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Throwing Children Asylum Applicants To The Wolves

Under the dark shadow cast of Americans’ obsession with Donald Trump, Barack Obama continues to wage a fierce, relentless, and exclusive war against the most vulnerable group imaginable: children who fled war in Central America.

Below are the results of a years-long investigation–based on documents obtained through FOIA, friends, and the public domain–into the  story of how the Obama administration secretly suspended  laws, regulations, and policy so that it could deport as many children as possible.

The law of the land in the United States–8 U.S.C. 1232, to be precise–mandates that that the U.S.provide enhanced procedural protections for unaccompanied immigrant children who seek asylum in the United States.

Yet just when an unprecedented number of Central American children were in need of these legally mandated protections, the DHS’ asylum division leadership weakened its Headquarters review process in a secretive February 20, 2015 e-mail to the leaders of asylum offices across the country:

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In laymen’s terms, “HQ” is Asylum Division Headquarters and “QA” is Quality Assurance. “Referrals” is a legal euphemism to camouflage the fact that the asylum office denied a an individual’s asylum application. After a “referral”,  the asylum office orders the applicant to appear for deportation proceedings before an immigration judge. As a defense to deportation, the  applicant may apply for asylum before an immigration judge and have their case decided de novo. 

Why is this all important? Because substantial evidence shows that the policy change initiated on February 20, 2015 caused a steep drop in the asylum grant rate for unaccompanied children (UC) applying under the initial jurisdiction of the TVPRA.

The asylum division granted  60.4% of UC asylum applications in the period spanning from October 1, 2014 to December 31, 2014, as can be seen in the following chart:

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At the same time that the asylum division eliminated mandatory headquarters review for juvenile referrals, the grant rate unaccompanied children dropped by over 19 percentage points to 41% from January 1, 2015 to March 31, 2015 with 1772 children denied and 1230 granted asylum, respectively.

 

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The grant rate continued to slide:  for FY 2015 and FY 2016, 41.2 % and 38.2% of UCs were granted asylum, respectively.

Are  there are factors unrelated to the HQ review policy change that account for the decrease in asylum grant rates? Perhaps, but the overwhelming evidence supports the conclusion that, indeed, the asylum division’s 02/20/2015 about-face in HQ review was the main driving cause of the steep decline in unaccompanied children granted asylum.

An Off-the-Record E-mail From Asylum Division Chief John Lafferty Reveals Intent To Increase Number of Children Denied Asylum. 

In August of 2015, Asylum DIvision Chief John Lafferty responded to an inquiry from an advocate with the following:

Your inquiry to the Chicago Asylum Office has been forwarded to HQ for response.  The Asylum Division regularly reviews and considers revisions to our internal quality assurance process.  Not all revisions and adjustments to the quality assurance process are accomplished with the issuance of a formal memo, and none of the changes impacts the requirement that 100% of cases processed by an Asylum Officer are reviewed and signed off by a supervisor prior to issuance of the decision.

As you have noted, in January 2014 we revised the category of review of cases where the principal is a juvenile from reviewing all such cases to reviewing only NOIDS, denials and referrals.  After spending more than a year reviewing this revised category of cases, we decided in February 2015 to begin work on establishing a random review of the full range of UAC decisions, both positive and negative.  This is consistent with the change that was previously made to our QA review of credible fear and reasonable fear screening determinations.  While we work to establish a procedure for random review, we asked our offices to send us the following revised category of juvenile cases that involve both positive and negative decisions – cases that fall within one of the other categories designated on the QA Referral Sheet and cases involving a novel PSG.

We will consider issuing a memo outlining the changes to the QA review process for juveniles once we have settled on the parameters for the random sampling of cases.

Thank you for your continued service to the protection of refugees.

John

John Lafferty

Chief

USCIS Asylum Division

Once notes Mr. Lafferty never explicitly disclosed the policy as set forth “official-yet-unpublished February 20, 2015  e-mail to asylum offices “What this means is that you [asylum office directors] are no longer submitting all referrals and NOIDs incases in which the principal applicant is less than 18 years old at the time of filing.” Instead, he cites to an aspirational future review policy and states, in as indirect way as possible, that juvenile asylum applicants will be reviewed by HQ like any other asylum applicant.

HQ Review Policies for Juvenile Asylum Claims and Credible Fear Determinations Were Both Explicitly Designed to Provide Enhanced Procedural Due Process Safeguards 

The previous policy for  HQ review of juvenile asylum cases was promulgated in a January, 27, 2014 memorandum from Mr. Lafferty, Changes to Case Categories Requiring Headquarters Review. The policy and its explanation were explained at length:

Fifth, the juvenile category is being narrowed to include only referrals, NOIDS and denials of juvenile cases. The category of juveniles was added to the QA referral list in 2003. At that time, HQ determined that a juvenile category was necessary to ensure that the Children’s Guidelines were being followed and to look for trafficking concerns among UACs. The Asylum Division has significantly enhanced the resources available to Asylum Officers regarding human trafficking over the last couple years by developing a comprehensive lesson plan and formally implementing new procedures. The Asylum Division will serve our goal of ensuring that the Children’s Guidelines are being followed by continuing to review the referrals, NOIDS and denials. The field, however, is no longer required to submit grants of juveniles for HQ review, unless they fall into another HQ review category.

As one can gather from the bold section above, the purpose behind requiring HQ review for all juvenile referrals, NOIDS and denials was to ensure that the children’s guidelines were being followed in the field.

The “guidelines” are in fact a series of binding rules that asylum officers in the field must comply with when interviewing and adjudicating children’s asylum claims. If there is no mechanism to force a group of individuals to comply with a rule, the rule is not worth the paper it is written on.

Moreover, the guidelines were issued in 2009 to take into account the recent enactment of the Trafficking Victims Protection Reauthorization Act, (TVPRA), which commanded the U.S. government to

(8) Specialized needs of unaccompanied alien children

Applications for asylum and other forms of relief from removal in which an unaccompanied alien child is the principal applicant shall be governed by regulations which take into account the specialized needs of unaccompanied alien children and which address both procedural and substantive aspects of handling unaccompanied alien children’s cases.

In clearer terms, the January 2014 memorandum means that the Asylum Division’s HQ review served their goal “of enforcing compliance of the rules set forth in the Children’s guidelines.”

The mandatory language in the guidelines clearly indicates that an asylum officer must follow specialized rules. A sampling:

In order to create a child-friendly atmosphere, asylum officers must attempt to build a rapport with the child, “read” the child applicant for any sign of anxiety, and guide the child through the interview process.

Asylum officers must make an effort to ascertain the child’s quantitative reasoning ability.

In order to communicate effectively with a child asylum applicant, an asylum officer must ensure that both the officer and the child understand one another.

During the interview the asylum officer must take the initiative to determine whether the child understands the process and the interview questions.

All asylum claims filed by principal applicants under the age of eighteen at the time of filing must be submitted to the Headquarters Asylum Division (HQASM) for quality assurance review before they can be finalized.

Asylum officers must earn the trust of the child applicant in order to dispel these preconceptions and put the applicant at ease.

The lesson will cover the international guidance that bears on this issue, the procedural adjustments asylum officers must make when interviewing children, and the legal issues that must be considered when analyzing cases and making asylum determinations.

 

If an asylum officer clearly failed to comply with the child guidelines and then denied a minor’s asylum application, HQ likely sent the case back to the asylum office to reconsider the decision in light of the correct guidelines. This may include reassigning the case to a different asylum officer for another interview, or a reconsideration on the legal  basis for the denial of asylum. In short, violating the children’s guidelines up until February 20, 2015 often created concrete consequences–more work and more hassle– for the asylum officer  and his or her supervisor.

With the prospect of rebuke from HQ, the asylum officer and asylum office directors had a strong incentive to comply with the children’s guidelines. For example, an asylum office director would try to assign children’s cases to  asylum officers with naturally friendly dispositions towards children because they would be less likely to run afoul of the rules and therefore would minimize the chance that a denied case would be sent back for reconsideration upon HQ review.

The Asylum Division rescinded the children’s guidelines in a sweeping fashion by eliminating HQ review of juvenile asylum denials. The message to asylum offices in the field was clear: “You should follow the rules in the children’s guidelines, but feel free to do whatever you want since we will no longer enforce the rules.”

Why would the asylum division destroy its own mandatory rules on children’s cases? To tacitly encourage the violation the children’s guidelines as well as the statutory mandates under the TVPRA.

The enforcement of compliance with the children’s guidelines–mandatory HQ review of all juvenile denials–prevented the asylum division leadership from complying with the Obama administration’s orders to speed up completion of children’s asylum cases.

A Test Case:  Elimination of Mandatory HQ review for all Credible Fear Denials Yielded Immediate Decrease In Credible Fear Grant Rate in June of 2014

 

In addition to the goal of  expediting the completion of children’s cases as explained above, Mr. Lafferty alludes to another potential goal–to decrease the percentage of children granted asylium–when he states the February 20, 2015 decision to be “…consistent with the change that was previously made to our QA review of credible fear and reasonable fear determinations.”

Prior to June 11, 2014, HQ review of “all negative credible fear determinations” was mandatory “to ensure that bona fide asylum seekers are not returned to countries where they may face persecution or torture.”

To add context, at the time, USCIS’ policy was partially guided by recommendations madein 2005 by the U.S. Commission on International Religious Freedom, an “independent, bipartisan U.S. federal government commission.” UCIRF found that “the QA and other procedures for negative determinations were more onerous than the procedures for positive determinations, creating a potential bias toward positive determinations.”

As such, UCIRF recommended that the asylum division “similar QA procedures to both positive and negative determinations.”  The Asylum Division only partially implemented the procedures: it increased the HQ QA review of positive determinations but continued to require “more onerous” procedures for negative determinations” by requiring HQ QA review for all negative determinations.

Clearly, the rationale of USCIS’ policy in place from 2008 to June of 2014 was to err on the  side of minimizing erroneous negative CF determinations, even if there was evidence that to do so would create the risk of more erroneous positive CF determinations. The reasoning makes logical,sense: the consequences of an erroneous CF determination is that a human being will be sent to a country where they will face persecution or torture whereas the reverse is less dire: an erroneous positive determinations will, at worst, give a human being the right to apply for aslyum before an immigration judge.

Indeed, the CF grant rate from FY 2012 up through FY 2013 remained near 90% and never dropped lower than 85%.

On February 28, 2014, the asylum division issued a revised lesson plan on credible and reasonable fear determinations, which was widely seen as an intentional policy shift to heighten the requirements for an individual to be granted a credible fear.

But the subsequent statistics reveal that the memorandum did not, by itself, cause a large decrease in CF grant rates. In March of 2014, the month immediately following the new lesson plan on credible fear interviews, the CF grant rate was 83%, a 6.1% drop from February of 2014.

The CF grant rate remained steady at 83% in April and May of 2014, then dropped to 76.1 in June of 2014, the same month that Mr. Lafferty eliminated mandatory HQ review for all negative CF determinations.

In 2015, the total CF grant rate was 80.76%, 33,998 grants and 8097 denials.  However this was an inflated number given that extraordinary efforts of pro bono lawyers for mothers with children in family detention centers, and the fact that families were detained in only 3 detention centers, as opposed to single adults who are detained in dozens of centers spread out throughout the United States.

The CF grant rate for families in FY 2015 was 93%, with 8097 grants 602 grants, which provides us with a more accurate number.

As such, for single adults, there was a 77.5% grant rate for the all adults in FY 2015.

The depressed CF grant rates in place since 2014 continued for FY 2016.

The total CF grant rate was 88.28%, with 73,081 grants and  9697 denials. However, again, like in FY 2015, this grant rate is significantly inflated due to a higher CF grant rate for mothers with children at family detention centers, with  36570 grants and 1626 denials. 95.7% grant rate for families and 81.9% for single adults.

The Asylum Division’s June 2014 policy change was ostensibly a change based on USCRIF’s recommednation in 2005 to eliminate the mandatory review of all CF denials. But the asylum division failed to explain why it waited for over a decade to adopt USCRIF’s recommendation. The timing leaves little doubt as to the unstated reason: to increase CF denials in an effort to deter asylum seekers from fleeing to the U.S. in record numbers.

The number of CF requests exponentially increased in the last years:

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As one can see, the Asylum Division’s decisions to restrict the number of individuals granted CF came after a record leap in CF requests–in 2013, the number almost tripled from the previous year, over 36,000 requests compared to the previous year of just under 14,000.

In the FY 2014 itself, the adoption of the USCRIF “recommendation” to eliminate HQ review for CF denials occurred in the month with the highest number of CF requests in history:

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In other words, USCIS decided to abandon its policy of ensuring that as few bona fide asylum seekers were wrongfully deported due to an erroneous CF at the same time that there was an unprecedented number of individuals requesting asylum protections in the United States.

The Elimination of Mandatory HQ Review for all Juvenile Asylum Denials Also Occurred Same Month Where Record Number of Children Applied For Asylum

Before 2015, the aslyum division received very few asylum requests for children as this chart shows:

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In FY 2015, which began right at the same time–October of 2014–that the Obama administration kicked of its campaign to expedite the deportation of unaccompanied minors, including a directive to the aslyum division to schedule unaccompanied minor over all other applicants. Asylum offices nationwide decided almost 12,000 juvenile aslyum cases in FY 2015, more than 10,000 from the previous year number of 1,013..

And the decision’s timing, like with credible fear HQ review, occurred during the same time with an unprecedented number of asylum decisions issued for unaccompanied children:

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Thus, in the second quarter of FY 2015, the aslyum division decided more children’s asylum cases–3287–than the previous 6 years combined. the aslyum division rescinded the mandatory guidelines for children asylum applicants at the precise moment that a record number of children were in desperate need of our asylum laws protections.

The Asylum Division Concealed Its Decision To Cease “Ensuring Compliance With Children Asylum Guidelines” From Congress and the U.S. Public

The Asylum Division misrepresented its policy regarding juvenile asylum cases to the Government Accountability Office (GAO) in connection with a report released in December of 2015:

Second, the Asylum Division’s Quality Assurance Branch requires that asylum offices submit certain types of cases to Asylum Division headquarters for review. According to Quality Assurance Branch officials, these reviews focus on sensitive asylum cases, such as…cases that could result in particularly negative outcomes if the applicant is improperly denied asylum, such as cases involving a juvenile. For example, as of July 2015, the Quality Assurance Branch requires asylum offices to submit to headquarters all cases for which the principal applicant is under 18 years of age and the officer had decided not to grant asylum.111 Our review of Quality Assurance Branch data found that, from fiscal years 2010 through 2014, the Quality Assurance Branch reviewed 5,696 applications. The most common type of application reviewed (3,213) involved juvenile applicants.

As February of 2015, the Quality Assurance Branch no longer required asylum offices to submit to headquarters all juvenile cases where the officer had decided not to grant asylum headquarters. As such, the asylum division’s falsely represented to GAO that its HQ review policy remained as of July 2015.(Emphasis added)

Lest one chalk this inconsistency up to a typographical error, see footnote 111:

In September 2015, Asylum Division officials told us that they are working to transition to a random review of all cases involving juvenile principal applicants, including cases in which the officer decided to grant asylum.

The Asylum Division already had moved to a random QA review immediately as of February 20, 2015. Here, it appears that the Asylum Division they are working on a future transition to a random QA review while retaining its policy of QA review for all juvenile asylum denials.

There was never any reasoned basis to implement a random QA review for juvenile asylum denials–USCRIF recommendation was solely directed at the narrow policy goal of minimizing the numbers of erroneous positive credible fear determinations caused by a potential bias given the more onerous procedural hurdles imposed on asylum officers that HQ review imposed for credible fear denials.

Unlike HQ review guidelines for credible fear determinations, there is a a statutory mandate in the TVPRA requires the asylum division to impose more onerous procedural safeguards for unaccompanied children applying for asylum.

By commanding the Asylum Division to create regulations to take into account the specialized needs of unaccompanied alien children, Congress expressed its unequivocal intent that there should be an abundance of caution in adjudicating children’s cases to ensure that a child is not wrongfully denied asylum.

As such, the Asylum Division’s leap the adoption of a recommendation from unrelated study on credible fear determinations is illegal because it is in direct defiance of its obligations under 8 USC 1232 to provide regulations that take into account the specialized needs of unaccompanied children. It is also without any sound evidentiary basis in whatsoever.

The second strong piece of evidence supporting the conclusion that the Asylum Division actively concealed its ultra vires revocation of statutory mandated procedural protections for children asylum applicants is its December, 2015 “Affirmative Asylum Procedurals Manual (AAPM) Public Version, in which it purports to the public the following:

x. Headquarters QA Review Required

Referrals and NOIDs of all juvenile cases in which the principal applicant is less than 18 years old at the time of filing should be sent to HQ for QA review prior to service.

The Asylum Division HQ eliminated this requirement 7 months earlier in February of 2015. Thus, the asylum division falsely represented to the public that HQ review of all juvenile cases is required.

The Mandatory Scheduling of Asylum Interviews for 7:45 am deprives children of their constitutional right to due process and is wholly unnecessary given the asylum office does not start the interview until 9 am or later in the vast majority of cases.  

The asylum office’s policy, at least in New York, is to schedule all juvenile cases at 745 am. In reality, the asylum officer does not call the child in for the interview until 9 am, and often significantly later.

The majority of children whose claims are under the jurisdiction of the NY asylum office reside in Suffolk and Nassau Counties. Prior to the NY asylum office’s transfer from Rosedale, Queens to Bethpage, New York, the 745 am appoinments required children to wake up no later than  530 am to ensure that they could arrive at the Rosedale office, which is 1 to 2 hours away with traffic.

Even with the asylum office in Bethpage, children still have to rise no later than 6 am to ensure they arrive at 745 am. Many of our clients, in a rush to not be late, come to their interview before even having breakfast.

Furthermore, many children already struggle to obtain enough sleep on the eve of their interview due to anxiety.

The potential harm to a child’s due process rights is not speculative.

The American Academy of Pediatrics recommend that middle and high schools delay the start of classes to 8:30 am or later given that “Studies show that adolescents who don’t get enough sleep often suffer physical and mental health problems…and a decline in academic performance.”

The AAP made these recommendations in light of studies that showed the majority of adolescents in the United States are chronically sleep deprived.

The additional reduction of 1-2 hours of sleep caused by the 745 am scheduling on top of a child that is likely to already be sleep deprived is a recipe for disaster. Specifically, a child will be less likely to recall details regarding past experiences, including severe trauma.

Given the above, the asylum office should rescind its mandatory scheduling of children’s asylum interviews for 745 am and schedule them no earlier than 9 am to take into account the  significant distance of the asylum office from the majority of childrens’ homes.

Obama Administration Must Be Held Accountable For Depriving Children Asylum Applicants Of Their Statutory and Constitutional Rights.

Why harm children? Why would the U.S. government under President Obama aggressively harm vulnerable children seeking safety in our country? It is a question I have contemplated over and over and over again.

Although one cannot read the President’s mind,  from administrations’ words and actions provide a strong clue.

The politics the Democratic and Republican party’s courting of the perennial  “secure our border/stop illegal immigration”  constituency.

 This  political weapon employed by the elites in both parties was on full display a press release issued yesterday by DHS Secretary Jeh Johnson’s response to mounting numbers of individuals from Central America seeking asylum protection at the U.S. Mexico  border:

As difficult as circumstances may be in Central and South America and the Caribbean, our borders cannot be open to illegal migration. We must, therefore, enforce the immigration laws consistent with our priorities. Those priorities are public safety and border security. Specifically, we prioritize the deportation of undocumented immigrants…apprehended at the border attempting to enter the country illegally. Recently, I have reiterated to our Enforcement and Removal personnel that they must continue to pursue these enforcement activities.

 

President Obama and others in leadership intentionally violated statutory and constitutional laws designed to protect children asylum applicants as a means to execute the message that his administration a. is aggressive against illegal immigration and b. has been largely successful in creating a secure border.

Here is what needs to be done on this specific issue,  in 5 steps:

First, the Asylum Division must immediately reinstate mandatory headquarters review of all juvenile asylum denials.

Second, the Asylum Division must immediately rescind its policy of fast-tracking juvenile asylum applications;

Third, the Asylum Division must re-interview every child who was served a referral without Headquarters Review.

Fourth, the Asylum Division must rescind its mandatory 7:45 am scheduling policy for juvenile asylum interviews and implement a policy that ensures interviews are not scheduled any earlier than 9:00 am.

Fifth, Congress must commission an independent investigation to determine which individuals in the Obama administration are responsible for ordering the Asylum Division leadership to de facto rescind the TVPRA and the 5th amendment right to due process.

As of November 17, 2017, the above-article was forwarded as a request  to Asylum Division Headquarters officials as well as Asylum Office Directors throughout the United States.

The above-article will also promptly be forwarded to the DHS’ Office of Inspector General; Office of Civil Rights and Civil Liberties, and the members of the Senate and House Subcommittees on Immigration.

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