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Here in the U.S., the pandemic has brought a lot of things to a halt, but one thing it hasn’t stopped is the flow of people seeking asylum. People are still showing up at the border, hoping to escape brutal conditions in their home countries. And the U.S. government is supposed to hear these people out. But Adolfo Flores, who covers immigration policy for BuzzFeed News, says that’s not happening right now. Back in March, the Centers for Disease Control and Prevention said undocumented immigrants could no longer be safely detained at the border while they awaited processing because of the pandemic. “They are quickly sent back to Mexico in less than two hours without any access to our immigration court system,” Flores says.
The government has also scrapped many of the protections in place for unaccompanied minors—kids who have crossed the border and are trying to stay in the U.S. The Trump administration insists this is all necessary to minimize the spread of the coronavirus. But critics, like the American Civil Liberties Union, say the U.S. government is using the crisis to continue the president’s crackdown on immigrants. I spoke with Flores about how the Trump administration is denying immigrants and asylum-seekers access to the U.S. legal system, and what that means for the adults—and children—fleeing violence in their home countries. Our conversation has been edited and condensed for clarity.
Ray Suarez: Before COVID-19, was the United States able to handle the flow of asylum-seekers? Were those cases being adjudicated before and they’re not now?
Adolfo Flores: They were, but there was, and there is, a massive backlog in cases. So people’s cases were taking years to be adjudicated. But the administration had another policy before this, the so-called Remain in Mexico program. And that forced immigrants and asylum-seekers to wait in Mexico while their cases were adjudicated. But even then, people were waiting more than a year in some cases.
So this is a policy that’s been in flux already, regardless of COVID-19. People who once would show up at the border and have an asylum process scheduled and be kept in custody on the U.S. side of the border or released to relatives or allowed to remain at large were being pushed back into Mexico already. Now they’re being pushed back into Mexico and not even being given a hearing?
That’s exactly what’s happening.
Does the law give a lot of power to the executive branch in dealing with the day-to-day treatment of attempted border crossers and asylum requests? Is there normally a lot of latitude in the executive branch?
The last three years have shown that there is more latitude than we previously thought. The changes in the policies under this administration, they don’t always stick, but there’s always a new one. There’s always something on the horizon to take over. Remain in Mexico is a good example. That was one thing. And now we have these expulsions. Of course, they say that this is because of the pandemic and we need to stop the spread of COVID- 19. But I think that the last few years have shown how much power and influence the executive branch does have in changing or adopting our immigration system.
In your reporting, you’re careful to make the distinction between deportation and expulsion. Walk us through the difference.
The reason I try to make that distinction is because if you say I was deported, that means you went through our immigration court system. You went through the process. Expulsions cut you off from that process completely. Let’s say I show up at the border fleeing persecution or violence. And I tell a Border Patrol agent this. In the past, they would do a credible fear interview. And if I pass that, then I would be able to access the court system and try to get asylum or some other type of protection. Then I would go through that process. And if I didn’t get it, I would be able to appeal it and go through that process. What you’re seeing now is that that due process is taken away. I would go to the border today, tell the Border Patrol agent, “Hey, I’m fleeing persecution.” They would quickly process me and then tell me, no, go back to Mexico
Do we know what happens to people who are expelled? Do we know whether they try to cross again?
People are immediately sent back. But there’s nothing stopping them from trying again and again and again.
How has the pandemic become a factor in the way border enforcement is being handled writ large, not just with expulsions rather than hearings, but is COVID-19 also changing the lives of people who are already in custody, adults and children?
In terms of people in ICE detention, the virus is spreading in all the facilities. So there has been an effort to reduce the population, and people have been getting released. But if you talk to some of the attorneys working with folks there, they’re not being released fast enough or releasing enough people, and people are getting sick and in some cases dying in ICE detention from COVID-19. And the immigration court system hasn’t been working as it usually did. So some people are getting their cases postponed. Some are not. It just depends on what stage of the process you’re at.
Behind all this legal language, there are real people, people driven north by real distress. Tell us the story of a young Guatemalan sent home. You called her Claudia. What’s her story?
Claudia was a 17-year-old girl in Guatemala who was living there by herself after her parents and her younger brother immigrated to the U.S. And one day after school let out late, she was walking to a line of taxis, which she would usually take to get home, and she noticed somebody was following her. So she started walking fast. It was a five minute walk. And in that time, a group of men grabbed her, and they raped her. And she went home, and she didn’t have anyone there, and she didn’t tell her parents. She didn’t want to worry them. But she had to eventually when she realized that she had become pregnant from the rape. And then after that, she started receiving calls from the men who had raped her, threatening her, telling her that they were watching her, that if she said anything, something would happen to her.
After she gave birth to her daughter, she started to make her way from Guatemala to the border. She was abandoned in the Arizona desert by the smuggler because she stopped to change her daughter’s diaper. And by the time she looked up and tried to catch up, her and another woman realized the group was long gone and they were lost. And so they called 911, and they were able to get rescued by Border Patrol. But that was when she was told we’re going to be sending you back to Guatemala. And after about a day at a Border Patrol facility, she was taken to a hotel overseen by government contractors and then flown back to Guatemala.
Unaccompanied children, and in some cases families, are being kept in these hotels. Sometimes they’re not given access to a phone. Their attorneys have a hard time reaching them. Some kids are able to call their parents, but then they’re not allowed to tell the parents where they are or what the conditions are like. One immigration attorney described them as black sites, because they sort of disappear into this hotel system. And then from there, they’re taken to an airport and sent back to their country.
The federal government’s being sued by advocates trying to free migrant children from detention. The kind of detention you describe. What does the lawsuit argue?
The lawsuit argues that expelling unaccompanied children violates a 2008 anti-trafficking law and that the law requires them to quickly transfer the kids to the refugee agency that usually took them, instead of quickly expelling them. And that law and other laws give these kids access to the asylum system and other protections. And so the lawsuit says that the Trump administration has violated that law specifically but also the other protections that unaccompanied children are entitled to.
What’s the next shoe to drop, or as long as the Trump administration is in power and the pandemic prevails, are we going to see pretty much what we’re seeing now?
There’s some stuff coming down potentially in the next few months. Last month, the Justice Department and DHS proposed a rule that would disqualify immigrants from asylum if officials determine they could spread an infectious disease. And then you also have some regulations that are being proposed that would make seeking asylum harder. If the administration stays in the White House, we can expect to see more policy build on this one and make it harder for people to access our immigration court system.
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