Trump may not like it, but seeking asylum from persecution is a core human right. This right was recognized by the world and enshrined in Article 14 of the Universal Declaration of Human Rights. It has also been recognized by the United States and enshrined in our own domestic laws. Specifically, anyone “who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival . . .), irrespective of [their] status, may apply for asylum.” The Trump administration’s order will curtail this fundamental right and inevitably prompt strong legal challenges and protracted, resource-intensive litigation in our courts.
Immigration lawyers like us know the truth about the people whom Trump calls an “invasion.” These asylum-seeking families, most fleeing horrific violence in Central America, where their own governments cannot protect them, are doing what is most human — trying to survive and protect their children.
We are asylum attorneys, but like many of our asylum-seeking clients, we are also mothers — of children ages 1 and 4, and one of us is nine months pregnant. Like most parents, we would do anything to keep our children safe. This is, indeed, the primary reason mothers decide to flee, sometimes pregnant, sometimes with small children, and take what they know and understand is the dangerous journey north — because they determine that is their best option for safety. This very human act of seeking protection for one’s children should be met with humanity, not hate-driven policies.
And the idea of an invasion isn’t the only false claim the administration is making to justify its new policy.
The administration alleges that most individuals who file asylum claims don’t return to court to adjudicate them. In his Nov. 1 speech, Trump himself claimed that only 3 percent of asylum seekers show up in court. In reality, the Justice Department’s own statistics recognize that 60 percent to 75 percent of non-detained individuals show up to court, while a recent study showed that 96 percent of families with legal representation seeking asylum showed up to court.
The administration seems to assume that those seeking asylum between ports of entry are less worthy, genuine or credible than those who seek entry at the border. In reality, there are totally valid reasons people enter between ports of entry — first and foremost, the U.S. government has a track record of unlawfully turning away asylum seekers from ports of entry.
The administration assumes that asylum seekers from Central America will be safe in Mexico. Trump said in his speech earlier this month that Mexico had offered asylum to members of a large refugee caravan traveling from Central America, and that if they did not accept it, they must not be genuine asylum seekers.
Trump gets two facts wrong here. First, the United States does not have a “safe third country agreement” with Mexico (as we do have in place with Canada), which would make it a requirement for any asylum seeker who set foot on Mexican soil to seek asylum in Mexico first or be barred from pursuing asylum in the United States.
And second, the reason we don’t have such an agreement with Mexico is because Mexico is not capable of providing adequate protection for many migrants. For example, last year, the University of the District of Columbia law school’s immigration clinic handled the case of a Honduran woman who fled severe harm and targeting by a powerful transnational gang and was then attacked by Los Zetas in Mexico as she traveled with her two young children to the United States. She dutifully sought asylum in Mexico, only to be told by Mexican officials that they could not protect her from the Zetas or the gang who had targeted her in Honduras. They advised her to continue to the United States to seek meaningful protection. She was granted asylum.
The Trump administration’s rule and proclamation are grounded in rhetoric about the need to cut down on government resources devoted to asylum seekers at the southern border. However, the changes are unlikely to save government resources; while they will bar individuals who enter between ports of entry from gaining asylum, making them eligible only for withholding of removal or relief under the Convention Against Torture (CAT), withholding and CAT still require a court hearing, which will continue to be delayed given the backlog of now more than 1 million cases in our immigration courts.
Moreover, granting withholding or CAT relief, as opposed to asylum, will add to the creation of a permanent underclass of refugees. These refugees will be barred from a path to permanent residence, family reunification and full inclusion as members of our society. Instead, they will live in limbo.
For example, take one of the UDC law school clinic’s clients from last year. Her persecutor kidnapped her at age 17 and then kept her in a hut for six months, raping her repeatedly. After six months, he said she was his wife and warned that if she left him, he would kill her younger siblings. For the next 20 years, she endured horrific abuse at his hands, eventually escaping and making it to the United States on her third attempt. She was barred from asylum because of her unsuccessful prior attempts to enter but eventually granted withholding of removal. While she works hard legally as a nanny in the D.C. metro area, she has no right to ever sponsor her children for immigration; nor can she leave the United States without losing her status. She will live in permanent limbo and never see her children again. This rule will create the same situation for many more people like her.
This move is just the latest in a string of efforts by the Trump administration to dehumanize asylum seekers, to create an “us vs. them” mentality. The fearmongering has already contributed to the massacre of 11 Jewish Americans at a synagogue in Pittsburgh because the suspect allegedly believed the Hebrew Immigrant Aid Society and all Jews were assisting the “invasion” of America.
But it is not “us vs. them.” We are all human. We all breathe the same air. We all want to be free. And above all else, we want our children to be safe. We implore the Trump administration and our fellow Americans to recognize our common humanity and start treating asylum seekers like fellow human beings, rather than demons to blame, criminals to punish and monsters to detain and fear. It is our common humanity that should guide our policy. Only then can the United States begin to return to its position of moral leadership.