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Guest opinion

What Martha McSally won't tell us about her border bill

U.S. Rep. Martha McSally showed last week how little she understands our southern border — and how well she understands her political campaign.

At a May 22 congressional hearing on Central American immigrants and border security, McSally said it's time to "build a policy wall" to close "loopholes" in U.S. immigration law that make it "easy" for Central Americans to apply for political asylum.

McSally says her new co-sponsored immigration bill is about "combating fraud" in the asylum process and protecting the victims of trafficking. It's not. The "loopholes" she's talking about are protections put in place by Congress and the courts to protect immigrant children from being put in detention. McSally's bill would sweep those away.

McSally evidently hopes her hardline tack on immigration will make her look tough on border issues as she prepares for an uphill Senate primary against ultra-conservatives Joe Arpaio and Kelli Ward. But her arguments are based on half-truths and unfounded assumptions.

McSally is correct that the number of asylum petitions referred to immigration courts rose from 5,100 in 2008 to 92,000 in 2016, according to Department of Homeland Security data. But this doesn't mean migrants are "exploiting the system."

These are people whom DHS agents believed met a "credible fear" threshold to be able to plead their case before an immigration judge. McSally asserts that all people have to do is "simply say" they have a credible fear. In fact, the bar to passing a credible fear test is quite high. This is not an easy ticket to entry. All who take the credible fear test have their names and fingerprints vetted by a national security database, and that is only the beginning of a long process of vetting.

Moreover, some migrants who might be eligible to apply for asylum are dissuaded or misinformed by U.S. border agents, prompting the Inter-American Human Rights Commission to hold a hearing on this issue last year.

As with any administrative procedure, the potential for fraud in an asylum application exists. Yet, there is no evidence that the uptick in asylum referrals since 2008 is because these petitions are fraudulent.  That argument ignores the rise in world refugees, a trend that is especially severe in Central America, where the United Nations High Commission for Refugees reports that the number of people fleeing violence rose by 58 percent in 2017.

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McSally says that "around 90 percent" of asylum claimants are "released into the country" pending their court hearing. But she is using numbers from 2013 that are no longer accurate. The Trump administration's current policy of choice is to detain as many asylum applicants as possible, a policy the United Nations recently called "punitive, unreasonably long, unnecessary and costly."

In a federal lawsuit filed in March, the American Civil Liberties Union and a coalition of civil rights groups contends that the Trump administration is wielding indefinite detention as a threat to deter future asylum seekers and as part of an ongoing assault to undermine the asylum system.

Of those asylum petitioners who are released, McSally says that "many" do not show up to their immigration court date, painting this as evidence of fraudulent asylum claims. Yet, the latest data from the Executive Office for Immigration Review, part of the Department of Justice, indicates that asylum applicant removal orders in absentia, that is, an order given by a judge when an applicant doesn't show up for a hearing, dropped by 17 percent from 2008 to 2016. Only in 2017 do we see a 36 percent increase in the number of this type of removal orders over 2016.

The data on unaccompanied minors show that the number of in absentia removal orders rose from 2,138 in 2014 to 6,931 in 2017. Since EOIR does not provide the total number of removal orders, it's impossible to determine whether or not this is an increase in the percentage of minors not showing up for an asylum hearing.

What we do know is that this does not, on its face, constitute proof of asylum fraud. There are many reasons why people might not show up for an asylum hearing, including lack of knowledge about the asylum process, failure to receive notice of court appointments or fear that they might be deported directly from the courthouse, particularly given the rumors that abounded after Trump's election.

A key factor is access to legal representation. Government statistics show that 98 percent of children and families are in compliance with their immigration court appearance obligations when they have legal counsel. 

But McSally's bill makes it harder for the most vulnerable immigrants—children fleeing violence—to seek legal advice because more of them will be kept in jail or deported without adequate due process. The "loopholes" McSally wants closed are legal protections granted by Congress and the courts against detaining children and separating families. Sections 5501 and 5506 of McSally's bill make it easier to jail and deport immigrant children and targets for deportation parents or other relatives who try to regain custody of the children.

McSally uses the specter of the MS-13 gang to justify punishing immigrant children. She wants us to conflate all Central American migrants with the potential for criminal activity, even though there is no evidence that the U.S. presence of MS-13 is growing, much less that it is connected to the migration of Central American youth, most of whom are fleeing such gangs in their countries of origin.

As the Washington Post notes, despite a recent increase in Central American asylum petitions, immigration across the southern border is less than half of what it was a decade ago. A CNN investigation earlier this month showed that there is no clear evidence the border is becoming more dangerous; indeed, being a border patrol agent is the least dangerous of all law enforcement jobs. This is a far cry from the picture of border "insanity" McSally wants us to believe.

Martha McSally is trumpeting fear over facts and shamefully using the plight of refugee children as fodder for her own imperiled campaign.

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Elizabeth Oglesby is associate professor of Latin American studies and Geography at the University of Arizona and a Public Voices fellow with the OpEd Project. She has more than 30 years of experience researching Central American migration issues.

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McSally kicking off her Senate campaign in January.