We Must Preserve Asylum to Protect Children
Immigrants facing asylum in the United States have always faced a daunting system. But for decades, people fleeing persecution had a fighting chance to find a haven in this country. For many—especially children—asylum has meant the difference between life and death. Today, we are on the cusp of losing that system in its entirety as the Trump administration proposes rule after rule designed to decimate the asylum system.
Imagine one particular child’s journey to safety in the United States — we’ll call her Marta. Marta lived in a community plagued by unchecked gang violence, where police were complicit in extortion, kidnapping, and murder. Her mother was forced to pay the gangs an exorbitant “tax” to keep her small shop open.
When her mother resisted payment, the gangs threatened to harm her and Marta. Marta’s family was not alone in facing this threat — they had seen owners of nearby shops killed and trafficked for failing to pay. Knowing that home was no longer safe for Marta, her mother told her to run.
In search of safety, Marta would travel overland to the U.S. southern border. She would do all she could to avoid authorities in the countries she passes through, having heard from others about the mistreatment she would suffer if they found her. At last, Marta would reach our border at an official port of entry. She would walk up to a border patrol agent and tell them, “Please help me. I’m afraid to go home.” As a child arriving alone, she would be transferred to the Office of Refugee Resettlement (ORR), as is required by federal law. She would be placed in a shelter with a chance to live with family in the United States. Marta would get screened by an attorney to see whether she qualifies for protection and might be appointed a child advocate. The gang’s threats against her and her mother would increase the possibility of being granted asylum.
Marta would go to immigration court, but she would have the chance to apply for asylum in a less confrontational setting than an adult. She would have a chance to sit, one-on-one, with an asylum officer trained to talk with her about the threats she faced. There’s a good chance she’d go to the interview supported by an attorney and a child advocate. In the end, that asylum officer would likely find that she faced persecution based on the gang’s threat to her and her mother, and she would have a chance at building a safe and full life here in the United States.
The story above would have been the best-case scenario in a former time, a time before the current administration was using every weapon in its arsenal to prevent children from accessing asylum.
Under this administration, the story would be much different, even before COVID-19. If Marta had arrived at the border during the last year or two, she would have been blocked from reaching our port of entry by Mexican officials, even though she has a legal right to do so. She would have waited weeks or months for a chance to speak to U.S. officials and would have faced threats of violence in encampments that have sprung up at the border for the thousands of people denied the chance to seek help by this administration.
If and when she finally reached U.S. officials, she would have been designated as unaccompanied and transferred to ORR. But she would appear in immigration court within days of her transfer, with no time to be reunified with family, find an attorney, or be appointed a child advocate. Because of a transit ban and decisions of an unaccountable Attorney General, Marta would have a slim chance of qualifying for asylum. Without a guarantee of an attorney, Marta might face these complicated procedures and legal tests with no one at her side to fight for her.
There was a time when the above asylum story, one of the slim chances and a rushed process, was the worst-case scenario. And then, COVID-19 happened, and the administration saw an opportunity to use the pandemic to execute its anti-child and anti-immigrant agenda. Today, Marta would reach the U.S. border and tell border patrol agents, “Please help me. I’m afraid to go home.” But it wouldn’t matter. They would either put her on a plane back to her home country or immediately turn her around to Mexico, a country where she knows no one. They would break the law outright. And they would do it without asking a single question about whether or not Marta would be safe.
Today, the administration is working to finalize a proposed rule that would completely prevent children like Marta from receiving asylum. The administration chose to release this proposed rule during a pandemic. Although people had only 30 days to comment, tens of thousands did. They spoke out against a rule that would deny asylum based on indirect persecution, or against family members, inflicted by non-state actors. They spoke out against a rule that would not allow decision-makers to consider that it is a child that stands before them. If that rule is finalized, it will take years to undo. Asylum will be changed forever.
The proposed rule represents the type of asylum system this administration wants children to face. They want to eliminate the few ways that immigrant children are treated as children in our system, making safety harder — if not impossible — to find. They want to destroy the beacon of hope that was our asylum system. And they are succeeding.
We must oppose every policy of this administration that would undermine asylum — both the policies they have implemented and those still to come. We must stand up and declare that asylum is a legal right, a human right, and essential for children’s safety and well-being. And when the time comes, we must ask each person seeking public office or leadership of a federal agency if they will uphold the core principles of safety for those who flee persecution and consideration of the best interests of immigrant children.
Written by Miriam Abaya, an advocate for children’s rights and most recently, a policy analyst at the Young Center for Immigrant Children’s Rights.