(DIS)PLACING THE LAW: LESSONS FROM SOUTH AFRICA ON ADVANCING U.S. ASYLUM RIGHTS.
TABLE OF CONTENTS INTRODUCTION I. The Power of Law in Adverse Sociopolitical and Policy Contexts II. Asylum Law, Policy, and Practice in South Africa A. The Legal Framework B. Judicial Rights Enforcement C. Policy and Practice 1. Policy Preferences 2. Street Level Actors and Policy-Gene rating Processes 3. Executive Intransigence III. The Changing Immigration Landscape in the U.S. A. The Legal Framework B. U.S. Policy and Practice 1. Policy Preferences and National-Level Changes 2. Street Level Actors 3. Executive Intransigence IV. Drawing Comparisons and Differences CONCLUSION
Outside of a migrant processing area, individuals and families with small children, some of them babies, have set up a makeshift camp:
[Individuals] weaved among sleeping babies, stepping over a Peppa Pig lunch box, a Moana coloring book, and dwindling stacks of bread and diapers. Fathers doled out powdered milk mixed with water in bottles to whining toddlers. Mothers strung underwear up on the cyclone fence sides. (1)
Left to fend for themselves, these men, women and children live and sleep outside for days or even weeks as they wait for a chance to apply for asylum. While asylum seekers sleeping outside of refugee reception centers is a familiar scene in South Africa, the account above describes the situation at a U.S. border crossing. (2) U.S. efforts to deny access to the asylum system parallel earlier efforts in South Africa, giving rise to similar scenes of desperation. Responding to a localized migration crisis, South Africa was an early adopter of heightened asylum restrictions. As such, it may provide important lessons for advocacy efforts in the U.S.
Restrictions on asylum, as well as the controversial family separation policy, are just some of the changes under the Trump administration that have reshaped the immigration landscape. As I will argue, these changes underscore the limits of formalistic understandings of asylum protection, what Stuart Scheingold termed "the myth of rights." (3) Advocates employing a language of legal rights and obligations turn to the courts to enforce these concepts. These legal battles may stop the most egregious violations, while also raising awareness and elevating public scrutiny. But court victories must contend with the reality that outside of formal legal spaces, the law operates within a sociopolitical context. Actors in these non-legal arenas generate their own legal interpretations and implement practices based on their understandings. These practices take place in spaces that may fall outside of the reach of formal law. As a result, formal legal protections may tell us little about the lived realities of migrants, and legal challenges aimed at enforcing formal protections may have a limited impact.
This argument applies to the law generally, but it carries particular weight in the asylum context. This is because, in practice, rights are held against the state and are negotiated through the political process. What sets asylum apart is that fact that an asylum seeker by definition has no state against which to make rights claims. Asylum seekers lack what Hannah Arendt termed "the right to have rights," which is premised on belonging to a political community. (4) Claims that are negotiated outside of citizenship are more likely to be contested in multiple spaces at the national and local level. The rift between the rights holder and the state creates a space for competing understandings of law, rights and justice to displace the legally based rights around asylum. These contested spaces mediate rights enforcement and render asylum as an extra-legal space by effectively placing the asylum seeker outside of the reach of formal law.
Building on existing understandings of courts and change, this paper explores the impact of these contested legal spaces. It employs a street level organizational approach in combination with frameworks categorizing executive non-compliance to explore the power of law in an adverse sociopolitical and policy context. The argument highlights two factors that may affect the outcomes of legal advocacy around asylum: autonomous bureaucratic or "street-level" actors (public service actors who are directly interacting with citizens) who are pursuing decentralized policies that diverge from legal norms and an intransigent executive pursuing policy initiatives that similarly diverge from the legal framework. These centralized and decentralized policymaking processes show that the power of law rests not on the institutionalization of the rule of law alone but is also contingent on the sociopolitical context in which the law is embedded. In the case of asylum, these processes take on added significance because the asylum seeker occupies an exceptional space removed from the entitlements that accompany citizenship. In this space, the asylum seeker can hold neither the street level bureaucrat nor the policy maker accountable through the political process.
As the U.S. increasingly adopts immigration policy decisions that directly confront legal protections and the rule of law, the experiences of a country where the law has been similarly contested can provide important lessons on future developments and effective advocacy strategies. This paper uses a case study of South Africa to contextualize recent developments in the U.S. and to understand how centralized and decentralized processes can displace formal legal protections. Relying on empirical research I conducted over several years in South Africa, this paper suggests that the U.S. is poised to follow a similar path as street level and centralized dynamics play out.
South Africa has one of the world's most progressive refugee protection frameworks, enacted as part of the country's democratic transition and reflecting a commitment to human rights. The new democracy advanced a legal system founded on fundamental and universal rights. But the democratic transition also embraced a transformative component aimed at overcoming years of racial injustice. In pursuit of transformation goals, a previously excluded majority began making demands on the state based on more localized and nationalistic understandings of entitlement. (5)
The South African example is instructive for exploring recent development in U.S. immigration policy and practice. South Africa, as a new democracy emerging from years of extreme racial segregation may seem an inapt comparison with the long-institutionalized democracy of the U.S. But parallels do exist, giving rise to similar processes that can affect the implementation of legal rights.
In both countries, political changes created space for a portion of the citizenry to more openly express localized and nationalistic understandings of rights and justice. These views have been reinforced and encouraged at the national level. The convergence of these centralized and decentralized processes alters the ways in which the law is implemented, affecting the reach of legal protections. While these dynamics are at play in both countries, the ways in which they interact may differ. In South Africa, developments were as much from the bottom up as from the top down, with the executive regularly defending and refusing to reform challenged practices that street level actors had developed autonomously. In the U.S., recent developments have arguably been driven more from the top down, but street level actors have also acted autonomously in response to the new policy space at the same time that they have implemented specific directives.
As immigration events in the U.S. continue to change rapidly, the convergence of the centralized and decentralized processes identified above are beginning to alter the ways in which the law is implemented, affecting the reach of legal protections as happened in South Africa. Such processes are constitutive of the sociopolitical context in which the law is embedded and may operate independently of judicial interventions. By examining these processes in both a newly and a long-established democracy, the discussion highlights that the limits of rights enforcement through the courts cannot be understood solely by looking to the degree of the institutionalization of the rule of law. This argument also informs global discussions around refugee protection as countries around the world adopt similar strategies to limit asylum rights. The South African example is particularly instructive in this regard because the country's own migration crisis, sparked by events in Zimbabwe, preceded the global migration crisis. As a result, South Africa was the world's top recipient of asylum seekers between 2006 and 2011. (6) Finally, the argument points to the need for more empirical research in the U.S. on the ways in which practices on the ground are shaping rights realization in the current immigration context.
To better understand these dynamics, Part I brings together literature examining courts and change, street level dynamics, and executive compliance with the law to frame the argument. Part II examines how these processes played out in South Africa, rendering legal protections virtually inaccessible to asylum seekers there. Part III turns to an exploration of these emerging processes in the United States, highlighting similar policy directions and exploring how the gap between law and policy may hinder the efficacy of judicial interventions in the current immigration landscape, calling for responsive advocacy solutions. Part IV then discusses similarities and differences between the two countries that could affect how these processes take shape.
I. THE POWER OF LAW IN ADVERSE SOCIOPOLITICAL AND POLICY CONTEXTS
Socio-legal scholars have long debated the role of the courts in rights protection. This debate has centered on the direct effects of judicial victories on public policy (7) and on the power of law to regulate politics, (8) as well as on the "radiating effect" of these decisions, through which legal mobilization is converted into the political mobilization of social movements. (9) Considering the direct effect of legal rulings, Gerald Rosenberg argues that judicial decisions have little effect in the absence of certain supporting factors. These include sufficient legal precedent, a high degree of support from the other branches of government, and widespread public support with little opposition (10) In this view, courts need both executive and public support for their decisions to be implemented.
Rosenberg contends that judicial decisions are unlikely to alter challenged practices without executive support and enforcement. This observation carries particular significance when the executive branch, as the enforcer, is itself the subject of the litigation. At the national level, the executive may seek to circumvent elements of a legislative framework that impede implementation of its policy preferences.
Practitioners seeking more effective judicial remedies have employed a taxonomy of government reasons for non-compliance with these decisions and with constitutional standards more broadly: inattentiveness, incompetence, and intransigence. (11) Governments may fail to comply with the law because they are unaware that they are not in compliance (inattentiveness), they may be unable to comply (incompetence), or they may refuse to comply (intransigence). The reasons for non-compliance affect the legal strategy and inform the appropriate judicial remedy. Non-compliance attributed to the first two factors is unintentional. Non-compliance based on intransigence is deliberate and may require a more detailed remedy that includes a supervisory order. When an executive displays policy preferences that are antithetical to and contemptuous of the legislative framework constraining its actions, intransigence is likely to limit the effectiveness of judicial interventions, particularly where the judicial response is not tailored to overcome the intransigence.
Yet, even where the executive exhibits a superficial level of compliance at the national level, it may tacitly approve of and enable the actions of autonomous bureaucratic actors as they engage in practices that take place outside of formal legal spaces and reinforce the executive's policy preferences. Michael Lipsky first described the role of these frontline or street level actors, which he defined as public service workers who interact directly with citizens. (12) Situated on the frontlines, street level actors have considerable discretion and autonomy that afford them policy making power as their daily practices "effectively become the public policies they carry out." (13) They exercise direct power over the individuals who seek their services, such as asylum seekers. This power lets them shape the landscape of opportunities and constraints that facilitate access to legal guarantees, determining whether abstract laws become concrete protections. Engendering their own understandings of the law, street level actors "mediate politics by structuring the possibilities for advancing claims on the state, asserting rights, and pursuing redress." (14) Although acting in a regulatory rather than a formal legal space, they make the law as much as they apply it. (15)
Lipsky highlights that street level actors play a central role in the entitlements of citizenship, managing the citizen's relationship to the state. (16) In this role, they serve as both gatekeeper and client advocate. (17) Teachers, for example, implement the state's education policies and also advocate on behalf of their students. Lipsky's framing of the relationship between street level actor and client through the lens of citizenship does not consider interactions that fall outside of this framework. Where those seeking the services of the state stand outside of the state-citizen relationship, street level actors may understand the gatekeeper and advocate roles differently, particularly when the very demand for service is premised on non-citizen status. Frontline immigration actors, particularly those at the border, are engaged in an enterprise of protecting the nation and its borders from the same people who are seeking their services. This understanding prevents frontline actors from adopting a client-centered orientation toward the non-citizen asylum seeker. More often, the primary motivation of street level actors coming into contact with asylum seekers is to prevent them from placing demands on the state. In this gatekeeper role, street level actors ensure that asylum seekers remain outside of the legal space in which they can exercise such demands.
Street level actors generate goals and practices that may operate separately from the formal legal space. These practices are often unofficial and take place outside of public view. De facto, decentralized street level policies may function independently of national policies. (18) But they also may converge with and respond to the executive's policy preferences. Moreover, centralized policy initiatives may create an enabling environment and empower street level actors to implement their own legal interpretations, interpretations that align with signals at the national level even as they depart from the legal framework. The convergence of centralized policy preferences with the individualized understandings of street level actors enhances a pre-existing bureaucratic autonomy, increasing the opportunities for bureaucratic actors to implement their own legal interpretations.
While street level actors exercising their bureaucratic autonomy in accordance with their own policy preferences often go unnoticed, actions originating with the executive are more visible and thus more likely to face legal challenges. These challenges, however, may change little on the ground as street-level actors continue generating their own legal interpretations. The next two sections demonstrate how these processes have operated in South Africa to negate that country's progressive refugee law and how the U.S. is starting to follow a similar path.
II. ASYLUM LAW, POLICY, AND PRACTICE IN SOUTH AFRICA
South Africa's migration policies retain many apartheid-era preferences, even though a number of current policymakers were themselves refugees. The apartheid government tightly controlled immigration, which was confined almost exclusively to white migrants with the exception of certain migrant laborers from neighboring African countries. (19) The country had no refugee policy and very little unregulated migration. The government did allow thousands fleeing neighboring Mozambique's civil war to settle in the black-controlled homeland areas but denied them any formal legal status. As the country moved toward democracy, migration began to increase, even as the restrictive and isolationist apartheid-era immigration legislation remained in effect. There was no legislation dealing with refugees during this initial period. The government allowed the United Nations High Commissioner for Refugees (UNHCR) to begin operating there in 1991. It adopted a more cooperative approach to migrants and refugees through a 1997 Memorandum of Understanding between the Southern African Development Community and UNHCR. (20)
Eventually, the government drafted a series of progressive laws alongside the country's new rights-based constitution, including the 1998 Refugees Act (21) and the 2002 Immigration Act. (22) The Refugees Act adopted the humanitarian principles of the UN Refugee Convention and also recognized the more large-scale instabilities giving rise to flight in the African region. The Immigration Act replaced the far more restrictive Aliens Control Act (23) but offered few options for economic migrants in the African region.
Events on the ground quickly overwhelmed the asylum system--which worked on the basis of individualized assessments--and led policymakers and the public alike to rethink the country's commitment to asylum. Civil wars in the region and declining political stability in Zimbabwe sparked increasing migrant flows, much of it irregular. The under-resourced asylum system could not keep pace with these numbers. At the same time, the government adopted migration control priorities that conflicted with the more progressive legal framework. Facing unprecedented levels of migration combined with political pressures on the new democracy to address high levels of poverty and unemployment, (24) the government began displacing the rights-based legal framework with policies focused on the country's security and economic well-being.
South Africa has sought to minimize both the rights afforded asylum seekers and access to the asylum system itself. The next sections examine these developments more closely, exploring the legal framework, the role of the courts, and the interaction of policy and practice on the ground. While judicial interventions have upheld the rights of asylum seekers, these interventions have had little effect on centralized and decentralized policy processes.
A. The Legal Framework
South Africa's refugee legislation, modeled on both international and regional conventions, contains strong protections for asylum seekers and refugees. The refugee definition in the 1998 Refugees Act is more expansive than that found in the UN Refugee Convention and Protocol. South Africa's version adds tribe to the traditional grounds of persecution, (25) defines social group to include gender and sexual orientation, (26) and adopts both the Convention's individual persecution standard (27) and the Organization of African Unity's group-based one, (28) which affords protection from general conditions of instability and threats to the public order.
The asylum framework is also notable for its urban integration policy. The country has no refugee camps and asylum seekers and refugees are entitled to work and study. Under this policy of urban integration, detention of asylum seekers is an exceptional legal circumstance. The Refugees Act limits detentions of asylum seekers and refugees to a narrowly defined set of circumstances; (29) the 2002 Immigration Act governs the detentions of other non-nationals. Only the Minister of Home Affairs may effect the detention of an asylum seeker after withdrawing the asylum permit. (30) Even so, the Refugees Act limits detentions to a 'reasonable and justifiable' period and requires a High Court judge to review the detention every thirty days. (31) A detained asylum seeker retains their asylum seeker status and adjudication of the asylum claim continues from detention.
The Immigration Act sets up a parallel detention regime for individuals deemed to be "illegal foreigners." While more restrictive than the Refugees Act, it contains a number of procedural safeguards regulating detentions and deportations: 1) an individual can only be detained for purposes of deportation following verification of their immigration status; 2) verification must take place within 48 hours; and 3) police and immigration officials must take reasonable steps to verify an individual's status before detaining for purposes of deportation. (32) Outside of the 48 hour verification period, the Immigration Act only authorizes detentions for the purposes of deportation, (33) precluding the detention of an individual whose immigration status cannot be verified within this period. The Immigration Act sets out procedures to protect against arbitrary and indefinite detention, including court verifications of all immigration detentions after thirty days and an absolute 120-day ceiling on immigration detentions. (34) Finally, individuals are entitled to be notified of their rights of appeal and review at every step of this process. Individuals may request at any time that their detention be confirmed by a court and are entitled to release if this request is not met within 48 hours. (35)
B. Judicial Rights Enforcement
Refugee rights advocates in South Africa operate in a formal legal environment that is rights-based and progressive. Many of the Bill of Rights guarantees are drawn directly from international human rights law, and the Constitution requires that courts consider international law in interpreting these guarantees. (36) With limited exceptions, the Bill of Rights guarantees apply to everyone, regardless of legal status. (37) The Constitution also establishes a broad conception of standing, enabling anyone acting in the public interest to bring a case based on an infringement of the Bill of Rights. (38) This receptive legal structure has generated an array of cases challenging the government's refugee and immigration practices, including both cases on behalf of individual clients and broader impact litigation.
South African courts have clarified state obligations and bolstered the rights of asylum seekers, refugees, and other categories of migrants. These rulings have curtailed detentions, asserted the right to asylum in various contexts, and limited the application of the illegal foreigner classification. They have also reinforced the separation between the asylum and immigration frameworks, even as government policy increasingly conflates the two.
Perhaps the greatest number of challenges have been around immigration detention. The Department of Home Affairs (DHA), which oversees immigration, has engaged in widespread detentions of foreigners, regardless of legal status, documentation, or protection needs. In a twenty-three month period between 2009 and 2010, the legal NGO Lawyers for Human Rights brought close to 100 cases challenging individual detentions. (39) The government settled many of these cases by agreeing to release the individual. Those cases that went to court resulted in a judicial determination that the DHA's actions were unlawful. (40) The government's detention practices ultimately prompted a scathing rebuke from the Supreme Court of Appeal (SCA), the country's second highest court, censuring DHA officials for failing "to understand the very object and purpose of the [Refugees] Act it was their duty to apply, causing unnecessary litigation and wasted costs." (41)
Rejecting the DHA's reliance on detention as the primary tool of immigration enforcement, the SCA affirmed that the power to detain is discretionary, that the exercise of discretion must be weighted toward liberty, and that a blanket policy of arresting and detaining illegal foreigners is unlawful. (42) In 2016, a high court found unconstitutional certain provisions of the Immigration Act that provided for court extensions of detentions without a right of personal appearance. (43) In June 2017, the Constitutional Court ruled that all detained illegal foreigners must be brought before a court within 48 hours of their arrest and required that corrective implementing legislation be passed within 24 months. (44)
The SCA has ruled that immigration officials must strictly comply with the due process and administrative justice procedures laid out in the Immigration Act, invalidating as unlawful detentions that departed from these procedures, (45) and finding that they could not subsequently be made legal. (46) In a 2016 case, the Constitutional Court awarded damages to individuals whose detentions it deemed unlawful after they were held at a police station for over 48 hours rather than being transferred to a designated detention facility. (47)
While DHA has sought to deny rights to would-be asylum seekers in detention, the courts have ruled that individuals detained as illegal foreigners must be allowed to apply for asylum, that they cease to be illegal foreigners once they apply, and that their continued detention is unlawful. (48) Reaffirming the division between the Refugees and Immigration Acts, the SCA declared that asylum seekers cannot be detained as illegal foreigners pending final adjudication of their asylum claims, including all rights of appeal and review. (49)
With respect to constitutional rights, the SCA and the Constitutional Court have ruled that the Constitution protects foreign nationals at ports of entry even if they have not been formally admitted to the country (50) and that it is unlawful to refuse entry to asylum seekers because they lack proper documentation. (51) The SCA halted government restrictions on asylum seeker rights to work and study, finding that the freedom to engage in work and study is an inherent part of the fundamental right to dignity. (52)
Several rulings address procedural fairness and access to the asylum system. Noting that it is unconstitutional to limit access to the asylum system, the courts have ordered the DHA to ensure access by increasing staff, (53) to re-open closed refugee reception offices in Cape Town and Port Elizabeth, (54) and to receive and process asylum applications "in a non-discriminatory and fair manner." (55) This includes allowing all potential asylum seekers to apply for asylum (56) and to renew asylum permits. (57) Hearings must be procedurally fair (58) and adverse decisions must include written reasons. (59) The courts have also intervened more directly in the decision-making process, requiring the Refugee Appeal Board to substitute the lower-threshold reasonable possibility of risk standard for the real risk standard that the Board had been employing. (60) Additionally, they held that medical and psychological treatment was a compelling reason arising out of the previous persecution for refusing to avail oneself of the protection of the country of nationality under the Refugees Act. (61)
South African courts have been significant defenders of the rights of asylum seekers and other migrants. As the next section demonstrates, however, these cases have had little effect on government practice. Instead, DHA has developed a separate policy path operating independently of the legal framework in guiding official behavior. At the same time, street level actors working at the country's refugee reception offices have operated autonomously to implement their own understandings of the law and its entitlements, often reinforcing centralized policy preferences.
C. Policy and Practice
1. Policy Preferences
South Africa's rights-based approach to asylum emerged from the efforts of civil society, drawing upon the vision of universal rights and justice that accompanied the democratic transition. (62) Over time, as the demands of citizens previously excluded from state entitlements grew louder while remaining unfulfilled, these citizens' more localized and exclusionary priorities were increasingly reflected at the national level. In a 1997 speech, the country's first post-apartheid Minister of Home Affairs attributed many of the country's socioeconomic ills, including "housing, health services, education, crime, drugs, [and] transmittable diseases" to a large illegal migrant population, which he estimated to number between 2.5 to 5 million, (63) although there was no empirical basis for these numbers. Since then, the government has continued to view migration as a threat and to characterize the asylum system as an overly permissive one that immigrants are exploiting to the detriment of South Africans. Government policies have transformed the asylum system--conceived as a mechanism of protection under the legal framework--into a mechanism of migration control aimed at identifying and excluding the vast majority of asylum applicants from the system and from the country. The government depicts these applicants as an illegitimate presence in the country. The result has been the merging of asylum and immigration and a move toward securitization, a move that prioritizes detentions and deportations.
Operating alongside these control efforts is a discourse labeling the asylum seeker as a security risk and/or an economic migrant. A 2012 policy document from the ruling African National Congress (ANC) party framed migration as a strategic security issue, blaming the country's overly permissive immigration laws for many of the country's problems:
A combination of large numbers of asylum seekers, gaps in the law, weak systems and corruption has led to widespread abuse of an overloaded system by criminal syndicates who smuggle and traffic people from as far as the Horn of Africa and Asia. This has led to widespread corruption and social security problems. (64)
The policy document questioned the unconditional adoption of regional and international instruments, suggesting that the rights embodied in these instruments did not accommodate the country's security concerns. Following on from this view, the government has sought to reposition DHA as a security department. (65)
Government officials have questioned the country's international obligations with respect to refugees. In 2011, the chair of the parliamentary committee that oversees Home Affairs stated:
Really, this intake [of foreigners], for how long are we going to continue with this as South Africans?... We've never enjoyed our freedom as South Africans. We got it in 1994 and we had floods and floods of refugees or undocumented people in the country', and we always want to play as if there's no thing like that. (66)
Although she later apologized for these comments, other members of the committee have raised similar doubts. (67) In 2014, the then Home Affairs Minister criticized the fact that the "law is written in such a progressive manner that you essentially cannot deny anyone the claim and temporary status of asylum-seeker, due to a number of precedent-setting rulings of our courts, as well as various clauses of the Refugee[s] Act." (68)
In addition to its security rhetoric, government officials paint the majority of those in the asylum system as economic migrants. The ANC policy document claimed that 95% of asylum seekers came for economic rather than protection-based motives. (69) This refrain is regularly cited by government officials, who complain that the country's permissive asylum laws lead to "economic migrants [who] are abusing the [Refugees Act] in order to have status in South Africa." (70)
These views around the perceived illegitimacy of the foreign presence have carried over into official responses to repeated outbreaks of xenophobic violence. These responses have reflected the more localized rights conceptions linked to citizenship. Government officials have issued weak condemnations during outbreaks of xenophobic violence, while sharply criticizing the foreign presence. (71) Public statements following the violence were as concerned with the immigration status of the foreign shopkeepers who were attacked as with accountability for the attackers. (72) Framing the violence in terms of economic competition and questioning the legitimacy of the foreigners who were targeted, policymakers have responded by questioning the rights of asylum seekers to work and study. (73) Reminding foreigners that they were there "as a courtesy," the Minister for Small Business Development stated that "our priority is to the people of this country," and suggested that the violence was sparked by the failure of foreign shopkeepers to share their trade secrets. (74) These responses picked up on sentiments expressed in the ANC policy document that explicitly questioned the right of asylum seekers and refugees to operate spaza shops (informal shops) or engage in informal trading. (75) Moreover, foreign-owned shops have been targeted not only by xenophobic violence, but also by municipal by-laws and law enforcement activities restricting their activities. (76)
These responses are indicative of centralized policy preferences. They reveal an executive that, rather than supporting the legislative framework, blames this framework for the country's problems, which in turn are linked to a perceived migration crisis. As a result, the centralized policy initiatives directly confront the law. At the same time, they reinforce street level dynamics.
2. Street Level Actors and Policy-Generating Processes
Policy preferences rather than legal obligations guide practice in the asylum sphere. Centralized preferences enable and reinforce the legal understandings of street level actors who directly control and deny asylum seekers access to the legal protections and procedures found in both the Refugees and Immigration Acts. Street level actors exercise great discretion over who gets access to asylum at multiple stages of the process, effectively negating legally mandated rights. Individual offices have created their own discretionary procedures requiring that asylum seekers make frequent visits to these offices to maintain their legal status, placing them in a constant state of legal precarity while creating even more opportunities for street level actors to exercise their autonomy over the asylum process and thwart the realization of legal guarantees. The policy-generating practices of these actors, more than the legal framework, determine entitlements to asylum protection, often in ways that depart from the law.
A range of street level actors at the refugee reception offices control access to the office and its services. They include security guards, refugee reception officers, and refugee status determination officers. These actors generate their own policy processes aimed at controlling what they view as exploitation of the asylum system by migrants who have no right to be in the country. (77) In their role, street level actors implement localized understandings of rights and entitlements, operating almost entirely as gatekeepers and not as advocates for individuals falling outside of the state-citizenship relationship.
These street level policy dynamics have generated their own sets of practices apart from the legal framework. Asylum seekers routinely fail to gain entry to a refugee reception office, often spending multiple nights sleeping outside. (78) For those who do gain entry, their success provides no guarantee that their asylum claim will be adjudicated or adjudicated fairly, regardless of the strength of the claim. (86) Encounters described by asylum seekers reveal the attitudes driving these practices. Refugee reception office staff question both asylum seeker motives for leaving their countries of origin and their decision to come to South Africa "when we do not have enough resources for them." (80 Often, the only way to overcome these attitudes and access services is by paying for protection, as corruption exists alongside localized understandings of entitlement. (81) Asylum seekers have described the inner workings of this alternative process: "They ask for money outside and they share with the security guard. Inside we are called to a room. They call one of us who must ask for R200 from the others and then when you collect the permit the official has already got the money." (82)
While effectively negating the asylum system as found in the law, street level actors have generated an alternative system guided by decentralized policy processes that do not align with protection needs. Staff at the refugee reception offices function as gatekeepers to prevent perceived exploitation of the asylum system in order to protect the rights of South Africans. (83) Reinforcing the bureaucratic autonomy that allows these practices to take root, DHA officials have denied these irregularities and departures from the law, characterizing them in more neutral terms as individualized office procedures. (84) In response to a 2009 report based on survey data showing that the deficiencies had become normalized across the refugee reception offices, the then head of Refugee Affairs denied the existence of systemic problems. (85)
DHA not only fails to regulate these street level policy processes, it also deploys them in support of its own policy preferences and departures from legal guarantees. For example, DHA cites the country's high rejection rate in support of its contention that most of those seeking asylum are in fact economic migrants abusing an overly permissive system. The high rejection rate, however, reflects a deeply flawed status determination process that has taken shape at the refugee reception offices and masks the protection needs of individual claimants. Refugee status determination officers conduct cursory status determination interviews lasting an average of seventeen minutes. (86) They generate stock decision that do not engage with or even recount the human rights abuses and fears of persecution described by individual claimants, instead relying on cut and pasted language from other decisions or taken directly and selectively from websites of varying reliability. (87) As a result, status determination decisions are arbitrary and reflect systemic problems that include errors of law, incorrect or outdated country information, references to the wrong country or claimant, and numerous other deficiencies. (88)
Status determination officers employ a far narrower version of the refugee definition than what is laid out in the legislation. In the street level version, politically based persecution, including brutal rape and torture, does not give rise to an asylum claim if the individual is not a prominent political party activist. (89) Status determination officers have denied that persecution on the basis of sexual orientation constitutes a ground for refugee status, even though it is explicitly included as one in the Refugees Act. (90) Where the Refugees Act states that general conditions of instability give rise to a refugee claim, these officers have stated just the opposite--that fleeing civil war is not a basis for asylum. The pervasive belief that those seeking asylum are economic migrants displaces any contrary evidence. Accordingly, one decision described how a Zimbabwean woman was raped, beaten and tortured by members of the ruling Zanu-PF party because of her opposition activities. The status determination officer then inexplicably concluded that she left for "personal economic considerations," without addressing the persecution he had just described. (91)
This situation, in which asylum seekers cannot access legal guarantees, is the result of both centralized and decentralized processes. Street level actors at the refugee reception offices interpret their role as one of keeping out bogus asylum seekers while protecting the rights of citizens. This understanding displaces the Refugees Act and its provisions oriented toward identifying individuals with protection needs. (92) National level policies reinforce these decentralized policy preferences and provide space for their implementation. Accordingly, when presented with a report outlining the problems in the status determination process, DHA officials focused on alleged abuse of the system by economic migrants. (93) These officials attributed the system's problems to those seeking its services and not to the actions of street level bureaucrats. DHA has not only enabled this situation, but it has also created an incentive structure that encourages it through performance measures that reward the rejection of asylum claims. (94)
Street level actors are also at the frontlines of detention and deportation practices. Here too they have adopted practices that advance their own policy goals. For individuals in immigration detention, these practices negate any legal status they may have had prior to being detained and prevent them from accessing the procedural protections found in the Immigration Act, making it virtually impossible for them to challenge their illegality. (95)
Street level actors have been instrumental in generating policies around both the path to detention and the practices that govern it. The policy-generating practices include arresting individuals with valid documents, failing to verify immigration status before immigration detentions, detentions of documented asylum seekers and refugees, indefinite detentions in excess of the legally allowed 120 days, failures to issue the proper notices, and failures to obtain the legally required reviews. (96) These practices have given rise to an extra-legal space in which detentions and deportations happen outside of and in violation of the law. In many cases, they lead to the refoulement (97) of both documented and undocumented individuals, many of whom have protection needs. These refoulements take place in a space devoid of law and legal process. (98)
Enforcing their own understandings of rights and justice, street level actors have generated a parallel policy space that both circumvents the law and directly violates it. For asylum seekers in South Africa, it is these practices rather than the legal guarantees set out in the country's progressive Constitution and refugee legislation that dictate their daily realities. While some individuals have successfully challenged these practices to vindicate their rights, many more give up or are deported before they can access the courts. And even where courts have censured these practices, an intransigent executive has enabled them to continue.
3. Executive Intransigence
DHA has sought to defend street level practices in court while generating its own policy initiatives that reinforce these practices. Its actions stand in opposition to the country's progressive legal framework. Many practices have continued in defiance of court rulings declaring them unlawful. DHA's legal arguments in defense of street level practices reveal an intransigent department that refuses to be bound by legal guarantees when they conflict with more restrictive policy preferences. It has implemented policies advancing security at the expense of protection by denying access to asylum at both a procedural and a substantive level, increasing detentions and deportations, and expanding definitions of illegality.
DHA's efforts to limit access to the asylum system include the practical steps of office closures as well as legal interpretations that narrow the categories of individuals who may apply. Barriers to access together with the high denial rates in the asylum system facilitate the detention of would-be asylum seekers. Moreover, exclusion from the asylum system enables the state to detain individuals under the more punitive immigration regime and to circumvent the non-refoulement protections afforded asylum seekers.
DHA has directly violated legal obligations and court rulings upholding these obligations. Ignoring the relevant provisions of domestic and international asylum law that protect asylum seekers from being penalized for illegal entry, DHA has refused to act in accordance with a judicial finding of a legal obligation on the part of an immigration officer at either a port of entry or at a refugee reception office to assist an otherwise unlawful migrant to apply for asylum. (99) Instead, it classifies would-be asylum seekers who lack an alternative basis to enter the country as illegal foreigners and prevents them from entering the asylum system. (100) DHA has also thus far failed to reopen closed refugee reception offices, despite court orders requiring that it do so, and it has capitalized on the ensuing access difficulties by categorizing would-be asylum seekers as illegal foreigners before they can reach a more distant refugee reception office to obtain or renew asylum permits.
DHA circumvents the refugee framework to facilitate detentions under the more restrictive Immigration Act. However, its detention practices also routinely operate outside of the procedural guarantees laid out in the Immigration Act. DHA has defended a series of detention practices that stand in direct opposition to judicial interpretations. These include: continuing to detain individuals after they apply for asylum; detaining individuals with expired permits; detaining individuals with pending appeals; detaining individuals with asylum permits; and detaining asylum seekers who did not enter at a formal border post. (101) It has also defied court orders and continued to detain people without the necessary warrants and notifications; and to detain individuals beyond the legally allowed maximum of 120 days. (102)
This intransigence means that detainees are effectively held in a legal vortex where they are unable to exercise even then-most basic constitutional rights. (103) The result is that DHA detains asylum seekers and refugees as illegal foreigners under the Immigration Act, denies them access to legally guaranteed rights, and subjects them to refoulement in violation of international and domestic refugee law. While the courts have found many individual detentions unlawful, (104) the vast majority of detentions are rarely reviewed by a court and have effectively become extra-legal.
DHA's legal submissions reveal a department that does not view the law as the final arbiter of its actions. In defense of the continued detention of an asylum seeker in excess of the 120-day legal limit, DHA acknowledged that it may be violating the law but maintained: "if the Honourable Court finds that it is unlawful, it is submitted that the continued detention is necessary and justifiable." (105) In a case challenging the general practice of detaining asylum seekers, the DHA argued that a court order declaring the detention of asylum seekers unlawful would impose an undue burden on the government to have to prospectively comply with the law in every situation. (106) This admission demonstrates a refusal to enforce the law when it conflicts with policy preferences. In fact, the DHA has attributed its failure to obtain legally required warrants to the fact that magistrates are "creatures of statute" who would stubbornly insist on following the law even when it worked against the government's policy goals. (107)
DHA has more directly defied the court process by routinely failing to implement court orders to release detainees or provide the necessary documentation. (108) Following the establishment of displacement camps for victims of the 2008 xenophobic violence, the government detained for deportation a group of asylum seekers who had refused to sign registration forms distributed in the camps because they feared that doing so would nullify their existing rights as asylum seekers. They were eventually released after DHA verified their asylum seeker status and then re-arrested when they camped on the side of the road near the detention center. The court issued an interdict barring their deportation until final resolution of the case, but DHA disregarded the order. When the court subsequently issued an order for their release, only 37 of the original 208 remained. (109) DHA not only directly defied the court order, but it also acted outside of its authority in arresting, detaining, and deporting individuals it had verified to be asylum seekers and who were thus legally protected from deportation.
These examples point to the limits of legal provisions and legal processes in an environment in which policy goals have diverged from legislated protections. Asylum seekers and refugees in South Africa are generally unable to realize the protections found in the Refugees Act. Even for those who have obtained recognition of their rights via documentation as asylum seekers and refugees, the rights enshrined in these documents often prove hollow. These individuals regularly find themselves in detention, facing the prospect of deportation without access to their legal rights. Nor is the court process any guarantee of vindication. Although the strong legal framework leads to significant court victories, these victories also prove hollow. The DHA not only routinely fails to implement the court orders issued in these cases, it also continues to engage in the practices ruled illegal. It suffers no repercussions for this defiance; instead, an intransigent executive reinforces and enables the practices of street level actors autonomously pursuing convergent policy goals--goals that may depart significantly from legislated obligations in furtherance of alternate conceptions of rights and justice.
III. THE CHANGING IMMIGRATION LANDSCAPE IN THE U.S.
Following the pattern of South Africa, policy priorities in the U.S. are shifting from universal norms toward more localized understandings of rights--a context that is influencing the how the law is implemented. Developments in South Africa are instructive as the U.S. embarks on a similar path of heightened border controls, immigration enforcement activities, detentions, and deportations while circumscribing rights protections and access to asylum. As in South Africa, the executive's policy goals are becoming entirely antithetical to the legal protection framework, giving rise to similar efforts to circumvent legal obligations through policy processes.
It is too soon to fully assess the impact of these changes, but they have already had significant effects on the lived realities of migrants, even as the laws remain unchanged and court decisions continue to uphold the rights of asylum seekers and refugees. Echoing developments in South Africa, the efforts of an intransigent executive have combined with and reinforced the practices of street level actors. For asylum seekers in the U.S., these processes rather than legislated protections and judicial interventions are increasingly governing their interactions with the state.
A. The Legal Framework
U.S. asylum practice is set out in the Refugee Act of 1980. (110) Before the act's passage, many asylum admissions happened as part of the executive's parole power, resulting in the admission of groups based on national origin. (111) The Refugee Act limited executive control of the process, replacing policy-driven group-based determinations with individualized status determination assessments based on a neutral application of the refugee definition. (112) The legislation adopts the refugee definition set out in the United Nations Convention and Protocol. It also guarantees a right to apply for asylum to arriving aliens as well as those physically present in the country, regardless of their manner of entry. (113)
Unaccompanied and accompanied minors are further protected by the 2002 Homeland Security Act and the 2008 Trafficking Victims Protection Reauthorization Act (TVPRA) as well as the 1997 Flores Settlement Agreement. The Flores Agreement establishes conditions of detention for minors and requires that they be released as soon as possible to a parent, guardian, relative, or licensed child care program, or, where a placement is not available, be placed in the least restrictive setting. (114) The agreement generally requires placement within five days. In 2015, in the wake of President Obama's family detention policy, a judge extended the agreement to include accompanied minors and limited the detention of minors in family detention to twenty days. (115) The 2002 Homeland Security Act placed responsibility for the care and custody of unaccompanied children (UACs) with the Department of Health and Human Services and their Office of Refugee Resettlement (ORR). (116) The TVPRA requires that UACs at the border be transferred to ORR custody within 72 hours. It also includes measures to make the immigration process more child friendly. (117)
These specific provisions were largely protection-oriented, but Congress had introduced more restrictive legislation in 1996 with the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA). IIRAIRA narrowed access to asylum and due process through expanded detentions for asylum seekers, a system of expedited removal for individuals caught within 100 miles of a border, and reinstatement of prior removal orders for individual who re-entered the U.S. By circumscribing access to both courts and lawyers, the new procedures facilitated the use of detentions without legal process.
B. U.S. Policy and Practice
1. Policy Preferences and National-Level Changes
Even with the restrictions introduced by IIRAIRA, the current administration has made no secret of its disdain for the legal framework, which the President has characterized as "the worst immigration laws of any country, anywhere in the world." (118) The administration paints a picture of a surge of immigrants that "threatens our safety" and "our American way of life" (119) and creates cities that need to be "liberate[ed]" from gangs'-" to justify its narrowing of rights and heightened enforcement activities. Amidst statements calling for increased border enforcement, referring to immigrants as "animals" (121) and claiming that the children crossing the border are not "innocent," (122) President Trump has derided even the limited due process guarantees under the existing legal framework. (123) Attorney General Jeff Sessions has repeatedly criticized what he views as overly permissive asylum laws and loopholes driving abuse of the asylum system. (124)
The administration detailed its policy preferences in an "Immigration Principles and Policies" document that specifically targeted both the TVPRA and the Flores Agreement. (125) A series of leaked memos provide further insight into policy priorities. These include a proposal to expand expedited removal to the interior of the country for anyone who has been in the U.S. for less than two years, denying them access to the courts and leading to more summary deportations. Otherproposals suggest prosecuting parents for smuggling when they seek to be reunited with unaccompanied children and expanding enforcement and detention capabilities. (126) One leaked memo entitled "Removing the Burden of the Flores Settlement Agreement" explored ways to circumvent the agreement. (127)
The administration has been critical of what it terms "catch and release." As a result, detentions are no longer discretionary and have instead become routine. (128) The administration has also curtailed access to and eligibility for asylum. Stating that the asylum system "is overloaded with fake claims" resulting in an overwhelming "surge in trials, hearings, [and] appeals," that is detrimental to "the rule of law, sound public policy, public safety, and of just claim," (129) Attorney General Sessions has directly intervened in the asylum process to narrow legal interpretations of asylum eligibility. In June 2018, he overturned a 2014 Board of Immigration Appeals (BIA) decision finding that domestic violence provides a basis for asylum, (130) a decision that had been affirmed in every circuit, (131) and ruled that domestic and gang violence committed by non-governmental actors do not establish grounds for asylum. (132) His decision also increased the difficulty of formulating a cognizable social group, one of the protected grounds under the asylum definition. Finally, Sessions' decision heightened the threshold for demonstrating a lack of government protection, a necessary element in an asylum claim. Under his heightened standard, an asylum seeker must show not just a government failure to act in their individual circumstances, but also "that the government condoned the private actions 'or at least demonstrated a complete helplessness to protect the victims."' (133)
Sessions' decision is binding on immigration judges and on the BIA, as both are part of the Department of Justice that he oversees. Following the decision, the U.S. Citizenship and Immigration Services (USCIS), which is part of DHS, issued a policy memorandum making the findings binding on USCIS officers as well, in both asylum hearings and credible and reasonable fear interviews. (134) USCIS officers provide credible and reasonable fear interviews at the border to those individuals who express fear in order to determine their eligibility to remain and pursue an asylum claim. Applying the heightened standards in credible fear hearings will alter the fundamental nature of these hearings, particularly with respect to the social group determination. Under the Immigration and Nationality Act (INA), credible fear requires a showing of a significant possibility of establishing asylum eligibility in a full hearing. (135) The standard laid out by Sessions converts the credible fear process from a low threshold pre-screening to a higher threshold full hearing, placing an almost impossible burden on unrepresented asylum seekers who have just completed an often harrowing border crossing. (136) The USCIS memo also calls on asylum officers to consider illegal entry as a discretionary factor in denying asylum, narrowing access still further. (137)
Both USCIS, traditionally a non-enforcement, customer service arm of DHS, and the Office or Refugee Resettlement (ORR), an agency of the Department of Health and Human Services (HHS) responsible for the care of unaccompanied children, have increasingly turned to immigration enforcement. In July 2018, USCIS announced two new practices linked to enforcement: initiating deportation proceedings when denying applications for immigration benefits (138) and abandoning the practice of issuing requests for additional evidence and notices of an intent to deny. (139) Both changes curtail access to the legal process and will place more individuals into the deportation machinery more quickly.
ORR has shifted from its child-oriented approach to more enforcement-oriented practices, ending a program providing representation for unaccompanied children and slowing the release of children from ORR custody. (140) An August 2017 ORR memo outlined ORR's Community Safety Initiative, expanding detentions of UACs based on alleged links to the MS-13 gang and requiring the approval of the ORR Director for all releases. (141) The director instituted the new release procedure within hours of his appointment, a result of the administration view that gang members from Central America are exploiting the legal framework to enter the country as UACs. (142) The initiative also set up cooperation with local law enforcement officials engaged in anti-gang operations. Another policy memo, this one from the Executive Office for Immigration Review (EOIR), a DOJ agency that oversees immigration courts, removed previous guidance on "child-sensitive questioning" and assistance for UACs in court. (143) By signaling "DHS has been transformed into an agency that is making war on immigrants and refugees," (144) these policy initiatives have empowered and encouraged street level actors advancing their own understandings of the law. The administration has created a permissive environment for street level dynamics, by, for example, "taking the shackles off of ICE officers in conducting widespread arrest and detention operations. (145) As a result, street level actors are engaging in a range of practices that take place outside of the legal framework while reinforcing centralized policy initiatives.
2. Street Level Actors
As legal and policy battles at the national level take place in the public eye, street level actors operate in their own policy spaces, generating their own legal interpretations. These street level actors are located at numerous points in the asylum and immigration enforcement process. ICE officers, for example, have routinized a range of extra-legal enforcement activities in the country's interior. (146) This section will focus primarily on Customs and Border Protection (CBP) officials. These officials control access to the asylum system by controlling entry and access to the credible fear process. Reports of street level actors at the border generating their own rules and processes are not unique to this administration. (147) What is unique is the scope and scale of these practices, which have become both more widespread and increasingly normalized (148) as centralized policy preferences reinforce the autonomous legal interpretations of frontline actors. Border officials are implementing national directives, but they are also generating their own practices in furtherance of their conceptions of rights and entitlement.
Border officials acting as gatekeepers have significantly curtailed access to the asylum system. These street level actors are turning away asylum seekers at formal ports of entry, stating that the U.S. is full or is no longer accepting asylum seekers, (149) CBP officials have also adopted various practices whose effect is to deny access to the credible fear process to those apprehended at or near a border. These include ignoring statements of fear, misstating the law, and claiming that an individual does not qualify for asylum even though CBP has no legal authority to make such a determination. (150) CBP officials have coerced individuals into abandoning their claims and signing voluntary removal documents, in some instances by false promises that they will be reunited with separated children. (151) They have also forced individuals to sign papers they do not understand. (152) In many cases, CBP officers have either not recorded expressions of fear or have recorded false information on screening documents, documents that form part of the record during any subsequent immigration proceedings and that can be used to challenge an individual's credibility. (153) Enforcing their views that asylum seekers "cannot be here," border officials have resorted to force to remove them. (154) Their actions have been accompanied by statements such as, "Trump says we don't have to let you in" and "the United States is not giving asylum anymore." (155)
Street level actors may implement the will of the executive, but their actions do not always flow directly from national level directives. Border officials implement their own legal interpretations in support of their conceptions of entitlement, stating that the legal requirements have changed and that some nationalities are ineligible for asylum, require visas, or must apply for asylum from Mexico. (156) One border official explained the family separation policy in terms of the deterrence motives that lie behind street level practices: "We do this so that when you return to your countries you do not return, and so you tell your relatives not to come because we will take your children from you." (157) This convergence of centralized and decentralized goals underscores how the gatekeeper function has displaced any client-centered orientation toward asylum seekers at the border.
At the street level, decentralized policymaking processes are happening outside of and in opposition to the formal legal framework. Street level actors both respond to national level signals and implement localized understandings that create new policy processes. These processes operate separately from the domestic and international refugee framework, particularly the norm against refoulement, as asylum seekers are returned to the dangers from which they fled. (158) While the legal protections of the asylum system remain formally in place, the actions of street level actors render these protections hollow. They also interact with centralized policy processes in ways that further limit access to legal guarantees, as described below.
3. Executive Intransigence
Legal battles around the administration's policy initiatives are only just beginning. The current practice of selectively enforcing laws while circumventing legal guarantees highlights executive intransigence, raising questions around the effectiveness and reach of judicial rulings, as witnessed in South Africa. Also reminiscent of South Africa, the administration has already drawn judicial censure for its failures to abide by judicial orders. After the government failed to meet the court's deadline for reuniting children under age five with their parents, the Judge issued an order in which he rebuked the Department of Health and Human Services, stating that it "either does not understand the Court's orders or is acting in defiance of them." (159) This rebuke points to executive intransigence as the basis for non-compliance.
The administration's zero tolerance policy is based on enforcement of only those laws that facilitate its family separation policy while violating those governing the treatment of migrant children." (160) It also requires creating a legal fiction around this process, as described by HHS Secretary Alex Azar: "There is a surefire way to avoid separation from your children. Present yourself legally... or stay back at your home country and go through the process others do." (161) This statement asserts the existence of a formal legal space and ignores the ways in which the law operates outside of this space, where street level actors separate even those individuals who present themselves legally from their children in their attempts to limit access to the asylmn system. (162) Moreover, by falsely suggesting that individuals can seek asylum within their country of origin, Secretary Azar's statement provides justification both for the family separation policy and for street level practices barring access to asylum.
The current legal battle over family separation underscores the role of executive intransigence. In a highly publicized decision, a judge ordered the government to reunite children separated under the administration's zero tolerance policy within a strict deadline. (163) The government has evaded compliance with this order by adopting legal interpretations that designate those it fails to reunite as ineligible. Those deemed ineligible include individuals that street level actors had coerced or persuaded into giving up their asylum claims and accepting deportation, often on the basis of false information. The government has claimed that some parents "voluntarily" waived their rights to reunite with their children, but lawyers have questioned the validity of these waivers and whether parents undertook them knowingly. (164) The government has also employed an expansive conception of criminality to deem some parents ineligible, including, in some cases, relying on criminal charges even without convictions. (165) Perhaps the most brazen evasion involves its argument that a number of parents are ineligible for reunification because they are no longer in the U.S., a situation that the government itself created. (166) This argument relies on these government-created conditions in order to circumvent compliance with a judicial order upholding a legal challenge to the very actions giving rise to these conditions. The government is, in effect, pointing to its unlawful activity in defense of its subsequent non-compliance with a judicial order. Lawyers for the separated families have also claimed that DHS deliberately withheld parents' contact information for over a month to delay family reunification. (167)
In a less publicized decision, a judge ended the ORR director's policy of personally approving the release of any child who had ever been in heightened supervision while in ORR custody, a practice that significantly delayed the release of children. (168) Situating the policy "at the zenith of impermissible agency actions," the judge stated that the "unlawful agency action keeps Plaintiffs--the very subjects that ORR is statutorily mandated to protect--from reuniting with their sponsors... in a process which already takes too long," causing "suffering and irreparable injury." (169)
The practices addressed by the courts are part of a larger strategy targeting family unity in furtherance of broad policy goals. Children in shelters because of the family separation policy have faced significant obstacles to reunification. Those separated from parents who have since been deported are now subject to restrictions put in place to protect unaccompanied minors from traffickers, making it much harder for willing relatives to claim them. Parents who were in the U.S. prior to the zero tolerance policy have also been stymied in their efforts to reunite with their children who entered as UACs. (170) HHS, the custodial department, has begun sharing information with DHS about relatives who come forward, a practice that deters undocumented relatives from claiming detained children. (171) Thus, despite judicial victories targeting detentions and family separations, developments on the ground continue to work against release and reunification in a variety of contexts.
These decisions point to the limits of judicial remedies against an intransigent executive, as compared to one with more flexible policy goals. For example, in 2015, a judge ruled that President Obama's family detention policy violated the Flores agreement. (172) Following the ruling, the twenty-day limit began guiding family detention determinations. Immigration judges were generally cognizant of this limit in scheduling credible fear hearings, and many of those found to have a credible fear were released with ankle monitors. (173) The Trump administration, by contrast, has pitted its family separation policy against the Flores agreement, arguing that it cannot uphold the latter if it ends the former. The result is an agreement in the family separation case that accepts this fait accompli: families can either be detained together for long periods, or children can be released without their parents. (174) This solution directly violates the 2015 decision. It also remains unclear how an expanded family detention practice will adhere to the licensing requirements set out in Flores.
These executive-level policies work in tandem with the efforts of street level actors. The government's failure to fully implement the order regarding family reunifications, for example, rests on the actions of street level actors who engaged in extra-legal activities to facilitate deportations. Similarly, ORR has used the extra-legal actions of local law enforcement officials to implement its policy initiatives around the detention of UACs. Local law enforcement officials employ vague, over-inclusive criteria to place individuals in local gang databases. (175) This evidence is insufficient for criminal charges, but it serves as the basis of ORR's determination that a child should be placed in a secure facility. (176) By relying on the actions of street level actors that take place outside of a formal legal space, ORR is able to bypass the Flores guarantees and continue holding minors deemed security' risks through an extra-legal process.
Other processes are also at work to bypass and dilute legal guarantees. DOJ-imposed performance quotas on immigration judges have forced these judges to choose between protecting their jobs "by cutting due process corners" or maintaining their role as "independent adjudicators." (177) Moreover, the DOJ, through its Executive Office of Immigration Review, has directed immigration judges to adopt more openly defiant legal interpretations. In June 2018. the Supreme Court issued a decision regarding the validity of the notice to appear, the charging document that initiates immigration proceedings and establishes the immigration court's jurisdiction. The Court held that a notice to appear that does not designate the time or place of an immigrant's removal proceedings does not constitute a notice to appear under Section 1229(a) of the INA. (178) Some immigration judges have determined that they do not have jurisdiction over the cases on their docket based on deficient notices to appear as defined by the Supreme Court. In response, the Principal Deputy Chief Immigration Judge advised the immigration courts in July 2018 that they should continue accepting notices to appear that do not specify the time and place of the hearing, despite the Supreme Court's holding. (179)
Additionally, for those individuals who manage to get past the walls set up by CBP officers and access credible fear hearings, the USCIS memo imposes the new, stricter standards around private harm, social group, and lack of government protection established by Sessions in a decision that is binding on DOJ but not on DHS and its agencies, including USCIS. This creates an insurmountable barrier for asylum seekers who do not have access to a lawyer and have not had an opportunity to gather corroborating evidence. The increased reliance on detention heightens these barriers because of the difficulties in obtaining legal assistance from detention. Potentially valid asylum claims will thus be forestalled under the standard set forth in the USCIS memo.'' (180)
In privileging the DOJ's legal interpretation over judicial ones around asylum eligibility, USCIS has also created a path to more direct defiance of legal guarantees. The USCIS guidance based on the Attorney General's legal decision asserts that claims based on domestic violence or gang violence "committed by non-government actors will not establish the basis for asylum, refugee status, or a credible or reasonable fear of persecution." (181) This view overstates Sessions' legal conclusion, which left open the possibility that an individual claimant could overcome the threshold he established. (182) It also prejudges asylum claims, in violation of the individualized standard set up under the Refugee Act.
The USCIS memo further reinterprets the law to encourage asylum denials on the basis of unlawful entry even for those who meet the legal asylum definition. This view contradicts a BIA decision on the use of unlawful entry as a discretionary factor, despite the memo's assertion that USCIS is bound by BIA decisions. (183) The memo advises that USCIS officers may find that illegal entry and the "circumvention of orderly refugee procedures" weighs "against a favorable exercise of discretion." (184) The BIA decision, by contrast, states that the manner of entry "is only one of a number of factors which should be balanced in exercising discretion" and should not be used "to deny relief in virtually all cases." (185)
The USCIS interpretation highlights how centralized and decentralized processes can work together to thwart the legal framework. While street level actors have foreclosed entry through "orderly refugee procedures," centralized policy has foreclosed asylum for those who flout these orderly refugee procedures. At the frontlines, street level actors force asylum seekers to circumvent these procedures. Policymakers then use this street-level generated situation as a basis to deny protection.
These examples highlight an executive guided by policy preferences working at cross purposes with the law. While the legal battles are just beginning, there are already signs of intransigence leading to violations of the law and circumscribing access to legal rights. Centralized policy preferences may also give rise to an unwillingness to police the actions of street level actors who are reinforcing their own often convergent policy preferences in the spaces removed from legal regulation. As the battle for asylum rights lands in the courts, these processes will continue to influence the ways in which the law and judicial decisions get implemented.
IV. DRAWING COMPARISONS AND DIFFERENCES
The South Africa and U.S. examples highlight the ways in which street level and centralized processes may affect the implementation of the law. These dynamics are constitutive of the sociopolitical context, but the centralized and decentralized processes may interact in different ways. In South Africa, the executive provided space for and subsequently defended the continuation of street level practices that took shape principally on the ground, even as centralized policy preferences reflected similar goals. In the U.S., by contrast, the executive is more directly driving the process, and street level practices may be less the impetus for than responsive to the executive's initiative. This does not mean, however, that street level actors are not also exploiting the space created by the executive to advance their own legal understandings. This underscores the need for more research around street level practices in the U.S. to understand the extent to which these actors are implementing their own policy preferences even as executive policies face legal challenges.
Other variations are also important. The insider/outsider dynamics play out differently in the two countries. In South Africa, the ascendance to power of the majority black South African population altered the country's racial dynamics. After South Africa transitioned from a refugee-producing to a refugee-receiving country, asylum seekers from other African countries made up the bulk of immigrants. These migrant populations settled primarily in the areas where poor and previously excluded black South Africans also resided, often in informal settlements lacking formal governance structures. In response, a still marginalized citizenry expressed anti-immigrant sentiment through a nationalist and localized understanding of rights. South Africans living alongside these migrants saw them as direct competitors for jobs, housing, and resources. Their presence in post-apartheid South Africa constituted a direct infringement of their rights as South Africans waiting to reap the benefits of transformation. In the words of one South African: "These people come here to destroy. They come here and as South Africans we are deprived." (186) In the U.S., by contrast, insider/outsider dynamics are being expressed through a cultural, religious, or racial lens, often thinly veiled by a security discourse. The implications of these differences and how they may affect street level and centralized dynamics require further exploration.
Finally, the comparison between the two countries raises questions around the importance of the institutionalization of the rule of law. If the degree of institutionalization plays a role, then these centralized and decentralized dynamics should have less influence over the ways in which the law gets implemented. If events in the U.S. play out similarly to those in South Africa, this suggests that the sociopolitical context within which the law is embedded may be as or even more important than the institutionalization of the rule of law.
The existence of an intransigent executive creates an enabling environment for street level actors to enact their own policy preferences based on localized understandings of rights and justice. South Africa provides an example of the limits of judicial remedies under these circumstances, where street level actors employ legal interpretations that converge with and reinforce the policy preferences of an intransigent executive, preferences that clash with legal guarantees. The U.S. is poised to follow a similar path, as street level actors block access to the asylum framework while the executive embarks upon policy initiatives that further foreclose legal rights. Thus, even as the legal framework remains intact, it has become embedded in an unsupportive sociopolitical context that limits its reach.
Recourse to the courts remains an important weapon in the battle for asylum rights. To be most effective, legal advocates must be aware of the dynamics affecting implementation of judicial rulings. Such rulings may have unintended consequences, such as those playing out in the family detention realm, where the government has been largely successful in its goals of circumventing the Flores agreement, at least with respect to the preliminary agreements around family separation. The South African experience is instructive, as advocates there learned to frame their desired judicial remedies in response to the reasons underlying government non-compliance. In the case of an intransigent executive, this meant more detailed supervisory orders that defined the scope of permissible actions and established a clear baseline for contempt. Outside of the courtroom, advocates adjusted their advocacy strategies within a sociopolitical context that was not responsive to rights framing around asylum, despite the existence of strong legal protections.
Formal law remains an important tool in the fight for refugee and migrant rights. At the same time, because asylum seekers are making claims divorced from citizenship, many of the practices affecting migrants happen in the spaces between and outside of the law, particularly when policy interests diverge from legal protections. These dynamics from above and below are linked to formal and informal policy preferences as much as to the institutionalization of the rule of law. Recourse to the courts may provide limited relief in these circumstances, and advocates must adjust their strategies with these dynamics in mind. While the family separation policy points to the most egregious legal violations, it also points to the potential for the law and legal struggles to mobilize advocacy outside of the courtroom to effect policy change. The effective harnessing of legal and non-legal resources rests on crafting strategies that are responsive to the sociopolitical context in which the law operates.
Roni Amit (*)
(*) My thanks to Leonard Feldman. Loren Landau, Meg Satterthwaite, and the participants of the NYU Clinical Law Review Workshop, particularly Julie Dahlstrom, Jennifer Koh, Faraz Sanei, Andrea Scielstad, and Anita Sinha for their thoughtful commentary and suggestions.
(1) Molly Hennessy-Fiske, Caught in Limbo, Central American Asylum-Seekers are Left Wailing on a Bridge Over the Rio Grande, L.A. TIMES, June 7, 2018, http://www.latimes.com/nation/la-na-asylum-seeking-families-border-bridges-20180605-story.html.
(2) See also Jeremy Raff, Purgatory at the Border, THE ATL.'WTIC, June 19, 2018, https://www.theatlantic.com/politics/archive/2018/06/purgatory-on-the-border/563174/; Neena Satija & Juan Luis Garcia Hernandez, On a Bridge Over the Rio Grande, Immigrants Seeking Asylum Wait for a Chance to Enter the U.S.. TEX. TRIB., June 20, 2018, https://www.texastribune.org/2018/06/20/bridge-over-rio-grande-immigrants-seeking-asylum-wait-chance-enter-us/.
(3) STUART A. SCHEINGOLD, THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE 5 (1974).
(4) HANNAH ARENDT. THE ORIGINS OF TOTALITARIANISM 294 (1951).
(5) See, e.g., I WANT TO Go HOME FOREVER: STORIES OF BECOMING AND BELONGING IN SOUTH AFRICA'S GREAT METROPOLIS (Loren B. Landau & Tanya Pampalone, eds., 2018).
(6) UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, GLOBAL TRENDS 2012 26 (2013).
(7) GERALD ROSENBERG. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL GRANGE? (1991).
(8) David Dyzenhaus. The Difference Law Makes 60 MOD. L. REV. 866 (1997) (reviewing RICHARD ABEL, POLITICS BY OTHER MEANS: LAW IN THE STRUGGLE AGAINST APARTHEID, 1980-1994 (1995); MICHAEL LOBBAN, WHITE MAN'S JUSTICE: SOUTH AFRICAN POLITICAL TRIALS IN THE BLACK CONSCIOUSNESS ERA (1996)).
(9) SCHEINGOLD, supra note 3; Marc Galanter, The Radiating Effects of Courts, in EMPIRICAL THEORIES OF COURTS (Keith D. Boyum and Lynn Mather eds., 1983); Frances Zemans, Legal Mobilization: The Neglected Role of Law in the Political System, 77 AM. POL. SCL. REV. 690 (1983); MICHAEL MCCANN, TAKING REFORM SERIOUSLY: PERSPECTIVES ON PUBLIC INTEREST LIBERALISM (1986); MICHAEL MCCANN. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION (1994).
(10) ROSENBERG, supra note 7 at 31-32.
(11) Chris Hanson. Inattentive, Intransigent, and Incompetent, in CHILD. PARENT AND STATE (S.R. Humm ed. 1994); Kent Roach and Geoff Budlender, Mandatory Relief and Supervisory Jurisdiction: When is it Appropriate, Just and Equitable? 122 S. AFR. L. J. 325 (2005).
(12) MICHAEL LIPSKY, STREET-LEVEL BUREAUCRACY: DILEMMAS OF THE INDIVIDUAL IN PUBLIC SERVICES 3 (1980).
(13) Id. at xii (emphasis in original). See also id. at 13
(14) WORK AND THE WELFARE STATE: STREET-LEVEL ORGANIZATIONS AND WORKFARE POLITICS 32 (Evelyn Z. Brodkin and Gregory Marston eds., 2013).
(15) Evelyn Z. Brodkin and Malay Majmundar, Administrative Exclusion: Organizations and the Hidden Costs of Welfare Claiming 20 J. PUR. ADMIN. RES. & THEORY 827, 828 (2013).
(16) Lipsky, supra note 12 at 4.
(17) Id. at 72
(18) See LIPSKY, supra note 12 at 17 ("One can expect a distinct degree of noncompliance if lower-level workers' in interests differ from the interests of those at higher levels").
(19) JEFF HANDMAKER, ADVOCATING FOR ACCOUNTABILITY: CIVIC-STATE INTERACTIONS TO PROTECT REFUGEES IN SOUTH AFRICA (2009); Jonathan Crush and David A. McDonald. Introduction to Special Issue: Evaluating South African Immigration Policy After Apartheid. 48 AFR. TODAY 1 (2001).
(20) Id. at 7,3.
(21) Refugees Act 130 of 1998.
(22) Immigration Act 13 of 2002.
(23) Aliens Control Act 96 of 1991.
(24) Unemployment is generally around 25 percent, increasing to more than 33 percent when discouraged job seekers are included. See, e.g., Mashuda Masutha, SA Unemployment Rate Stable at 26.7%, EYE WITNESS NEWS (May 15. 2018), https://ewn.co.za/2018/05/15/sa-unemployment-rate-unchanged-ror-q1.
(24) Refugees Act, s. 3(a),
(25) Id., s, 1(xxi).
(26) Id., s. 3(a).
(27) Id., s. 3(b). See also, Organization of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa (June 20. 1974). Article 1(2).
(28) Id., s. 22, s. 23
(31) Id., s. 29.
(32) Immigration Act s. 34. s. 41.
(33) Id., s. 34(2).
(34) Id. s. 34.
(36) S. AFR. CONST. 1996, s. 39. Sec also s. 233, on interpreting legislation to be consistent with international law.
(37) Political rights (s. 19) and freedom of trade, occupation and profession (s. 22) are reserved for citizens.
(38) S. AFR. CONST. 1996, s. 38.
(39) RONI AMIT, AFRICAN CENTER FOR MIGRATION & SOCIETY, BREAKING THE LAW, BREAKING THE BANK: THE COST OF HOME AFFAIRS' ILLEGAL DETENTION PRACTICES 15 (2012).
(41) Abdi and Another v. Minister of Home Affairs and Others 2011 (3) SA 37 (SCA) at para. 36 (S. Afr.).
(42) Ulde v Minister of Home Affairs and Another 2009 (4) SA 522 (SCA) (S. Afr.).
(43) Lawyers for Human Rights v Minister of Home Affairs and Others 2016 (4) SA 207 (GP) (S. Afr.).
(44) Lawyers for Human Rights v Minister of Home Affairs and Others 2017 (5) SA 480 (CC) (S. Afr.).
(45) Jeebhai and Others v Minister of Home Affairs and Another 2009 (5) SA 54 (SCA) (S. Afr.).
(46) AS v Minister of Hume Affairs 2010 (unreported case) no. 101/2010 (GP) (12 January 2010).
(47) Minister of Home Affairs v Rahim and Others 2016 (3) SA 218 (CC) (S. Afr.).
(48) AS, supra note 46; Arse v Minister of Home Affairs and Others 2012 (4) SA 544 (SCA) (S. Air.)
(49) Arse, id. at para 19.
(50) Lawyers for Human Rights and Other v Minister of Home Affairs and Other 2004 (4) SA 125 (CC) (S. Afr.). Abdi, supra note 41.
(51) Abdi, supra note 41, Bula and Others v Minister of Home Affairs and Others 2012 (4) SA 560 (SCA) (S Afr.).
(52) Minister of Home Affairs and Others v Watchenuka and Others 2004 (4) SA 326 (SCA) (S. Afr.).
(53) Kiliko and Others v Minister of Home Affairs and Others 2006 (4) SA 114 (C) (S. Afr.)
(54) Scalabrini Center, Cape Town and Others v Minister of Home Affairs and Others 2018 (4) SA 125 (SCA) (S. Afr.), Minister of Home Affairs and Others v Somali Association of South Africa Eastern Cape and Another 2015 (3) SA 545 (SCA) (S. Afr.).
(55) Tafira and Others v Ngozwane and Others 2006 (unreported case) no. 12960/06 (TP) (Dec. 12, 2006) at 46 (S. Afr,).
(56) Abdi, supra note 41, Bula, supra note 51.
(57) Hirsi and Others v Minister of Home Affairs and Others 2008 (unreported case) no, 1686.3/08 (C) (Oct. 22, 2008) (S, Afr.).
(58) AOL v Minister of Home Affairs and Others 2006 (2) SA 8 (D) (S. Afr,).
(59) Pembele v Appeal Board for Refugee Affairs 1996 (unreported case) no. 15931/96 (CP) (Dec, 10. 1996) (S, Afr.).
(60) Van Garderen, N.O. v Refugee Appeal Board and Others 2006 (unreported case) no. 30720/2006 (TP) (June 19, 2007) (S, Afr.).
(61) Mayongo v Refugee Appeal Board and Others 2006 (unreported case) no. 16491/06 (TP) (April 4, 2007) (S. Afr.).
(62) See Handmaker. supra note 19.
(63) Homo Affairs Minister M. G. Buthelezi, Keynote Address at the Southern African Migration Project's Conference: After Amnesty, The Future of Foreign Migration in South Africa (June 20, 1997).
(64) AFRICAN NATIONAL CONGRESS, PEACE AND STABILITY: POLICY DISCUSSION DOCUMENT 5 (2012), http://www.anc.org.za/docs/discus/2012/peacov.pdf.
(65) DEPARTMENT OF HOME AFFAIRS, DISCUSSION RAPER ON THE REPOSITIONING OF THE DEPARTMENT OF HOME AFFAIRS (2017), http://www.dha.gov.za/dharepositioningprogramme.pdf.
(66) ANC MR Maggie Maunye. Meeting of the Portfolio Committee on Home Affairs (June 29. 2011) (quoted in Xenophobia: LHR hails MP's Apology. INDEPENDENT ONLINE, July 5, 2011. https://www.iol.co.za/news/politics/xenophobia-lhr-hails-mps-apology-1093413).
(67) Department of Home Affairs Briefing. Asylum Applications and Issue of Permits (May 31. 2010). https://pmg.org.za/committee-meeting/11684/.
(68) Home Affairs Minister Naledi Pandor. Media Briefing (Feb. 25. 2014) (quoted in Simon Allison, With an Election Looming, Home Affairs plays the 'Blame the Foreigners' Game. DAILY MAVERICK, Feb. 28, 2014, https://www.dailymaverick.co.za/article/2014-02-28-with-an-election-looming-home-affairs-plays-the-blame-the-foreigners-game/.
(69) AFRICAN NATIONAL CONGRESS, supra note 64 at 5.
(71) See NATIONAL ASSEMBLY & NATIONAL COUNCIL OF PROVINCES, REPORT OF THE AD HOC JOINT COMMITTEE ON PROBING VIOLENCE AGAINST FOREIGN NATIONALS (NOV. 19, 2015).
(72) Azad Essa, Is South Africa Taking Xenophobia Seriously? AL JAZEERA (Apr, 30. 2015), https://www.aljazeera.com/blogs/africa/2015/04/sout.h-africa-xenophobia-150430224826901.html
(73) NATIONAL ASSEMBLY & NATIONAL COUNCIL OF PROVINCES, supra note 71.
(74) Small Business Development Minister Lindiwe Zulu (January 26, 2015) (quoted in Pontsho Pilane, Small Business Minister Wants Spaza-Shop Trade Secrets. THE DAILY VOX. Jan, 30, 2015, https://www,thedailyvox.co.za/small-business-minister-wants-spaza-shop-trade-secrets/).
(75) AFRICAN NATIONAL CONGRESS, supra note 64 at 6.
(76) VANYA GASTROW & RONI AMIT, AFRICAN CENTER FOR MIGRATION & SOCIETY, LAWLESS REGULATION: GOVERNMENT AND CIVIL SOCIETY ATTEMPTS AT REGULATING SOMALI INFORMAL TRADE IN CAPE TOWN (2015).
(77)See, e.g., RONI AMIT. AFRICAN CENTER FOR MIGRATION & SOCIETY, NO WAY IN: BARRIERS TO ACCESS. SERVICE AND ADMINISTRATIVE JUSTICE AT SOUTH AFRICA'S REFUGEE RECEPTION OFFICES (2012).
(78) Id., RONI AMIT, AFRICAN CENTER FOR MIGRATION & SOCIETY, NATIONAL SURVEY OF THE REFUGEE RECEPTION AND STATUS DETERMINATION SYSTEM IN SOUTH AFRICA (2009).
(80) NATIONAL SURVEY OF THE REFUGEE RECEPTION AND STATUS DETERMINATION SYSTEM IN SOUTH AFRICA, supra note 78 at 45.
(81) See RONI AMIT. LAWYERS FOR HUMAN RIGHTS & AFRICAN CENTER FOR MIGRATION & SOCIETY, QUEUE HERE FOR CORRUPTION: MEASURING IRREGULARITIES IN SOUTH AFRICA'S ASYLUM SYSTEM (201.5).
(82) Id. at 41.
(83) See NATIONAL SURVEY OF THE REFUGEE RECEPTION AND STATUS DETERMINATION SYSTEM IN SOUTH AFRICA, supra note 78 at 44-46.
(84) Roni Amit, Winning Isn't Everything: Courts, Context, and the Barriers to Effecting Change Through Public Interest Litigation, 27 SAJHR 8, 27 (2011).
(85) Author's meeting with Busisiswe Mkhewbane-Tshehla. Acting Director: Refugee Affairs (June 19, 2009, Johannesburg).
(86) No WAY IN, supra note 77 at 68.
(87) RONI AMIT, AFRICAN CENTER FOR MIGRATION & SOCIETY, ALL ROADS LEAD TO REJECTION: PERSISTENT BIAS AND INCAPACITY IN SOUTH AFRICAN REFUGEE STATUS DETERMINATION (2012).
(89) Id. at 33.
(90) Refugees Act 130 of 1998 s. 1 (xxi).
(91) ALL ROADS LEAD TO REJECTION, supra note 87 at 68.
(92) See, e.g.. id.; Roni Amit, African Refugees in South Africa are Often Unable to Access their Rights (2016), http://blogs.lse.ac.uk/africaatlse/2016/01/29/african-refugees-in-south-africa-are-often-unable-to-access-their-rights/.
(93) Author's meeting with Deputy Home Affairs Minister, Deputy Director General for Home Affairs, and DHA staff (April 9, 2010, Pretoria).
(94) Loren Landau & Roni Amit, Wither Policy? Southern African Perspectives on Understanding Law. 'Refugee' Policy and Protection. 27 J. Refugee Stud. 534, 542-3 (2014).
(95) Roni Amit, The Expansion of Illegality: Immigration Detention in South Africa, in IMMIGRATION DETENTION: THE MIGRATION OF A POLICY AND ITS HUMAN IMPACT (Amy Nethery & Stephanie J. Silverman, eds.. 2015).
(96) RONI AMIT. AFRICAN CENTER FOR MIGRATION & SOCIETY, LOST IN THE VORTEX: IRREGULARITIES IN THE DETENTION AND DEPORTATION OF NON-NATIONALS IN SOUTH AFRICA (2010).
(97) The return of an individual a territory where they would face persecution on account of one of the protected grounds in the Refugee Convention.
(98) Amit, supra note 96.
(99) Respondent's Answering Affidavit, para. 26. LS v Minister of Home Affairs 2010 (unreported case) no. 49231/10 (G) (December 10.2010) (S. Afr.).
(100) BREAKING THE LAW, BREAKING THE BANK, supra note 39. See also Winning Isn't Everything, supra note 84 at 23.
(103) Id., LOST IN THE VORTEX, supra note 96.
(105) Respondent Heads of Argument, para. 47, Arse v Minister of Home Affairs and Others 2010 (unreported case) no. 52898/09 (G) (January 7, 2010) (S. Afr.).
(106) Oral Arguments, Zimbabwe Exiles Forum and Others v Minister of Home Affairs and Others 2011 (unreported case) no. 27294/2008 (G) (Feb. 17, 2011) (S. Afr.).
(107) Respondent's Supplementary Answering Affidavit, para. 28, KA v Minister of Home Affairs (unreported case) no. 00189/2010 (G) (Jan. 19, 2010).
(108) BREAKING THE LAW, BREAKING THE BANK, supra note 39.
(109) Winning Isn't Everything, supra note 84.
(110) Refugee Act. Pub. L. No. 96-212, 94 Stat. 102.
(111) See Rebecca, Illegal Refugees: Competing Policy Ideas and the Rise of the Regime of Deterrence in American Asvlum Politics, 31 REFUGEE SURV. Q. 33. 40-1 (2012).
(112) Id. at 43.
(113) 8 USC [section] 1158.
(114) Stipulated Settlement Agreement. Flores v. Reno, No. 85 Civ. 4544 (CD. Cal. Jan. 7. 1997).
(115) In Chambers--Order Re Plaintiffs' Motion to Enforce Settlement of Class Action and Defendants' Motion to Amend Settlement Agreement, Flores v Johnson, No. 85 Civ. 4544 (CD. Cal. July 24, 2015).
(116) Homeland Security Act of 2002. 6 U.S.C. [section]279.
(117) William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, 8 U.S.C. [section]1232
(118) Sueng Min Kim. Trump Warns Against Admitting Unaccompanied Migrant Children: 'They're not Innocent.' W.ASH. POST. May 23, 2018. https://www.washingtonpost.com/politics/trump-warns-against-admitting-unaccompanied-migrant-children-theyre-not-innocent/2018/05/2.3/e4b24a68-5ec2-11e8-8c93-8cf33c21da8d_story.html?utm_term=.38dbcu99dl4b.
(119) Julia Preston, Trump Administration Wants to Shut Door on Abused Wotnen. POLITICO. April 17, 2018. https://www.politico.com/magazine/story/2018/04/17/trump-administration-wants-to-shut-door-on-abused-women-218005.
(120) Donald J. Trump. "The Democrats are making a strong push to abolish ICE. one of the smartest, toughest and most spirited law enforcement groups of men and women that I have ever seen. I have watched ICE liberate towns from the grasp of MS-13 & clean out the toughest of situations. They are great!" 30 June 2018. 4:07 a.m. Tweet.
(121) Julie Hirschfeld Davis. Trump Calls Some Unauthorized Immigrants 'Animals' in Rant. N.Y. TIMES, May 16, 2018, https://www.nytimes.com/2018/05/16/us/politics/trump-undocumented-immigrants-animals.html.
(122) Kim, supra note 118.
(123) Donald J. Trump. "We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order. Most children come without parents..." 24 June 2018. 8:02 a.m. Tweet.
(124) See, e.g.. Attorney Gen. Jeff Sessions. Justice News. Attorney General Sessions Delivers Remarks to the Executive Office for Immigration Review (Oct. 12, 2017), available at https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-executive-office-immigration-review; Justice News, Attorney General Sessions Delivers Remarks on Immigration Enforcement (Apr. 11, 2018), available at https://www.justice.gov/opa/speech/attorney-general-sessions-
delivers-remarks-immigration-enforcement; Attorney Gen. Jeff Sessions Statement on Central American 'Caravan' (April 23, 2018). available at https://www.justice.gov/opa/pr/attorney-general-jeff-sessions-statement-central-american-caravan.
(125) White House, Immigration Principles and Policies (Oct, 8, 2017), available at https://www.politico.com/f/?id=0000015e-fe3d-dcl5-a3fe-ff3d27fb0000.
(126) Franco Ordonez, Exclusive: DHS Chief Proposes Prosecuting Parents of Children Smuggled into U.S., MCCLATCHY (D.C), Feb. 18, 2017, https://www.mcclatchydc.com/news/politics-government/white-house/article133594864.html.
(127) KIDS IN NEED OF DEFENSE, BRIEFING BOOK, TRIP TO THE BORDER 2 (March 2018). On September 7, 2018, DHS and HHS proposed an amendment to the regulations that would end the Flores Settlement Agreement.
(128) Memorandum Opinion, Damns v. Nielsen, No. 18 Civ, 578 (D.C. July 2. 2018) (finding that the DHS directive regarding parole for asylum seekers who pass credible fear interviews "has been honored more in the breach than the observance" at 2).
(129) Attorney General Sessions Delivers Remarks to the Executive Office for Immigration Review, supra note 124.
(130) Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014).
(131) See Brief of Immigration Law Professors as Amici Curiae Supporting Respondent, Matter of A-B-. 27 I&N Dec. 316 (A.G. 2018).
(132) Mailer of A-B-, 27 I&N Dec. 316 (A.G. 2018).
(133) Id. at 337. quoting Galina v. INS. 213 F.3d 9.5.5. 958 (7th Cir. 2000)
(134) U.S. CITIZENSHIP AND IMMIGRATION SERVICES. POLICY MEMORANDUM: GUIDANCE FOR PROCESSING REASONABLE FEAR, CREDIBLE FEAR. ASYLUM, AND REFUGEE CLAIMS IN ACCORDANCE WITH MATTER OF A-B-(July 11, 2018).
(135) 8 U.S.C. [section] 1225(b)(1)(B)(v).
(136) See, e.g. American Immigration Lawyers Association. ALLA Polity Brief: USCIS Guidance on Mailer of A-B- Blocks Protections for Vulnerable Asylum Seekers and Refugees (July 23, 2018). See also. Tal Kopan, Impact of Sessions' Asylum Move Already Fell al Border. CNN, July 14. 2018. https://www.cnn.com/2018/07/14/politics/sessions-asylum-impactborder/index.html (reporting on increased credible fear denials as a result of the decision).
(137) U.S. CITIZENSHIP AND IMMIGRATION SERVICES. POLICY MEMORANDUM, supra note 134.
(138) U.S. CITIZENSHIP AND IMMIGRATION SERVICES, POLICY MEMORANDUM: UPDATED GUIDANCE FOR THE REFERRAL OF CASES AND ISSUANCE OF NOTICES TO APPEAR (NTAS) IN CASES INVOLVING INADMISSIBLE AND DEPORTABLE ALIENS (June 28, 2018).
(139) U.S. CITIZENSHIP AND IMMIGRATION SERVICES, POLICY MEMORANDUM: ISSUANCE OF CERTAIN RFES AND NOIDS: REVISIONS TO ADJUDICATOR'S FIELD MANUAL (AFM) CHAPTER 10.5(a), CHAPTER 10.,5 (b) (July 13, 2018).
(140) KIDS IN NEED OF DEFENSE. DEATH BY A THOUSAND CUTS: THE TRUMP ADMINISTRATION'S SYSTEMATIC ASSAULT ON THE PROTECTION OF UNACCOMPANIED CHILDREN (May 2018).
(141) ADMINISTRATION FOR CHILDREN & FAMILIES, INFORMATION MEMO: COMMUNITY SAFETY INITIATIVE FOR THE UNACCOMPANIED ALIEN CHILDREN PROGRAM (August 16, 2017).
(142) L.V.M. v Lloyd, No. 18 Civ, 1453 (S.D.N.Y. June 27, 2018) at 4.
(143) EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, OPERATING POLICIES AND PROCEDURES MEMORANDUM 17-03: GUIDELINES FOR IMMIGRATION COURT CASES INVOLVING JUVENILES, INCLUDING UNACCOMPANIED ALIEN CHILDREN (Dec. 20, 2017).
(141) Resignation Letter of Elizabeth Holtzman from the Homeland Security Advisory Council (July 16. 2018) (quoted in David Nakamura, 'Morally Repugnant': Homeland Security Advisory Council Members Resign Over Immigration Policies. WASH. POST, July 17, 2018, https://www.washingtonpost.com/news/post-politics/wp/2018/07/17/morally-repugnant-homeland-security-advisory-council-members-resign-over-immigration-policies/?utm_term=.19ad02f44817.
(142) Nick Miroff & Maria Sacchetti. Trump Takes Shackles' Off ICE, Which is Slapping Them on Immigrants Wh.o Thought They Were Safe, WASH. POST, Feb. 11, 2018, https://www.washingtonpost.com/world/national-security/trump-takes-shackles-off-ice-which-is-.slapping-them-on-immigrants-who-thought-they-were-sare/2018/02/11/4bd5cl64-083a-11e8-b48c-b07fea957bd.5_tory.html?utm_erra=.6d.5e9b.58c940.
(144) See IMMIGRANT DEFENSE PROKECT & CENTER FOR CONSTITUTIONAL RIGHTS. ICEWATCH: ICE RAIDS TACTICS MAP (July 2018): Franklin Foer. How Trump Radicalized Ice, THE ATLANTC (Sept. 2018).
(147) AMERICAN IMMIGRATION LAWYERS ASSOCIATION, DUE PROCESS DENIED: CENTRAL AMERICANS SEEKING ASYLUM AND PROTECTION IN THE UNITED STATES (2016).
(148) HUMAN RIGHTS FIRST. CROSSING THE LINE: U.S. BORDER AGENTS ILLEGALLY REJECT ASYLUM SEEKERS (May 2017).
(149) Id.. Sonia Nazario, Opinion. The End of Asylum, N.Y. TIMES, July 12. 2018. at A25.
(151) Jay Root & Shannon Najmabadi, Kids in Exchange for Deportation: Detained Migrants Say They Were Told They Could Get Kids Back On Way out of US, TEX. TRIB., June 24, 2018, https://www.toxastribune.org/2018/06/24/kids-exchange-deportation-migrants-claim-they-were-promised-they-could/; Nazario. supra note 149.
(152) Samantha Schmidt, Migrant Parents Were Misled Into Waiving Rights to Family Reunification, ACLU Tells Court. WASH. POST, July 26, 2018, https://www.washingtonpost.com/news/morning-mix/wp/2018/07/26/migrant-parents-were-mislead-into-waiving-rights-to-family-reunification-aclu-tells-court/?utm_term=.5b3c35c62045; American Immigration Council & American Immigration Lawyers Association. Complaint Filed with DHS Officer for Civil Rights and Civil Liberties & Acting Inspector General, The Use of Coercion by U.S. Department of Homeland Security (DHS) Officials against Parents Who Were Forcibly Separated from Their Children (August 23, 2018).
(153) HUMAN RIGHTS FIRST, supra note 148 at 10-12.
(154) Id. at 6-7.
(155) Id. at 5.
(156) Id. at 5-7.
(157) Tim Dickinson. ICE Offices to Asylum Seekers: 'Don't You Know That We Hale You People?" ROLLING STONE, July 10. 2018, https://www.rollingstone.com/politics/politics-news/ice-officers-to-asylum-seekers-dont-you-know-that-we-hate-you-people-697727/.
(158) For more information about the dangers suffered by those denied entry, see HUMAN RIGHTS FIRST, supra note 148.
(155) Order Following Status Conferenee at 2, Ms. L. v U.S. Immigration and Customs Enforcement. No. 18 Civ. 0428 (S.D. Cal. July 13 2018).
(160) Deniso Gilman, Opinion, Donald Trump is Ignoring the Immigration Laws that Protect Children and Families, USA TOD.AY, July 17, 2018, https://www.usatoday.com/story/opinion/2018/07/17/trump-ignores-immigration-laws-protecting-familios-children-asylum-soekors-colunin/776788002/.
(161) Christina Jewatt & Shefail Luthra, Immigrant Infants Too Young to Talk Called Into Court to Defend Themselves. TEX. TRIB., July 18, 2018, https://www.toxastribunu.org/2018/07/18/immigrant-separated-families-infant-court-defend-donald-trump-zero-to1/.
(162) See, e.g.. Paloma Esquivel & Brittny Mejia. The Trump Administration Says it's a 'Myth' that Families that Ask for Asylum at Ports of Entry are Separated. It Happens Frequently. Records Show. L.A. TIMES (July 1, 2018), http://www.latimes.com/local/lanow/la-me-In-port-of-entry-separations-20180701-story.html.
(163) Order Granting Plaintiffs' Motion for Classwide Preliminary Injunction. Ms.L., (S.D. Cal. June 26. 2018)
(164) Samantha Schmidt, supra note 152. American Immigration Council & American Immigration Lawyers Association, supra note 152.
(165) Jonathan Blitzer, The Government Has Decided that Hundreds of Immigrant Parents are Ineligible to he Reunited with Their Kids. Who Are They? New Yorker,
July 26, 2018, https://www.newyorker,com/news/news-desk/the-governmcnt-has-decided-that-hundreds-of-immigrant-parents-are-inelisiblt'-to-be-reunited-with-their-kids-who-are-they,
(166) Joint Status Report Regarding Reunification, Ms.L., (S.D. Cal, July 10, 2018). See also id.
(167) Angelina Chapin, ICE Withheld Deported Parents' Phone Numbers from Lawyers, ACLU Says, Huffington Post, Aug 9, 2018, https://www.huffingtonpost.com/entry/ice-withheld-deported-parents-numbers-from-lawyers-and-advocates-aclu-says_us_.5b6cd9c7e4b0ae32af96b27d.
(168) L.V.M. v Llovd. No. 18 Civ. 1453 (S.D.N.Y. June 27, 2018).
(169) Id. at 4,
(170) See, e.g., Reveal: Ripped Apart: Families Separated at the Border (Center for Investigative Reporting podcast June 23, 2018), https://www.revealnews.org/episodes/ripped-apart-families-separated-at-the-border/.f
(171) KIDS IN NEED OF DEFENSE, supra note 140 at 3-4. See also Karla Cornejo Villavicencio. Opinion, At 9, He Lost his Mom to Gang Violence. At 12, he Lost His Dad to Trump's Immigration Policies, N.Y. TIMES, July 3, 2018, https://www.nytimes.com/2018/07/03/opinion/family-scparation-zero-tolerance-asylum.html.
(172) Order re Plantiffs' Motion to Enforce Settlement of Class Action and Defendants' Motion to Amend Settlement Agreement, Flores v. Johnson, No. 8.5 Civ. 04,544 (CD. Cal. July 24, 2015).
(173) See, e.g., Seung Min Kim, Obama Officials Revise Immigrant Detention Policy, Politico (June 24, 2015), https://www.politico.com/story/201.5/06/obama-immigrant-detention-policy-revision-119377.
(174) Joint Motion Regarding Scope of the Court's Preliminary Injunction, Ms. L. v U.S. Immigration and Customs Enforcement, No. 18 Civ. 0428 (S.D. Cal. July 13, 2018).
(175) See IMMIGRANT LEGAL RESOURCE CENTER, DEPORTATION BY ANY MEANS NECESSARY; How IMMIGRATION OFFICIALS ARE LABELING IMMIGRANT YOUTH AS GANG MEMBERS (2018): NEW YORK IMMIGRATION COALITION & CUNY SCHOOL OF LAW IMMIGRANT AND NON-CITIZEN RIGHTS CLINIC, SWEPT UP IN THE SWEEP: THE IMPACT OF GANG ALLEGATIONS ON IMMIGRANT NEW YORKERS (2018).
(176) ADMINISTRATION FOR CHILDREN & FAMILIES, INFORMATION MEMO. supra note 141.
(177) Russell Wheeler. Brookings, Amid Turmoil on the Border. New DOJ Policy Encourages Immigration -Judges to Cut Corners, Juno 18, 2018, https://www.brookings.edu/blog/fixgov/2018/06/18/amid-turmoil-on-the-horder.new-doj-policy-oncourages-immigration-judges-to-cut-corners/.
(178) Pereira v Sessions. 138 S. Ct. 210.5 (2018).
(179) American Immigration Lawyers Association, Practice Alert: Pereira v Sessions Guidance to Immigration Judges (July 17. 2018).
(180) Sec. e.g., Press Release, American Immigration Lawyers Association, DHS Instruction to Asylum Officers Violates U.S. and International Law (July 12, 2018). See also, Blog Post, Jeffrey S. Chase (Former Immigration Judge), Matter of A-B- Being Misapplied by EOIR, DHS, https://www.Jeffreyschase.com/blog/2018/7/13/matter-of-a-b-being-misapplied-by-eoir-dhs.
(181) U.S. CITIZENSHIP AND IMMIGRATION SERVICES, supra note 134 at III(B)(i).
(182) The USCIS includes this qualifying language in a parenthetical, while the general rejection is in bold.
(183) at I (citing 8 C.F.R. [section][section] 103.10(b) and 1003.1)(g)).
(184) Id. at IV.
(185) Matter of Pula, 19 I&N Dec. 467. 47.3 (BIA 1987).
(185) Loren Landau, Loving the Alien? Citizenship, Law, and the Future in South Africa's Demonic Society, 109 AFR. AFF. 213, 228 (2010).
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|Publication:||Loyola Journal of Public Interest Law|
|Date:||Mar 22, 2019|
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