A week ago, the White House released a lengthy list of changes to the immigration system that the administration requires from Congress in exchange for a bill to protect Dreamers. Trump, who had previously telegraphed some vague interest in securing legal protection for DACA recipients, described the list of demands as the product of “a bottom-up review of all immigration policies,” which had “identified dangerous loopholes, outdated laws, and easily exploited vulnerabilities in our immigration system.” First on the list, unsurprisingly, was yet another call to Build The Wall. Democratic leadership—who had already been made to look like fools after prematurely announcing that they had reached a deal with Trump on DACA, only to have him publicly deny it—was not at all happy about this item. “The list includes the wall,” said Schumer and Pelosi, “which was explicitly ruled out of the negotiations,” and indicated that any proposal that contained a border wall was a non-starter.
The Wall was a mainstay of Trump’s campaign and of his subsequent presidential pep rallies; thus, opposition to The Wall has become a default position for those who would Resist Trump. This fixation on The Wall on all sides, one assumes, is because walls are easy to visualize and understand. For Trump’s supporters, The Wall symbolizes a commitment to security, sovereignty, and the supposedly justified privileging of citizen workers’ interests over those of immigrant workers. For Trump’s opponents, The Wall is a symbol of nativism, isolationism, and xenophobia. (For many Democrats, this principled opposition to border barriers is a relatively recent development: in 2006, under President Bush, the likes of Hillary Clinton, Barack Obama, and Chuck Schumer didn’t have many qualms about voting for the “Secure Fence Act,” which established much of the border wall that’s already in existence. “Make Fences, Not Walls,” however, is perhaps not a very rousing party slogan.) It’s easy to make the public understand what a wall is, and it serves as convenient proxy for people’s vague, emotional instincts on immigration, despite the fact that the building of a wall won’t really affect the current infrastructure of our immigration system in any significant way–our border is already heavily militarized–nor is it clear whether it would actually be effective in deterring people from entering the country. There also seems to be a consensus that opposition to The Wall is a sensible place for Democrats to draw the line with Trump on immigration, because, as The New York Times’ Editorial Board suggests, The Wall is “a nonstarter for Democrats that Republican budget hawks also oppose.”
This insistence on The Wall as the one great non-negotiable proposal, out of all Trump’s proposals, however, makes me nervous. Because, looking at the list of demands put forth by the White House, the only one I think could be worth compromising on is—The Wall.
Why not build The Wall, after all? Oh yes, it will be expensive, and contentious, and time-consuming. Most of the land along the border is privately-owned, which will inevitably entail “lengthy legal proceedings, political blowback and substantial expropriation payments.” Yes, there’s a lot of doubt about whether a wall would even be effective in deterring border crossings, especially by cartel operatives, who can certainly afford ladders, and have been paying Border Patrol agents to look the other way for years already. Yes, it is a frivolous pet project of Trump’s, not a serious solution to any immigration problems the Democrats supposedly care about. Yes, it’s a clear waste of taxpayer money.
But here’s the most important consideration: when you have a group of people, like those in Trump administration, who are determined to do evil, it is much, much better for them to be wasting money than using it efficiently. If Trump wants to pour money and time into The Wall, and Republicans in Congress are willing to go along with him, and Democrats can barter substantive, permanent relief for Dreamers and some other classes of undocumented people in return, that would actually be a pretty tempting offer. The construction of The Wall will be a logistical nightmare, and almost certainly won’t be finished by the time Trump’s term is up—and even if it is, well, walls are much quicker to take down than they are to put up. We can mark our calendars for a big bulldozer parade along the border, followed by dancing in the streets.
Needless to say, if we can avoid having to build The Wall, we should. But my biggest fear is not The Wall: my biggest fear is that Democrats will take a hard line on The Wall, and then give in on some of the other, less inflammatory-sounding proposals on Trump’s list, and call it a bipartisan compromise. This would be a horrific outcome, because the list of demands prepared by the White House is terrifying. It’s not a list written by blustering idiots: it is a list written by people like Stephen Miller and Kris Kobach, who have a fairly detailed understanding of our current system, and whose idea of “reforming” immigration is to deny protection to children, to send asylum-seekers to their deaths, to make deportation an entirely extrajudicial process, to impose implicit deportation quotas on immigration judges, to increase the detention of non-violent immigrants, to make more people inadmissible based on non-violent offenses, to use the vaguely-defined label “gang member” to exclude people from immigration relief, to force undocumented people deeper into unregulated black labor markets, and even to prevent U.S. citizens and permanent residents from petitioning for their elderly parents to come live with them.
Legal precedent has given the president and executive agencies a very high level of control over immigration enforcement, and there are many, many things the Trump administration can and will do, perfectly legally, to make immigrants’ lives miserable, and for which they will not need to consult Congress. But we do have some laws that—at least in theory—constrain the executive’s ability to act. Democrats in Congress need to stand firm in refusing to agree to legislative changes that, in exchange from protecting Dreamers, will lead to devastating consequences for other immigrants.
It would take too long to go through every single proposal on the White House list, but let’s just take the set of interrelated proposals that deal with children, the asylum system, and expedited removal. Immigration policy is dry stuff, and when you read the proposals, they don’t sound like much of anything at all: “Amend the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVRPA) to treat all UACs the same regardless of their country of origin.” “Terminate the Flores Settlement Agreement (FSA).” “Elevate the threshold standard of proof in credible fear interviews.” “Enhance the vetting of bond sponsors for those aliens who enter without inspection.” But these things—even separately, but especially when taken together—are very bad. They are much, much worse than a pointless half-finished Wall.
In order to understand what these changes would mean, it’s important to understand how our current immigration system works. Under ordinary circumstances, if the government thinks you are in the country without legal authorization, you must be placed in “removal proceedings” in immigration court. That means that you’ll have several hearings where you go in front of a judge and file for whatever immigration status you think you might be eligible for. The judge will consider the evidence and legal arguments of your case, and, at your final hearing, decide whether you are entitled to relief or not.
People picked up by immigration enforcement who can’t prove continuous residence in the U.S. for at least two years, however—and this obviously applies to everyone who is apprehended crossing the border, for example—can be put into something called “expedited removal.” Basically, this is just a unilateral, extrajudicial deportation by a CBP officer. You cannot plead your case. You get no hearing in front of a judge. You are simply removed.
One of the few ways to forestall this “expedited removal” is by stating that you are afraid to return to your home country. Once you’ve done this, you’re supposed to be referred to the Asylum Office for a “credible fear interview,” where you have to convince an asylum officer that there is a “significant possibility” that you could, in a full hearing before a judge, prove your eligibility for asylum. If the asylum officer finds that this “significant possibility” exists, your expedited removal order is called off, and you’re instead put into regular removal proceedings in immigration court. If you don’t convince the asylum officer, you can ask a judge to look over their decision, but if the judge also doesn’t think you have a “significant possibility” of winning your case, you’ll be deported.
Many asylum-seekers who arrive at our border are children, some of whom come with family members, others of whom come alone. Currently, unaccompanied minors who arrive in the U.S. from non-contiguous countries—i.e., any country other than Mexico or Canada—are placed in the custody of the Office of Refugee Resettlement, who will, if possible, reunite them with family members in the U.S. Meanwhile, their case is put into regular removal proceedings, meaning that they are entitled to a full judicial process before a judge, not a slapdash expedited removal. This policy was established by law to ensure that children who may be eligible for some kind of relief, and who naturally find it difficult to understand the legal ins and outs of their case, aren’t hastily deported back into possibly dangerous circumstances. (Children from Mexico, unfortunately, get shafted by the “non-contiguous country” requirement, even though very often they too are fleeing dangerous circumstances.)
Children who come to the border with their mothers (though not their fathers, strangely) are subject to expedited removal so long as their cases are linked to their mothers’, and are usually put in detention while their mothers undergo “credible fear interviews.” Currently, under something called the Flores Settlement, you’re not supposed to keep children in detention: they are entitled to be placed in “the least restrictive setting appropriate to their age and special needs, in a non-secure facility designed to care for dependent, as opposed to delinquent, minors,” and must be released “without unnecessary delay” to a parent or other relative. To comply with this requirement, up until now, the government has jointly released detained mothers and children from detention if the mother passes her credible fear interview: they continue attending their court hearings wherever the family chooses to settle in the U.S., while the child attends school and generally tries to live a normal life. Other adult asylum-seekers, however, may be kept in immigration detention for the entire duration of their cases, unless the court chooses to release them on bond.
How did this whole unwieldy system come into existence, you might ask? Well, until 1996, expedited removal did not exist at all: it used to be that all immigrants in the interior were entitled to full court proceedings, as was anyone who came to the border or a port of entry to request asylum. Most asylum-seekers were not detained, and, since their cases could take months, were allowed to apply for temporary work authorization six months after filing their applications. Then anti-immigration groups got Congress whipped up into a frenzy about supposed “asylum fraud”: the idea was that people were coming to the U.S. and filing frivolous asylum applications simply so that they could get work authorization for a year or so. (And it wasn’t just Republicans who bought into this narrative: if you read back through the committee reports, you’ll see that one Rep. Schumer inveighing enthusiastically against “fraud” and supporting various measures that would have severely restricted individuals’ access to the asylum process). The 1996 bill IIRAIRA established a default “expedited removal” process for people who came to the U.S. without papers, with the “credible fear interview” instituted as a safeguard so that bona fide asylum-seekers wouldn’t be erroneously deported, in violation of their right to seek asylum under domestic and international law.
Bearing all this in mind, let’s go back through some of the changes the White House is proposing:
- Make more people eligible to be placed in expedited removal, i.e. able to be deported with no judicial process
- Increase the “threshold of proof” for credible fear interviews, i.e. require asylum-seekers to provide even more evidence in order to escape summary extrajudicial deportation
- Revoke the Flores Agreement, which prevents children from being detained under most circumstances (and has historically ensured that mothers who pass credible fear interviews are released from detention alongside their children)
- Begin investigating all individuals who post bond for detained immigrants
- Provide more funding for detention
- Put all unaccompanied children into expedited removal, deporting them unless they can pass a credible fear interview or prove that they are victims of human trafficking
- Make fewer children eligible to qualify for Special Immigrant Juvenile Status, which protects abused, neglected, and abandoned children from deportation
Think, for a moment, about what this would actually look like. The government wants the authority to deport more people, including children, with no judicial oversight whatsoever. The government also wants to see the credible fear standard—the one “safeguard” that, in the 1996 law, was supposed to ensure that this extrajudicial expedited removal process did not violate international and domestic asylum law—made more stringent. They also want to get rid of the settlement that restricts their ability to detain children: they want to investigate all the relatives (most of whom are undocumented) who try to post bond for detained immigrants: they want more funding for detention. Under this system, large numbers of people, including asylum seekers, would be deported. Even asylum seekers who pass their credible fear interviews would be subject to prolonged detention: this is currently the case for many adult asylum-seekers, but could now be applicable even to children. We should be greatly disturbed by this. There’s much to criticize about the Democrats’ “felons not families” approach to immigration enforcement, both in theory and in practice, and the way the Obama administration handled the refugee crisis on the border. However, the Trump administration’s focus on stopping refugee children from getting protection in the U.S. has been myopic and sadistic: they have repeatedly floated the possibility of separating children from their families at the border, or prosecuting their relatives in the U.S. as smugglers, and provisions targeting children are second only to The Wall on the administration’s list of ranked proposals. (The administration also recently cancelled a program that allowed legally-present parents in the U.S. to petition for their minor children in Central America.)
The administration’s recent focus on the asylum system generally is also deeply troubling. In a speech last week before the Executive Office of Immigration Review in Falls Church, Virginia, Jeff Sessions described at great length his belief that the asylum system is “subject to rampant abuse and fraud,” suggesting that wily attorneys were finding ways to smuggle people through the system en masse, and that the courts were merely rubber-stamping every asylum case that came across their desks. (Even a cursory glance at the wildly disparate asylum grant rates throughout the country shows the rubber-stamping claim to be patently false, as Sessions well knows.) If the number of asylum-seekers at the border is increasing, it’s partly because more people in countries close to us–like the Northern Triangle countries of Central America–are being displaced by violence, and because there are now more lawyers on the border informing people that they have the right to apply for asylum, which is something the government has always been pretty keen to conceal from them. Sessions’ only evidence of “fraud” is statistics suggesting that many asylum-seekers miss their first court hearing, to which it’s worth pointing out that the immigration system is complicated as hell and that even filing a change of address form with the court is often a confusing nightmare.
Given that Democrats helped create the expedited removal regime in the ’90s, it’s very hard to feel fully confident that they won’t give way again this time, making concessions on arcane policy points that sound less drastic than The Wall, and sound like reasonable tradeoffs for DACA relief, but all tend towards creating a system where immigrants, especially asylum-seekers, will suffer greatly.
Raising the standard for “credible fear,” for instance, would worsen an already unjust process. Even under the current system, people who face serious threats of violence aren’t able get asylum. I can confirm from my time in family detention centers on the border that individuals who currently fail their credible fear interviews almost never do so because the asylum officer does not find them credible: usually, the officer does believe that they are in real danger. Rather, these asylum-seekers fail their credible fear interviews because the officer, in their interview paperwork, has to indicate what legal theory they think the case would succeed under, and sometimes the officer cannot make up their mind whether they think a hypothetical judge would buy a particular theory. Imagine, for example, a woman who’s being told by her relatives that the gunmen who made death threats against her are actively watching her and her family’s homes; or imagine a little girl who was repeatedly threatened with rape by an adult gang member. Imagine having to tell these people they’re going to be deported tomorrow, because some bureaucrat couldn’t decide which box to check off on a form. These are the kinds of individuals who fail “credible fear interviews.”
The fact is, our asylum system is already monstrous enough as it is, and anybody who colludes to make it more stringent, whether they are a legislator bowing to pressure, or a judge accepting a quota from Sessions’ Justice Department, or an asylum officer scared to take on their supervisor, has got the blood of real people on their hands. Given the Democrats’ poor track record, it would certainly reassure me if the Democratic leadership got up and formally announced that they will never again, under any circumstances, support any policy changes that restrict people’s ability to seek asylum in a full judicial process, or reduce by one jot the modest level of protection that is currently afforded to immigrant children. Or they could go one better, even: I’d like to see Democratic congresspeople start taking field trips down to the detention centers along the border. I’d like to see them talk with the detainees about what they’ve already endured. I’d like to see them hold press conferences out front, and tell the world what they’ve learned, and what they plan to do about it. We are already excluding people without The Wall. Frankly, The Wall is the least of our worries.
Read more of Brianna Rennix’s work in our new paperback essay collection, The Current Affairs Mindset.