Physically, Ellen Moodie might be at her desk in Champaign, but mentally and legally she may be in a distant immigration court hearing. Photo care of Ellen Moodie
It’s been a bad year for international “rule of law.” The escalating war in Ukraine and the wretched failure of the United Nations (UN) to respond to the horror in Gaza deserve the attention they have received, but other international principles are dying as well. One of these is the right to asylum for those fleeing persecution. President Biden’s June 4 executive order limiting asylum processing at the border puts the US in the company of other countries quietly walking away from the 1951 UN Refugee Convention. When Donald Trump initiated similar practices in 2020 he hid behind a veneer of public health declarations, but Biden’s announcement reflects the new normal built upon racist fearmongering and the scapegoating of immigrants. Biden’s order implies that the US has an obligation to the rights of the persecuted only when it is convenient. The public perception that asylum seekers are abusing the system is part of the anti-immigrant rhetoric this election year. It’s a falsehood that thrives on the lack of understanding of the asylum process.
The Asylum System in the US
As a signatory to the 1951 Refugee Convention the US recognizes that those with a credible fear of persecution have a right to asylum. Applicants have one year to submit an I-589 application alleging fear of persecution. After an initial screening they are placed in the queue for a court hearing, during which the judge will examine the evidence for their claim. Contrary to public perception, 99 percent of applicants appear at their immigration asylum hearings.
Justice is not blind here. First, the US has recently raised the bar for proving one has a “credible fear of persecution,” making many more subject to immediate removal without ever accessing the asylum adjudication system. The US currently forces most applicants to apply and be screened outside the US, and excludes those who pass through third countries on their way to the US. These changes privilege those with the money and connections to travel by air after securing a visa. In addition, US foreign policy priorities strongly influence whose claim of persecution is accepted.
If an asylum screening and court determination are successful, the applicant receives documents providing a path to a work permit and a green card for permanent residency. Judges can also defer deportation, leaving applicants vulnerable to future policy changes.
The Quandary of Academic Allies
One of the documents that improves an applicant’s case is a statement on country conditions tailored to the specific circumstances of the applicant. University of Illinois anthropologist Ellen Moodie is part of a network of experts who regularly author reports entered as evidence in support of asylum applications. In a recent interview she described her role in the asylum process.
Moodie, a former journalist and specialist on post-conflict violence in El Salvador, first became involved in asylum cases nearly twenty years ago when a student requested support. Moodie was glad when the man was granted asylum, but it was ten years before she began regularly participating as a country specialist. Part of her hesitation was due to the concern shared by other academics and activists that participating in the court hearings was legitimizing a system of migration and asylum that is profoundly flawed and unjust. But as stories of detention and photos of children held behind chain link fences hit the news in the early 2010s, she reconsidered. As another content expert told her, you might not change the system by writing a report, but you might change one life.
Over the past decade the process of matching experts to cases has become more organized. Lawyers no longer find experts through word of mouth but through organizations like the Center for Gender and Refugee Studies at the University of California Hastings Law School. Moodie writes only on cases involving the specific kinds of persecution she has researched for thirty years: gang violence, police violence, and gender-based violence in El Salvador. Even then, the government attorneys occasionally challenge her qualifications.
The final statements submitted are labor intensive and between thirty and fifty pages long. Although some of the background information might be reused, each statement is tailored to the specific circumstances of the applicant, and it can take days to update for recent events or to reach out to other scholars and human rights organizations working on the topic. Over the past ten years Moodie has completed about three hundred reports supporting asylum applications.
Changing Patterns in Asylum Court
In the past, it was common to just submit the report with the applicant’s documents, but more recently the demand for in-court testimony has increased. Most of these are online appearances, and Moodie describes sitting at her kitchen table while mentally immersed in the strain of the courtroom. “Even though I am familiar with the court procedure now and confident in my expertise, I am nervous every single time,” she admits. “Someone’s life is on the line.”
The applicant’s legal team might ask her to elaborate on information in the report, and occasionally the judge will interrupt with their own questions. “It can feel uncomfortable,” she concedes, “but it’s a good sign when the judge wants more detail. It means they are paying attention to the case.” Department of Homeland Security lawyers occasionally have implied that she is in it for the money—and thus would say anything for those who pay her—but even one of the judges pointed out that professionals, including the lawyers in the courtroom, should be paid for their time. Moodie is actually paid for only about one in ten of the reports she writes; she only accepts a fee when it is provided through a grant or the pro bono budget of a corporate law firm.
Although these hearings are supposed to merely administer federal law, there are unhealthy patterns of differences in asylum cases between states and regions. “Louisiana, Arizona, and Texas have lower rates of acceptance, and, frankly, if it’s a case in Texas I am shocked if asylum is granted.” On a few occasions she has physically attended hearings held in courtrooms within the walls of a detention center. “Everything about that is grim,” Moodie recalls. “The cases have a much lower acceptance rate. It is hard for applicants to contact lawyers or gather documents. And detention can give the impression that the government has already decided the petition is weak, otherwise the applicant would have been released until the hearing.”
Sometimes applicants are traumatized by the experience and have difficulty remembering details or dates. Lawyers for the applicant might bring in psychologists to testify that these are common after-effects of exposure to violence. Cases can drag on for years (Moodie has been involved with one for nearly a decade). Occasionally the wording of US asylum law, which only recognizes persecution based on membership in a social group (based on religion, race, religion, nationality, or political opinion) fails to fit the pattern of persecution. When Moodie testified in the case of a woman who was targeted by gangs because of her former work as a police officer, she had to explain that this was similar to a permanent characteristic like race. Neither quitting her job nor moving had helped the woman escape threats.
Some of the cases are heartbreaking and denial can leave Moodie discouraged; “but other times, after living with the story for months, I get a text telling me that asylum was granted and I feel such relief.”
“First They Came for the Migrants . . .”
Biden’s June order limiting the ability of individuals to petition for asylum at the border is in direct violation of US commitments to the UN Convention on Refugees. False perceptions that asylum seekers are abusing the system or undeserving of US legal process are dangerous justifications for abandoning human rights. “First they came for the migrants” would be a tragic way to begin future accounts of this era.
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