Originally Published in Slate
Ray Suarez - August 24, 2020
The Trump administration is now sending asylum-seekers back without even a hearing.
Here in the U.S., the pandemic has brought a lot of things to a halt, but one thing it hasn’t stopped is the flow of people seeking asylum. People are still showing up at the border, hoping to escape brutal conditions in their home countries. And the U.S. government is supposed to hear these people out. But Adolfo Flores, who covers immigration policy for BuzzFeed News, says that’s not happening right now. Back in March, the Centers for Disease Control and Prevention said undocumented immigrants could no longer be safely detained at the border while they awaited processing because of the pandemic. “They are quickly sent back to Mexico in less than two hours without any access to our immigration court system,” Flores says.
The government has also scrapped many of the protections in place for unaccompanied minors—kids who have crossed the border and are trying to stay in the U.S. The Trump administration insists this is all necessary to minimize the spread of the coronavirus. But critics, like the American Civil Liberties Union, say the U.S. government is using the crisis to continue the president’s crackdown on immigrants. I spoke with Flores about how the Trump administration is denying immigrants and asylum-seekers access to the U.S. legal system, and what that means for the adults—and children—fleeing violence in their home countries. Our conversation has been edited and condensed for clarity.
Ray Suarez: Before COVID-19, was the United States able to handle the flow of asylum-seekers? Were those cases being adjudicated before and they’re not now?
Adolfo Flores: They were, but there was—and there is—a massive backlog in cases. So people’s cases were taking years to be adjudicated. But the administration had another policy before this, the so-called Remain in Mexico program. And that forced immigrants and asylum-seekers to wait in Mexico while their cases were adjudicated. But even then, people were waiting more than a year in some cases.
So this is a policy that’s been in flux already, regardless of COVID-19. People who once would show up at the border and have an asylum process scheduled and be kept in custody on the U.S. side of the border or released to relatives or allowed to remain at large were being pushed back into Mexico already. Now they’re being pushed back into Mexico and not even being given a hearing?
That’s exactly what’s happening.
Does the law give a lot of power to the executive branch in dealing with the day-to-day treatment of attempted border crossers and asylum requests? Is there normally a lot of latitude in the executive branch?
The last three years have shown that there is more latitude than we previously thought. The changes in the policies under this administration, they don’t always stick, but there’s always a new one. There’s always something on the horizon to take over. Remain in Mexico is a good example. That was one thing. And now we have these expulsions. Of course, they say that this is because of the pandemic and we need to stop the spread of COVID- 19. But I think that the last few years have shown how much power and influence the executive branch does have in changing or adopting our immigration system.
In your reporting, you’re careful to make the distinction between deportation and expulsion. Walk us through the difference.
The reason I try to make that distinction is because if you say I was deported, that means you went through our immigration court system. You went through the process. Expulsions cut you off from that process completely. Let’s say I show up at the border fleeing persecution or violence. And I tell a Border Patrol agent this. In the past, they would do a credible fear interview. And if I pass that, then I would be able to access the court system and try to get asylum or some other type of protection. Then I would go through that process. And if I didn’t get it, I would be able to appeal it and go through that process. What you’re seeing now is that that due process is taken away. I would go to the border today, tell the Border Patrol agent, “Hey, I’m fleeing persecution.” They would quickly process me and then tell me, no, go back to Mexico
Do we know what happens to people who are expelled? Do we know whether they try to cross again?
People are immediately sent back. But there’s nothing stopping them from trying again and again and again.
How has the pandemic become a factor in the way border enforcement is being handled writ large, not just with expulsions rather than hearings—is COVID-19 also changing the lives of people who are already in custody, adults and children?
In terms of people in ICE detention, the virus is spreading in all the facilities. So there has been an effort to reduce the population, and people have been getting released. But if you talk to some of the attorneys working with folks there, they’re not being released fast enough or releasing enough people, and people are getting sick and in some cases dying in ICE detention from COVID-19. And the immigration court system hasn’t been working as it usually did. So some people are getting their cases postponed. Some are not. It just depends on what stage of the process you’re at.