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With Trump promising to “go in a tougher direction” with his replacement for DHS head, what can Trump legally do to go in that direction in light of the recent ruling against his “wait in Mexico” policy for asylum seekers? We speak to Denise Bell of Amnesty International

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JACQUELINE LUQMAN: I’m Jacqueline Luqman with The Real News Network in Baltimore.

Kirstjen Nielsen resigned last week from her role as head of the Department of Homeland Security. Sources close to Nielson claim that she could no longer defend Trump’s indefensible immigration policies. With Trump promising to go in a tougher direction with who will replace Nielsen in carrying out those policies at DHS, what can Trump legally do to go in that tougher direction, especially in light of the recent ruling against his policy to force asylum seekers to wait in Mexico instead of the U.S. for their hearing in front of a U.S. judge? And is this talk of going in a tougher direction on those policies really a cover for something more insidious?

Joining me today to talk about these issues is Denise Bell. Denise is the Researcher for Refugee and Migrant Rights for Amnesty International, and was previously Senior Campaigner for Refugee and Migrant Rights, leading implementation of Amnesty’s I Welcome campaign on refugee rights. Denise, thank you so much for joining me

DENISE BELL: Thank you for having me, Jacqueline. It’s good to be back.

JACQUELINE LUQMAN: So before we get started, let’s take a listen to some comments Trump made at a press conference he had in, I believe, Texas today on the immigration issue.

DONALD TRUMP: We have done a great job at the border with bad laws. It’s very important that the Democrats in Congress change these loopholes. If they don’t change them, we’re just going to be fighting. But the power of the economy, it’s like a magnet. It’s bringing more people than we’ve seen in a long time.

JACQUELINE LUQMAN: So Denise, I know that is loaded, that’s a lot of loaded statements he made there. So what are your responses to a couple of the things he said? What were your first responses?

DENISE BELL: Well, my first thought is that he’s done a bad job with great loss, at a great, bad loss. The only loopholes are ones that he has created. There’s a process in place, and he’s refused to resource it. And it’s just like any infrastructure that is not properly resourced with people and money, it starts to show stress. This process is our immigration system, and it permits, it guarantees, the right to seek asylum. People who are coming to the border are only doing what U.S. law permits, and there’s nothing wrong with that. Countries around the world do the same thing, offer the right to seek asylum. This is about border management and a failure to respect the laws of the country.

JACQUELINE LUQMAN: So let’s cover a little bit of background so we understand what the particular issue is here with this ruling from a federal judge earlier this week. What was the judge’s ruling in regard to this policy of forcing asylum seekers to wait for their court hearings in Mexico?

DENISE BELL: Well, once again, the courts have intervened, as is their right as the third branch, to assess whether another branch is following the law. And they said no, they are not. And at heart was they were looking at whether the government’s policy, called the “Migrant Protection [Protocols]” policy, or as other people know, “Remain in Mexico,” was lawful. And what they found was in this instance, the way that it was being implemented it was not. At the minimum, the procedural safeguards were not in place to ensure that the U.S. did not return people to the possibility of harm in Mexico while they awaited their court hearings in the U.S.

JACQUELINE LUQMAN: So the possibility of harm, returning people to the possibility of harm, why was this the particular issue in this court hearing and why is that important in Trump trying to force people to wait for their ruling in Mexico instead of in the United States, or to wait for their day in court for their asylum hearing in Mexico rather than in the U.S.?

DENISE BELL: It’s an excellent question. This is, as you know, quite complicated. So I’m going to try to distill it down to very simple parts that I think–I hope help people understand what we’re actually grappling with here is people have the right to seek asylum. And when they come to the U.S. border, they can go through something called a credible fear process, which is an initial assessment of whether they might have an assessment claim. And then they’re allowed in the U.S. to pursue their claim, frequently in detention, not always. The court was not ruling on whether the government could detain people, the court was not ruling on whether this was a wise policy. It was ruling whether the government, by not admitting in people who had an initial assessment for asylum, we were actually harming them.

At heart really, as Amnesty has documented, is is Mexico a safe place for asylum seekers? And what the court found was that this assessment was not meeting basic procedural safeguards. The government created a policy–a procedure, I would say–out of nothing, mishmashed a few things together to say that it was looking at whether there would be harm to asylum seekers if they had to wait in Mexico. The court said no, this is not satisfactory, and so it issued a preliminary injunction that’s effective April 12, and it’s applicable across the country.

JACQUELINE LUQMAN: So you mentioned detention and detaining asylum seekers, which really quickly, can you talk about the international law that is also at issue that would preclude Trump from doing something that he commented about a couple of days ago before the ruling, when he said he wanted to get rid of immigration or asylum judges.

DENISE BELL: Oh my gosh. I actually was with the Department of Justice for years, and I was an attorney advisor on an immigration court. So when he says this, this actually goes to the very heart of our constitutional protections of due process and guaranteeing people a day in court, a fair shot. Courts are set up to process asylum claims. Just like any other court for any other claim, people have the right to their day in court. The only difference is asylum seekers are not guaranteed a right to counsel as U.S. citizens are with criminal cases, for example. They can have a lawyer, but they have to pay for it on their own dime or get pro-bono counsel, which makes the case very, very hard.

Let’s be clear. Asylum is not about telling a compelling story, it’s about a legal process with legal standards. And only people who meet the legal standards approved by the immigration court, set out in policies through the Executive Office for Immigration Review, but also five federal courts, can be granted asylum. So this is not an ad hoc way to get in, this is a legal process Secondly, and what’s really important, and when you’d asked about detention, in international human rights law, there is a presumption against detention. Detention should only be used in limited circumstances and it should be based on an individual assessment with judicial review. In the U.S., the law says very clearly that people can be released if they don’t pose a threat to the community or a national security risk or a flight risk. But what we’re finding instead is that the government is seeking to deter and punish people for seeking asylum by locking them up for as long as possible. And they’re threatening to do it with families again.

JACQUELINE LUQMAN: So I’m glad you brought this discussion around to the issue of families seeking asylum in detention, because Trump’s response to the judge’s ruling was to indicate that he wants to go in a tougher direction in regard to immigration policies. And he is poised to do that with whomever he’s going to pick to replace Kirstjen Nielsen as head of DHS. So this puts him in a position to reinstate the zero tolerance policy that created the family separations, the child detentions and the resulting deaths of children that occurred last year in U.S. custody in detentions. But Trump says this time that he is not going to reimplement the zero tolerance policy. He is introducing something, or he might introduce, something called a binary choice. Can you explain what that is, and how is it different from the original zero tolerance detention policy, or is it different at all?

DENISE BELL: I am so glad you brought this up, this is an excellent question. This is just a sheep in different clothing, right? This is seeking, again, to punish families for seeking their children or seeking asylum. The way he’s trying to do it this time, zero tolerance was about prosecuting the adults in the family units so then they would be forcibly separated from their children, because adults and children cannot be put into adult immigration detention, and an adult who’s being prosecuted for the federal offense of what’s called illegal entry–Human Rights Law would say irregular but U.S. law says illegal entry–goes into adult immigration and cannot go into a family detention center. So they were forcing family separations deliberately, as well as just forcibly separating families.

Now they’re trying family separation by a different name. They’re saying, “Sure, ask for asylum and we’re going to give you a choice. You, the parent, you can stay with your child indefinitely in family detention so the family is kept together, or you can relinquish your custody of the child so the child is not detained. And then the child would be put into a separate shelter system, maybe, maybe not reunited with a sponsor in the U.S. So it’s really cruel. All of these policies are predicated on being cruel in order to deter and punish people who are just seeking what U.S. law says they can do, and that’s the right to seek asylum. If anybody in this country did this, we’d say, “One second, the law says we can do this. What are you doing punishing us for following the law?” That’s the perverted logic here.

JACQUELINE LUQMAN: So since this is just a wolf in another sheep’s fleece, clothing, this binary choice policy would probably be struck down by the court, just like the zero tolerance policies were stopped that led to the initial family separations. Because it sounds illegal, it sounds just as illegal.

DENISE BELL: I would imagine there will be an immediate legal challenge, just like all of the other policies that the president has put forward that have contradicted either the spirit or the letter of the law. Absolutely.

JACQUELINE LUQMAN: So you just came from a site visit in Florida. Could you tell us about that site visit, what happened there? And what was the site, first of all?

DENISE BELL: Absolutely. It’s called the temporary influx care facility, a mouthful, at Homestead in Florida. Most people have read about it, heard about it as the Homestead emergency shelter. Just this week on Monday, three members of Congress tried to tour the facility and were denied entry. This shelter holds, when I was there, about 2100 kids 13 to 17 who are unaccompanied. So these are unaccompanied children who came to the United States by themselves to ask for humanitarian protection, asylum, other protection. Now, we see these in the photos, these are the kids who are at the border right now who are alone. When they are processed at the border, then they are sent to Homestead, where they are waiting, on average, about 64 days.

Somebody said to me, “Denise, that doesn’t sound long.” I said, “If your kid was in custody in a shelter, wouldn’t that feel like a long time to you to be separated from them?” The facility is very, very institutionalized and highly regimented. It is not a place for children. They are warehousing children there. They are not doing what they are supposed to do, which is place children in small care settings that are based on the best interests of the child. There is a shelter system set up across the United States under the control of the Office of Refugee Resettlement which, is not part of immigration enforcement, that deals specifically with the needs of unaccompanied children who seek asylum here.

JACQUELINE LUQMAN: This is not that shelter–that is not the site you visited.

DENISE BELL: No. This is a completely different animal. It is not required to follow the same standards as the permanent shelters, and it’s evident. There are 2100 kids, the government just announced this week it’s going to expand it to 3200 in two weeks. That’s ridiculous. When we were there, they told us they didn’t have capacity.

JACQUELINE LUQMAN: So this is an ongoing story, it is an ongoing crisis, not because there is an actual crisis at the border, but because it seems that this is a crisis, as you said, Denise, that this president, under this administration, continues to create by thwarting the law in order to meet his own ends. And I would love to have you back to talk about what those ends might be. And I think we need to have more discussions about this issue of immigration and child detention and family separation, and these policies that are not as they seem and are certainly not as broken as this administration continues to claim that they are.

So we’re out of time, and unfortunately, we have to leave it here. But thank you so much for joining me to shed more light on the situation, Denise from Amnesty International.

DENISE BELL: Thank you very much for having me. It’s always a pleasure.

JACQUELINE LUQMAN: And this is Jacqueline Luqman with The Real News Network from Baltimore, Maryland.

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Denise is the Researcher for Refugee and Migrant Rights, and was previously Senior Campaigner for Refugee and Migrant Rights, leading implementation of Amnesty’s I Welcome campaign on refugee rights. She came to AIUSA from the U.S. Department of Justice, where she was an Attorney Advisor on the New York Immigration Court. She was a Sudan Country Specialist for AIUSA and the campaigner for its Darfur campaign. She has worked in various capacities on forced displacement issues since the mid-1990s, when she worked with refugees and IDPs in Croatia following the Dayton Peace Accord. She is barred in the state of New York and sits on the City Bar’s Immigration and Nationality Law Committee.