By Alexandra Dufresne

Alexandra Dufresne, a U.S.-trained lawyer for refugees and children, is the Director of the International NGO Law and Policy Project at the Zürcher Hochschule für Angewandte Wissenschaften (ZHAW). She taught Refugee and Immigration Law and Policy at Yale from 2006-2015 and now teaches Children’s Rights at the University of Zurich Faculty of Law. Alexandra is a Trustee of Asylos.

Advocacy during the Trump years often felt like swimming against a rip current

On July 15, 2020, I --- along with 89,932 other individuals and NGOs in the United States --- submitted public comments regarding President Trump’s proposed changes to U.S. asylum and Convention against Torture regulations. The proposed changes were so extreme --- so outside the ordinary bounds of reasoned decision-making --- that it was hard to even know how to respond. While some individual Immigration Judges and Asylum Officers in the Trump Administration remained committed to deciding asylum claims in a professional, fact-based and human rights-driven way, the Administration’s policies at the macro level represented a radical departure from basic human rights and rule of law norms. As a result, advocacy during the Trump years often felt like swimming against a rip current.

So it is no surprise that when President-elect Biden named Alejandro Mayorkas as Secretary of the Department of Homeland Security last week, refugees and refugee advocates across the United States and the world extended a warm welcome. Mr. Mayorkas has been widely praised for his expertise, experience and commitment to human rights. After the announcement, Mr. Mayorkas tweeted:

A statement like this from the Secretary of the United States' Department of Homeland Security is a welcome relief.  

In a more rational, professional, and fact-based system, our research will make a difference

What does this new commitment to human rights mean for COI research (what we in the U.S. call "country conditions" research) and the mission of Asylos? Asylos was founded on the idea that every asylum seeker should have the right to have her asylum claim adjudicated on the merits --- decided based on the most current evidence, facts, and human rights research. We were committed to fighting disinformation and “alternative facts” before it was trendy. The mission of Asylos is to make sure that every person who has fled persecution at a minimum has access to the human rights documentation that will enable decision-makers to adjudicate their claim fairly.

The incoming Biden Administration --- which has identified fighting COVID-19, restoring the economy, combating climate change, and tackling system racism as its top four priorities --- will have its hands full in its first few months. There is no reason to believe that the violence that forces children and families to flee their homelands in Central America to the U.S. will abate in the near future.  In addition, many countries’ persecution of dissidents, journalists, activists, and ordinary folk who speak out --- as well as the persecution of racial, ethnic, religious and sexual minorities --- will likely continue, though one hopes that Biden’s State Department, committed to human rights protection, democracy and peace, will be able to prevent or mitigate the worst abuses.

Like most U.S. refugee lawyers, I think it is unrealistic to expect a fully humane U.S. asylum system with the new administration --- at least not right away. Children will still be unrepresented. Asylum-seekers will still have to represent themselves pro se, unless they can afford a private attorney or find an NGO or pro bono attorney with enough time to represent them --- a challenging feat, given the overwhelming demand for legal support in some rural areas in Georgia, Louisiana, Arizona, Texas and Florida. Some Immigration Judges will remain hostile to asylum claims; others will feel too much pressure to adjudicate claims quickly to review the record carefully or listen patiently to the halting translation of an asylum-seekers’ testimony. Others will make legal mistakes, either because they are working too fast or because they have failed to keep up with legal developments. Trauma, fear, immigration detention, extreme poverty, language and cultural barriers, human error --- and the overwhelming pressure to adjudicate claims and appeals quickly --- will all decrease the likelihood of high-quality decision-making.

These factors, plus the fact that much of the case law that has developed over the last few years is extraordinarily harsh, including a number of  shockingly harsh and poorly reasoned decisions by Trump’s Attorney General, mean that the risk of the U.S. deporting people to their death will remain significant. 

But there is still reason to be cautiously optimistic, hopeful even. There will be immense pressure on the Department of Justice to reform the DOJ's beleaguered Immigration Courts and Board of Immigration Appeals. There will be tremendous pressure on DHS to halt many of its most extreme practices.  And we can expect the new Department of State to return to its previous practice of issuing thorough, high-quality, human rights reports that guide decision-makers in the U.S., the U.K., and other countries.

The best way I can think of describing the effect of the administration change on refugee work is: “We are back in the game.” The pressure on applicants to prove the near impossible --- to provide extensive human rights documentation of every detail and nuance of a case, despite the barriers of trauma, detention, lost evidence, language difficulties and lack of representation --- will remain formidable. But over time, there is reason to believe that in the Biden Administration's more rational, professional, and fact-based system, this documentation will end up making a difference.

So, we are back in the game. This Thanksgiving season, I am thankful to the many Asylos volunteers who spend their evenings and weekends after work tirelessly documenting asylum claims, in the belief that at the end of the day, facts matter, evidence matters, research matters, human rights matter.

If you would like to help us make all of these issues matter, please consider supporting our work with a donation.

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