US has only accepted two refugees since March under Trump’s new border rules

Screenings for border crossers are ‘essentially a scam’, says civil rights lawyer

The Trump administration’s emergency restrictions in response to the coronavirus have shut the US immigration system so tight that just two refugees at the southern border have been allowed to stay since 21 March, according to unpublished data from US Citizenship and Immigration Services (Uscis).

Citing the threat to public health from the coronavirus, the Trump administration has suspended most due process rights for migrants, including children and asylum seekers, while “expelling” more than 20,000 unauthorised border crossers to Mexico under a provision of US code known as Title 42.

Homeland Security officials say the emergency protocols are needed to protect Americans – and migrants – by reducing the number of detainees in US Border Patrol holding cells and immigration jails where infection spreads easily. But the administration has yet to publish statistics showing the impact of the measures on the thousands of migrants who arrive on US soil each year as they flee religious, political or ethnic persecution, gang violence and other urgent threats.

The unpublished statistics, obtained by The Washington Post, show that Uscis conducted just 59 screening interviews between 21 March and 13 May under the Convention Against Torture, effectively the only category of protection in the United States that is still available to those who express a fear of grave harm if rejected. Uscis rejected 54 applicants, and three cases are pending, according to the data, which do not indicate nationality or other demographic information of those screened.

Lucas Guttentag, an immigration legal scholar who served in the Obama administration and now teaches at Stanford and Yale, said the border measures “are designed to pay lip service” to US law and international treaty obligations “without providing any actual protection or screening”.

“The whole purpose of asylum law is to give exhausted, traumatised and uninformed individuals a chance to get to a full hearing in US immigration courts, and this makes that almost impossible,” Mr Guttentag said. “It’s a shameful farce.”

US immigration courts granted asylum to 13,248 migrants who sought protection to avoid being deported in 2018, according to the most recent statistics from the Department of Homeland Security (DHS).

An Uscis spokesperson referred questions to DHS, which did not respond to requests for comment.

Mark Morgan, the acting commissioner of US Customs and Border Protection (CBP), defended the restrictions to reporters last week, insisting the measures were a public health response that did not amount to a new immigration policy.

“The president’s proactive and aggressive containment and mitigation network of common-sense policies and initiatives with respect to Covid-19 has been both historic and effective to slow the spread of the disease,” Mr Morgan said.

Despite the administration’s claims of an external threat, the United States remains the world’s worst coronavirus hot spot, by far. The country’s 1.37 million confirmed cases is 1.1 million more than the next-highest nation – Russia – and the US death toll of more than 82,000 is almost two and a half times that of the UK, the next-highest country.

Some experts and advocates point to the administration’s long-running effort to close the US border and build a wall there as the main reason for the new measures, seeing them as an excuse to implement the kind of blanket closures the president has sought for years.

Trump administration officials began limiting access to US immigration courts and the asylum system well before the pandemic, in response to an unprecedented influx of Central American families and children in 2018 and 2019 who claimed a fear of harm if sent home.

The administration returned more than 60,000 asylum seekers across the border last year in coordination with the Mexican government, under a programme called the Migrant Protection Protocols (MPP) that requires applicants to wait outside US territory until their claims are adjudicated. MPP hearings in the United States have been suspended during the outbreak.

Homeland Security officials also began shipping asylum seekers from Honduras and El Salvador to Guatemala last year, directing them to apply for protection there, among other measures.

Those controversial programmes preserved a limited degree of access to US immigration courts for migrants with the strongest and most serious claims, including victims carrying strong evidence of urgent, deadly threats and evidence of complicity by authorities.

The emergency measures now in place at the border have essentially cut those pathways off, the statistics show, even as Trump officials say asylum applicants continued to be considered on a case-by-case basis.

“The administration has been trying for three years now to close the southern border to asylum seekers,” said Lee Gelernt, an attorney from the American Civil Liberties Union who has fought the administration’s immigration policies in federal court. Mr Gelernt said his organisation is considering legal challenges to the new measures.

“People who are scared and lacking knowledge of US law are going to have no chance,” he said, noting that the way the government has set up the Convention Against Torture screenings “is essentially a scam”.

Under the new proceedings, outlined in a memo published by ProPublica, US agents do not ask migrants if they face harm or fear persecution if deported or returned to Mexico, and migrants must volunteer the information.

Agents who hear the migrants’ claims must seek approval from supervisors to refer an asylum seeker for an interview with Uscis to determine if the person faces a “more likely than not” risk of being harmed if sent away, a threshold much more restrictive than that applied under standard asylum rules.

A migrant who manages to clear those hurdles can then be screened by Uscis for eligibility under the Convention Against Torture, a United Nations treaty designed to prevent nations from facilitating torture, cruelty and forms of persecution, of which the United States is a signatory. The decision must also be approved by a Uscis supervisor, and applicants do not have the ability to appeal the decision to US immigration courts.

The most recent CBP enforcement statistics show the agency expelled 14,416 border crossers last month, and about 95 per cent of those who arrived were quickly sent back into Mexico. Overall, border detentions fell more than 50 per cent from March to April – to 16,789 – the second-lowest monthly total of Trump’s presidency, according to the latest figures.

The Washington Post