Merkley Releases Sweeping Report on Trump’s Gutting Of Asylum, Including Direct Evidence of Grave Whistleblower Concerns

WASHINGTON, D.C. – Oregon’s Senator Jeff Merkley today released a sweeping new report detailing the Trump administration’s gutting of the legal asylum system. The report includes previously unreported, direct evidence of whistleblowers raising alarms within the asylum division.

For several years, the Trump administration has tried to prevent people from arriving in America through deterrence, legally dubious strategies to blockade ports of entry from people seeking asylum, and other strategies. This report, relying in part on administration whistleblowers, describes a less-familiar, concerted campaign to undermine the American asylum system.

“America should be a land of hope and refuge—the place President Reagan called a shining city on a hill,” said Merkley. “We’ve seen the betrayal of that vision by the Trump administration’s intentional infliction of trauma on children and families as a warning to others to stay away. Now we know that when that strategy failed, the administration set out to gut the American asylum system from within. Their draconian actions were so contrary to American values and law that at least one whistleblower felt they could not morally or legally carry out their orders.

“America can have a fair, legal immigration system that faithfully implements our laws and treats every individual with decency and respect—but to get there, we must first undo the destruction President Trump has wrought on our immigration system,” Merkley concluded.

This report follows on Senator Merkley’s previous work exposing the Trump administration’s cruel and dangerous immigration policies.  In June 2018, Merkley set off a national firestorm when he exposed the Trump administration’s family separation policy. Merkley was the first Senator to visit the border to investigate that policy, and turned the eyes of the nation to this cruel new policy when he went to investigate a child detention center in Brownsville, Texas and was barred from entering.

As detailed in today’s report, this systemic gutting of asylum has turned away thousands who have a legal right to ask for refuge within the U.S., and shattered hopes for countless families at risk of gang violence, murder, rape, and extortion in their home countries.

The report, Shattered Refuge: A U.S. Senate Investigation into the Trump Administration’s Gutting of Asylum, is divided into two main sections.

Part I is an overview of the Trump administration’s efforts to stop families fleeing persecution from coming to America to claim asylum, including its child separation policies, dangerous and unsanitary conditions within detention facilities, and the deaths of at least seven children who were held in U.S. detention facilities.

Part II details the systemic destruction of the asylum system from within, including previously unreported quotes and documents from whistleblowers within the administration who reacted with alarm to the extreme changes enacted by President Trump and his political appointees. One whistleblower called a new training system for asylum officers as “spitballing whatever might work” and “creat[ing] an echo chamber” in which worthy asylum applicants could be turned away. Another whistleblower wrote, in a newly-obtained email, that the Trump administration’s Remain in Mexico program was plainly “illegal,” “violates my oath of office,” and “is clearly designed to further this administration’s racist agenda of keeping Hispanic and Latino populations from entering the United States.”

Key findings of the Merkley report include:

• When asylum officers found that an applicant had a legitimate reason to fear staying in Mexico until their asylum court date, those decisions were reviewed by political supervisors. Decisions to send migrants back to Mexico were not reviewed, while decisions that migrants should remain in the U.S. for their safety were forwarded on to supervisors, and in some cases all the way up to headquarters. Whistleblowers reported that in nearly all cases where asylum officers found that asylum seekers should be allowed to await their hearing within the U.S. for safety reasons, they were overruled by their superiors, with one whistleblower reporting that it would take “Herculean efforts” to get final approval on any recommendation to allow an asylum seeker to wait in the U.S.

• Trained asylum officers strenuously objected to being forced to implement the administration’s programs, such as “Migrant Protection Protocols”/Remain in Mexico, that appear to be in clear violation of domestic and international asylum law. One whistleblower, who refused to participate in MPP on both legal and moral grounds, wrote in a letter that “[i]mplementation of a program for which there is no legal authority violates my oath to office.” The asylum officer noted that the U.S. is bound by law not to discriminate against refugees on the basis of their race, religion, or nationality, and not to penalize refugees for how they enter the country to claim asylum. “However, the MPP both discriminates and penalizes,” the officer continued. “Implementation of the MPP is clearly designed to further this administration’s racist agenda of keeping Hispanic and Latino populations from entering the United States.”

• Whistleblowers reported that former U.S. Citizenship and Immigration Services (USCIS) Asylum Division head John L. Lafferty was forced out of his job by Acting USCIS Director Ken Cuccinelli. This forced reassignment resulted in the perception among rank-and-file officers that Lafferty was fired for applying asylum law as written rather than skewing it to meet the administration’s political goals.

• In mid-August 2019, UCSIS ended standardized training for new asylum officers. This training was previously mandatory for all asylum officers, to ensure consistency across the nation and to reduce the risk of bias and inconsistency among USCIS field offices. Without standardized trainings, new asylum officers are likely to be trained by politically-installed leaders and more vulnerable to pressure from supervisors to deny as many asylum claims as possible.

• CBP officers sent late-term pregnant women back to Mexico under the “Migrant Protection Protocols” or “Remain in Mexico” policy, despite the fact that individuals with known health issues are supposed to be exempted from the program. In one case, doctors gave a woman who was already experiencing contractions medication to stop the contractions so that she could be sent back across the border to Mexico.

• The administration’s “Zero Tolerance” policy—more commonly known as family separation—was intentionally formulated to deter asylum seekers. In internal documents, administration officials theorized that reports of family members being arrested and separated from children would reach potential asylum seekers in Central America, deterring them from presenting themselves at the U.S.-Mexico border so that they could spare their families those circumstances.

• The administration intentionally increased prosecutions and detentions without a plan for appropriate space to hold increased numbers of migrants in Customs and Border Protection (CBP) detention. As a result, many facilities became dangerously overcrowded. As reported by DHS’s own Inspector General, some facilities were found to be more than 500% over capacity when inspected.

• At least seven Central American children died in U.S. custody between September 2018 and May 2019, including three from the flu. In the U.S. as a whole, the rate of pediatric death from the flu is only two per one million, indicating that medical breakdowns within the detention system likely contributed to these deaths.

• As of July 2019, more than 4,000 migrant children with no identified sponsor were being held in the Office of Refugee Resettlement (ORR) child detention system. Without a sponsor, these children could conceivably be held in detention for years on end while their asylum cases are adjudicated. The report finds that shortage of sponsors is likely directly linked to a new policy created by the Trump administration in 2018, which began sharing sponsors’ and their family members’ immigration status with immigration enforcement agencies.

Based on its findings, the report also recommends the following key policy changes:

1. Establish a $10,000 civil claim against the U.S. government for delaying or preventing asylum seekers from crossing the U.S. border;
2. Prohibit CBP officers from acting as USCIS officers;
3. Establish stringent hiring qualifications for immigration judges to ensure a competent and independent judicial process;
4. Right to counsel for all unaccompanied children;
5. Prioritize family-based and small group care for all unaccompanied children, unless a trained child welfare expert makes an affirmative, individualized determination that congregate care would be in the best interest of the child;
6. Require daily monitoring of all immigration detention facilities (including contracted facilities) by independent and specialized legal counsel and child welfare experts. Mandate weekly reports to Congress listing critical health and safety actions for ICE, CBP, and the Office of Refugee Resettlement to address within 7 days. Any facility failing to remedy a listed action within 3 weeks must be immediately shut down;
7. Ban for-profit detention centers;
8. Rescind the current information sharing Memorandum of Agreement between the Department of Homeland Security and the Department of Health and Human Services Office of Refugee Resettlement.

The full report can be found here. Video footage of Merkley discussing the report’s findings can be found here. Further background on Merkley’s work to expose the Trump administration’s cruel immigration policies and to push for decency and respect within the immigration system can be found here.