Guatemalan Asylum Seekers and Coaching

Approximately 400 people have traveled through Mexico from Guatemala to the U.S. border for the purpose of seeking asylum in the United States. There has been extensive news coverage here, and also here.

The Trump administration is lamenting their arrival, threatening to deny them entry, and claiming that the very fact they are seeking asylum in the United States as opposed to elsewhere is an indication our immigration policies are too lax. Trump himself tweeted that this caravan is the result of weak immigration laws and it should be stopped.  Wisconsin Senator Ron Johnson also attributed this influx of asylum seekers to weak immigration laws, stating in a radio interview that ‘We have laws on the books where people can walk right up to our ports of entry, say ‘I have a credible fear of persecution,’ and we bring them in. We don’t send them back.’

Senator Johnson’s statement is actually to some extent a summation of countries’ obligation to shelter refugees, which is well- entrenched in international law. However, in order to receive asylum status the asylum seeker has to not just say that he or she faces a credible threat of persecution back home, they also have to bring evidence that is the case. First they have to demonstrate at the border to an immigration officer a significant probability that they can prove this to the satisfaction of an immigration judge. Then, they have to in fact succeed at doing so later on in court. A well written politifact article by D.L. Davis in fact rates Senator Johnson’s statement as mostly false for this reason.

Valid Complaint about Mexico

The administration has two complaints about this group of asylum seekers in particular. The first is that they are from Guatemala, and traveling through Mexico to reach the United States to seek asylum here. By rights the first country they enter able to provide for their safety ought to be the country they apply to, and that should seem to be Mexico in this instance. That Mexico is sending them on North to the U.S. seems to be an unfair passing of responsibility and the United States is certainly warranted in bringing this complaint to the Mexican government. While this isn’t a justification for the U.S. to return these people to Guatemala, returning them to Mexico would certainly seem to be a possibility, and this is something the United States will have to negotiate with the Mexican government.

The second complaint against these asylum seekers, though, is much more fraught with ethical difficulty. U.S. immigration lawyers, sympathetic to these people’s plight, have entered Mexico to give the people in this caravan legal advice about their rights under international and U.S. law, and in general what to expect from U.S. immigration authorities when they encounter them at the border. This leads to the accusation that they are being coached on what claims they should make to immigration officers to force U.S. authorities to allow them to stay. Likely this is what Senator Johnson had in mind when he made his statement about how people can walk right up to the border, say a certain thing, and we let them in.

We’re dealing here with a delicate and difficult issue. Many of these Guatemalans claim they fear becoming victims of retaliatory violence by gangs, drug cartels, and the like. How can a U.S. border patrol agent, or for that matter even an immigration court, really sort that out? How can a U.S. court, in the short time relegated for deciding each case, determine the nature and scope of gangs and drug cartels in a foreign country? I suspect even the local authorities are unable to do this.

So by necessity, an immigration judge will be reduced to relying primarily on the asylum seeker’s own story. That, combined with the judge’s independent knowledge of the political situation in Guatemala, will be the basis for making a decision. So the reality is that since the asylum seeker’s own testimony is so critical to their case, coaching them on what to say can make a big difference. If they tell their story in a way that demonstrates detailed and specific threats back home they are much more likely to succeed than if they don’t. And of course lying or even embellishing their story would enhance their chances also.

The Trump administration seems to be in effect drawing two conclusions here. First, there is something nefarious about U.S. lawyers meeting with the asylum seekers right before they get to the border, that this is some attempt to subvert the law by coaching. Second, that these asylum seekers’ stories should be taken with a proverbial grain of salt. We should that if these people claim credible threat of persecution back home that is likely not the story they came with originally, it’s what these lawyers have coached them to say.

I certainly concede all that is possible. But just because something is possible that doesn’t mean that it’s actually true. And in this case, there is no justification for assuming that it is.

Concerns over coaching are not a reason to deny asylum

First, any asylum seeker who makes a false claim to U.S. authorities is subject to criminal prosecution, and anyone who aides them in doing so (such as these immigration attorneys that traveled to Mexico) could face criminal prosecution as well. One might argue that the asylum seekers have little to lose, but would U.S. lawyers risk losing their law licenses, let alone jail, in order to help them?

Second, and most important, coaching or preparation of witnesses before court is hardly unique to this instance. In fact, it is common in all areas of law. Judges should be equipped to detect this via detailed questioning and cross-examination. Obviously that’s not fool proof, and sometimes people can get away with fooling a judge. But if a witness’s sworn testimony is detailed, specific, and withstands scrutiny a judge has no justification for setting it aside on the basis of mere speculation that a lawyer who met with the witness helped the witness make it all up.

The truth is that encountering U.S. immigration authorities must be a tremendously scary thing for the people in this caravan. They are of course not familiar with the intricacies or procedures of U.S. law, and have likely heard many heart wrenching and contradictory stories of people who have attempted to similarly enter the U.S. before them. It’s only natural that they would want to speak to a U.S. lawyer before their fateful meeting at the border, and it’s laudable that lawyers from the United States are willing to travel to Mexico to give these people accurate information and hopefully allay some of their fears.

To conclude, the United States has a beef with Mexico about these asylum seekers traveling all the way to the United States to seek sanctuary. But the U.S. is still obligated to hear their asylum applications and grant them shelter if there is nowhere else they can safely go.

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