The New Yorker Radio Hour - Trump Closed the U.S. to Asylum Seekers. Will Biden Reopen It?

Episode Date: February 5, 2021

Immediately after Inauguration, the Biden Administration began trying to unwind some of Donald Trump’s most notorious policies on immigration. But, over four years, Trump’s advisers made more than a thousand seemingly bureaucratic, technical rule changes that have had profound consequences. Sarah Stillman reports on the case of a mother and daughter who arrived at the southern border from Honduras. After the family ran afoul of local politicians and crime figures, the father was assassinated and an older daughter was raped in the presence of a police officer. Yet their appeal for asylum was rejected by a Trump-appointed judge, who went to unusual lengths to explain her reasoning. Replaying a recording of the hearing, Stillman walks through the series of legal barriers designed to send the women back into severe danger. “In order to qualify for asylum,” Stillman remarks, “you almost have to have been murdered to show that you could be murdered.”   (Many of the Trump Administration policies were driven by Stephen Miller, the ultra-hard-line immigration adviser; The New Yorker Radio Hour reported in 2020 on Miller’s influence.)  New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

This is The New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. Welcome to The New Yorker Radio Hour. I'm David Remnick. On day one of Joe Biden's presidency, he issued a barrage of executive orders that some have described as shock and awe. And he immediately set out to undo some of Donald Trump's most notorious immigration policies. The Muslim ban or travel ban was overturned. Biden wanted to halt construction on the border wall and to fortify DACA after Trump had tried and failed to scrap it entirely. But those are the headline policies. The Trump administration spent four years quite deliberately and subtly,

rewriting America's entire immigration system, and Biden can't undo it all with just the stroke of a pen. My name is Sarah Stillman, and I've been covering immigration along with other topics for the New Yorker for almost a decade now. Back in 2018, I set out with a team at Columbia Journalism School to follow the vast array of changes to immigration policy happening during the Trump era, and especially the evisceration of the asylum system.

Sarah says there are upwards of a thousand changes to immigration rules and processes, bureaucratic, technocratic measures that might seem small, but taken together, they've had profound consequences. I wanted to see how these changes were playing out in real people's lives, and that led me to a mother-daughter pair.

I'm going to call them, Gabriella and Maria. Did you leave Honduras? They came from Honduras. They came from Honduras. Gabriella worked for a powerful political party in her seaside town, which caused her to run afoul of local gangs. Eventually, she denounced that party, which endangered her life.

Her husband told members of the party to leave the family alone, and not long after that, he stepped out one morning for his morning cigar, and he was shot to death by assassins in a car. Another older daughter had been kidnapped and sexually assaulted by organized crime, and the family was just consistently being stalked. And so that daughter and Gabriela and Maria realized that there really was not a way for them to be safe where they lived. They tried relocating internally, and then ultimately they concluded that they had to flee north to the United States.

And so that's what they did. The family's experiences are horrifying, and I want to say, that what follows from their court testimony is upsetting to hear. But sadly, that part is unexceptional. I've heard so many painful stories from this region of Central America over the last decade of people fleeing violence. To the respondents, good afternoon. Good afternoon.

I'm immigration judge Shelley Schools at the adjudication center in Fort Worth, Texas. The court is appearing via video teleconference, as are the respondents and government. What really stood out to me about their case was how clearly the judge communicated to them about these new Trump-era policies. And in the audio from the immigration court, you can hear the judge spell out all of the traps in asylum policy. She was new to the immigration system, which I think was part of it. And I followed a lot of families' asylum cases, and you rarely get to see or hear in a single case. An authority figure spell out policy after policy after policy, the ways the Trump administration closed the door.

on protection. We're here for continued removal proceedings. The respondents are present in appearing without counsel today. The government is represented by Ms. Sherry Hurley. We are here today to take additional evidence on your applications for relief. Gabriela is appearing in this hearing with only her younger daughter, Maria, who is 14 years old. When they'd arrived at the border, the family was split up, and Gabriella's older daughter, who's the one who had been kidnapped and sexually assaulted back in Honduras, she was detained and then swiftly deported. And meanwhile, Gabriella and Maria separately were sent to wait for their asylum hearing in a program of the Trump era called the Migrant Protection Protocols.

This was something the administration had instituted after family separations when a lot of people, frankly, stopped paying close attention. And suddenly the Trump administration created this policy that was pretty drastic blocking asylum seekers from waiting for their hearings in safety in the United States. States. And the language is quite Orwellian, migrant protection protocols, because instead of protecting asylum seekers, what this program actually did was force them back into Mexico, into some of the most dangerous cities in the world to await their hearings. And so up until now, Gabriela and Maria have been waiting in the Migrant Protection Protocols camp in Matamoros, Mexico,

where they've been sleeping on the ground on a piece of cardboard. And now they were showing up to their asylum hearing alone without an attorney because the government doesn't provide legal representation and most asylum seekers can't afford lawyers. The government has even argued that literally three-year-olds should be sent to represent themselves alone in immigration court and to answer a judge's questions about why they deserve protection. Tell me why you left. Because we were receiving threats. They killed my god of my god. They killed my god.

father. They abducted my daughter. She was raped. The intention was to kill her because she had overheard. About some drugs that were going to be trafficked. During the time that she was abducted. During the time that she was abducted. There was an agent of the police therein.

All right, ma'am, let me explain something to you before we go any further. The United States has a law that states if you entered the United States through the southern border, on or after July 16, 2019, and if you traveled through other countries outside of your home country, and if you did not request asylum or other people, protection in those countries, then you are not eligible for asylum in the United States. Now, I will continue to ask you questions about why you left Honduras and why you are afraid to return so that I can determine if you're eligible for any other kind of protection. But I want to make it clear to you that you and your daughter are not eligible for asylum

because of U.S. law. Do you understand what I've told you so far? Yes. You can hear that immediately Gabriela and Maria were disqualified from asylum because of this new Trump policy, sometimes called the third country transit asylum bar, which said essentially that if you pass through any other purportedly safe country on your way to get to the U.S. to claim asylum, that you're no longer eligible, that you basically forfeited your chance because you could have been safe elsewhere and you're now not going to get to be safe here. This is a moment to point out the basis of asylum law. After World War II, countries got together and decided that we would never again allow people to be turned back to countries where they would face potential death or persecution. And so we created this international system to ensure that that would be the case. But this family's finding out that simply because they walked through other countries on their way to try to get to safety, they no longer have the chance of it.

And now one of their only ways to stay safe in the United States would be to qualify for protection under something known as the Convention Against Torture, or CAT, C-A-T. It's really hard to meet this bar, partly because during the Trump era, they went to great lengths to narrow the definition of what qualifies as torture. And you can hear the government's lawyer spell out these onerous requirements. And you're just looking through some of the case law. You know, it's for an applicant to qualify for protection under cat. Specific grounds must establish or must exist that indicate that the individual will be personally at risk. Eligibility for cat relief cannot be established by stringing together a series of suppositions to show that torture is more likely than not to occur. It's always been the case that in order to receive asylum, you have to prove that you were persecuted as a result of very specific things about your identity, like your religion or your political.

opinion. What's unique here is that under the Trump administration, these qualifications just kept getting narrower, and so did a lot of judges' interpretations of them. So in claims for legal protection, for instance, you're supposed to show that the state had been unwilling or unable to protect you. And now that's just more difficult to do. And I think what's especially hard for Gabriella and Maria here is that even though one of their family members had been actively assassinated, and another one of them had been sexually assaulted in the presence of a Hunter and police officer, they themselves had not been physically harmed. The law does not require that. It does not require physical injury to win asylum, but some

judges act as though it does. And now, in this case, this judge is trying to figure out if Gabrielle and Maria might qualify for protection under her interpretations of what are increasingly narrow definitions. Have you ever been personally threatened with harm? And I'm talking about you specifically. Not to me, no. It wasn't to me. It was always true to my daughter.

He said, no, your sisters can still wait and your mom can still wait. And then he pulled out a picture and said, look, and it was a picture of us. She just kept repeating, Mom, Mommy, they're going to kill us all. They're going to kill us all. She would repeat. So the testimony here may sound a little bit confusing, but what Gabriela says is that the men who had assaulted her older teenage daughter had also shown the girl

a photo of Gabriela and Maria and threatened their lives. But the issue for the judge is that they hadn't been told that directly. The threats had been made to the sister who was being held captive. All right. Do you have any reason to believe that your family was targeted because of your race or nationality? No, I don't know why. I don't know why.

Do you have any reason to believe you were targeted because of your religion? No, I don't think so. This is a very difficult case. I'm going to ask the government counsel for her input on what protection, if any, you qualify for. So at this point, the judge mused Gabriela and Maria and their translator, and she turns to speak directly to the government's lawyer. You can hear that the judge is new. She's a Trump appointee, and she's just diving into this case law. And so she talks it throughout loud.

All right, Ms. Hurley. Your Honor, we would... Let me tell you what I'm thinking, and then I want your input. Yes, means. I've already established that they are not eligible for asylum based on their date of entry. However, I am considering whether they qualify for withholding of removal under CAT. Because of the presence of a uniform officer at the scene where the sexual sexual... assault and other harm took place, and I certainly think that kind of conduct rises to the level

of torture. What's the government's position? Your Honor, I believe our position would be a lot of the respondent's testimony seems to be a lot of speculation as to what happened and why it happened and who may or may not have been there. I don't know that there's enough information before the court to establish, you know, if this person's in some form of a police uniform, where they're from or what agency they're even from. Well, that's an easy question to ask. And I certainly can ask her if we're talking about a Honduran police officer. Go ahead, though. Continue.

And I think that to me, there's a lot of speculation. The fact that one individual is dressed as an officer doesn't necessarily mean that they were an officer. I don't believe that the testimony that's before the court is enough to make it more likely than not that if these respondents, were returned, that they would be tortured. I don't believe that the testimony before the court is enough to establish

that there's been sufficient state action. Let me explain what's going on here. It makes a really big difference in these kinds of cases what role the government played in a family's persecution. And this is especially true in the Trump era because Trump appointed a ton of new judges to the Board of Immigration Appeals, and that board had decided that they would raise the bar

for determining when an abusive cop was simply acting as a rogue officer, a bad apple, essentially, and when his persecution really rose to the level of state action. The government here is trying to argue that this is just, you know, one bad apple. Maybe he's just a regular dude wearing a police officer's uniform. And so the judge needs to figure out, in this case, what was the role of the police officer? Ma'am, with regard to this police officer that was there when your daughter was kidnapped, was she able to see a name or give any identifying information about him? She was stretched out on a bed.

They were on a corner of the room. And she saw that police officer over there. She couldn't see a name tag or anything because he had his back facing her. But what kind of officer uniform was he wearing? Like what town, what country? It was Honduran. There was that maybe blue pants. This is a very difficult case, and I'm trying to do the best that I can to follow the law of the United States.

Do you know if this police officer was present when your daughter was actually kidnapped on the streets? I don't know. I did not ask her that. Do you know if this police officer was involved in sexually assaulting your daughter personally? He was watching as she was being raped. him along with other men. Do you know if this police officer ever touched your daughter himself? No, he only watched.

All right, ma'am, I do appreciate you answering those questions, and I appreciate your being honest with me. That part makes me so furious because you hear the profound arbitrariness of who is going to get protection, who is not, whether a police officer was sitting beside a team, teenage girl while she was raped or whether he was actively physically using his body to do the raping, that's the absolute fulcrum on which this case winds up turning. And that, to me, feels really troubling. And as an exact example of how the Trump era, through these things that seem very small

and very technical, the minutia of immigration policy can really create the distinction between life and death for a family. This is the New Yorker Radio Hour. More to come. You're listening to The New Yorker Radio Hour. So I've considered all of the testimony and the evidence that you've given me. If there was some legal way that I could provide you protection in the United States, I certainly would try to do so. However, based on the evidence that I have, I simply cannot offer you any protection under the law. I want to talk to you about why. First, although you have certainly experienced some traumatic events, neither you nor your daughter.

have been subjected to persecution as that's defined by law. The death of your husband and the kidnapping of your daughter are certainly serious events, and I don't mean to suggest otherwise. However, the harm did not occur to either of you. You also do not qualify for protection under the Convention Against Torture. The presence of a uniform police officer certainly gives the court great concern as far as what happened to your daughter. But just because one police officer is acting unlawfully does not mean all of the government of Honduras or that the government of Honduras wants to harm you.

For these reasons, I'm very sorry to tell you, I'm denying your applications for relief. You have the right to appeal my decision if you wish. Do you want to reserve the right to appeal? I cannot return to Honduras. Am I expected to have another one on my daughter's raped or killed for me to be able to apply again? I need you to answer my question. Do you want to appeal my... Listening to these proceedings, you can see how narrow and stringent the law has become.

This should be the definition of a strong case for asylum. But you can hear that this judge, based on the way she's interpreting the laws of the Trump era, feels that her hands are tied. It almost sounds like the judge is saying, in order to qualify... for asylum, you almost have to have been murdered to show that you could be murdered. And without a lawyer present to contest that particular reading of the law, that was the bind that Gabriella and Maria were in. Man, before I let you go, I just want to tell you one more thing.

I am very sorry for what has happened to your family. If the laws of the United States gave me a way to provide you protection, I would. I do wish you both the best of luck, and I hope that you can find a safe place to live. We are adjourned in your case. Thank you. It's never been easy to find sanctuary in the United States, and frankly, even under the Obama administration, that was not easy. But what really stood out to me in this family's case

is that in every direction they turned, through minute change after my new change, the Trump administration had basically put up a wall against this family in violation of international and domestic law and essentially condemned them to being sent back very terrible and proven danger. On Biden's very first day in office, he ended new enrollments in the migrant protection protocols.

But he hasn't actually made clear what he's going to do in a very concrete way for all of the people who are still awaiting safety. And so the question for me, in listening to this family and in learning their story becomes, will they find a different America in Joe Biden? Will they be reunified together as a family?

and will they get the protection that they deserve? Sarah Stillman. Gabriella, as we've called her, is in hiding in Mexico, and her daughter Maria returned to the U.S. by herself to try again for asylum. She was placed in a shelter for unaccompanied children, then released to a relative during the legal process. Two groups, one called The Door in New York,

and Americans for Immigration Justice in Miami are assisting in her case. New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker. Our theme music was composed and performed by Merrill Garbus of Tune Yards. This episode was produced by Alex Barron, Emily Boutin, Ave Cario, Riannon, Corby, Corby, Calaliyah, David Krasnow, Gauphin and Putuguello, Louis Mitchell, Michelle Moses, and Stephen Valentino, with help from Alison McAdam, Meng Faye Chen, and Emily Mann. We had special assistance this week from Destre Maria Sibley.

The New Yorker Radio Hour is supported in part by the Cherina Endowment Fund.