President Trump and Zero Tolerance for Victims of Persecution

Images of the week that I spent as a legal volunteer at the “Family Residential Facility” in Artesia, New Mexico – which has since been closed – remain vivid four years later: file drawers labeled “diapers,” a pre-school age child playing soccer in the hallway, the music from the Disney film “Frozen” repeatedly playing in the background: “Let it go! Let it go!”

But the women and children who were housed in this facility were not going anywhere, at least not without the efforts of volunteer attorneys who were helping them prepare for interviews to assess whether they had a credible fear of persecution and for bond hearings to determine whether they could be released from the facility.

I often think of the women we interviewed in Artesia, especially in the weeks since U.S. Attorney General Jeff Sessions announced a zero-tolerance policy regarding unauthorized border crossers.

According to this policy, all who enter the United States illegally or who attempt to do so will be federally prosecuted. And, while adults are being prosecuted, minor children in their custody are being separated from their parents and sent to the Office of Refugee Resettlement, to be housed in shelters until they can be released to a family member or other qualified adult. A total of 1,995 children were separated from their parents between April 19 to May 31 alone. As the number of affected children has increased, shelter space has become scarce. In Brownsville, Texas, a former Walmart has been converted into housing for 1,500 migrant children.

The women I met in the Artesia facility told horrific tales of violence, such as fleeing an abusive spouse who had attempted to burn down a house while his wife and children were inside, being targeted by a gang leader who had decided that he wanted a particular woman to be his girlfriend, or being badly injured in beatings.

These women were not unlike the people who are currently presenting themselves at the U.S.-Mexico border in hopes of finding refuge, or those who are now being prosecuted under the current zero-tolerance policy. The claims that they were pursuing, however, would be more difficult in the current legal context, as Sessions has also just announced that “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.”

Prosecuting border crossers, separating parents and children, and restricting access to asylum are the latest moves in an on-going criminalization and dehumanization of immigrants and asylum seekers, particularly from Central America.

During the early 1980s, when Central American civil wars led to an influx of Salvadorans and Guatemalans seeking refuge, advocacy groups successfully sued U.S. immigration authorities for using coercive tactics to compel detainees to sign paperwork agreeing to voluntary departure.

Dora Castillo, a plaintiff in that case, testified that she had experienced “verbal abuse by the border patrol agents, demands for signatures on paper with no opportunity to read it, and threats that she would never see her children again if she refused to sign.” Family separations were being used as a threat decades ago. Moreover, during the 1980s, despite the fact that Central Americans had come from countries where human rights abuses and political violence were rampant, U.S. officials regarded Salvadorans and Guatemalans as “economic migrants” who were undeserving of asylum, and, in 1984, granted only 3 percent of their cases.

The newly announced policy regarding domestic violence and gang violence-based asylum claims continues this practice of defining the persecution that individuals actually experience as outside the boundaries of asylum protections. Meanwhile, “fast track” mass prosecutions of border crossers have compromised defendants’ due process protections, thus undermining the rule of law.

These trends toward criminalization and restricting access to asylum are not inevitable and can be reversed. Doing so calls for leadership that is attentive to the actual conditions experienced by migrants, that prioritizes family unity, and that enforces human rights protections with the zeal currently afforded to border policing.