House Judiciary Committee
Markup of H.R. 1153: “The Asylum Reform and Border Protection Act”
March 3, 2015
By Lutheran Immigration and Refugee Service, Kids in Need of Defense
and the Women’s Refugee Commission
Lutheran Immigration and Refugee Service (LIRS)[1], Women’s Refugee Commission (WRC)[2], and Kids in Need of Defense (KIND)[3] appreciate the opportunity to submit our views for this markup of the Asylum Reform and Border Protection Act (H.R. 1153). Our organizations have long advocated for the protection of unaccompanied children, refugees, asylum-seekers and trafficking victims. As such, we are deeply concerned that this bill would rollback critical protections for children under the Trafficking Victims Protection Reauthorization Act (TVPRA), expand the inappropriate use of immigration detention, limit access to both due process and the asylum process for adults and children, and create unsafe conditions for repatriation and custody of children. We believe there are simple ways to improve the efficiency of our immigration system that do not curb important protections or due process. We urge you to protect these vulnerable migrants instead of stripping away their protections. We look forward to working with Congress on legislation that will improve our immigration system while protecting these migrants.
Our organizations’ work with asylum-seekers and migrant children traveling alone has shown that children and families crossing the border are often fleeing dangerous and life-threatening circumstances in order to seek refuge in the United States.[4] As evidenced by the increase in children and families migrating since 2011, the situation in Central America is dire and only getting worse. These populations are escaping gang violence, sexual and gender-based violence, forced recruitment, domestic violence, abandonment, and are often victims of trafficking. Those fleeing for their lives will not be deterred by punitive legislation which erodes human rights protections and is designed to persuade them not to come to the United States.
This Act eliminates protections vouchsafed by the TVPRA in a number of ways. The bill limits the definition of an unaccompanied child, effectively restricting eligibility for trafficking and asylum protections to a very few. Changing the definition of an unaccompanied child also erodes due process for children by not guaranteeing children’s access to justice through removal proceedings before an immigration judge. Unaccompanied children, no matter their age – even babies and toddlers- would be forced to make a case for asylum protection on their own while in a CBP holding cell. This thoroughly undermines any due process protections for children and erodes the purpose of the TVPRA—to ensure children are not returned to danger.
For example:
- Sonia and Julia are sisters from Honduras who were recently apprehended at the border. Sonia has a mental disability. Julia witnessed the sexual abuse of Sonia by their uncle. Julia told her aunt about the sexual abuse. When the aunt asked her husband to leave the home, he became so enraged and threatened to kill them all. Due to the lack of trust in the justice system, the aunt decided it was safest to take the girls far away. The next day, the aunt fled with the girls to the U.S. where their mother was living. Because these girls do not qualify as unaccompanied children under the new definition, they would either automatically be returned or could end up in ICE custody.
- Marta is a 4 year old girl from Guatemala who suffered extensive sexual and physical abuse by her father. Marta’s mother was living in the U.S. as a legal resident when she heard about the abuse. She flew to Guatemala and contacted authorities to help her remove Marta from her father’s home. Although she was successful in removing her daughter from this situation, the father was not incarcerated for his actions. He began threatening to kill Marta, as well as intimidating and threatening family members to learn Marta’s location. Marta’s mother had to return to the U.S., but had no known legal recourse in which to bring Marta with her. Marta’s mother made the difficult decision to send her daughter on the frightening journey to the U.S. with a guide in order for them to live safely together. If CBP interviewed her, the 4 year old girl may not be able to express fear of return to home country. She also would not qualify for protections because her mother’s location in the U.S. is known.
With regard to the asylum process, this Act creates a far more complicated and adversarial process to obtain protection. The Act creates a higher standard for proving an initial, threshold, “credible fear” of persecution. Even with the current threshold, bona fide asylum-seekers may not ultimately be able to make a claim for asylum before an immigration judge. Asylum-seekers generally go through the “credible fear” screening process in a detention facility, mere days after a traumatizing journey to the U.S., before having had access to legal counsel or legal information presentations, and often by telephone with insufficient interpretation. These conditions have been found to interfere with an asylum-seeker’s ability to successfully convey their legitimate fear of return. Raising the credible fear standard not only fails to increase our national security, but creates an additional hurdle in the initial screening process and further limits access to justice.
Further, the Act would significantly narrow the definition of parole such that arriving asylum-seekers who pass a credible fear interview would no longer be eligible for parole from immigration detention. This differs substantially from current policy under which arriving asylum-seekers who have established a credible fear of return can be paroled instead of remaining in detention for the duration of their case. Reviewing parole eligibility includes screenings for national security and flight risks along with placement in alternatives to detention if the government identifies a flight risk but no other reason to detain. We believe it is inappropriate for the custody of asylum-seekers, many of whom have escaped trauma and persecution, to remain detained in the jails and jail-like facilities used by immigration officials. Detention also decreases the ability to access counsel, exacerbating the obstacles asylum-seekers already face in accessing justice and making a successful asylum claim.
The Act would also permit the return of an asylum-seeker to another country, even in the absence of an agreement between the United States and that country that would ensure that the asylum-seeker would be accepted, and without assurances that the individual would be able to access protection in that country. Such a mechanism would deny bona fide refugees access to the U.S. protection system and could result in the ultimate return to the individual’s home country without any ability to make an asylum claim in the United States, the third country, and without mechanism to appeal the decision made by U.S. border or immigration authorities.
The Act would also divert foreign assistance to certain countries in order to prioritize repatriation over aid and development. Rather than addressing root causes in countries affected by this policy, the Act would result in inefficiently contributing to the cycle of migration.
Additionally, the Act would also subject unaccompanied children to the one-year asylum filing deadline, a bar to protection that has repeatedly been found to deny or delay protection to adults fleeing persecution subject to the bar. It would also force children to present their case in an adversarial trial before an Immigration Judge and ICE attorney instead of through an interview with an asylum officer. These provisions were specifically provided by the TVPRA 2008 because it has been extensively documented that children are often unable to explain their risk of persecution in a short amount of time and in an adversarial setting. Both of these measures not only impede due process for an already extremely vulnerable population, but would further burden our overly-taxed immigration courts.
These changes to the system are not necessary to avoid abuse of our asylum system. The current system contains numerous fraud prevention and detection mechanisms including fraud detection training for asylum adjudicators, enhanced background biographical and biometric checks with federal agencies, additional fraud detection and investigation capacities, and stepped up referral of cases for criminal prosecution.
Not only would this Act extensively limit access to asylum and trafficking protections, it would also change the eligibility standard for abused children to gain protection through Special Immigrant Juvenile status such that a child can only obtain protection if they cannot be reunified with either parent. Many children currently eligible for this form of immigration relief have been saved from being sent back to an abusive parent in their home country by gaining protection through this visa. For children who suffered abuse at the hands of a parent in their home country, they can now live with a parent who will protect them and keep them safe, something we all want for all children. If the eligibility is changed, hundreds of children could be sent back to dangerous situations, forced to live on the streets or in abusive homes.
For example:
- Carlos, Javier, and Luis, along with their little sister Mariana, journeyed to the US from Honduras after being neglected and abused by their caregivers and receiving death threats from the local gangs. After the children’s father died in a car accident in 2005, their mother left for the United States in order to provide for the children. During this separation, the children were left with caregivers who barely fed them and abused them both physically and emotionally, often taping their mouths shut during calls with their mother. Eventually, the children’s mother decided to bring them to the US after a local gang threatened to kill them. The four children travelled to the United States and after apprehension at the border, were successfully reunited with their mother after 7 years of separation. At this time, the four siblings are all enrolled in school, started therapy to recover from past trauma, have pro-bono legal representation and have been identified as having legal relief (SIJS). They are making efforts to learn English, play soccer on a community team, and are slowly recovering from their experiences in Honduras.
If the one-parent SIJS provision were to become law, these children would not have been able to obtain this visa and could have instead been returned to the dangerous situations in their home countries.
- A fourteen-year old girl named Lucia was lured into the U.S. with false promises of working on a farm in the southern U.S. and after she was brought across the border, she was held in a house and raped repeatedly by unknown men. The house was raided and she was sent to an Office of Refugee Resettlement therapeutic home for girls where she was able to talk about the rapes and care for the child that she conceived as a result of the rapes. Lucia revealed the sexual assault once she felt safe in ORR custody. If this Act were law, she would not have had access to trauma support and it is unlikely that CBP would have learned that she was a victim of a crime or trafficking in the U.S. Lucia would have likely been returned to her traffickers who would continue to operate with impunity in the U.S.
Finally, this Act provides for an extended period of time for the transfer and custody of children out of CBP custody. Thus, a child traveling alone would spend an increased amount of time in CBP custody, which has been found inappropriate for both adults and children. If this Act passes, we would once again experience the troubling situation of children in CBP custody that we witnessed during the summer of 2014 when thousands of children spent weeks in overcrowded cement holding cells near the border with insufficient food, supplies, and health services.[5] In addition to longer periods in CBP custody, the Office of Refugee Resettlement would no longer be required to review a child’s situation and safeguard against placement in an inappropriately overly secure detention facility.
Our organizations urge the United States government to fulfill its obligation to provide protection to individuals fleeing persecution in their homelands or who are victims of trafficking. This obligation is found in international treaties as well as, in domestic immigration law. Our asylum system provides refuge to men, women, and children who have endured unimaginable persecution in their countries of origin on account of their race, religion, political opinion, membership in a particular social group, or nationality. In addition to legal obligations, our asylum system reflects our nation’s long and proud history of protecting and welcoming victims of persecution and torture. Rather than stripping protections and due process, we appeal to Congress to enact legislation that keeps families together, protects children, migrants, refugees and other vulnerable persons, and upholds the American value of justice for all.
For more information:
Jessica Jones, Child and Youth Policy Associate, Lutheran Immigration and Refugee Service (LIRS), jjones@lirs.org. More information can be found at: https://www.lirs.org/our-work/people-we-serve/children/advocating-for-children/
Jennifer Podkul, Senior Program Officer, Migrant Rights and Justice Program, Women’s Refugee Commission, JenniferP@wrcommission.org. More information can be found at: http://womensrefugeecommission.org/programs/migrant-rights
Aryah Somers, Director of Advocacy, Kids in Need of Defense (KIND), asomers@supportkind.org. More information can be found at: https://www.supportkind.org/en/
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[1] Lutheran Immigration and Refugee Service (LIRS) is the national organization established by Lutheran churches in the United States to serve uprooted people. LIRS is nationally recognized for its leadership advocating on behalf of refugees, asylum seekers, unaccompanied children, immigrants in detention, families fractured by migration and other vulnerable populations, and for providing services to migrants through over 60 grassroots legal and social service partners across the United States. [2] The Women’s Refugee Commission’s mission is to improve the lives and protect the rights of women, children and youth displaced by conflict and crisis. We research their needs, identify solutions and advocate for programs and policies to strengthen their resilience and drive change in humanitarian practice. [3] Kids in Need of Defense (KIND) serves as a leading organization for the protection of unaccompanied children who enter the US immigration system alone and strives to ensure that no such child appears in immigration court without representation. We achieve fundamental fairness through high-quality legal representation and by advancing the child’s best interests, safety, and well-being. [4] Forced From Home: The Lost Boys and Girls of Central America, Women’s Refugee Commission 2012 [5] The Guardian, “US Border Patrol struggles to shelter thousands of unaccompanied children”, June 18, 2014. Available at: http://www.theguardian.com/world/2014/jun/18/us-border-patrol-children-detained-texas-arizona.