Today, Explained - The Sessions Doctrine

Episode Date: June 13, 2018

On Monday, Attorney General Jeff Sessions made it harder for Central Americans fleeing gang violence or women escaping domestic violence to gain asylum in the United States. This comes after the Trump administration made a practice of separating families who have entered the country illegally. Vox’s Dara Lind explains how U.S. immigration policy is dramatically shifting. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Two minutes on the board, on the clock. Hoo, hoo! Today's episode of Today Explained is brought to you by Mattress Firm, your friendly neighborhood mattress store. You can go to mattressfirm.com slash podcast and save 10% off your next mattress using the discount code PODCAST10. During Barack Obama's presidency, the United States made it easier to come and live here by pleading asylum, especially if you were coming to America to escape domestic abuse or gang violence.

Since taking office, Donald Trump has been making it harder to get asylum, and his Attorney General Jeff Sessions took another big step in that direction on Monday. The United States will no longer grant asylum to victims of domestic abuse or gang violence in most cases. Attorney General Jeff Sessions' decision reverses a 2014 U.S. policy. He said that policy has been applied too broadly and that, quote, the asylum statute does not provide redress for all misfortune. Sessions overruled a case from 2014 from the Board of Immigration Appeals called the matter of A.B. and in the process overturned a 2014 precedent and a bunch of other unspecified precedents as well, all with the intention of making it harder for domestic violence victims and victims of gang violence to seek asylum claims in the United States.

Daryl Lind reports on immigration at Vox. He didn't straight up say, you will not be eligible to apply for asylum in the United States if you're a domestic violence survivor or gang violence survivor. What he did was he tightened legal terms under existing asylum law that those groups had been using. But it also was an instruction to immigration judges and to the screening officers at the border who interview people to see whether they even meet the threshold to make asylum claims that they should be much more restrictive in granting these cases.

What was the case that Sessions ruled on, this case of A.B.? What is that about? This is a woman from El Salvador who was subject to domestic abuse from her husband. The woman is referred to by her initials, Ms. A.B. The kind of summary of the case by some of the lawyers who have argued it says that he beat and raped Ms. A.B. so many times that she lost count. He also frequently threatened to kill her, often brandishing a loaded gun or a knife. Ms. A.B.'s husband was violent even during her pregnancies, on one occasion threatening to hang her with a rope from the roof of their house. She sought protection from the Salvadoran authorities, but they were unable or unwilling to protect her. This kind of raises two separate questions in asylum law. One of them is the question of, you know, does being a victim of domestic violence mean you're in a particular social group? And the other one is because it's not the government itself that's doing this to you, is the government essentially condoning this? Because persecution is usually defined as being something the government does.

So the standard has been that if the government is unwilling or unable to protect you, that that's a basis for an asylum claim. That's also kind of getting tightened. Sessions is saying that just because the government doesn't answer your call for help doesn't mean they are okay with what's happening and that you have to show that the government is essentially condoning what's going on. These are both really hard questions of asylum law, right? Like the kind of common sense understanding of asylum is if someone's afraid that they're going to die, we should let them in. That's not what the actual text of the law says. The text of the law says that there's more gang violence is so widespread that it's extremely difficult to be an adolescent boy and not be in a gang. At what point does that turn into a matter of persecution?

And who is he sort of targeting here? It sounds like there's lots of cases from Central America. Is this something that will exclusively affect Central Americans? Not exclusively, but largely. Most of the people who are coming to the U.S. border and seeking asylum right now are Central Americans. Where are President Trump and Jeff Sessions coming from? How many people are actually coming to the United States and trying to get asylum? So the numbers that the administration uses are that... In 2009, Homeland Security conducted more than 5,000 credible fear reviews. By 2016, that number had increased to 94,000. They came to the U.S., told officials that they had a credible fear of persecution,

and were allowed to pursue an asylum claim. The administration kind of frames it as evidence that too many people are passing their initial interviews, that if there's such a huge change, it must mean that we're being too generous, and that clearly some people must be taking advantage of this system, and that means we need to change it. The credible fear process was intended to be a lifeline for persons facing serious persecution, but it has become an easy ticket to illegal entry into the United States. So what does this shift mean for asylum? Is there going to be like a big chunk of people now not claiming asylum? There, I think, are going to be two things to watch coming out of this.

One of them is that the federal courts don't really have direct authority over what Sessions just did, but it's possible to appeal something from the Board of Immigration Appeals to a circuit court. It is possible that we're going to see attempts to kind of roll back or limit the scope of this new Sessions ruling by people appealing their cases up to circuit courts. You know, you're not going to see the kind of nationwide injunctions that we've seen against the Trump administration in other cases, but that's a possibility. The other thing that's really important to watch, though, is that there's a really open question as to what this is going to mean

for the asylum officers who are currently doing those screening interviews at the border and what guidance they're being given on how to tell somebody who has a credible fear of persecution based on membership in a particular social group versus somebody who just has a credible fear of gang violence and that, you know,

only the first person should kind of person should be allowed to get in. There's a lot of concern among immigration lawyers that there is just going to be a huge spike in the number of people who are trying to come in for those screening interviews who are going to end up failing those screening interviews where they might have passed a few weeks ago because they're being held to this higher standard. Is there a chance that the Trump administration and Attorney General Jeff Sessions are doing this as a deterrent? And are you even allowed to do that when it comes to asylum? It's definitely the case that the Trump administration has been making a ton of policy changes in the last several weeks, all of which are intended to do two things. They're trying to crack down on people who are coming over into the U.S. now, and they're trying to send a message to people who are considering coming into the U.S. that it's a bad idea.

So, yeah, they are trying to deter people. But the difference here is that some of the other things that they're doing, like when they're separating families at the U.S. border, they're not reducing necessarily the chance that the children and parents will be able to stay. They're just making them miserable. In this case, it's a separate kind of message. It's you will not be able to stay. You will be deported more quickly. And so once this goes into effect, if you do see an immediate spike in people getting sent back quickly, that is going to have an effect on fewer people trying to come to the U.S. The question, of course, is like the reason that this is a humanitarian asylum issue to begin with is like the kind of calculation that you're supposed to make in border

security of making sure that people don't come across illegally. There's supposed to be a loophole in that for people who are legitimately fleeing persecution. So it's incontrovertibly illegal to try to stop legitimate humanitarian migrants from seeking safety if they legitimately fear persecution. The reason that this is justifiable in the eyes of the Trump administration is that they think a lot of these people aren't legitimate humanitarian immigrants. But if, you know, in theory, if some people who have legitimate humanitarian claims are being deterred from coming because of this combination of we may not let you in and we'll treat you badly if we do, then there is a legitimate concern about whether they're violating international law by taking the Straconian approach. The Trump administration's making it harder to get asylum, but that's not the only thing that's

changing the immigrant experience at our borders. In a moment, separating kids from their parents. This is Today Explained. True story, I don't like my mattress. But it's brand new, and you know what I don't like even more than I don't like my mattress, but it's brand new. And you know what I don't like even more than I don't like my mattress? Wasting stuff. But this all could have been avoided if I had just gone to Mattress Firm. Seriously, they make it pretty easy. They're all over the country. They're all over the internet. Consider using the discount code PODCAST10 to get 10% off your next mattress at mattressfirm.com slash podcast.

I certainly am. Another thing, Vox has a new show on Netflix. It's called Explained, and every episode is a 15-minute deep dive into one important topic. This week, that topic is why diets fail. The episode's up now, and it's way more fun and interesting than dieting. Go to Netflix on your phone, on your computer, on your TV, or go to Netflix.com slash Explained to watch the show. Dara, apart from asylum, these separations at the border between parents and their kids is getting a lot of attention right now. How does that even happen?

What exactly is the process of taking kids away from their parents? Where do the parents go? Where do the kids go? What the Trump administration has started doing is instead of allowing them to seek asylum first, they're taking adults who cross the border and taking them and being criminally prosecuted for illegal entry, which is a misdemeanor under federal law. They don't have to do that. They could in previous administrations usually have said, okay, we have so many people coming in that we would literally swamp federal courts if we prosecuted all of them.

If you're claiming asylum, you're going to be allowed to stay in the US anyway. It almost doesn't matter. You should be allowed to plead your asylum claim first. The Trump administration is saying, no, no, we're going to convict you of illegal entry first and then we'll see what we want to do with you after that. You can't be with your children in jail.

So the children are being taken and reclassified as, quote unquote, unaccompanied biners, which is what the U.S. government labels someone who's under the age of 18 who comes to the U.S. without a parent with them. There's a whole separate structure for taking care of them that's under the Department of Health and Human Services, in particular, the Office of Refugee Resettlement. There are currently 10,000 to 11,000 kids in custody there, most of whom are people who came without their own or as part of a group. There are five-year-olds or younger, a couple of kids in diapers who came with their parents, were taken from their parents,

and are now being kind of sent through this other government bureaucracy. How long has this been happening at the border? We don't have a great answer to that. There have been some numbers that have indicated that there have been cases of families getting separated going at least as far back as October 2016. What we know is that over the summer, the Trump administration ran a pilot program of this kind of zero tolerance prosecution policy. If you cross the southwest border unlawfully, then we will prosecute you. It's that simple. It resulted in the widespread separation of children from parents. And then this spring expanded that to the entire U.S.-Mexico border. So since early May, the policy of the U.S. government has been, if you are a family coming across and crossing illegally, you will end up getting separated because the parents will

be prosecuted. Do we know if these kids will be reunited with their parents? There are no guarantees. The government talks out of both sides of its mouth on this. They've actually said in a federal courtroom, as far as the federal government is concerned, when someone is classified an unaccompanied minor, they no longer officially have parents in the U.S. That like the government no longer considers that a family. And so it's not their job to reunite them. That's not actually what the Department of Homeland Security is saying. They're like handing out flyers to parents saying here is the number you should call if you're separated from your child and saying, look, if you just plead guilty to illegal entry, you won't be sentenced to time in prison.

You'll just be sentenced to time served. Then we'll take you back into civil immigration detention. You'll be put into immigration court. You'll be able to try to seek your asylum case or whatever. And then we'll try to reunite your kid with you. The problem is that there's no system in place to do that. One woman who is the lead plaintiff in a lawsuit that the ACLU filed over this was from the Congo, actually came across at a port of entry, did everything that federal law says she was supposed to do, was separated from her child and didn't get reunited

for eight months. And actually, you know, was finally reunited last week. But the ACLU claimed pretty persuasively that it wasn't clear whether she was reunited just because she was suing the government over this or whether she would have been reunited otherwise. So there is definitely no systematic government effort to reunite families in the same way there's a systematic government effort to split them up. The Trump administration must be facing resistance on this. The thing about family separation is that the base argument that if you're being prosecuted criminally, you can't be kept with your kids if you're being put in jail, like that's not wrong. And no one has really figured out a way to make the argument that, you know, the Trump administration is legally prohibited

from doing what they're doing on that. There is an argument that the Trump administration is abdicating its legal responsibility to once parents are back in immigration detention to make sure they're reunited with their kids. That's what the ACLU's lawsuit is about. And there's actually been a kind of preliminary indication from the judge in that suit. The government asked him to throw out the suit. that suit gets won, that's not going to prevent families from getting separated. It just theoretically creates an obligation on the part of the government to reunite them. And like what that theoretical obligation looks like in practice and how effective it is, is a ginormous open question. What's the effect that this is taking on these families that are being split up?

I feel like any parent or anyone who's ever talked to a parent knows that being separated from your children and not not knowing where they are, not knowing whether or when you can be reunited with them is, you Border Patrol agent said, oh, I'm just taking them for a bath or, oh, I'm just taking them to question them and I'll return them to you. And like hours later, they realized that their children weren't coming back to them. We've also heard cases of Border Patrol agents saying, we don't believe in families here. You're never going to see your children again, which is its own kind of horror. The Washington Post uncovered a case that Border Patrol hadn't really announced of a man, you know, dying by suicide in the night after he was separated from his wife and his three-year-old child. It's really hard to say that child would have been sent to family detention and he would have been detained separately. But it's also possible that the parents of a three-year-old child would be seen as like not a huge priority to detain and they would have passed a screening interview for asylum and put on an ankle bracelet and gone on their way. I really don't like talking in general about deaths that are the result of policy because there's always so many variables.

But in that particular case, it's really hard to say that the policy of separating children from their families isn't what led to this death. Daryl Lynn hosts the Weeds podcast of Vox. I'm Sean Rottmisfirm. This is Today Explained. Thank you.