Amid the myriad new immigration measures signed by President Donald Trump are directives that make it more difficult for foreign nationals who are at the border or in the United States to claim credible fear of persecution in their homelands and seek asylum.
The reason given for the toughened regulations is that prior regulations have been ineffective in preventing fraud by people who would lie about why they are fearful of being returned to their home countries or why they fled to the United States.
While critics have denounced the new directives as part of a broader anti-immigrant strategy, interviews with administration officials, former immigration judges, former government asylum officers and scholars who have researched the issue show that indeed there have been prior instances of fraud in the credible fear and asylum process.
Among the most recent examples cited in a Center for Immigration Studies (CIS) report, was a May 2016 case in which an immigration lawyer in the Chicago area was convicted of falsifying documents in order to help clients win asylum trough fake claims of torture and religious persecution.
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Also, in December 2015, a Government Accountability Office (GAO) report showed that as of March 2014 a joint fraud investigation by the U.S. Attorney's Office in New York, the FBI, the New York police department and U.S. Citizenship and Immigration Services (USCIS) led to charges against 30 defendants, including eight attorneys, for their alleged roles in asylum-related fraud.
“According to discussions with USCIS officials and an FBI press release,” the GAO report said, “allegations regarding these defendants generally involved the preparation of fraudulent asylum applications that often followed one of three fact patterns: forced abortions performed pursuant to China's family planning policy; persecution based on the applicant's belief in Christianity, or political or ideological persecution.”
According to published reports on the case, attorneys and document preparers filed almost 6,000 asylum applications with USCIS, and the agency granted asylum to more than 800 of those applicants.
Asylum fraud cases in Miami have occurred as well, but they don't seem to emerge into the limelight as frequently as in other parts of the country.
In 2002, for example, six people were charged with operating a Hialeah paralegal firm to assist undocumented immigrants obtain asylum through fake claims of persecution.
The court case unfolded when a Miami grand jury issued an indictment and authorities arrested six people. Eventually the six were either tried or pleaded guilty. One was acquitted.
Citing an example, the South Florida Sun Sentinel at the time said in a story that the lead defendant in the case, Olga Hedman, helped another defendant, Carlos Hiedra, a Venezuelan, file a fraudulent political asylum claim in 1999.
According to the indictment, the defendants prepared false documents, including fake foreign police reports, to back up the foreign nationals' claims of persecution in their homelands.
The lead defendant attempted to persuade skeptical foreign nationals about how easy it was to trick immigration officials into believing asylum claims.
“In or about April or May 2000, defendant Olga L. Hedman stated to J.R., an alien, that for Immigration, there's nothing better than a good story,” according to the indictment. “And that evidence was not that important, but that in a given case, if the case actually went to a judge, she could go ahead and fix that.”
This claim goes precisely to the reasons Trump and his aides have toughened asylum and credible fear requirements, as spelled out in a recent Department of Homeland Security (DHS) memo.
“The goal of DHS is to ensure the asylum process is not abused,” according to guidelines explaining the memo. “Asylum officers are being directed to conduct credible fear interviews in a manner that allows the interviewing officer to elicit all relevant information from the alien as is necessary to make a legally sufficient determination.”
As a result, the guidelines say, “the asylum officer shall make a positive credible fear finding only after the officer has considered all relevant evidence and determined, based on credible evidence, that the alien has a significant possibility of establishing eligibility for asylum, or torture protection.”
...the asylum officer shall make a positive credible fear finding only after the officer has considered all relevant evidence...
Department of Homeland Security
Though the statement did not say what new methods the asylum officer will employ to test a foreign national's credible fear claim, experts say corroboration of an applicant's story is key to preventing fraud.
“Unlike refugees, who are screened before coming to the United States and can be denied refugee status before they enter this country, aliens who enter illegally and claim 'credible fear' of persecution have not been screened before physically entering the United States,” according to the recent CIS asylum report titled Fraud in the “Credible Fear” Process. “The process for screening those individuals after they enter the United States is vulnerable for fraud abuse.”
One big problem is the sheer number of credible fear interviews required to screen asylum applicants and the relatively small number of asylum officers.
There about 360 asylum officers deployed in major cities like Miami, but the number of asylum applications received by U.S. Citizenship and Immigration Services (USCIS) has increased sharply from 56,912 in fiscal year 2014 to 115,888 in fiscal year 2016, while the number of credible fear cases rose more than eightfold between fiscal year 2009 and fiscal year 2015, according to the CIS report.
Thus, the new DHS directives are aimed at ensuring that asylum officers pay closer attention to an immigrant's claim of credible fear to ferret out lies.
If the asylum officer believes the person's story and approves the asylum application, USCIS subsequently will issue a green card for permanent residence. If, on the other hand, the asylum officer rejects the request, it's not the end of the road. The applicant is then referred to an immigration court where a judge will decide the case in what immigration officials call “a second bite at the apple.”
Michelle Ortiz, deputy director of Miami-based Americans for Immigrant Justice, expressed concerns about changes in asylum policies under the Trump administration, which has reversed many of the policies enacted under his predecessor, Barack Obama, who seemed more indulgent toward immigrants seeking asylum.
Ortiz's particular concern was about how Central American minors and their families might now be treated.
“The DHS border enforcement memo has a devastating impact on unaccompanied children under our immigration policies,” said Ortiz. “It calls for the re-evaluation of unaccompanied minor status, which would effectively strip humanitarian and due process protections for many Central American children seeking refuge and safety at our border,” she said.
The DHS border enforcement memo has a devastating impact on unaccompanied children under our immigration policies.
Michelle Ortiz, Americans for Immigrant Justice
“Significantly, the memo calls for the criminal prosecution and/or deportation of parents and family members of these children who facilitated their children’s journey to the U.S. regardless of the reasons why they did so – and regardless of whether the child has valid claim to the asylum.”
The DHS guidelines also call for an expansion of immigration detention. The new guidelines allow immigration officials to detain greater numbers of foreign nationals because they are no longer restricted, as they were under Obama, to limit arrests to certain categories of immigrants.
“Under the Obama administration,” said Ortiz, “there was clear guidance on how DHS should use the limited detention bed space — priorities for removal, recent arrivals, and violent criminals were to be detained, and no one else. This new guidance makes clear that any individual in removal proceedings or seeking asylum in the United States should be detained during the pendency of their proceedings.”
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