Deterrence doesn’t work when you’re fleeing for your life

A gaunt woman came to my office, having fled homophobic violence in Central America and  now seeking asylum in the United States. Traumatized and without work authorization, she often went days without a full meal. The goodwill of her neighbors and church friends could go only so far. She had been tortured by the government in her home country for her gender identity and now, in search of safety in the United States, she struggled to get by.

On Monday evening, President Trump released a presidential memorandum calling on the attorney general and the secretary of Homeland Security to enact sweeping changes to the asylum system, including to fast-track asylum applications and charge a fee for asylum applications. These drastic changes to the asylum system are part of an insidious, concerted effort to deny protection to some of the most vulnerable and will lead to a serious denial of rights for those fleeing persecution.

{mosads}In fact, these proposed rule changes come on the heels of a pattern of rhetoric and policy aimed at creating increasing obstacles for asylum seekers. What began with family separation and “zero tolerance” policies, aimed at deterring refugees from seeking the protection to which they are legally entitled, has grown to include the recently enjoined “remain in Mexico” policy, requiring asylum seekers to await their immigration court hearings south of the border, as well as continued decision-making by the attorney general designed to narrow the basis for which immigrants may claim asylum.

Adding to these policies — all of which have been extensively litigated in court as violating due process and constitutional rights — is the increasing use of immigration detention, in the absence of bail, again seemingly an effort to deter bona fide refugees from making their claims.

Adding still additional hurdles will make asylum drastically more difficult to access, especially for the most vulnerable. At present, the application for asylum does not carry a fee — indeed it never has. While other immigration forms carry an increasingly steep price tag, public policy necessitates a free application for those fleeing persecution. With the proposed changes announced Monday, asylum applicants will face a choice — pay money they don’t have, or risk return to the violence they fled.

Moreover, fast-tracking asylum applications will have dire consequences for asylum applicants. Accessing legal representation is difficult at best. For those who can’t afford or obtain an attorney, they must navigate a complex legal system, often in a language they do not understand, while gathering corroborating evidence and testimony from abroad to support their claims. These tasks are challenging for the most skilled attorney, and especially so for an unrepresented asylum seeker. To do so in a compressed timeline will be exceptionally difficult.

Asylum applicants already struggle — they have left their lives, and their worlds, behind, in search of safety, often running for their lives with just the clothes on their backs and the money in their pockets. These proposed changes are not only cruel and inhumane, creating obstacles for people who are in desperate need of protection — they also completely miss the point. Without evidence, the Trump administration purports to be implementing these policies as a means of deterring immigrants who lack bona fide claims for asylum. They believe that this series of obstacles will close the so-called “loopholes” in the asylum system that allow fraudulent claims to succeed. But evidence of overwhelming fraud in the asylum system is sorely lacking.

When the United Nations High Commissioner for Refugees (UNHCR) interviewed more than 160 women from Central America seeking asylum in the United States in 2015, their findings were revealing. These women reported that they and their children faced “extreme levels of violence on a near-daily basis.” Eighty-five percent of women interviewed reported living in a neighborhood controlled by gangs or other violent, criminal groups. Sixty-two percent of women reported that they were regularly confronted with dead bodies in their neighborhoods. Moreover, the women interviewed reported “prolonged instances of physical, sexual and psychological domestic violence, for which authorities provided no meaningful help.” These women fled to the United States because they had no other choice.

This administration either doesn’t understand or, perhaps more sinister, doesn’t care, that if you are fleeing a burning building, boarding up the windows and locking the doors will not deter you. It will just make getting out more perilous.

Sarah Sherman-Stokes is associate director of the Immigrants’ Rights and Human Trafficking Program at Boston University School of Law. Follow her on Twitter @sshermanstokes.