Now, however, the union for the asylum officers who administer this process is fighting back: It’s taking the unusual step of filing a friend-of-the-court brief in a lawsuit against the administration the officers work for.
The brief from the asylum workers’ union — the National Citizenship and Immigration Services Council 119, which represents hundreds of workers who run the asylum system, including conducting pre-screening interviews — condemns the new policy as arbitrary, illegal and cruel.
“These changes are contrary to U.S. and international law and cruelly place asylum seekers at risk of being returned to countries where their life or freedom may be in jeopardy,” Michael Knowles, special representative for Council 119, told me Friday.
The lawsuit in question was filed in D.C. District Court in June by two refugee groups, on behalf of five plaintiffs who failed the screening for “credible fear.” A judge temporarily blocked the removal of two of them, but the policy has gone into effect.
The lawsuit challenges the administration’s changes to what’s known as the “credible fear” interview, the first threshold for migrants requesting asylum. It’s supposed to determine whether they have a chance of eventually qualifying, and if they pass it, they enter the system to await a formal hearing before a judge.
The new policy changes the “lesson plan” used by hundreds of asylum officers, with the goal of making it harder to pass that credible-fear screening. Restrictionists have long argued that this screening is too easy to pass, resulting in more people getting admitted into the system than ultimately qualify for asylum in the end.
Administration officials want to restrict asylum-seeking because they claim large percentages of those who pass the test disappear into the interior and don’t show up for hearings. But the most up-to-date numbers debunk that claim.
The lawsuit argues that the new policy requires asylum officers to demand that migrants present a factual record demonstrating a significant possibility of future persecution upfront, when they may not have access to one, rather than merely demonstrating a significant possibility of prevailing at the eventual hearing, as under current law.
“Under the law, asylum seekers only have to show at the credible-fear stage that they have a significant possibility of establishing eligibility for asylum,” Justin Cox, senior supervising attorney for the International Refugee Assistance Project, a group behind the lawsuit along with RAICES, told me. “This lesson plan tried to raise the standard Congress created.”
Now the asylum workers’ union has filed a brief for the plaintiffs. This is not typical: The union has done this a couple times before, most recently filing a brief against Trump’s policy of forcing migrants to remain in Mexico. As The Post’s Maria Sacchetti noted at the time, this constituted an “unusual public rebuke of a sitting president by his own employees.”
Remarkably, that’s now happening again.
The union’s brief points out that there is a moral and humanitarian reason that the initial credible-fear screening should be easier to pass, relative to the final hearing. At that initial stage, migrants just concluded “harrowing journeys,” are held in detention, aren’t expected to have access to lawyers and won’t have adequate representation.
Given those realities, the brief notes, making the credible-fear screening relatively easy is needed to avoid denying entry to the system (and an eventual hearing) to people who actually will end up meriting asylum. Thus, the brief argues, making the screening harder is not “consistent with Due Process.”
The change in the lesson plan is not a small matter. As the brief notes, it is tampering with asylum officers’ ability to ensure that those exercising their legal right to apply for asylum are treated in keeping with “domestic law and the United States’ treaty obligations.”
The new standard, the brief acidly notes, “impermissibly raises the burden of proof for credible fear determinations” for people who have “crossed the border with nothing more than the shirts on their backs and are then detained.”
It remains to be seen how far this lawsuit gets. But for now, it’s notable that asylum officers are again publicly challenging the administration. It’s another indication of a brewing asylum officers’ rebellion against Trump’s policies: Several recently told Molly O’Toole that they were deeply unnerved over sending asylum seekers back to Mexico, with one lamenting: “I hope they’re alive.”
All this is yet another reminder that for Trump and Miller, the overarching goal is to reduce the numbers of immigrants legally here — even or especially if it means preventing people from getting a fair hearing who would otherwise qualify for asylum. To Trump and Miller, blocking that from happening is a feature, not a bug.