Eliminating Asylum: The Effects of Trump Administration Policies

Katherine C. McKenzie, Eleanor Emery, Kathryn Hampton, and Sural Shah

President Donald Trump has made abolishing most immigration a priority of his administration, and his policies have resulted in the de facto dismantling of asylum in the United States. These changes have impacted the lives and health of countless individuals attempting to seek safety from persecution. Settled asylum law is challenged regularly and uncertainty has stymied how attorneys, human rights professionals, and health care providers guide asylum-seekers through the immigration infrastructure. The daily disregard of basic human rights by the current administration has included dismissing documents such as the Universal Declaration of Human Rights, which states that “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” Notably, family separation related to the “zero tolerance policy” for asylum-seekers has resulted in widespread developmental trauma for children taken from their parents.¹ Individuals subjected to domestic or gang violence have seen their chances of gaining asylum dissipate. More asylum-seekers have been detained and for longer periods of time during the Trump administration. Changes in border management policies have limited people’s access to asylum and subjected traumatized individuals and families to refoulment—the prohibited, intentional return to countries where they have a credible fear of persecution (Table 1).

Table 1: Changes in asylum policies and law in the United States since January 2017

Changes for children and families seeking asylum

In April 2018, the Trump administration formally enacted a policy called “zero tolerance,” otherwise known as “family separation.”² Rather than releasing families together from detention, the administration separated children from their parents and sent them to facilities intended for unaccompanied minor children. Their parents were separately detained in US Immigration and Customs Enforcement (ICE) detention. An analysis by Physicians for Human Rights of 5512 children separated from their families from July 2017 to December 2019 found pervasive evidence of severe psychological harm.³ Since December 2018, seven children immigrating to the United States have died in custody. Before then, no child had died in custody in a decade.⁴ In addition to the risks of physical illness, the psychological effects for children detained can be profound.⁵

Changes in immigration detention policy

In January 2017, President Trump signed executive orders that called for all immigrants without legal status to be detained for the duration of their removal proceedings.⁶  From 2017-2019, the average daily number of people in US immigration detention increased from approximately 33,000 to 47,000.⁷  The length of stay in detention increased as well. Detention is dangerous and harmful to health: substandard medical care resulting in preventable illness and death as well as the profoundly severe mental health effects of detention have been well-documented.⁸

Changes for individuals persecuted due to domestic and gender violence

Individuals persecuted due to domestic or gang violence have historically been able to apply for asylum on the basis of “membership in a particular social group (PSG).”⁹ In June 2018, then Attorney General Jeff Sessions raised the standard of proof for individuals seeking asylum based on domestic or gang violence.¹⁰ At that time, the percentage of asylum seekers from Central America being granted asylum was on the rise, likely reflecting the pervasiveness of gang violence and gender-based violence in the region.¹¹  This upward trend reversed course with the Trump administration and corresponds with the administration’s efforts to limit asylum eligibility.¹²

Changes when individuals present for asylum at the Southern Border

In January 2018, under the Migrant Protection Protocols (MPP), the US government began sending non-Mexican asylum-seekers to Mexico while their US immigration proceedings were still pending. By October 2019, more than 50,000 had been returned to Mexico.¹³ More than 1,000 violent attacks against returned asylum-seekers in Mexico have been reported.¹⁴ In November 2019, the administration established a similar policy with Guatemala, a move denounced by the UN Refugee Agency as inconsistent with international refugee law.¹⁵ Other policies are restricting asylum-seekers’ access to legal counsel before their initial “credible fear” interview.¹⁶

Asylum changes related to COVID-19

The Trump administration has also used the coronavirus pandemic to implement policies targeting asylum-seekers.¹⁷ At this time, these policy changes have eliminated access to asylum at the US southern border. ICE detention centers have also become hotspots for COVID-19 with 4753 detainees and 45 employees having tested positive by August 21, 2020.¹⁸

Conclusion

Policy changes have undermined the legal and moral responsibility of the United States to recognize the rights of individuals to seek asylum. The changes have contributed to the emotional and developmental damage of thousands of children, to inadequate medical care and avoidable deaths in detention, and to the return of vulnerable people to conditions of violence, trafficking, disease, and death.

Although physician advocacy has not yet curtailed the administration’s immigration agenda, it has played a key role in pressuring the public and lawmakers to confront these policies. For health care professionals who support social justice, the urgency to speak out against the human rights abuses taking place within our own borders has never been greater.¹⁹

Katherine C. McKenzie, MD, FACP is Assistant Professor of Medicine in the Department of General Internal Medicine, Yale School of Medicine, New Haven, CT, USA and Director of the Yale Center for Asylum Medicine.

Eleanor Emery, MD is a Program Officer at the Center for Health Equity Education and Advocacy at Cambridge Health Alliance and Founder of the Massachusetts General Hospital Asylum Clinic and the Los Angeles Human Rights Initiative.

Kathryn Hampton, MSt, is the Senior Asylum Officer at Physicians for Human Rights, USA.

Sural Shah, MD, MPH, is an assistant professor in the Division of Internal Medicine-Pediatrics at the David Geffen School of Medicine, UCLA, Chief of the Division of Primary Care at Olive View-UCLA Medical Center, Co-director of Olive View-UCLA Medical Center Human Rights Clinic and a Faculty Advisor at the LA Human Rights Initiative, UCLA.

Please address correspondence to Katherine C. McKenzie. Email: katherine.mckenzie@yale.edu.

References

¹ H. Habbach, K. Hampton, and R. Mishori R, “You Will Never See Your Child Again”: The Persistent Psychological Effects of Family Separation. (New York: Physicians for Human Rights, February 2020). Available at https://phr.org/our-work/resources/you-will-never-see-your-child-again-the-persistent-psychological-effects-of-family-separation/.

² Human Rights Watch,  Q&A: Trump Administration’s “Zero-Tolerance” Immigration Policy. (New York: Human Rights Watch, 2018). Available at https://www.hrw.org/news/2018/08/16/qa-trump-administrations-zero-tolerance-immigration-policy.

³ Habbach (see note 1).

⁴ Human Rights Watch,  Code red: the fatal consequences of dangerously substandard medical care in immigration detention. (New York: Human Rights Watch, 2018). Available at https://www.hrw.org/report/2018/06/20/code-red/fatal-consequences-dangerously-substandard-medical-care-immigration.

⁵ M. Gartland, J. Hidalgo, and F. Danaher. “Case 20-2020: A 7-Year-Old Girl with Severe Psychological Distress after Family Separation.” New England Journal of Medicine 382 (2020); pp. 2557-65; S. MacLean, P. Agyeman, J. Walther J, et al., “Mental health of children held at a United States immigration detention center.” Social Science and Medicine 230 (2019); pp. 303-8.

⁶ Presidential Executive Order 13767: Border Security and Immigration Enforcement Improvements, Washington (2017). Available at https://www.whitehouse.gov/presidential-actions/executive-order-border-security-immigration-enforcement-improvements/.

⁷ J. Reyes. Immigration Detention: Recent Trends and Scholarship. (New York: The Center for Migration Studies; 2019). Available at https://cmsny.org/publications/virtualbrief-detention/

⁸ Human Rights Watch (see note 4); M. Von Werthern, K. Robjant, Z. Chui, et al. “The impact of immigration detention on mental health: a systematic review.” BMC Psychiatry 18 (2018); p. 382; T. Filges T, E. Montgomery E, and M. Kastrup. “The Impact of Detention on the Health of Asylum Seekers: A Systematic Review.” Research on Social Work Practice 28 (2018); pp. 399-414.

⁹ United Nations High Commissioner for Refugees, Guidelines on International Protection. (Geneva: UNHCR, 2002). Available at https://www.unhcr.org/3d58de2da.pdf

¹⁰ National Immigrant Justice Center, Matter Of A-B- And Matter Of L-E-A-: Information And Resources. (Chicago: 2019). Available at https://immigrantjustice.org/for-attorneys/legal-resources/topic/matter-b-and-matter-l-e-information-and-resources.

¹¹ TRAC Immigration. Asylum Decisions. Available at https://trac.syr.edu/phptools/immigration/asylum/; D. Agren . “More than two-thirds of migrants fleeing Central American region had family taken or killed.” The Guardian (February 11, 2020). Available at https://www.theguardian.com/world/2020/feb/11/migrants-fleeing-central-america-guatemala-honduras-el-salvador-family-taken-killed-study.

¹² TRAC Immigration, Asylum Decisions; Human Rights First Fact Sheet: “Central Americans were increasingly winning asylum before President Trump took office. “(New York: 2019). Available at https://www.humanrightsfirst.org/resource/central-americans-were-increasingly-winning-asylum-president-trump-took-office.

¹³ Department of Homeland Security. Migrant Protection Protocols. (Washington, DC: DHS, 2019) Available at https://www.dhs.gov/news/2019/01/24/migrant-protection-protocols; Montoya-Galvez C. “U.S. says asylum seekers encountered along entire southern border can now be returned to Mexico.” CBS News  (September 27, 2019).  Available at https://www.cbsnews.com/news/remain-in-mexico-u-s-says-it-can-now-return-asylum-seekers-to-mexico-along-entire-southern-border/.

¹⁴ Human Rights First. Delivered to Danger. New York (2020). Available at https://www.humanrightsfirst.org/campaign/remain-mexico.

¹⁵ United Nations High Commissioner for Refugees. Statement on new U.S. asylum policy. (Geneva: UNHCR, 2019). Available at https://www.unhcr.org/en-us/news/press/2019/11/5dd426824/statement-on-new-us-asylum-policy.html.

¹⁶ Department of Homeland Security. DHS and DOJ Issue Third-Country Asylum Rule. (Washington, DC: DHS, 2019). Availalble at https://www.dhs.gov/news/2019/07/15/dhs-and-doj-issue-third-country-asylum-rule; ACLU of Texas. ACLU Files Lawsuit Challenging Programs that Rush Migrants Through Asylum Screenings Without Access to Attorneys in Border Patrol Facilities. (Washington: 2019); Human Rights Watch. Human Rights Watch Comment on Proposed Asylum Eligibility Bars. (Washington, DC, 2020.) Available at https://www.hrw.org/news/2020/01/21/human-rights-watch-comment-proposed-asylum-eligibility-bars.

¹⁷ J. Naples-Mitchell. “There is no public health rationale for a categorical ban on asylum seekers.” Just Security. (April 17, 2020) Available at https://www.justsecurity.org/69747/there-is-no-public-health-rationale-for-a-categorical-ban-on-asylum-seekers/.

¹⁸ Department of Homeland Security, ICE guidance on COVID-19. (Washington, DC: DHS, 2020). Available at https://www.ice.gov/coronavirus#wcm-survey-target-id.

¹⁹ K. Peeler and V. Ramanathan, “Detained Immigrant Children to be Released, but Urgent Action Needed.” Blog, published 10 July 2020, Health and Human Rights. Available at https://www.hhrjournal.org/2020/07/detained-immigrant-children-to-be-released-but-urgent-action-needed/.