DHS Secretary Nielsen Uses “Alternative Facts” to Attack Children, Asylum Seekers

Homeland Security Secretary Kirstjen Nielsen’s testimony before the Senate Judiciary Committee on January 16, 2018 was an attack on asylum seekers and the truth about our immigration system. Her remarks not only demonstrated a lack of knowledge in critical areas under Department of Homeland Security’s (DHS) authority, but were also riddled with misrepresentations about immigration enforcement and falsely painted asylum seekers and other vulnerable migrants as frauds and criminals.

Recycling terms used by other executive officials, she condemned the exploitation of “loopholes” and “magic words” to satisfy the credible fear screening standard, which she already views as a “low” one.

But these “loopholes” are, in reality, difficult hurdles that asylum seekers must overcome in order to even apply for the protection they seek. The credible fear screening process was created by Congress in 1996 as part of expedited removal, a procedure that allows low-level immigration officers, rather than immigration judges, to issue removal orders.

Since expedited removal cannot, by law, be applied to certain individuals—including U.S. citizens, legal permanent residents, refugees, or asylum seekers—the credible fear process was created to prevent those who may be asylum eligible from being removed through this procedure. Those who pass the credible fear screening are still put into removal proceedings, but have an opportunity to apply for asylum and have their eligibility assessed by the immigration court.

The credible fear interview, therefore, is not meant to require the same standard as a full asylum hearing. These screenings often occur in detention centers within days of an asylum seeker’s arrival in the United States after long and traumatizing journeys, and by and large before individuals have secured legal counsel or had time to gather documentary evidence or secure witnesses.

The Trump Administration, however, is trying to raise the credible fear standard. This may prevent many genuine asylum seekers from ever applying for refugee protection. In February 2017, U.S. Citizenship and Immigration Services (USCIS) released a Revised Lesson Plan relating to credible fear and reasonable fear screenings that appears to raise the screening standard set by Congress.

The number of positive credible fear decisions fell sharply after the lesson plan was issued—from 78 percent in February 2017 down to a low of 68 percent in June 2017. The pass rates until September 2017, the latest date for which we have data, remained lower than their respective 2016 rates.

These declines raise concerns that our country may be returning individuals to severe violence and danger without even giving them a chance to apply for asylum, present their evidence, and have their cases assessed by the immigration courts.

Secretary Nielsen’s next target was unaccompanied children, calling them “a big problem” and criticizing laws that allow unaccompanied children additional time to file for asylum and that, in her words, allow children “two bites at the apple.”

She was referencing the fact that unaccompanied children applying for asylum make their case before an asylum officer, and only go before an immigration judge if the asylum officer denies the case. While Nielsen termed these protections “benefits,” they are actually measures put in place with bipartisan support based on the understanding that the developmental capacity of children (who are, by definition, alone) prevents them from being able to successfully navigate an adversarial system against a seasoned government attorney, even when they merit protection.

Nielsen then stated that “90 percent of those [unaccompanied children] released never show up for court,” a statistic so far from the truth that it demonstrates either a complete lack of knowledge or a sincere desire to blatantly mislead the American public. In fact, data from completed cases indicates that between 2005 and November 2017, 68.6% of unaccompanied children showed up for their court hearings, and that 95.6% of unaccompanied children with legal representation appeared in court.

Secretary Nielsen’s next strategy was to paint these immigrants as criminals. When first asked about the DHS’s enforcement priorities, Nielsen stated, “Last year, 92 percent of those who were arrested and taken into custody by ICE were criminals.” Only when she was later pushed by Senator Kamala Harris on the additional statistic of a nearly threefold increase in Immigration and Customs Enforcement (ICE) arrests of non-criminal immigrants in 2017 did Nielsen clarify that this 92 percent includes both individuals with criminal convictions and those with final orders of removal.

That means what Nielsen calls “criminal” would include individuals like Jorge Garcia, the husband and father of two who was deported to Mexico this Monday despite the fact that he has lived in the United States since he was 10 years old, has no criminal record, and always paid his taxes.

At various points in her testimony, Nielsen highlighted a new Department of Justice (DOJ) and DHS report on terrorism-related offenses and immigration. According to Nielsen, the purpose of the report “is to allow us to be more transparent with the American people.” However, numerous organizations, including Human Rights First, have condemned this report for its use of cherry-picked data to demonize immigrants and mislead the American public.

The report indicates that three out of four people convicted in the United States of international terrorism are foreign-born, but it fails to mention that the data includes foreigners who committed crimes on foreign soil and then were extradited. It also omits domestic terrorism-related convictions, such as convictions of members of the Klu Klux Klan and neo-Nazi organizations. Without including convictions for domestic terrorism, it is impossible to reach conclusions about how country of origin correlates to terrorism convictions.

Overall, Secretary Nielsen’s remarks, from her statements on asylum “loopholes” to her convenient inability to recall the president’s racist comments during DACA negotiations, demonstrated that her allegiance to President Trump’s agenda to decimate the asylum system outweighs her fidelity to the American public. It is time for Congress to stand up, stop trading the lives of one group of vulnerable migrants for another, and defend this system from further attack.


Published on January 23, 2018


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