The Trump Administration Is Hiding How It Decides Asylum Cases, Advocates Say

U.S. Citizenship and Immigration Services says everything is available online. How did such a major misunderstanding happen?
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Migrants wait to have their number on a waiting list called to have an initial interview with an asylum officer on June 5th, 2019, in Ciudad Juarez, Mexico.

Migrants wait to have their number on a waiting list called to have an initial interview with an asylum officer on June 5th, 2019, in Ciudad Juarez, Mexico. 

It used to be that, to help refugees prepare to meet with a government officer who will decide whether they qualify for asylum, immigration lawyers would look up the documents that the government used to train that asylum officer. The documents typically outline international obligations that the United States has to protect those who fear persecution in their home countries. They describe what officers should look for—details that aren't specified in the law.

Then, sometime in the spring of 2017, the links for all of those lesson plans vanished from their usual page on the United States Citizenship and Immigration Services' website. The documents' disappearance led to uproar, confusion, and distrust among immigration advocates that last to this day—even though, as a USCIS spokesman says, the lesson plans that the lawyers want are actually all available on USCIS.gov. "[A]ll the current lesson plans were posted in the Electronic Reading Room, where you can still find them now, save for the newest, which should be posted in the near future," USCIS spokesman Dan Hetlage writes in an email.

In April of 2017, lesson plans that used to be available on USGIS.gov were taken down because they were outdated, another spokesman wrote to me last year. The Electronic Reading Room page is for documents that the USCIS is compelled, legally, to post publicly, because three or more parties have requested them through the Freedom of Information Act.

Nonetheless, to advocates, the taking down of old documents seemed like an unfair attempt to make the asylum-seeking process more difficult and opaque, at a time when recently inaugurated President Donald Trump had already made clear his belief that asylum-seekers coming to the U.S. are poorly vetted and potentially dangerous.

A new cache of emails, obtained by the Sunlight Foundation, a government-transparency advocacy group, suggest some reluctance to make USCIS resources public. In them, top officials from the USCIS's asylum training division discuss removing officer lesson plans from the website, in April of 2017. One staffer replies, double-checking whether the material should be deleted or archived—in other words, searchable on USCIS.gov, but flagged as outdated. Asylum head John L. Lafferty confirms he wants the old plans gone.

"I would prefer that the items be deleted completely, rather than archived," Lafferty writes on April 5th, 2017. He also writes that he "fully anticipate[s]" that members of the public would so frequently request to see the old training materials that the agency would eventually be legally compelled to put them up in the Electronic Reading Room.

"This is outrageous," says Matthew Hoppock, an immigration lawyer with a private practice in Kansas. Lafferty's statement about expecting to have to post the documents again "basically concedes this is material that should have been transferred to the National Archives, not deleted," Hoppock says.

Hetlage didn't respond to requests for comment on the emails the Sunlight Foundation obtained.

Refugee advocates don't believe the USCIS has been transparent about the movement and deletion of asylum documents.

"At the end of the day, the asylum seeker bears the burden [of demonstrating] that they meet the standard for asylum," says Victoria Neilson, managing attorney for the Catholic Legal Immigration Network's Defending Vulnerable Populations Project. "It's not a game where the government gets to hide the ball and you have to guess what the standard is."

To determine how difficult it's become to find asylum officer training documents, I typed "lesson plan" into the Electronic Reading Room's search bar. Numerous documents popped up. But it's not clear which ones are current and which are historical.

Freedom of Information Act requests are often for historical documents, so I had to ask Hetlage how to tell which asylum officer lesson plans were current. He answered that all of them are current and in use now. No older versions of asylum training papers are up on USCIS.gov, he says.

Lawyers who work with asylum seekers, interviewed both a year ago and this week, all believe, however, that not all asylum officer lesson plans are online and that obsolete lesson plans are mixed in with current ones, unlabeled. "It seems to be a clear policy decision to make it more difficult for practitioners to understand what kind of reasoning the asylum officers are using," Neilson says.

When informed about Hetlage's answer that all of the documents in the Electronic Reading Room are ones in current practice, Neilson says: "It would be helpful for USCIS to be on record stating that."

Neilson says that, for her work, it's important to have access to old lesson plans, as well as current ones. "If we had the newer version and the older version, then we can look at the differences and see how the administration's thinking has changed on particular issues."

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