The Fight to Reform the U.S. Asylum System: A Conversation with Human Rights First’s Becky Gendelman
Over the last four years, the U.S. has witnessed an unprecedented attack on asylum seekers and refugees. The Trump administration has forcefully pursued policies and regulations that aim to dismantle our country’s asylum system and, by extension, abandon individuals and families who courageously flee from grave danger in their home countries.
Human Rights First has led the U.S. in the fight against these cruel and discriminatory attacks. The organization provides pro bono legal counsel to asylum seekers and refugees and advocates for systemic reforms to the U.S. asylum system. The non-profit, nonpartisan international human rights organization has made the difference between life and death for thousands of innocent people.
Aditi Mittal, from Latina Republic, interviewed Becky Gendelman, an associate attorney at Human Rights First, to learn about her work and the complexity of the U.S. asylum system. Gendelman shared the human cost of our country’s inhumane asylum policies and offered recommendations for the steps the U.S. can take to meaningfully protect the rights of asylum seekers and refugees.
Latina Republic: First, tell me about your own background. What has led you to fight for the rights of asylum seekers in the United States?
Gendelman: Immigration has been a part of my life since I was a child. My parents and grandparents came to the United States as refugees. I grew up seeing the difficulties that they faced in building a new life, including having to learn a new language, so I always carried these stories with me and wondered about what it was like to have to flee your home and start over to protect yourself and your family.
It wasn’t really until law school that I thought about becoming an immigration lawyer. I knew, going into law school, that I wanted to help people and make the legal system easier to navigate and less unfair. I started working in an asylum clinic in law school, by chance, and was able to help asylum seekers tell their stories and navigate an inaccessible system of laws.
I saw people start over, rebuild their lives, and I saw their incredible resilience and strength, which I can’t even imagine. Then, it suddenly clicked for me, and I felt that was what I was meant to do. I saw bits and pieces of my family story replicated across all the cases I worked on. I saw it in the resilience and bravery of the people I worked with, in their desires to protect themselves and their families. I just felt a deep connection to this work.
Meanwhile, throughout my time in law school and during my first year at Human Rights First, the administration’s attack on asylum seekers has escalated, which made me even more determined to advocate for people fleeing danger.
Latina Republic: What is the mission of Human Rights First in relation to asylum seekers and refugees?
Gendelman: Human Rights First provides pro bono legal representation to refugees seeking asylum in the United States and advocates for the protection of the human rights of refugees. We ground our work in the 1951 Refugee Convention, the 1967 Refugee Protocol Convention Against Torture, and other international human rights instruments, and we advocate adherence to international standards in U.S. law and policy.
Latina Republic: What is the demographic breakdown for asylum seekers at the U.S.-Mexico border? What are the most common reasons that migrants are forced to flee from their home countries and apply for asylum in the United States?
Gendelman: At the border, we have seen high numbers of asylum seekers from El Salvador, Honduras, Guatemala, Cuba, Venezuela, Nicaragua, and Mexico. Northern Triangle countries — El Salvador, Honduras, and Guatemala — have some of the highest murder rates in the world and are largely controlled by gangs. Violence against women, girls, and LGBTQ individuals is extremely widespread in these countries.
We also see asylum seekers from other countries across the world seeking protection at the southern border, including Cameroon, Russia, the DRC, and Eritrea. Many asylum seekers flee political persecution at the hands of authoritarian governments, sexual and gender-based violence, religious persecution, violence against indigenous populations, and many other forms of violence and abuse.
Latina Republic: Why is the United States’ policy to detain asylum seekers in immigration detention centers harmful?
Gendelman: The physical and psychological harms of detention are extensively documented. Detained individuals often suffer from a lack of adequate medical and mental health care, poor and unsafe conditions, and harassment and discrimination.
Detention exacerbates the trauma that asylum seekers experience, and it also prevents them from finding lawyers to help them.
Of course, during COVID-19, all of these harms are magnified. Medical and public health experts have described detention centers as incubators. People are crowded together and constantly at risk, and experts have reported that medical care is extremely inadequate to cope with COVID-19.
As a result, we have already seen COVID-related deaths in detention. Many others have been extremely sick and suffered when they could have been released and protected themselves like many of us have the privilege of doing.
Latina Republic: How do asylum seekers in detention facilities get access to legal counsel?
Gendelman: It is really difficult, especially for people who can’t afford legal representation. Some free legal service providers are able to visit detention centers, provide pro se resources, and sometimes intake individuals for potential representation, but that differs a lot by region.
Detained individuals can also call lawyers and try to find legal representation, but that is really hard for them when they are detained. It might cost money to make these calls. They might have a restriction on how many calls they can make. We’ve seen that happen. Ultimately, it is a very big hurdle to be able to find legal representation when you are detained.
So, government funding for universal legal representation is crucial — we have seen from existing universal representation programs that positive case outcomes increase dramatically when someone is represented by a lawyer, which is unsurprising.
"The detention center is a house of tears."
Blanche, a Cameroonian refugee & LA client gave an incredibly brave and moving testimony on her experience in detention. pic.twitter.com/fSQ5IOQDoV
— Human Rights First (@humanrights1st) September 1, 2020
Blanche Engochan, a Cameroonian refugee, gives an incredibly moving testimony before Congress on her experience in detention. | Source: Human Rights First
Latina Republic: How has legal counsel been affected because of the COVID-19 pandemic?
Gendelman: It has been really difficult because I can’t visit detention centers. Speaking with detained individuals exclusively over the phone comes with a host of obstacles. When I was representing people in New Jersey detention in March, April, and May, it was extremely difficult to communicate over the phone.
There were sometimes limits on how long they could talk to me for, so calls would randomly drop, and it cost them to make the calls. There was a lot of background noise. I could set up legal phone calls with them, but that was also time limited.
Sometimes, there was a long wait list, and I wasn’t able to set up a legal call within the time frame I needed. And, of course, you can’t call someone back, so I had to stay glued to my phone to make sure I didn’t miss a call.
It was just incredibly challenging to be able to talk to people, not to mention the difficulty of getting important information from someone without being face to face. Also, you can’t do three way calls on detained calls, at least for the detention centers that I worked with in New Jersey, so getting an interpreter on the line is pretty much impossible.
Unless you have someone sitting next to you who can translate, that’s a huge challenge. You can add an interpreter on a legal call, but again, there’s sometimes a wait time for setting those up or they are time limited. It’s been incredibly challenging.
Latina Republic: What are alternatives that the government can use in place of the mass detention of asylum seekers?
Gendelman: The government should use alternatives to detention such as community-based case management, which would support asylum seekers to attend court hearings, help them find legal representation, and refer them to medical- and trauma-related resources.
DHS had a Family Case Management program, which it piloted from 2016 to 2017, and that was hugely successful. It had a 99% appearance rate for hearings.
Alternatives to detention, in addition to being more humane and effective, also cost significantly less than detaining someone.
Latina Republic: How has the asylum system changed under the Trump administration? What are the most significant policy changes that it has implemented?
Gendelman: The administration has implemented policy after policy that have created barriers to asylum and banned and blocked refugees. These changes have included attempts to eliminate entire categories of asylum claims, such as claims based on domestic violence, gang violence, and persecution based on family membership.
In addition, the administration has implemented procedural barriers to asylum, which include metering, the Migrant Protection Protocols, the Asylum Cooperative Agreements, and HARP and PACR.
Under its metering policy, CBP limited processing of asylum seekers at ports of entry and forced asylum seekers to wait for months in Mexico in dire conditions before they could even apply for asylum.
Then, in January 2019, the administration implemented the Migrant Protection Protocols (MPP), which required asylum seekers to wait in Mexico for the entirety of their asylum cases. More than 60,000 asylum seekers were returned to Mexico under this program. They were left to wait in dangerous regions where they were kidnapped, raped, and attacked, including on their way to and from court.
The region of Tamaulipas, for example, where asylum seekers have been turned back to in huge numbers under MPP, was designated as a Level 4 threat by the Department of State throughout the time that asylum seekers were being returned there.
That’s the highest possible threat assessment, the same one that was assigned to Syria. Human Rights First has documented 1,114 cases of kidnapping, rape, and other attacks against asylum seekers in MPP and, as you can imagine, that’s only the tip of the iceberg.
Yet, when an administration official was asked about the dangers of MPP, he referred to them as ‘anecdotal stuff.’
Under MPP, asylum seekers who were afraid to be in Mexico could theoretically request fear screening interviews to be taken out of MPP, but, ultimately, these interviews were rigged.
Countless people who had been kidnapped or raped were returned after their fear screening interviews. Some interviews were only five minutes long and consisted of yes/no questions. Asylum seekers were also returned to Mexico in violation of internal DHS policy, including children with cancer, seizures, and cerebral palsy.
I observed MPP hearings in Texas for a total of around three weeks, and it’s hard to describe how devastating it was. Children were begging the judge not to send them back to Mexico, where they had been kidnapped.
People cried that they would rather be deported to danger in their home countries than return to Mexico. It was really hard to witness.
Now, of course, because of COVID-19, asylum seekers in Mexico are trapped there indefinitely. Because of MPP and metering, they have already been waiting in Mexico — many for more than a year.
Because MPP hearings have been indefinitely suspended, they’re stuck there. They’re still in danger, but now they also have to survive a pandemic. I have clients in MPP for whom there is really no end in sight.
The administration has also deployed the Asylum Cooperative Agreements and programs such as HARP and PACR to rapidly deport people, either to their home countries or to other dangerous countries, all without due process.
On July 16, 2019, the administration put into effect the Third Country Transit Ban, which barred asylum for anyone who traveled through another country and did not apply for protection there, with extremely limited exceptions.
This resulted in refugees with a well-founded fear of persecution being denied humanitarian protection and being ripped apart from their families. The ban was ultimately vacated, but after it had harmed asylum seekers for almost a year.
Now, the administration’s attack on asylum has escalated even more. Recently, the administration has used the COVID-19 pandemic as a pretext to enact further policies that have essentially shut down asylum at the border, and it has proposed additional policies that would make it virtually impossible to win humanitarian protection, including asylum.
The administration has also recently published a regulation going into effect on August 25, which targets asylum seekers’ right to work. Prior to this regulation, asylum seekers had to wait 180 days after filing their asylum applications before they could receive their work authorization.
We’ve personally witnessed the harm that even this wait time has on our clients; it prevents them from supporting themselves and their families. Now, during the pandemic, when a lot of people are struggling to make ends meet, this regulation is about to go into effect, and it’s going to double this wait time for asylum seekers.
They would have to wait 365 days after filing their asylum applications to get work authorization. It would also make certain asylum seekers automatically ineligible for work authorization if, for example, they enter without inspection or don’t apply for asylum within one year. This is cruel under ordinary circumstances and pretty unimaginable during a pandemic to deprive asylum seekers of the right to work.
Latina Republic: What is the current state of the asylum system in the midst of the COVID-19 pandemic?
Gendelman: First, there are thousands of asylum seekers trapped in MPP. Now, they’re stuck there because everything’s at a standstill. MPP hearings have been indefinitely postponed, and most people in MPP are unrepresented, so even receiving information about their case status is an enormous obstacle.
Meanwhile, the administration has exploited the pandemic to completely shut down asylum at the border, refusing to process any new asylum seekers under the guise of public health. Since March of this year, DHS has used a CDC order to block and expel more than 109,000 asylum seekers and migrants.
The order has even been used to expel unaccompanied children, who are often seeking asylum. This order has led to countless asylum seekers being rapidly deported to the countries they fled from, with no opportunity to seek asylum.
For example, it was recently reported that prominent Nicaraguan political activists have been deported to Nicaragua under this ban, without any consideration of their asylum cases, and now face serious danger.
In May, leading public health experts condemned this order in a letter to the administration because it doesn’t protect public health and discriminates based on immigration status.
The administration has consistently ignored recommendations from public health experts for the safe processing of asylum seekers, such as social distancing, masks, hand-washing, plexiglass barriers, testing, isolation and treatment, and use of parole rather than detention.
It’s clear that COVID-19 is a pretext for this categorical ban, and a categorical ban on asylum is unlawful under U.S. and international law.
Latina Republic: This administration proposed a series of changes to the U.S. asylum system in June and July. What are the implications of these changes?
Gendelman: The administration proposed a regulation on June 15. If that regulation is implemented, it would eviscerate the U.S. asylum system. It would be nearly impossible to be granted asylum.
It has a lot of different provisions, which create countless procedural and substantive barriers that would essentially rewrite asylum law as it has existed for decades, without any authority to do so.
To give a broad overview, it would eliminate due process for refugees by allowing immigration judges to deny asylum solely on the basis of the I-589 application, which is the application for asylum and withholding of removal.
This is an application that asylum seekers often fill out without speaking English. They have to fill it out in English, and often while in detention and without a lawyer. The form does not even provide that much space to write out one’s story, and it’s meant to be supplemented with testimony and additional evidence.
It would be a huge injustice to decide a case on this basis and would result in a lot of people with valid asylum claims being automatically denied before a judge can even hear their story. The rule also creates these new asylum- and withholding-only proceedings for asylum seekers that wouldn’t permit them to apply for any other kind of relief in these proceedings, even if they’re eligible for it.
It would obliterate entire categories of asylum claims to the point where very few claims would qualify. Just a few examples: it changes the definition of persecution so that people who have suffered many forms of abuse and mistreatment, including detentions by a country’s government, wouldn’t qualify for asylum.
It narrows what is considered a political opinion in a very vague and confusing definition. It wipes out most claims of persecution that are based on membership in a particular social group and would make it nearly impossible to win a claim where the persecution is not carried out by a government’s authorities.
It invents a new definition of firm resettlement that would block nearly any refugee who travels through another country, which would essentially punish people for not being able to get a direct flight as they flee for their lives, which is absurd.
It also creates a whole host of factors that would result in automatic denials of asylum, including, for example, not paying taxes. This, of course, violates the Immigration and Nationality Act.
It creates new barriers to asylum that Congress did not provide for, and it’s also clearly inhumane when we’re talking about deporting someone to persecution.
Then, while the public was still commenting on this June 15 regulation, which it only had a mere 30 days to do, the administration proposed another complicated regulation that would again eviscerate the U.S. asylum system.
This regulation, like the CDC order, is another attempt by the administration to exploit the pandemic to ban and block asylum seekers, but it also goes far beyond the pandemic because it’s not just about COVID-19.
It confers unprecedented powers on DHS and DOJ — agencies with no public health expertise whatsoever — to designate a whole range of diseases as public health threats and ban and block asylum seekers, whether or not they even have this disease, by labeling them as threats to national security.
It would make people ineligible for asylum and withholding of removal if they have symptoms consistent with a designated disease, have come into contact with a disease, or have traveled through a country where the disease is prevalent.
If one even thinks about this rule for a moment, it’s clear that it’s nonsensical. It’s going to result in people being deported to persecution or torture whether or not they have any disease.
It’ll apply to people who have fully recovered from a disease. It’ll apply to people who have come into contact with a disease in the United States, possibly in their roles as doctors or as essential workers.
The whole thing is just absurd. Unsurprisingly, at least 170 leading public health experts have condemned this rule and called on the administration to rescind it. Those are the two recent regulations published within three weeks of each other.
Latina Republic: One of the most horrifying aspects about the June 15 regulation for me was definitely how it essentially ignores the realities of gender-based persecution and invalidates gender-based claims for asylum.
Gendelman: It’s really scary, and it also basically eliminates asylum claims where persecution is characterized as an interpersonal dispute that governmental authorities aren’t aware of, which is really disturbing.
That’s a very retrograde framing of gender-based violence, as a personal dispute or a family matter, and it’s just very disturbing to even think about.
Latina Republic: Since many of the Trump administration’s new asylum policies seem to violate fundamental national and international laws, why have we not seen more legal action to prevent the implementation of these policies?
Gendelman: I actually think there’s been a significant amount of legal action to prevent the implementation of these policies. Unfortunately, it can take a long time for lawsuits to wind their way through the courts.
Generally, recently, I would say that the only positive asylum policy changes we’ve been seeing have come from the courts striking down policies.
For example, the Third Country Transit Ban was vacated by a D.C. Federal District Court because it was found to have been illegal since it violated the Administrative Procedure Act, so it can no longer be applied to deny people asylum. The Asylum Ban 1.0 was also blocked by litigation.
The Ninth Circuit found that MPP was illegal, but, unfortunately, the Supreme Court allowed MPP to continue, pending the government’s appeal. I think there’s been a lot of litigation and some positive results from policies being struck down, but it can sometimes take some time.
Latina Republic: What countries can the United States look towards as models to emulate humane asylum policies, and why?
Gendelman: UNHCR would have a good sense of different countries’ asylum systems, so I think that might be a good resource. I will say that the majority of European countries, for example, have continued to allow access to asylum during the pandemic by using tools such as medical screenings and temporary quarantines.
UNHCR noted that this is a really positive precedent for other asylum systems. It’s crucial to preserve access to asylum, including during COVID-19, because protecting public health is compatible with our humanitarian protection obligations.
We can do both if we look toward public health experts rather than implementing discriminatory bans. And, of course, our mass detention of individuals is not in line with international standards, and we need to use alternatives to detention.
Latina Republic: In your eyes, what does a fair and effective asylum system look like in the United States?
Gendelman: I think a fair and effective system would permit asylum seekers, first, to apply for asylum in safety in the United States. It would use community-based case management programs rather than detention.
Decisions would be made by independent adjudicators in a timely manner, so asylum seekers wouldn’t have to wait for years to receive decisions.
I also think that expedited removal is a fatally flawed system and results in fast-track deportations of people who might have valid asylum claims. I also think that a fair system would ensure that every asylum seeker had a lawyer.
Latina Republic: Can such reform be achieved in this country, and what will it take to get us there?
Gendelman: First, we need restoration of access to asylum at the border. Asylum seekers should not be turned away, banned, or blocked. Recent policies dismantling the asylum system need to be ended. I think this can be achieved.
Human Rights First worked with groups last year to publish concrete recommendations for what the United States should be doing to protect refugees, including restoring asylum processing at the border and alternatives to detention.
We’ll be releasing updated recommendations soon. I think that it can be achieved, and we’ve worked with other groups to offer concrete recommendations for doing that. We’re going to keep fighting, no matter what.
Latina Republic: Finally, my last question, would you like to share a personal story about an asylum seeker whom you have worked with that was particularly impactful?
Gendelman: I thought about this for a long time because I had so many stories of my clients, and I really like to tell their stories because their voices need to be heard. It’s important that the world knows what they’re experiencing.
I’ve had the opportunity to represent a few clients who are in MPP. I mentioned that, theoretically, asylum seekers in MPP can request fear screening interviews to be taken out of MPP but, the majority of the time, they’re just sent back to Mexico, regardless of what they’ve experienced there.
One of my clients, who is a really extraordinary person, had a fear screening interview this past winter. She was really scared of being in Mexico because of what she had experienced there. When I was working with her, she told me she would rather be detained in the United States than stay in Mexico.
This came up because one of the risks I had to warn her about is that, if she were taken out of MPP, she might still be detained. I just had to stop and think about that for a moment because it’s so jarring to hear someone say that they prefer to be imprisoned, like just thinking about what kind of danger she must be in that she would prefer to be detained.
I was really affected by that and, then, I represented her during this fear screening, which was a phone interview with an asylum officer. There was also an interpreter on the line.
The asylum officer never saw my client face-to-face. At the beginning of the interview, my client was so scared. Her voice was trembling, but she courageously told the asylum officer everything that happened to her. When it was over, the officer decided to send her back to Mexico anyway.
I’ve been worried about her safety constantly. I message her sometimes just to check that she’s okay and alive and well. She has panic attacks because of what she’s experienced.
This entire time, I’ve just been thinking constantly about how stunning it is that this is even happening, how unnecessarily cruel this is. I mean, she has people in the United States who are ready to house her, who have been ready to house her this entire time. She could be there, and there’s just absolutely no justification to leave her in danger there and, yet, that’s where she’s been. Her hearing has been postponed because of COVID-19, so there’s really no way to tell when she’ll even have a chance to be heard by a judge. She’s an incredible person. It’s an honor to represent her.
Featured Image Credit, Human Rights First
Aditi Mittal | Georgetown University
Aditi is a rising junior at Georgetown University. As an Economics major with minors in Government and Justice & Peace Studies, she has always been interested in the economic and political determinants of global migration. Aditi has participated in and led a university-sponsored immersion program to Tucson, Arizona and Nogales, Mexico that has allowed her to directly explore the complexities of Latinx migration and understand the realities of immigrant life at the United States’ southern border. This experience has driven her passion to advocate for the migrant justice movement and support efforts that provide humanitarian assistance to migrants. Aditi hopes that her work as an Immigration Writer will amplify the voices of immigrants who are often neglected in national conversations and, ultimately, create actionable change.