Originally Published in The Intercept.
Maryam Saleh
January 22 2019
PRESIDENT DONALD TRUMP’S new offer to open the federal government in exchange for funding for his wall on the southern U.S. border includes a major change to immigration policy that was not included as part of his public announcement.
The Trump administration had claimed that it would support legislation known as the BRIDGE Act — which includes protections for Dreamers — in exchange for concessions by Democrats. Upon closer investigation, that turned out to be a lie.
Trump’s offer to Democrats, revealed Monday night, actually gives him even more of what he has wanted in immigration policy, which is an end to the legal process that allows people to present themselves at a U.S. port of entry and apply for asylum. Trump’s new policy would ban such asylum-seeking for Central American minors and require those fleeing violence or persecution to apply in their own country instead.
The Trump administration, however, has also made that process effectively impossible. The appropriations bill that’s currently on the negotiating table creates the “Central American Minors Protection Act,” which would allow minors from El Salvador, Guatemala, and Honduras with a “qualified parent or guardian” in the United States to apply for asylum in their home countries. (The bill does not define “qualified” parent, and it’s unclear whether the program would be limited to the children of U.S. citizens and permanent residents.) But far from treating would-be asylum-seekers’ claims with urgency, the bill gives 240 days (about eight months) for the establishment of eight processing centers that would deal with these claims — even though the ban on requesting asylum at the border would go into effect immediately.
“There is no way to square the way the administration has described this plan with what it actually is.”
“There is no way to square the way the administration has described this plan with what it actually is,” said Aaron Reichlin-Melnick, a policy analyst at the American Immigration Council, describing the proposal as a “de facto asylum ban” for the vast majority of cases. Central American minors who don’t have a qualified parent would no longer have a route to asylum, though they could ostensibly come to the border and request lesser protections with no route to citizenship, like withholding of removal or protections under the Convention Against Torture, Reichlin-Melnick noted.
The bill also caps the number of applications that can be processed at 50,000 per year, and says no more than 15,000 people can be granted asylum under the program annually. The Department of Homeland Security’s decision would not be subject to judicial review. If the legislation is passed, people who are eligible for the program will could be sent back to their home countries — without regard for their fear of persecution — if they trek to the U.S. and ask for asylum here.
The notion that asylum-seekers should apply back in their own countries is often presented with a veneer of humanitarian concern. Trump said in a speech on Saturday that the “heartbreaking realities that are hurting innocent, precious human beings every single day on both sides of the border” must end.
Indeed, even former President Barack Obama agreed to some extent that applying to emigrate while in one’s home country was better than asking for asylum at the U.S. border. And so, in 2014, as thousands of unaccompanied Central American minors were showing up at the U.S.-Mexico border, the Obama administration created the little-known Central American Minors program to encourage people to do just that.
CAM allowed children who were fleeing violence in El Salvador, Guatemala, and Honduras — and who had family members legally in the United States — to be considered for refugee resettlement while they were still in their home countries. Those who didn’t meet the eligibility criteria for refugee admission could be granted humanitarian parole, a temporary designation that would allow them to spend two years in the United States. (Notably, the Obama-era program was a supplement to existing asylum protections. Unlike the current GOP proposal, it didn’t impact the process of requesting asylum at the border.)
CAM was created for the children of people like Carmen Polanco, who is in the United States under Temporary Protected Status and has not seen her 13-year-old son since she fled El Salvador in 2011. Shortly after she left, her son witnessed a gruesome gang murder, a traumatizing experience that’s been followed by years of intimidation and bullying by local gangs, said Polanco, who asked to be identified by a pseudonym to protect her family. In 2015, she applied to be reunited with her son under CAM. His refugee application was rejected, but in late 2016, Polanco’s son was conditionally approved for parole, and he was set to undergo a medical examination in early 2017.
Then Trump entered office, and Polanco’s son’s exam was inexplicably canceled. The government’s website continued to broadcast word of the program, yet applicants at various stages throughout the process began to notice that their applications were not moving. In August of that year, DHS finally announced that it was canceling the program. DHS also rescinded parole for about 2,700 people who, like Polanco’s son, had been conditionally approved for parole but had not yet traveled to the United States.
We now know, thanks to a lawsuit filed by the International Refugee Assistance Project, that the Trump administration shut down the CAM program — canceling interviews and blocking travel to the United States — in January 2017, without notifying the public.
“The sudden, unexplained shutdown of the CAM parole program, which was carried out in secret immediately after President Trump’s inauguration, can only be explained by the president’s animus toward Latinos and Central Americans,” said Linda Evarts, an attorney at IRAP.
Last month, U.S. Magistrate Judge Laurel Beeler found that the administration’s mass rescission of conditional approvals of parole was illegal under the Administrative Procedure Act, which deals with the way federal administrative agencies propose and establish regulations. Beeler’s decision was narrow, but it represents yet another instance of the courts rejecting rash policy changes by the Trump administration that have the intended, if unspoken, effect of keeping Latin American migrants out of the United States, regardless of how they try to get here.
IRAP brought the lawsuit on behalf of 12 applicants and beneficiaries of the CAM program, charging that the abrupt termination of the program moving forward was also illegal under the APA, and that the Trump administration’s actions were unconstitutional. Beeler rejected those claims, and she has not yet ruled on IRAP’s motion for a preliminary injunction that would force the Trump administration to reverse its rescission.
Still, Evarts described Beeler’s ruling as “a very important first step,” because the judge’s finding that the government violated the APA could set the stage for how she will rule on the preliminary injunction.
“The proposed legislation…would create a second-class asylum system for Central American children that is irrational and cruel.”
The Trump administration’s new proposal for Central American minors does nothing for those impacted by the 2017 rescission of conditional parole, Evarts said. “The proposed legislation would eviscerate the humanitarian protection system for asylum seekers that has enjoyed bipartisan support for decades. It would create a second-class asylum system for Central American children that is irrational and cruel, requiring them to apply from their home countries or be denied asylum.”
Wendy Mejia, 16, hugs her aunt after her arrival from El Salvador at Baltimore-Washington International Airport on Nov. 12, 2015. After 15 years apart, Wendy and her brother Brian reunited with their parents, becoming among the first teenagers to be granted refugee status and permission to travel legally to the United States through the State Department’s Central American Minor program.
Photo: Patrick Semansky/AP
BY CREATING THE CAM program, the Obama administration acknowledged that the threat posed by gangs and state security forces in the Northern Triangle countries could amount to persecution or a fear of persecution, one of the elements of a refugee claim. Typically, refugee resettlement is an option only available to individuals who’ve already fled their home countries, but the U.S. government wanted to discourage minors from making the perilous journey through Central America.
Within the first week of Trump’s presidency, U.S. Citizenship and Immigration Services, which is housed in DHS, canceled more than 2,000 CAM interviews that were scheduled in the first three months of 2017, according to court documents. The government also stopped issuing decisions to people who’d been interviewed under the program, stopped scheduling medical exams for people who had been conditionally approved for parole, and blocked travel for people who had cleared their medical exams. As all this was happening, “at least five webpages controlled by USCIS, the State Department, and the U.S. embassies in El Salvador and Honduras represented that the CAM program continued to be in operation,” Beeler wrote in her order.
The program was initially halted in anticipation of Trump’s January 27, 2017, executive order that is best known for containing the first iteration of the travel ban. Then-Secretary of Homeland Security John Kelly issued a memo about implementing the executive order, in which he stressed that parole should be granted only “sparingly.”
In August 2017, the government said publicly for the first time that it had terminated the program and rescinded conditional offers of parole to 2,700 Central American minors. Those individuals were later told that they had 90 days to file a request for review of the denial of refugee status, in which they could present evidence that the officer who rejected their applications made a significant error, or that there are new facts that warrant a reconsideration of the officer’s decision. (There is no appeal process for such rejections, and it’s entirely within USCIS’s discretion whether to grant a review of an application.) “Many of those who filed [requests for review] in 2017 or early 2018 have not yet received decisions” on those requests, Beeler wrote.
Polanco filed a request for review in her son’s case in December 2017, and she has not yet heard back from USCIS, she said. She’s so desperate to be reunited with him that she’s “even thought about leaving and going there and bringing him back with me, walking,” Polanco said, speaking through an interpreter. Her son left Polanco’s parent’s home and is now living with her sister, due to his fear of gang activity in his family’s neighborhood. “He cannot go to church anymore. He cannot go to the stores. He cannot get out of the house,” Polanco said.
IN A DECEMBER 2016 report, outgoing USCIS Ombudsman Maria Odom called CAM “one of the most important programs DHS has developed in the last four years,” though she cautioned that it formed just “one piece of a comprehensive regional response needed to address the Northern Triangle refugee crisis.”
The program, as important as it was, was also flawed. Odom identified eight issues of concern in her report, including lengthy processing times, narrow eligibility criteria, and high costs. Another shortcoming of the program identified by advocates, as The Intercept previously reported, is that already fearful Central Americans put themselves at risk merely by applying for protections under the program — by repeatedly traveling to capital cities for interviews, people risked being tracked and hunted down by gangs.
A 2016 report prepared by the Unitarian Universalist Service Committee and grassroots groups in Central America and the United States found that “few minors (according to our survey, 2.5%) who take the traditional migration route through Mexico to seek asylum in the United States are aware of the CAM program. And even fewer (according to our survey, 1%) feel CAM is a legitimate alternative for them. Most could not wait a year to flee or did not fit the eligibility criteria.”
The report authors recommended an expansion of the program. Instead, Trump got rid of it.
During its short run, CAM provided a “lifeline” for many families, said Katie Shepherd, national advocacy counsel at the American Immigration Council. “It certainly wasn’t a perfect solution to a very systemic and difficult problem — that problem being pervasive gangs, domestic violence, and regional instability — but it did provide some avenue to some small portion of people, right? So it wasn’t a solution to the problem, but it did remedy the problem in some regards.”
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