Asylum-seekers may have tougher time getting into U.S. after court ruling

Four young men from an MS-13 clique intercepted Alicia on a desolate dust road near a coffee plantation, outside the neighborhood where her family lived in Santa Ana, El Salvador.

They were angry that she was headed to work at a market in territory claimed by the rival Calle 18 gang, after they had decreed that no one should go there. They saw her as a traitor. One boy was wielding a bat.

“They told me that first they were going to rape me. Then they were going to beat me. They were going to rip my fingernails one by one to make me suffer and make an example out of me,” remembered Alicia, 24, now living in Uniondale and identified here by pseudonym because she fears the gang’s reach. “They said they were going to dump me in a hole in the ground.”

She said she got lucky that early morning about five years ago because the MS-13 guys started bickering, and she escaped in a frantic dash through coffee fields. She spent years like a fugitive, moving from place to place as gang members closed in. She said she knew they weren’t kidding — one group of them had unleashed a barrage of bullets, killing a 16-year-old boy who was her cousin, while relatives watched.

It’s the reason she took the $600 she managed to save and departed El Salvador this summer with her 1-year-old boy in tow, she said. She spent about a month on the road, sleeping in houses of people who took pity on her along the way in Guatemala and Mexico, until she walked across a knee-deep creek into Arizona one Wednesday in August. There, she surrendered to Border Patrol agents.

Although her immigration status remains shaky, Alicia may have gotten lucky, again, because she stepped on American soil before full implementation of a policy under President Donald Trump to reject asylum seekers who had not sought refuge in the first safe country on the way out of danger.

The U.S. Supreme Court on Sept. 11 lifted an injunction that had been halting the policy, clearing the federal government to turn away migrants not meeting that requirement. She’s still due in court and may have to explain why she didn’t apply for asylum in another country first.

The decision in the Barr v. East Bay Sanctuary Covenant case simply “granted” the administration’s request for a temporary stay of a previous nationwide injunction without further commentary. Justice Sonia Sotomayor, in a dissenting opinion, called it “an extraordinary request” on a rule that, she stated, “topples decades of settled asylum practices and affects some of the most vulnerable people in the Western Hemisphere — without affording the public a chance to weigh in.”

Going forward, migrants like Alicia likely will be sent back to seek asylum “in Mexico or another third country,” as the dissenting opinion explains, even though a Mexican official objected to those plans. Migrants and their advocates fear that interim step could leave thousands stalled in unsafe conditions and waiting to get through the red tape of Latin American nations. Many fleeing Central America, running from what they said was gang warfare or criminal persecution, have been coming to reunite with relatives on Long Island.

The Trump administration has defended the policy as necessary to discourage abuse of asylum protections intended for persecuted migrants, even as numbers at the border show more people are desperate to seek safety here since those crossings surged in 2014.

“The circumstances that we face on our southern border are still crisis circumstances,” said Ken Cuccinelli, acting director of the U.S. Citizenship and Immigration Services, in a Sept. 15 television interview with CBS’ Face the Nation. “… We have a 335,000 asylum case backlog, which I take very seriously, and it has creeped up while I’ve been here, despite us throwing more and more resources at trying to drive it down.”

Cuccinelli said the administration’s aim is to consider “legitimate asylum claims” of many waiting for years. “Unfortunately,” he added, “this system is clogged up with a lot of fraudulent claims.”

The U.S. Department of Homeland Security, which oversees the agencies that interact with asylum seekers at the border and adjudicate their petitions, did not respond to an inquiry about the new policy’s implementation.

The asylum crisis has been building at the southwest border with Mexico all through the current federal fiscal year, with the number of apprehensions of unaccompanied children, adults with children and single adults captured reaching a peak this spring, according to the most recent figures issued by U.S. Customs and Border Protection.

More than 811,000 people had been stopped or surrendered themselves to border patrol agents between October 2018 and the end of August, though not all of them would claim asylum. One month short of completing a full-year cycle, those figures represented a 56 percent increase from all border crossings from the previous 12-month period.

The backlog of pending cases in immigration court has risen nationally to more than 1 million in 2019, or 31 percent from the previous fiscal year. New York has about 124,000 immigration court cases pending, the third-largest backlog behind California and Texas, according to figures issued this month by the Transactional Records Access Clearinghouse, a research organization at Syracuse University. It’s not clear how many of those pending cases are asylum requests, but in 2017, the last year of official figures, slightly more than 1,500 immigrants were granted that protection in New York, without counting those who sought asylum after they faced removal proceedings. Nearly 93,000 migrants expressed credible fear in 2018, the first step in an asylum request, nationwide government figures show.

The growing backlog points to a difficult juncture in managing the flow of migrants, said Michael Kohler, an immigration lawyer who used to represent the former Immigration and Naturalization Service and the U.S. Immigration and Customs Enforcement as the government’s attorney in deportation proceedings.

It’s not unreasonable, Kohler said, for the administration to try to limit who’s allowed into the U.S. on “credible fear” claims, since asylum protection is intended for people targeted because of their race, religion, nationality, political opinion or belonging to “a particular social group” that is persecuted.

“The asylum process has been abused and has been taken beyond its initial purpose and reason for being, and that’s a shame because it’s there for a good reason,” said Kohler, whose immigration law practice is based in Melville. “I know people who fled the gang and all the terrible stuff and it’s horrible, but if you look at the reasons for asylum, we don’t just give asylum to everyone because your country is in bad shape.”

Advocates and other experts contend that the validity of claims cannot be determined until the cases are heard, though.

A September 2018 analysis of the asylum crisis by the Migration Policy Institute, a research nonprofit based in Washington, D.C., did conclude as well that the U.S. asylum system is “facing a time of notable challenge” with a large and growing backlog, but it also stated that the way to deter its misuse is to streamline the process to vet cases in a timely and fair manner. An expeditious system would discourage meritless claims from migrants counting on entry into the country and lingering in the backlog for years.

“There are common-sense administrative steps that the U.S. government can take to reform the asylum system” and have those cases heard and adjudicated near the border, said Michelle Mittelstadt, spokeswoman for the Migration Policy Institute. But the administration has opted instead for “a near-complete shutdown of the ability to apply for asylum.”

Immigrant advocates in the New York region and across the country are alarmed at the Supreme Court’s lifting of the injunction, even though it’s a temporary ruling on a policy that continues to be challenged on the merits, because many Central American migrants are not even getting a chance to be heard.

The shutting of the asylum door could make them victims of the cartels that help them transit through Mexico, and still want their payday. Since those migrants can’t pay back with their U.S. wages, they can become targets of human traffickers.

“Individuals are being kidnapped and held for ransom. You have extortion taking place, violence taking place” for migrants stuck on the southern side of the border, said Ali Noorani, executive director of the National Immigration Forum, an advocacy group in Washington, D.C. “I am not saying that every person who applies for asylum should get it, but they should be able to go through the process in a timely manner.”

Patrick Young, who is downstate advocacy director for the New York Immigration Coalition, an umbrella policy and advocacy group on behalf of immigrants in the state, said the government’s refusal to consider asylum claims will augment the torment of migrants, as well as their relatives on Long Island and elsewhere.

The policy also represents a reversal from a long-standing commitment, rooted in American principles and observed through successive administrations, to protect the weak. Many migrants in need could find themselves stranded in Mexico for months on end.

“It’s an attempt to stymie people,” Young said. “Part of our values and traditions getting back to the pilgrims is to provide asylum for the persecuted. And when we have not done that, as we did not do during the 1930s when Jews and Gypsies and others were persecuted by the Nazis, we have come to view that as a betrayal of the American tradition.”

When Mercedes fled Honduras with her children last November, she had faith that the U.S. would protect them.

She said a goon in his 20s, who was linked to drug trafficking in her native village of Santa Cruz, threatened that he was going to take her then-12-year-old daughter, “by will or by force” — just like Mercedes’ sister had been raped by another man in his crew.

Mercedes, who also asked that her identify be concealed out of fear of retaliation, walked with her daughter, now 15, and a son, 5, for close to two months to make it to El Paso, Texas. A 7-year-old daughter came separately with her husband, who since has been deported.

She is struggling to pay the $800 rent for a room in Copiague with the money she makes cleaning houses, but she’s happy when her children board a school bus, and feels they’ll be safe.

“Just imagine, if they want to send us back,” Mercedes, 36, said in Spanish. “It would be sending us back to danger. We have seen with our own eyes the young people, barely 15 or 16, who disappear in our village and the poor things are later found dumped in the river.”

Alicia had a similar but succinct answer on why she wants to stay here. She hopes to learn English and become a hairdresser, but it’s about more than earning a living.

“I just want us to stay alive,” she said.

Survival is at stake for asylum-seekers like her, said Elise de Castillo, legal director of the Central American Refugee Center in Hempstead.

“The cost of this decision,” de Castillo said, “will be paid by those vulnerable immigrants.”