Re-Imagining The Asylum System: Recommendations From Asylum Medicine Experts

Tom Smith

The US immigration system has been riddled with punitive policies since its creation. However, the Trump-Pence administration introduced new cruelties and strengthened the harshest enforcement policies at its disposal. The Migration Policy Institute catalogued more than 400 executive orders related to immigration that were introduced during the Trump presidency. In […]

The US immigration system has been riddled with punitive policies since its creation. However, the Trump-Pence administration introduced new cruelties and strengthened the harshest enforcement policies at its disposal. The Migration Policy Institute catalogued more than 400 executive orders related to immigration that were introduced during the Trump presidency.

In 2021, the Biden-Harris administration is faced with the multilayered task of dismantling these policies. The administration should not only deal with the consequences of harsh border policies and the anti-immigrant agenda and rhetoric; it should rebuild our asylum system with the guarantee of protecting all human rights as its guiding principle. The Biden-Harris administration has issued a number of immigration-related executive orders that reverse aspects of these odious policies, but additional urgent action is necessary on a range of issues, especially as it relates to restoring and strengthening the US asylum system. Congress must also prioritize this critical issue as it considers immigration reform legislation.

One other critical change has already taken place: a reversal in rhetoric and tone. We’ve transitioned from a president who repeatedly claimed that asylum seekers were fraudsters, rapists, and gang members, who was eager to implement the most punitive policies possible (even when that involved young children and infants), to one who has vowed to advance legal protections for immigrants and refugees, albeit at times inconsistently. Members of the new administration have expressed similar sentiments. The new Secretary of the Department of Homeland Security has invoked his own family’s refugee origins and pledged to oversee protection for those seeking a safe haven in the United States.

With change on the horizon, it is critical to articulate both the values and the vision that should form the basis for messaging and policy decisions. What is needed is not simply a return to the pre-Trump status quo but a true transformation. We have a broken immigration system that discriminates against people of color; we need a system that respects constitutional and human rights. Without a well-informed thematic framing and clear identification of guiding values, the new administration will also struggle to take a rights-based and evidence-based approach to the complex challenges facing asylum seekers.

Physicians For Human Rights Asylum Policy Working Group

Physicians for Human Rights (PHR) is an international non-governmental organization (NGO) that has been engaged to support migrant and refugee rights for more than 30 years. PHR assembled an expert working group composed of 12 physicians from across the United States (California, Massachusetts, New Mexico, Arizona, Connecticut, Texas, Georgia, New York, and the District of Columbia), representing a range of health specialties (pediatrics, psychiatry, obstetrics and gynecology, internal medicine, neurology, family medicine, emergency medicine, preventive medicine, and public health). All these experts have extensive experience conducting forensic evaluations of asylum seekers, participating in medical research related to immigrant and refugee rights, living by or traveling to the US–Mexico border and US immigration detention centers, training other health professionals, and speaking about immigration and asylum-related issues.

The working group met four times: three times in facilitated thematic discussions with legal and policy experts in the fields of asylum adjudication, immigration detention, and border and immigration enforcement; and a final time to crystallize the key themes of the expert discussions.

Key Issues And Proposed Solutions

Decriminalize Immigration

Problem: Due to widespread misunderstanding about the asylum process, many Americans view crossing the border as “illegal”; they therefore believe that people doing so should be subject to harsh legal consequences. Yet, seeking asylum, whether at the border or once in the United States, is a legal right under US and international law.

Although entering the US without authorization is a civil offense, nativist laws from the 1920s created an additional criminal offense for entry without inspection. However, research has shown that prosecution under these laws is not a deterrent to seeking asylum and is an ineffective enforcement strategy. The 1951 UN Refugee Convention and its 1967 Protocol, which the US has ratified, actually prohibit states from criminalizing asylum seekers who enter a country without authorization. Obtaining asylum, by meeting the narrow and strict legal definition under US law, is by no means guaranteed, but the US government is obligated to consider individual asylum claims to ensure people are not forcibly returned to countries where they could face severe harm or death.

Criminalization of border crossing was the pretext used to separate thousands of families under the “Zero Tolerance,” forced family separation policy in 2017 and 2018, resulting in deep, lasting psychological trauma for the affected parents and their children.

Solution: The administration should stop prosecuting border crossing without authorization as a criminal offense—which is not an effective law enforcement tactic—and work with the US Congress to restore its pre-1920s status: solely a civil offense. The new taskforce established for family reunification should ensure that families separated by the Trump administration, primarily on the pretext of prosecuting border crossing, should be reunited in the United States and offered a pathway to permanent status.

Destigmatize And Restore Asylum

Problem: The Trump-Pence administration advanced a criminalization narrative to dehumanize immigrants and feed racist misperceptions that immigrants are dangerous invaders or criminals, that asylum is a “loophole” or a “scam,” and that people who apply for asylum but do not meet the narrow asylum definition are “fraudsters.” This rhetoric was used as a pretext for deploying a national security response to what is, in fact, a humanitarian crisis

As medical experts, we reject unjust distinctions between “good and bad” immigrants. Just as all our patients deserve to receive treatment with dignity and non-discrimination, all people seeking protection deserve consideration and due process for asylum adjudication without discrimination. Racist rhetoric has been used to justify sweeping changes to asylum regulations, overturning decades of precedent to narrow the definition of asylum to the extent that legal experts declared a “death to asylum” in the United States; these changes have been blocked for now by a federal court, but many are still active in Department of Justice guidance and decisions.

Flouting its obligations under asylum law, over medical expert objections, the Trump administration forced the Centers for Disease Control and Prevention to invoke a never-before used regulation, Title 42, in March 2020. This regulation singled out asylum seekers and other immigrants for a categorical ban using the pandemic as a pretext, resulting in more than 350,000 people expelled without due process while simultaneously admitting millions of other travelers through the US southern border. Less than 1 percent of those crossing the border in the past year were given the chance to seek asylum.

On December 22, 2020, the Trump administration introduced yet another federal regulation, which declared that anyone passing through a country where COVID-19 or another infectious disease is “prevalent or epidemic” represented a security threat and could be disqualified from seeking asylum.

Closure of the border to people seeking asylum, using the pandemic as a pretext, followed on years of previous attempts to end asylum through attrition. The Trump-Pence administration implemented policies of metering entry at ports and returning people to Mexico to await their immigration hearings under the so-called Migrant Protection Protocols; both measures forced people to remain in dangerous conditions in Mexico instead of pursuing their asylum claims in the United States. The Trump-Pence administration also brokered agreements with Central American countries (the so-called Asylum Cooperative Agreements) to accept US asylum seekers, denying them a chance to pursue their claim in the United States and subjecting them to danger.

The Biden-Harris administration successfully coordinated with international organizations and civil society groups to admit people forced to remain in Mexico under the Migrant Protection Protocols. It also ended the Asylum Cooperative Agreements, showing that with political will and the support of partners, we can welcome people with dignity.

Solution: The United States should affirm US and international law under which all people have the right to seek asylum without discrimination and to pursue their claims in the United States. Asylum seekers should be offered tailored services and support, not stigmatized or given substandard treatment. The consensus of public health experts is clear that there is no rationale for a categorical ban on asylum seekers during the COVID-19 pandemic, and the administration should restore access to asylum at the border by revoking Title 42. Public health experts have established that the border can be opened safely during the ongoing pandemic and have released detailed guidance on how to do so.

Create A Humane And Trauma-Informed Immigration System For Asylum Seekers

Problem: Most people seeking asylum have experienced trauma, and the current process—from apprehension at the border to detention and court hearings—further traumatizes them, which affects an individual’s ability to convey their story in a way that can create a significant barrier for individuals with valid asylum claims. Inhumane treatment, from physical, verbal, and sexual abuse to poor medical care and inadequate sanitation and food, has been repeatedly documented in centers where asylum seekers are held and processed.

Immigration judges are appointed based on their understanding of immigration law, not on trauma, and yet their ability to assess the evidence relies on their ability to interpret trauma presentation. Immigration courts operate as adversarial settings where most immigrants do not have legal representation, further traumatizing asylum seekers. Immigration courts face an unprecedented backlog, despite efforts made to strip due process protections from the adjudication process under the guise of expediency.

Solution: The guiding principles should be “humane welcome” and humane treatment of people when they cross the border. Border patrol agents should focus on basic processing and law enforcement functions at the border, rather than assuming duties related to asylum screening or reception of children and families, which they are not trained or equipped to carry out. The government should direct funding toward providing a supportive reception by hiring child welfare experts, social workers, and health professionals who can handle the majority of intake and processing needs. This work could be contracted to NGOs, experts, and health providers in a non-custodial setting, as the US has done with refugee resettlement.

The ideal asylum adjudication system would include universal legal representation and access to forensic medical evaluations. It would also include changes in the role of asylum officers, starting with reinstating their traditional roles in determining whether someone has a credible fear of persecution, then expanding their roles to give them authority to grant asylum as a part of the credible fear process. In adjudicating asylum claims, the government should rely on objective evidence such as forensic asylum evaluations that scientifically document the consequences of persecution and torture on the person seeking asylum. When immigration courts are needed, the administration should make courtrooms more trauma-informed by funding training for immigration judges on trauma-informed practices and collaborating with the Substance Abuse and Mental Health Services Administration to adopt best practices from progressive substance use courts.

Prioritize Decarceration

Problem: Mandatory detention, whereby many adult immigrants are automatically incarcerated without any individual consideration, is leading to longer periods of detention for greater numbers of people. It has resulted in increased health risks and worsened health outcomes, as well as human rights violations. This is particularly true in the context of the COVID-19 pandemic: Detention centers have been epicenters for COVID-19 outbreaks due to the inability to practice social distancing in densely populated congregate settings, along with the inability to wear masks and adhere to basic hygiene recommendations such as hand-washing.

Alternatives to detention in community settings have shown greatly improved health outcomes, as well as high rates of compliance with immigration proceedings. While the “catch and release” rhetoric may have been a convenient cudgel for the Trump administration to attack humane policies, we recognize it is neither accurate nor precise in its description of the performance of policies and practices that prioritize alternatives to detention. Federal data show that the majority of people in immigration detention have no criminal convictions; policies that decrease detention involve the following steps: apprehend, screen, release, and adjudicate.

Solution: The medical and human rights communities have spent years exposing the inhumanity of immigration detention and the dangerous health harms created by its prolonged use on a mass scale. The administration should work with decarceration movements to end detention and build an infrastructure based on evidence and rights, such as case management systems in the community. The administration can use its discretionary authority to immediately release people from detention and work with Congress to end mandatory detention legislatively.

Safe release into the community is also the most effective way to prevent the spread of disease, including COVID-19 and other infectious illnesses. In the meantime, the government also has a responsibility to ensure equitable COVID-19 vaccination for immigrants in detention, as well as in the community.

Improve Conditions In Detention Facilities

Problem: Conditions in immigration detention facilities are known to be poor. Multiple reports in recent years described disease outbreaks, overcrowding, poor hygiene measures, neglect, and poor access to health resources and medical care. During the pandemic, even basic mitigation measures have been lacking. The government has committed acts of abuse and retaliation against people in detention, as well as against health professionals who protest these dangerous conditions.

The detainee death rate has increased from previous years. Multiple deaths in custody have been attributed to medical negligence. Importantly, there are no legally binding regulations or enforceable standards regarding detention conditions, including access to medical treatment or mental health care.

Solution: Although the utmost priority is decarceration, immigration detention conditions must be improved as a harm reduction strategy. The administration must work with Congress to pass legislation to overhaul the immigration detention system and set rigorous, enforceable health standards in all detention facilities, with independent oversight. Priorities should include the treatment of children and pregnant women, preventive care, and, urgently, COVID-19 standards of care and distribution of the COVID-19 vaccination.

People held in private immigration detention have been shown to be held longer and subject to worse conditions of confinement as a result of cost-saving measures, so ending contracts with private prison firms represents another harm reduction strategy. Oversight, investigation, and accountability for abuses, data transparency, and protections for detainees and health professionals who report abuse must be ensured without delay.

A Call To Action

The practice of medicine is built on respect for the principles of autonomy, justice, beneficence, and non-maleficence (do no harm, and, going further, minimize risk of future harm). It is critical that the new administration follows these same values in responding to the human rights violations that asylum seekers experience in their countries of origin and in the United States. The asylum system in its current state is fractured, non-functional, cruel, and anathema to the most basic respect for human dignity; as health professionals, we wish to see changes rooted in trauma-informed, public-health principles that exemplify the ethical values of humane, fair treatment.

We commit to offering our technical expertise to governmental actors and institutional and civil society stakeholders. We also stand ready to offer training and support to federal officers in implementing the principles and recommendations outlined above.

Authors’ Note

The Physicians for Human Rights (PHR) Asylum Policy Working Group is composed of Eleanor Emery, Hope Ferdowsian, Karla Fredericks, Stuart Lustig, Kate McKenzie, Ranit Mishori, Parveen Parmar, Katherine Peeler, Altaf Saadi, Joseph Shin Samantha Varner, and Amy Zeidan. PHR Asylum Program staff Kathryn Hampton and Elsa Raker also participated in the working group discussions.

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