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What Happens When Asylum Seekers Are Given A Chance To Make Their Case In The U.S.


Even after parents and children are reunited, the question remains. Will they be allowed to stay in the U.S.? Last month, the Trump administration changed the rules for who is eligible for asylum. For more, we called on Philip Schrag of Georgetown Law School, and I asked him how many of the hundreds of thousands of people apprehended at the southern border are in fact seeking asylum.

PHILIP SCHRAG: A lot of them, especially the families, are seeking asylum. So as you know, Central America is a very dangerous place - northern Central America. Women and girls are particularly at risk. The gangs that control the rural areas of those countries routinely rape and torture women and girls just to prove that they have possession of their bodies. So a lot of those people have fled to the United States, thousands in fact.

SHAPIRO: So you say many of them are fleeing gang violence, and the change that the Trump administration has implemented is that Attorney General Jeff Sessions says people fleeing gang violence and domestic violence will no longer be eligible for asylum. Does that encompass most all of the asylum-seekers from Central America?

SCHRAG: I have been in touch in recent days with lawyers on the border, and they have told me that 85 to 90 percent of the families who have come to the United States are seeking asylum on the basis of domestic violence or gang violence or both.

SHAPIRO: Does that mean they'll all be rejected?

SCHRAG: Well, there's a real risk of that. So what Sessions did is to unilaterally change settled law. There's an odd provision of the immigration law that gives the attorney general the power to overturn any decision of the Board of Immigration Appeals, which is the appellate body for immigration cases. The members of the board and the immigration judges who decide on asylum cases are all employees of the Justice Department, so they have to follow what he says.

SHAPIRO: You're talking about immigration judges. Before these asylum-seekers reach an immigration judge, they have to deal with an asylum officer who is an employee of the Department of Homeland Security, not the Justice Department. Are these DHS employees, the asylum officers, already following this rule that victims of domestic violence or gang violence should not be allowed to stay and seek asylum?

SCHRAG: The Department of Homeland Security recently issued a memo to them calling their attention to the Sessions ruling. And the Sessions ruling has in it a footnote which says that although these people are not his employees and he can't control them directly, he doesn't see how they can even give them a screening interview and send them on their way to immigration judges because the screening interview has to determine that they have a significant chance of winning asylum. Well, he says, now under my ruling, they no longer have a significant chance of winning asylum, so they shouldn't even pass the screening interview and get to an immigration judge. Whether they will follow that guidance remains to be seen.

SHAPIRO: Before this change in policy, how often were these claims successful? How often did people saying I am persecuted by gang violence or domestic violence actually - were they granted asylum?

SCHRAG: We don't have exact figures yet because the immigration court doesn't publish statistics on the basis for the case. Anecdotally, it seems that at least 35 percent, maybe 50 percent of the people who have claimed asylum on the basis of domestic violence have won - probably a smaller percentage with gang violence because that's an emerging field. But it has been pretty well settled that domestic violence victims can win asylum, and thousands have.

SHAPIRO: So it sounds like this door was never wide open for people, but it is now firmly slammed shut.

SCHRAG: Well, until the U.S. Courts of Appeal takes a new look at this - it takes a long time to appeal to the Courts of Appeal. First you have to lose in the immigration court. Then you have to lose in the Board of Immigration Appeals. And then you have to have the money or a free lawyer somehow to get to the Court of Appeals.

SHAPIRO: Do you think that all of the attention on family reunification is overlooking this larger change that people who under previous circumstances would have been granted asylum are now no longer going to be allowed into the United States?

SCHRAG: Yes, this is a big risk. The country has been distracted by the focus on family separation and perhaps now on the - by the focus on family detention. The more serious problem is rape and death. And at the end of this road that these women and families are on, they're facing a much more serious risk than long-term detention while they're waiting for their hearings.

SHAPIRO: Professor Philip Schrag of Georgetown Law School, thanks so much for joining us.

SCHRAG: Thank you. Transcript provided by NPR, Copyright NPR.

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