In August, we bring a set of new full-time writers to the blog. Covering the 6th of each month, please welcome Ben Orlebeke (’14). Ben studied philosophy and psychology before moving to South Korea to teach English. He recently graduated from Georgetown Law. When not studying for the bar, he likes to bake, doom-scroll through Twitter, and watch altogether too much TV. He lives in Washington, D.C., with his girlfriend Lindsey and their puppy Phoebe.
Six migrant children died in US government custody during an eight-month span of 2018 and 2019. No child had died in US custody for a decade.
Darlyn Cristabel Cordova-Valle, age 10. Jaakelin Caal Maquin, age 7. Felipe Gómez Alonzo, age 8. Juan de León Gutiérrez, age 16. Wilmer Josué Ramírez Vásquez, age 2. Carlos Gregorio Hernández Vásquez, age 16.
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The entrance to the Federal Legislation Clinic, where I worked during my last year of law school, displayed pictures of these six children. The pictures reminded us that their deaths were caused by intentional legal and policy decisions: family separation, unsanitary and dangerous confinement, the failure to follow legal requirements for children’s protection, and the impunity enjoyed by immigration officers.
These children came to America seeking asylum—a fundamental human right under international and domestic law. Core to the American mythology is, or was, acceptance of and assistance for refugees. Yet the Trump administration has relentlessly attacked the very concept of asylum, a concept enshrined as sacred in the post-1945 world order, to the point of functional extinction in the United States. A trio of 2019 policies sealed asylum’s fate: the Migrant Protection Protocols (MPP); the third-country transit bar; and Safe Third Country agreements with Guatemala and Honduras.
MPP was the first volley, arriving in January of last year. This program immediately turns back all non-Mexican asylum seekers who arrive at the border, forcing them to stay in unorganized tent cities in Mexico until they receive an immigration court date. Court notices often go undelivered, and asylum seekers—elderly people, children, people with disabilities, people who have suffered enormous trauma—must wait indefinitely in some of the most dangerous parts of Mexico.
Six months later, the Trump administration doubled down with the third-country transit bar. This rule entirely bans asylum for any person who came to the US border by traveling through another country. Because the US borders only Mexico and Canada, asylum seekers from any other country in the world became automatically barred from even attempting to receive asylum.
Trump then signed two Safe Third Country agreements—in July with Guatemala, and in September with Honduras. The final nail in asylum’s coffin, these policies are agreements that allow the US to force asylum seekers to seek asylum in one of those countries instead. Mexicans had been the only group exempt from MPP and the transit bar; they can now be shipped off to two-thirds of Central America’s notorious Northern Triangle.
With this trio of policies, America has abandoned the international stage as a refuge for the world’s tired and poor, homeless and tempest-tost. The Trump administration’s actions are reminiscent of World War II, when America turned its back on thousands of Jewish refugees.
Even unaccompanied children, who theoretically receive special protections, are now barred from entry—the white nationalists in the White House received a gift in the form of COVID-19, which was just the public health excuse they needed to enable a complete border shutdown. Thank goodness: we’re safe from the frightened toddlers.
Even this narrow focus on asylum has left out numerous assaults on refugees’ rights, like the rule that will deny work permits to nearly every asylum seeker and kindly advises them to “become familiar with homelessness resources.” And this is to say nothing of non-asylum immigration assaults, like the public charge rule that rejects visas and green cards for anyone who might be likely to rely on some government benefits like SNAP.
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Darlyn, Jaakelin, Felipe, Juan, Wilmer, Carlos.
One key takeaway from my clinic experience is that every legal and policy decision has human consequences. Untolds more than these six kids have died who we don’t hear about. Whether murdered in Ciudad Juárez’s camps, sent back to their country to be tortured, starved on the journey back south, or subjected to some other horror, their deaths are on American hands. They are on the hands of every official who worked to create and implement those policies, on the hands of every elected representative who failed to prevent it, on the hands of every person who cheers them on. And make no mistake: there will be more deaths if we allow it.
We need a new approach—one grounded in kindness, empathy, care-giving, generosity, and civic duty. We must undo every Trump-era policy, allow more refugees to resettle here, only detain narrow categories of migrants, and ensure safe and sanitary detention facilities. We must create a right to government-provided counsel in immigration courts, increase the courts’ funding to reduce the case backlog, and make those courts independent of the Justice Department. And let’s tear down that embarrassing wall.
Immigration is core to the American experiment. America means welcoming those who want to join that experiment. Trump’s assault on asylum is a profound, historic betrayal we must correct.