From womenontheborder.org
On the morning of November 9, 2016, I woke up saddened, ill, and angry, but also determined. I represent asylum seekers, mostly those who are facing deportation. Okay, so he won, I told myself. My job for the next four years is to fight every single deportation I can. Clarity of purpose helped me fight despair, and in this sense I was very lucky.
My mission kept me afloat even following the shock of hearing an immigration judge rule against asylum for a woman incarcerated in the Hutto immigration prison. Young, still attending school and living in her mother’s home, her life had changed drastically when her mother died. A narcotics gang took over the house: every day she came home to guns and drugs in the living room and men discussing recent and planned killings. One of the guys was attracted to her, repeatedly grabbing her while the other men laughed. One night he attempted to rape her; fortunately he was so drugged and drunk that he did not succeed. She ran away from her home and country.
The immigration judge ordered her deportation, characterizing the would-be rapist as “a disappointed suitor.”
My mission kept me afloat as I worked to keep the U.S. from deporting a woman who’d lived here since she was about ten years old, with two small, U.S.-born children of her own. A lesbian with some “masculine”- appearing physical characteristics, she was assaulted by gang members on her second day back in her home country. A group of men, some of them carrying guns, wanted to know whether she was a boy or a girl, and forcibly undressed her on a public street in broad daylight to satisfy their curiosity, calling her names the entire time. They let her go but told her that they would kill her if she failed to pay them a large amount of money. The immigration judge ruled that there was no proof that she was assaulted because of her sexual orientation or non-gender-conforming appearance. The gang just wanted money. Besides, what they did to her wasn’t bad enough to be “persecution,” anyway.
Even after such bitter, heartbreaking, unjust losses, my purpose was clear. Just think, I told myself, how many more people would be deported, how even more rapidly, without the efforts of what former Immigration Judge Paul Wickham Schmidt termed “the New Due Process Army.”[1]
I was lucky because I had a powerful sense of purpose. I had a reason to get up every morning. I knew what I was supposed to be doing, in 2017. And in 2018. . .
Then came May 2018, when I found myself listening to women in the Hutto immigration prison tell me how many days or weeks it had been since U.S. officials had taken their children away, sometimes by lies and sometimes by force. All I could to say, I’m so sorry, I’m so sorry, I don’t know where your son is, your daughter is, I don’t know how long it will take to get them back. I cannot make any promises, except to do my best. [2] [3]
I can’t bear to write about the period in which the U.S. government, as a blanket policy (as opposed to isolated incidents) was kidnapping children.
All I can say is that “family separation” does not begin to convey the depravity or horrific, long-term consequences of this malicious, intentional criminal enterprise. After all, most deportations separate families; much migration separates families. What we saw in 2018 was not merely “separation,” but the cold-blooded, deliberate, strategic mass crime of kidnapping little kids.
Which I would call torture: both of the children and the parents.
I don’t think I am naïve about the United States. I’m 63 years old and know that the U.S. has never fully repudiated or accounted for its twin foundational crimes — enslavement of African persons, and the forced removal and genocide of native peoples. These abominations have been followed by a history of human rights abuses of all kinds. I’ve been a civil rights lawyer, an oral historian about the death penalty in Texas, and a teacher of Mexican American Studies. I began representing Central American asylum seekers in the first place because I knew that their homes were not safe, in large part because of U.S. military interventions in Honduras and Nicaragua, training and support of death squads in El Salvador, and assisted genocide in Guatemala.
And yet the “Zero Tolerance” policy broke me: body, soul, and faith. I’m trying to recover.
I kept representing people seeking asylum in immigration court, but as I did so this administration was relentlessly attacking both asylum seekers and the asylum process itself.
The Departments of Justice (sic) and Homeland Security regularly re-wrote procedural requirements for asylum. Two attempts with which the U.S. Department of Justice (sic) and Homeland Security attempted to abolish asylum completely, first, for people who came to the U.S. in between official ports of entry, and second, who did not stay long enough in countries along the way to earn official denials of asylum, if they approached the U.S. from its southern border.[4]
A series of U.S. Attorneys General (and substitute Attorneys General) made decisions unilaterally changing the substantive law of asylum (what people must prove).
Some of these changes were overturned by federal courts; others were upheld; and – due to the limited nature of some injunctions as well as the fact that federal appellate courts often disagree — some remain in place in parts of the U.S. but not others. To practice law effectively, a person must keep abreast of what the law is, but following all the changes (none of which were enacted by Congress) has been more than a full-time job.
It became next to impossible to represent asylum seekers in U.S. immigration courts, because the government kept many asylum seekers from getting to the U.S. in the first place.
- Metering, beginning in 2018, kept many asylum-seekers out.The tactic enabled the U.S. government to create visual propaganda, but also real-life suffering, of people crammed together sleeping under a bridge in El Paso, surrounded by concrete and barbed wire. This spectacle was not the consequence of “too many people” coming to ask for asylum, but the metering process itself. If you dam a river, you can create a “flood;” if you restrict movement of people legally presenting themselves at a port of entry, you can create visual images of “hordes” of “invaders.” For “invaders,” read instead huddled (in the cold) masses (of children and adults) yearning to be free.[5] [6]
- The cynically-named Migrant Protection Protocols (MPP) has forced thousands of asylum-seekers to stay in dangerous situations in Mexico while awaiting long-delayed immigration hearings, sometimes in tents along the border.
- Asylum Collaborative Agreementsinvolve flying asylum-seekers to Central America to await asylum proceedings there. Human Rights Watch and Refugees International have dubbed the latter practice, “Deportation with a Layover” (5/19/2020).
Now, we seem to have a new administration, and I do have some hope: the Biden-Harris administration must eliminate metering, the MPP, and ACA with Central American countries, and it can do so whether or not Congress agrees, as these were administratively-created policies in the first place. The new president can immediately end the wasteful, hateful building of the wall between Mexico and the U.S.
But I’m worried. Will we, the people of the U.S., effectively insist that Biden keep his promises?
Without photographs of “kids in cages,” how many people will try to understand what’s happening with children and adults fleeing deathly conditions in Central America?
Without unabashed racist pronouncements emanating from the White House on a regular basis, will the majority of people simply accept imprisonment (“immigration detention”) as “normal,” without considering that we supposedly don’t believe in indefinite detention in the U.S., or locking people up even when they aren’t dangerous at all, to anyone? Will the majority of the voting public just assume that if people are locked up, that there’s just no alternative?
What is going to happen if the Biden-Harris administration does abolish MPP and metering, and hundreds of asylum seekers do try to come into the U.S., all at once after years of being turned away? Just imagine the opportunities for ugly anti-immigrant propaganda, visual as well as verbal. Will the new administration stay strong and keep its promises? Even if it does, will the xenophobic right-wing successfully engineer an anti-human rights backlash more powerful than any we have seen before?
Will Biden-Harris reprise the successful two-faced Obama-Biden strategy, of granting relief to some (young English-speaking Dreamers, raised and educated in the U.S), while imprisoning and rapidly deporting traumatized asylum-seekers?
Will the majority of the U.S. voting public maintain its convenient ignorance of the anti-Black and anti-African racism that permeates both the Departments of Homeland Security and Justice (sic)? The perception that Black African men do not deserve to pursue their asylum claims outside of immigration prison, because they are likely to hurt someone, or to abscond?
Returning to the Obama-Biden era will not provide immigrants with dignity or safety. We must garner the political will and strength to make vital changes:
- End the practice of incarcerating or “detaining” people who have presented themselves at U.S. ports of entry and asked for asylum. Doing so is legal.
- Better yet, abolish any incarceration or “detention” of people purely for violations of immigration law. The Department of Homeland Security always has the discretion to release a non-U.S. citizen from immigration detention.
Because DHS is part of the executive branch, the president could order these changes in DHS detention policy, without any change in the immigration statute.
Finally, we need to transform the system of immigration adjudication entirely. If the immigration courts are ever going to be independent; if they are ever going to be fair tribunals, they must become real courts. Take them out of the Department of Justice and the executive branch entirely; make them specialized courts in the judicial branch of the federal government. This transformation will require the approval of Congress and thus be difficult, but it is necessary. As long as immigration courts remain under the control of the president (any president) and attorney general (any attorney general), they risk being used as political weapons rather than arbiters of justice.
[1] Paul Wickham Schmidt, “Join the ‘New Due Process Army’ – Fight for Due Process in the United States Immigration Courts,” Frankel Lecture Series, Human Rights First, Washington, D.C., July 19, 2017,
https://immigrationcourtside.com/join-the-new-due-process-army-fight-for-due-process-in-the-united-states-immigraton-courts/, last accessed November 18, 2020
[2] “Mothers without children,” National Justice for Our Neighbors newsletter, June 2018, https://mailchi.mp/b658773c5dec/jfon-at-the-border-defending-asylum-seekers, last accessed November 18, 2020.
[3] Debbie Nathan, “An Abused Woman Came to the U.S. Seeking Asylum. The Government Took Her 5-Year-Old Son. This Is How She Got Him Back.” The Intercept, June 21, 2018,
https://theintercept.com/2018/06/21/trump-family-separation-immigration-children-reunification/, last accessed November 18, 2020.
[4] The first asylum ban was announced on November 9, 2018, and the second asylum ban on July 16, 2019. Both have been overturned by federal courts. For more specifics, see American Immigration Lawyers Association (AILA), “Featured Issue: Border Processing and Asylum,” October 12, 2020, https://www.aila.org/advo-media/issues/all/featured-issue-border-processing-and-asylum#ban, last accessed November 17, 2020
[5] Center for U.S.-Mexican Studies, U.C. San Diego School of Global Policy & Strategy; Robert Strauss Center for International Security and Law, University of Texas at Austin; et al., “Asylum Processing and Waitlists at the U.S.-Mexico Border,” December 2018,
https://usmex.ucsd.edu/_files/asylum-report_dec-2018.pdf, last accessed November 17, 2020.
[6] Debbie Nathan, “Migrants Say They Pay for Inclusion on ‘La Lista’ to Make Border Crossing,” The Appeal, January 25, 2019,
https://theappeal.org/migrants-say-they-pay-for-inclusion-on-la-lista-to-make-border-crossing/, last accessed November 17, 2020
