exhibit. That the institution might in this case prevail should very much be a credible fear to us all.