I’m Sorry, You Can’t Come In, You Have to Leave

By Michelle Martin, PhD, MSs, MSW

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I’ve been blogging about the humanitarian crisis involving Central American migrant families separated at the U.S. border for months now, and I along with so many others in the United States and around the world, have been trying to find an explanation, some type of rationale for the Trump administration’s handling of the political asylum seekers coming across the southwest border. After reviewing all the pleadings in the federal case filed against the government by the ACLU, as well as many of Trump’s speeches related to immigration, I think I may now have a better understanding. I think I have insight into his and his closest advisors’ perspectives on political asylum; their ultimate, buried-under-the-rhetoric ideology, so to speak.
 
Trump let his real agenda slip out in a recent speech. The scene was the Cabinet Room, a historic meeting room at the White House. The setting, a luncheon with Republican members of Congress. Trump began his speech by referencing the Supreme Court’s decision to uphold his “Muslim ban,” calling it a victory for the Constitution. 
 
Although there is great variation in the opinions of immigration policy experts on the most effective way of managing cross border migration, throughout this speech, Trump presents the immigration debate in simplistically polarized terms: Republican want closed border and low crime, and Democrats want to open the floodgates to gang members and murderers, stating, 

“We have bad laws.” Trump asserts, “we have the worst immigration laws in the history of the world, okay?  It’s a joke.  People can’t believe it.  Other countries look at us and they say, “How is that possible?”  

(It’s not possible, because it’s not true. Our immigration laws are actually quite complementary to those of other Western countries). 

In reference to our political asylum laws that allow people who are victims of persecution to enter the United States and request protection through a legal process involving an immigration hearing before a judge, Trump stated: “Somebody touches our land, we now take them to a court, to a judge.”  

In reference to Border Control's request for additional immigration judges to shorten the wait time for an immigration hearing, Trump stated: 

“They want us to choose 5,000 judges.  How do you choose 5,000 judges?  Can you imagine the corruption just from a normal standpoint?  Just common sense.  Can you imagine the corruption? Go to the barbershop.  Grab somebody.  Make them a judge.  Everybody is being made a judge.  They want 5,000 judges more.  It’s crazy.” 

(It’s crazy only because it’s not true. The vetting process of immigration judges is a bit more rigorous than posting flyers in barbershops). 

​Trump gets to the heart of the matter toward the end of his speech when in describing our current asylum law (although he never actually uses the word “asylum”), and the due process afforded persecuted people requesting protection by the U.S. Constitution, he stated: 

​“We have judges. If they step on our land, we have judges. It’s insane…. You don’t have to see a judge where the judge is going to take three years….”

Trump was describing current U.S. asylum law, which delicately balances the need for national security with the rights of individuals to seek protection from our government, if they belong to a recognized social group experiencing persecution. 
 
When Trump references immigrants coming into the country the “illegal way” and getting rewarded by being allowed to see a judge, and then waiting three years for an immigration hearing, he’s referring to the legal process of political asylum. Based on his rhetoric, it seems rather clear he would like to cancel political asylum altogether, at least for those immigrants crossing the southwest border.

Trump is generally correct though when he references the wait times for an asylum hearing (although it’s actually under two years, not three). But do you know what would help that? More judges. 

Trump concludes his assessment of the U.S. asylum system by describing his vision for the future, stating:

“...we inherited a lot of different things, but of all of them, immigration makes the least sense.  It is a hodgepodge of laws that have been put together over years.  And we have to change it.  It’s so simple.  It’s called, 'I’m sorry, you can’t come in.'"

At another point in his speech to Congressional Republicans, Trump refers to his immigration policy stance as: 

​“I’m sorry, you can’t come in, you have to leave” 

(This stance is actually far more descriptive, since it covers both, border control and forced deportations).

So that’s it, right there. Trump’s immigration plan is: I’m-Sorry-You-Can’t-Come-In-You-Have-to-Leave (also referred to as Zero Tolerance).

The I’m-Sorry-You-Can’t-Come-In-You-Have-to-Leave Legislative Agenda

There are two basic options for overhauling existing legislation: Pass new laws or gut the old ones.
 
Canceling Central American Programs
 
One of the first steps the Trump administration took to gut our current political asylum laws, particularly in relation to Central America, and achieve their I’m-Sorry-You-Can’t-Come-In-You-Have-to-Leave legislative agenda, was to reverse all of the Obama era programs designed to effectively manage the Central American crisis in a manner that balanced respect for our laws with compassion.

Trump accomplished this policy goal shortly after taking office through the Executive Order process, canceling successful programs such as the Central American minors (CAM) program and the Family Case Management Program, and then by implementing the Zero Tolerance policy (which is a bit of a misnomer, since considered in its literal form, “zero tolerance” would refer to having zero tolerance for current immigration law).

Domestic Violence and Gang Violence Excluded from Asylum Claims
 
The second step in implementing the I’m-Sorry-You-Can’t-Come-In-You-Have-to-Leave legislative agenda was to rescind a 2014 Board of Immigration Appeals decision that recognized Guatemalan married women who experienced inescapable and extreme violence in their homes as a persecuted “social group.” This designation was deemed appropriate because in many Central American countries, gender-based violence is a part of a pervasive pattern of socially sanctioned patriarchy directed solely toward partnered or legally married women.

Thus, by recognizing Guatemalan women who were escaping domestic violence as being members of a social group (called “married women in Guatemala who are unable to leave their relationship”) the Obama administration placed gender and patriarchy on an equal footing with other persecuted groups, such as those based on religion, political stance, and ethnicity. The Obama era policy was the only way that Central American women experiencing socially sanctioned gender-based violence could qualify for political asylum in the United States.

So when Attorney General Jeff Sessions overturned this policy on June 11, 2018, on the grounds that there is no social group involving “private criminal activity,” and then directed asylum officers to no longer consider pervasive and socially sanctioned gender-based violence as a legitimate form of persecution, he ensured that the majority of Central American women fleeing state-sanctioned gender-based violence would fail their credible fear interviews, leading to a dramatic spike in denied asylum claims.

Sessions also instructed immigration judges to no longer grant asylum to Central American immigrants fleeing violent gang violence, a problem regional experts say has risen sharply in recent years. Both men and women from Central America have sought asylum in the United States in an attempt to escape violent gang activity.
 
Political asylum is based on four primary criteria:

1. A well-founded fear of persecution
2. based on past persecution or risk of persecution in the future if returned to the country of origin
3. because of the applicant’s membership in a particular social group wherein
4. the persecutor is a government actor and/or a non-governmental actor that the government is unwilling or unable to control.

 
Central Americans fleeing from societally-sanctioned gender-based violence and violent gang activity meet these criteria because the respective governments are “unwilling or unable to control” the persecutors, as this type of violence is integrally woven into the fabric of these patriarchal cultures. The challenge is in showing that victims fall into a certain social group, that tends to be targeted more than others. After considerable consultation with country experts and other professionals, the Board of Immigration Appeals determined that those people most likely targeted by these forms of violence did constitute a social group, and the violence was a form of persecution.
 
Sessions did not agree, and referred to gender-based violence and targeted gang activity private gang activity, despite the culturally-rooted and pervasive nature of both. Sessions has broad and sweeping power over how immigration policy is implemented in the United States, thus immigration judges and border patrol officers are required to abide by these new policies.
 
It appears that the Trump administration knew what they were doing all along. They knew that the majority of parents from Central America seeking political asylum this year were fleeing their homelands because of state sanctioned gender-based violence and gang activity. Therefore, most of the immigrants would likely never have an opportunity to face an immigration judge and have their cases heard. 

Taking Away Their Children

The third step in implementing the I’m-Sorry-You-Can’t-Come-In-You-Have-to-Leave legislative agenda was to create a strong deterrence to Central Americans seeking asylum in the United States, by ensuring that migrant families knew that if they came to the United States to seek asylum, they’d lose their children anyway.
 
A total of 2551 children were taken away from their parents at the border, regardless of whether they stepped across the border or came through a U.S. Port of Entry. According to court records, as of August 9, 2018, and in response to a federal court order,
​

• 1569 children have been reunited with their parents:
• 423 children were rated as having “other circumstances,” such as turning 18, or being released to a guardian;
• 559 children remain in the custody of the Office of Refugee Resettlement (ORR),
• 51 children were released to a known adult and their location is unknown;
• 659 parents were deported without their children;
• 299 of the deported parents are currently in contact with ORR;
• 360 of the deported parents have not yet been contacted by ORR (despite the government admitting in court that it did have most contact numbers); and
• 26 parents have been “red flagged” by the Department of Health and Human Services (HHS) for further review, due to past criminal convictions.

Signing Away their Rights in English
 
The fourth step in implementing the I’m-Sorry-You-Can’t-Come-In-You-Have-to-Leave legislative agenda was to ensure the families were sent home without an immigration hearing. The Trump administration has attempted to accomplish this goal by apparently coercing the parents into signing away their rights on what is called an “election form”—a legal document that the parents were asked to sign, indicating the election one of three options regarding the disposition of their case.
 
There were early media reports that some parents were being told by ICE agents that the only way they could regain custody of their children was if they agreed to drop their asylum claim, but the government vehemently denied these reports, calling them “fake news.” And yet, recently filed court documents now show that this is precisely what was happening, initially on a scattered basis, and then what appears to be on a far more systemic one.
 
According to the ACLU and the Hon. Dana Sabraw (the judge assigned to the federal lawsuit filed against the Trump administration in response to the family separations), an election form should provide family members with an opportunity to select among a range of options, after receiving sound legal advice. For instance, first, “the child may request his or her own Credible Fear Interview, an option that would have been available to the family had it not been separated. If the child passes the Credible Fear Interview, under existing ICE procedures, the entire family will be placed in normal removal proceedings,” and then granted an immigration hearing on their asylum case.

Second, “the parent may seek reconsideration of his or her own credible fear denial. If reconsideration is denied, the parent may be able to file a habeas petition to challenge the credible fear denial in federal court.”
 
And third, “if the parent is ultimately going to be removed, the family must decide whether the child will remain in the country to pursue the child’s own immigration claims, or be removed with the parent.” Children who remain behind at the parent’s request are often older adolescents.
 
But this is not what happened. Despite a court order that instructed ICE on how the election forms should be handled (e.g., what should be included and how the signing should be facilitated, etc.), court records show a pattern of extreme coercion, abuse and downright cruelty.

Here are some examples described in a recently filed court pleading;

Several Central American parents who had been separated from their children were transported from their detention center in the Otero County Processing Center in Chaparral, New Mexico to the El Paso Service Processing Center (EPSPC) in El Paso, Texas. They were then loaded onto a bus, driven a few minutes, and then returned to the Center, where the bus parked in the parking lot. Within a few minutes of parking, several ICE agents boarded the bus and passed out election forms to the parents. Here are the stories of some of the parents on that bus.

The Story of FG

FG and his 17-year old son came to the United States in June to claim asylum. When they were in processing shortly after crossing the border, an ICE agent asked FG’s son to come with him. FG was not told where he was being taken, but he did not see his son again for 45 days.

On July 25, 2018 FG was reunited with his son, along with several other parents and their children. They were taken to a bus and driven away, only to turn around eight minutes later. Within a few minutes of the bus parking in the EPSPC parking lot, several uniformed officers boarded the bus and passed a form around written in English, with the exception of three options at the bottom of the form, which were written in Spanish. Option 1 was pre-checked with a handwritten checkmark in black ink on all of the forms. The parents were told to just sign the pre-checked form and return it to the agents.

The options were:

Option 1: I want to be deported with my children _____
Option 2: I do not want my child to be deported with me if I lose my case _____
Option 3: I want to speak to a lawyer before deciding what to do _____

ICE officers told FG that while there were three options on the form, he had to choose Option 1. FG along with several other parents said they did not want to select Option 1, but wanted to select Option 2. The ICE agents spoke in English to each other, and then yelled at the parents in Spanish saying they had to sign the pre-checked form. When they refused, FG and the other parents were taken off the bus, without their children. FG stated that he wanted his son to have a chance at a safe life in the United States, even if he couldn’t stay with him, which is why he wanted to select Option 2.

Once inside the building, the parents who refused to sign the pre-checked form were asked to give permission for a designated adult in the United States to make medical and educational decisions for their children.

As they were walking back outside, the parents who checked Option 2 asked if they could say goodbye to their children and explain what was happening, and they were told no.

FG reported that the ICE agents were very angry and mean to them. They were allowed to retrieve their personal items, but when their children attempted to get off the bus to say goodbye to their parents, the agents stopped them, and the parents were told they could not get on the bus and hug their children and say goodbye. The children were forced to wave goodbye to their parents through the bus windows.

The parents who agreed to sign the form with Option 1 pre-checked were allowed to re-board the bus and be with their children, while the other six parents remained behind and were taken back into the EPSPC and then eventually returned to detention at the Otero County Processing Center in Chaparral, New Mexico.

The parents were not told where their children were going. When FG returned to Otero, he contacted an immigration rights group, and explained what happened, giving her as much information as he could remember about the other parents. The immigration rights attorneys then reached out to other parents and took their statements as well.

The Story of JM

JM was also handed an election form with Option 1 pre-checked and was told to sign that form. He explained to the ICE agents that he had a 17-year old son who he wanted to remain safe, and also said he wanted a judge to hear his asylum case. The ICE agent told JM that he had already lost his case when he came into this country, so there was nothing for a judge to decide.

JM stated that the ICE agents were shouting and that he felt pressured to sign Option 1. JM signed Option 2, instead, and the ICE agent returned with a new form, also with Option 1 pre-selected, and insisted that he sign Option 1, which JM again refused to do. The ICE agent yelled at JM in Spanish, stating “what do you think you are, a lawyer?” while aggressively pointing his finger at JM’s face.

JM also reported that he was told he could not re-enter the bus to say goodbye to his son, and all the children had to wave goodbye to their parents through the bus windows. JM also reported that ICE agents handcuffed and chained him for the bus ride back to Otero, even though he had not been handcuffed or chained on the trip to El Paso. JM has not been able to speak with his son since they were separated again.

The Story of CT

CT was on the same bus as FG and JM, and was also handed an election form with Option 1 pre-checked and told to sign that form. CT has a 17-year old son and told the ICE officer that he wanted to check Option 2. The ICE agent also told him that (1) that he had already lost his case and had to be deported, (2) that if he did not sign a form with Option 1 checked, he would be immediately deported, and (3) that if he did not sign a form with Option 1, he would never see his child again.

The Story of FT

FT has a 16-year old son and told the ICE agents that he wanted to check Option 2 so his son would be safe. An ICE agent told him in Spanish that although he might want his son to stay in the United States, all of them were going to be deported anyway, and FT’s son might be deported first, and he would not know where his son was deported to if he did not agree to be deported together.  FT also reported that ICE agents came back onto the bus three separate times to try to get him to choose Option 1.

According to immigration experts, compelling a parent to agree to be deported with their child effectively deprives the child of the right to an independent asylum hearing. When the children were separated from their parents, they were rendered “unaccompanied alien children” (UAC), which automatically granted them the right to an immigration hearing.

​Coercing the parents to sign Option 1 may have been a tactic on the part of the Trump administration to ensure that the older children were also forced out of the country without having a hearing before an immigration judge.  

The Big Picture

The decision to separate the Central American immigrant families at the border was not some random consequence of a “common sense” border control strategy called Zero Tolerance. And Zero Tolerance is not a “common sense” immigration policy that places the needs of citizens over the needs of “dangerous foreigners.”

Rather, Zero Tolerance, or as Trump has called it, the I’m-Sorry-You-Can’t-Come-In-You-Have-to-Leave policy, is a part of a broader approach to immigration often associated with right-wing populist parties, such as those currently leading Australia and Hungary. Right-wing populism is on the rise globally, particularly in Europe, likely as a backlash to immigration and increasing multiculturalism.
 
Right-wing populism is a political ideology comprised of far-right wing politics and an anti-elitist rhetoric, which is often manifested in anti-immigrant movements. Other terms often associated with right-wing populism include nationalism, neo-nationalism, fascism, anti-globalism, nativism, protectionism and xenophobia. Right-wing populism is different from conservative ideology, but several right-wing populist parties have their roots in conservative political parties.
 
Right-wing populism thrives in environments of fear, where it’s easy to foment anger toward newcomers, who common citizens become convinced are a threat to their way of life. Right-wing populist governments that run on an anti-immigrant platform often engage in misinformation campaigns to paint all immigrants as a threat to the economy, national security and a country’s values and way of life.
 
It appears as though the Trump administration thought it could effectively implement the I’m-Sorry-You-Can’t-Come-In-You-Have-to-Leave policy framework, completely undermining U.S. asylum law, and in the process, facilitate one of the worst human rights crises in United States history.

But then Judge Dana Sabraw, a United States District Judge of the United States District Court for the Southern District of California got involved. The Hon. Sabraw put a big crimp in the Trump administration’s plans, by ordering the halting of family separations, the rapid reunification of parents and children, and barring the Trump administration from facilitating a mass deportation scheme. Essentially, the Hon. Sabraw has held the Trump administration’s proverbial feet to the fire every step of the way.
 
When the judge heard all the facts of the case, including how parents were not even told that they’re children were being taken away, he called the government’s actions unlawful and, 

“...so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience… and is so brutal and offensive that it [does] not comport with traditional ideas of fair play and decency.”

“The reality is that for every parent who is not located, there will be a permanently orphaned child” and that is “100 percent the responsibility” of the administration.
Keep in mind, this is a Republican judge appointed by George W. Bush, known for being hard on immigration.

When the government tried to stall reuniting the families by claiming the need to do excessive background checks the judge said no.

When information came out in court that the government hadn’t collected comprehensive contact information on the parents and children and had deported several hundred parents without their children, the judge said the actions of the government were unacceptable, and that they needed to find all the parents, even the deported ones.

And last week, when the Trump administration made the argument that ‘since the ACLU wants the parents and children reunited so badly, let them do it themselves’ (I'm paraphrasing), the judge responded,

“The reality is that for every parent who is not located, there will be a permanently orphaned child” and that is 100 percent the responsibility of the administration."

Trump’s I’m-Sorry-You-Can’t-Come-In-You-Have-to-Leave immigration stance (aka Zero Tolerance), isn’t based on a strategy of placing citizens as a priority in policymaking. Pursuing a country’s national interests while honoring its global humanitarian obligation is an absolutely achievable goal, but one this administration rails against as impossibly idealistic and foolish.

The problem with Trump’s I’m-Sorry-You-Can’t-Come-In-You-Have-to-Leave approach to immigration is that it’s based on an “us v. them” mentality, which leads to increased political polarization, misinformation campaigns, scapegoating, and ultimately to the dehumanization of an entire population.  

Trump's I’m-Sorry-You-Can’t-Come-In-You-Have-to-Leave also undermines valid legal protection under US asylum law and an obligation to protect those fleeing persecution, which is a requirement under international law.

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Follow the primary federal court case, Ms. L. v. ICE, et al., filed by the ACLU by clicking HERE.