Sessions fundamentally misses the mark on the asylum system

Attorney General Jeff Sessions delivered remarks to the Executive Office of Immigration Review (EOIR) on Oct. 12, arguing that the U.S. asylum system is overburdened with fraud and abuse. Sessions misrepresented the system, relying on virtually no data to reach his, frankly, ignorant conclusions. 

First, Sessions stated repeatedly there has been an increase in fraudulent asylum claims. This is simply his conclusion based on an increase in the number of asylum claims. There absolutely has been an increase in asylum claims in the United States, just as there has been worldwide in recent years. This increase correlates, of course, to the state of affairs in the world.  

{mosads}As UNHCR (UN High Commission for Refugees) reports, there are more than 22.5 million refugees in the world today, the highest number on record. Every day, 23,800 people are forced to flee their homes because of conflict or persecution. One of the humanitarian crises producing refugees happens to be south of our border, in Central America, and this accounts for the exponential increase in asylum claims and individuals seeking protection in the U.S. through the credible fear system, rather than a sudden increase in fraudulent claims.

Second, Sessions would have us believe asylum claims are routinely granted. According to EOIR’s own statistics for 2016, though, only 8,726 claims were granted while 11,643 were denied. That’s definitely more claims denied than granted and is only 13.3 percent of the more than 65,000 filed in 2016.

Third, Sessions claims the number or percentage of asylum claims that are “genuinely meritorious” are down. It’s unclear how Sessions has arrived at his conclusions at all or that this is based in any way on data or reality.

One indicator of where he is coming from, however, is that he noticeably neglected throughout his speech to recognize that the international and domestic laws on asylum have always protected individuals who are fleeing persecution on account of one of five grounds.

He mentions race, religion, nationality and political opinion, but totally neglects to mention that our laws allow for asylum to be granted on the basis of persecution because an individual is a “member of a particular social group.”

This has been international law since 1951 and U.S. law since we signed on to the Protocol to the UN Refugee Convention in 1968. So, for almost 50 years, we have had the same legal standard.

Currently, individuals seek asylum based on their membership in a particular social group of, for example, LGBT individuals from a certain country, or women unable to leave a relationship from a certain country or because of their kinship ties and membership in their family group.

Attorney General Sessions has made clear, through his other actions and words, that he does not fully recognize the rights of women and LGBT individuals, so it is unsurprising he fails to acknowledge their right to seek asylum, which is enshrined under our laws, including the Refugee Act of 1980. 

Fourth, Sessions seems to think something that Obama administration did led to an increase in individuals seeking asylum in the United States. He is apparently unfamiliar with the humanitarian crisis in Central America, which is driving an increase in claims based on credible fear of persecution or torture.

Contrary to Sessions’s suggestions, there is nothing illegal about coming to the United States to seek asylum. Indeed, there is no legal way to seek protection in the United States from an embassy or other place outside the country.

This administration has put an end to the one small program that did in fact allow for out of country processing for Central American minors. The “Northern Triangle” countries, Honduras, Guatemala and El Salvador, are suffering from incredible violence perpetrated by transnational criminal organizations, known as the “maras” or “gangs,” who routinely target children and women.  

Sessions should be familiar with these entities as he traveled to El Salvador in recent months to discuss the gangs with Salvadoran leaders and has repeatedly condemned their violence and affirmed the danger they pose. Within each of the Northern Triangle countries is also an intense culture of machismo, leading to impunity for violence against women, and causing some women to flee for their lives and seek safety in the United States.

Fifth, Sessions suggests that because some individuals who pass credible fear interviews fail to apply for asylum, they are fraudulently seeking asylum. This fails to recognize that individuals who pass a credible fear interview have been released with very little orientation as to what to expect next.

For example, asylum law requires that an official application be filed in immigration court within one year of the asylum seeker’s last entry into the United States. U.S. officials, however, fail to tell individuals who pass a credible fear interview about this deadline.

Having just articulated in detail, to a U.S. official, why they are afraid to return to their home country, many asylum seekers believe they have “applied” for asylum, and some even believe they have been granted upon release.

Several groups filed suit against DHS last June based on the lack of notice of the one year filing deadline given to asylum seekers and also the impossibility of filing because the immigration courts are so backlogged that an applicant often cannot file in open court within a year.

Sessions also neglects to mention that asylum seekers face a crisis in legal representation. According to a national study of cases from 2007-2012, only 37percent of immigrants were represented in immigration court. Representation can make all the difference. Without representation, asylum seekers lack an understanding of what is happening in their case and may be too fearful to appear without an attorney. Their number one priority, remember, is to avoid being sent back to a place where they face persecution and/or torture or death. 

Finally, the asylum process itself is complicated and the I-589 form to apply is only available in English. This is overwhelming for a pro se applicant who lacks the ability to read and write in English.

Attorney General Sessions’ remarks should not be surprising, certainly not to any who are familiar with his anti-immigrant track record. It remains disappointing, however, that the nation’s top law enforcement official should politicize and attempt to skew our vision of the asylum-seeking process. As a nation founded by immigrants fleeing religious persecution, it is profoundly disturbing that the current Attorney General sees fit to an attack on asylum seekers and to undermine America’s history of compassionate protection of refugees. 

Professor Lindsay M. Harris is co-director of the Immigration & Human Rights Clinic at the University of the District of Columbia David A. Clarke School of Law.