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Trump administration says it will keep immigrants in Mexico throughout asylum process

The Trump administration has announced it will keep asylum seekers in Mexico while they await the outcome of their cases. It’s a way to block them from settling in the U.S. during the asylum process, which can take years. Theresa Cardinal Brown of the Bipartisan Policy Center joins Amna Nawaz to discuss what we know and what we don't about how the administration might implement this change.

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  • Judy Woodruff:

    Thousands of people seeking the American dream, many fleeing violence at home, now face a new fate as they arrive at the U.S. border.

    Amna Nawaz reports.

  • Amna Nawaz:

    An unprecedented policy change, effective immediately.

  • Kirstjen Nielsen:

    We are taking lawful, unilateral action to stop illegal entry now.

  • Amna Nawaz:

    The Trump administration announced today asylum-seekers on the southern border will be forced to stay in Mexico while their immigration cases proceed in the United States.

    The new rule was announced as Department of Homeland Security Secretary Kirstjen Nielsen testified on Capitol Hill.

  • Kirstjen Nielsen:

    Only one out of 10 from Central America are actually granted asylum by a judge. This will make it clearer what exactly our asylum laws allow for.

  • Amna Nawaz:

    It's a reversal of a long-held policy that allowed asylum-seekers to stay in the U.S. while their case was considered, and part of a larger effort by the administration to slow immigration across the southern border.

    Under law, individuals can seek asylum if on U.S. soil, whether they entered legally or illegally. Secretary Nielsen today:

  • Kirstjen Nielsen:

    They will not be able to disappear into the United States. They will have to wait for approval to come into the United States. If they are granted asylum by a U.S. judge, they will be welcomed into America.

  • Amna Nawaz:

    The change comes as the number of asylum-seekers has skyrocketed, up from 22,119 in 2009 to 115,399 in 2016. The immigration court backlog is now at a record high, 775,000 cases. And asylum cases can take years to process.

  • Rep. Jerrold Nadler, D-N.Y.:

    But anyone who applies for asylum, whether they have a legal right to get it or not, should be detained for years, that's the effect of what you're saying?

  • Kirstjen Nielsen:

    Yes, not for years, until the court…

  • Rep. Jerrold Nadler, D-N.Y.:

    OK. For years.

    (CROSSTALK)

  • Kirstjen Nielsen:

    Until their court is complete.

  • Rep. Jerrold Nadler, D-N.Y.:

    Why not instead speed up the process? Why not appoint more judges? It shouldn't take years. It used to take hours. Why should it take years now to adjudicate the case?

  • Kirstjen Nielsen:

    It takes years now, sir, because the numbers are such — so substantially higher.

  • Amna Nawaz:

    The administration claims most asylum claims are without merit, and asylum-seekers often fail to appear for court hearings.

    But immigration advocates say the new rule violates asylum-seekers' rights and puts them in danger. DHS said Mexico will provide migrants with humanitarian and work visas as they await their court date.

    And here with me now to dig into this new policy is Theresa Cardinal Brown. She served as a top policy adviser for the Department of Homeland Security under the George W. Bush and Obama administrations. She's now director of immigration policy at the Bipartisan Policy Center.

    Thanks for being here.

  • Theresa Cardinal Brown:

    Glad to — have me.

  • Amna Nawaz:

    So, we heard the secretary of homeland security say earlier this is an effective immediately kind of policy. What does that mean? Do we know how ready this is to be implemented?

  • Theresa Cardinal Brown:

    Well, we don't know how ready it is to be implemented.

    And, from what we understand, it was a little bit of a surprise to a lot of people it was going to be announced today. So there are a lot of details that we still don't know. We haven't seen policy guidance from Customs and Border Protection about how this will actually be implemented at the ports of entry.

    We don't know, for example, from the immigration courts, how are they going to notify individuals in Mexico of their hearing times and dates? We don't know, from Mexico, how they are going to support these people, possibly for years in Mexico.

    So there's a lot of lot of details we just don't know yet.

  • Amna Nawaz:

    We're talking about a sweeping new policy across a 2,000-mile border. How unusual is it that we don't have any of these details or know that they have been handed out?

  • Theresa Cardinal Brown:

    Well, under previous administrations, normally, all of this would have been worked out. You would have had direction to the field. You would have public affairs guidance. You would have had policy announcements made.

    Under this administration, this is not that unusual, unfortunately. We have seen this happen with the travel ban early in the presidency. We saw it happening with the zero tolerance policy, which was implemented very quickly with little notice.

    So this seems to be a way that this administration works.

  • Amna Nawaz:

    Let me ask you about the justification for this rule.

    A lot of it is based on asylum claims. And the administration says those claims have been going up, which is true. They also say that most of those claims are without merit. Is that true?

  • Theresa Cardinal Brown:

    Well, without merit is — or fraudulent is another term they use — I think that's a little misleading.

    It's true that an awful lot and probably the majority of these claimants don't actually get asylum at the end of the day. They don't qualify under the real standard for asylum.

    That having been said, they don't know that at the time they apply. They really believe they're seeking protection from circumstances. They don't know the law very well. They're not purposefully making a fake claim to try to get in the United States. They are just taking advantage of the one legal avenue open to them to try to seek protection in the United States.

  • Amna Nawaz:

    And we know the majority of those asylum claims over the previous years have been from three countries, right, Guatemala, El Salvador, and Honduras.

    They also have very high denial rates. And that's what the administration points to. Is that solely based on the basis of their claims or other factors too?

  • Theresa Cardinal Brown:

    A lot of it can be the basis of their claims. It can be that they just don't have evidence, enough evidence to support their claims when it comes to asylum.

    The burden of proof is on the immigrant to prove that they're eligible for asylum, so they may not have enough proof even if they do have a valid claim. An awful lot of them also, we have to understand, are not represented by attorneys.

  • Amna Nawaz:

    Right.

  • Theresa Cardinal Brown:

    And that means they're in a process that they really don't understand. And many of them are coming here with just hope, hope that the generosity of America will prevail, that God will protect them, as they say, and that they can — they can have a better life here.

  • Amna Nawaz:

    And statistics show that, when they have actually attorney representation, that rate goes up, right? In other words, the cases go through.

  • Theresa Cardinal Brown:

    It does, and in part because the attorneys are able to vet out those cases that maybe aren't as strong, offer other avenues, if there are available, or just simply tell them, you're not going to make it.

    They also are better advocates for the system. They know how the system works and advocates for the — for the immigrants.

  • Amna Nawaz:

    Part of this plan relies on Mexico filling in a lot of the gaps. As you mentioned, it's not clear exactly how they will do that.

    But, just this week, it's worth mentioning, we heard the story about two young migrant teenagers who were killed while they were awaiting entry to the United States, part of that caravan waiting over at San Ysidro.

    How do we know that we're fulfilling our humanitarian obligation to make sure that these vulnerable populations aren't being targeted while waiting on the other side of the border?

  • Theresa Cardinal Brown:

    So, this is a very big issue with this policy.

    The immigrant advocates probably are going to make this a central basis on what I expect will be a fairly quick litigation over this policy. But, also, the Mexican government has also said, we're going to provide work authorization.

    But they're relying on humanitarian organizations to provide help to these individuals. It's not clear how much they're actually going to offer protection. So there's a lot there to be unpacked, as we said, so much we don't know.

  • Amna Nawaz:

    You mentioned this could be a quick legal process. You expect this will be challenged in the courts, like other immigration efforts have been from this administration?

  • Theresa Cardinal Brown:

    I expect it will be fairly soon.

    Almost every policy that has been implemented by this administration has been challenged in court. And, so far, the courts have struck down an awful lot of them. So we will have to see.

  • Amna Nawaz:

    Let me ask you this now, because the two biggest pieces of this puzzle for the administration are the rising number of asylum cases, which are absolutely true, and they also say the immigration backlog in the immigration court system, which is absolutely true. That's at a record high.

  • Theresa Cardinal Brown:

    Yes.

  • Amna Nawaz:

    What else do you think the administration could be doing right now, steps they could take right now that are under their powers that could ease both of those things?

  • Theresa Cardinal Brown:

    Well, a couple of things that they have decided not to do is put additional — significant additional resources into the immigration courts, to have those cases processed faster or be able to process more cases that we're seeing.

    There's also things that they could do at the border right now. For example, asylum officers from Citizenship and Immigration Services do the initial screening, something called a credible fear claim. If they find credible fear, but they can't actually accept an asylum claim there — it has to go before an immigration judge — that puts more cases before the I.J.s.

    They could, though, through an administrative change, be authorized to approve affirmative asylum claims if they believe those cases are strong enough and they have enough evidence. That would more quickly approve those who are eligible for some sort of relief.

    There are other things that can be done, but this administration has chosen to put all of its resources and energy into policies and operations that try to deter and prevent asylum seekers from coming to the United States, rather than looking at the entire process and figuring, how can we adjust our asylum process to accommodate this inflow?

    I truly believe that, if we were to have a system that adjudicated these cases within a couple of months, rather than several years, that would probably provide the deterrent effect that the administration wants.

    Once people realize that the majority of these cases don't get approved, and people are returned rather quickly, that would change the dynamic of how they are deciding to come.

  • Amna Nawaz:

    And those I.J.s you mentioned, those would be immigration judges.

  • Theresa Cardinal Brown:

    Yes.

  • Amna Nawaz:

    You think that's where those changes could be made.

  • Theresa Cardinal Brown:

    That's where the bottleneck is. And everything else that has happened has come about because that is where the bottleneck lies.

  • Amna Nawaz:

    Theresa Cardinal Brown, thanks very much for being here.

  • Theresa Cardinal Brown:

    You're welcome.

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