Last week, President Trump issued a memorandum outlining his latest wishlist of ways to undermine the integrity of our nation’s asylum system. Among them was a direction to the Department of Homeland Security (DHS) to change how it conducts credible fear interviews, the threshold screening interview given to thousands of asylum seekers every year. DHS is reportedly now planning to deploy Customs and Border Protection (CBP) officers – enforcement agents whose mission is to “secure the border” – to conduct credible fear interviews with asylum seekers instead of using professional asylum officers from the United States Citizenship and Immigration Service (USCIS). By replacing neutral asylum officers with law enforcement officers, this proposal is a blatant effort to rig the system against asylum seekers and drive down the number of people who pass their screening interviews.

In 1996, Congress established a process called “expedited removal” through which immigration officers can summarily order the deportation of certain noncitizens without a proper court hearing or a judge’s review. To ensure that no one with a potentially meritorious asylum claim would be sent back to danger, though, Congress required that any person who requests asylum or indicates a fear of return to their home country first receive a credible fear interview with an asylum officer. Because of the life or death stakes involved, Congress deliberately made the credible fear standard a low, threshold one: the asylum seeker need only show a “significant possibility” that there is a ten percent chance they would be persecuted in their home country. If they pass their credible fear interview, they get a chance to show they are eligible for asylum in a full deportation hearing with evidence, witnesses, and appeals. If they don’t, then they are quickly deported. 

Credible fear interviews involve the discussion of sensitive, difficult issues. Asylum seekers, typically traumatized and exhausted by their journey to the United States, are asked to disclose to strangers deeply personal information about the reasons they fled their homes, which can include sexual violence, assault, death threats, kidnapping, and torture. Federal law thus requires that credible fear interviews be conducted in a “nonadversarial manner,” and that the people conducting them have “professional training in country conditions, asylum law, and interview techniques.” Accordingly, credible fear interviews have always been conducted by professionals who specialize in asylum adjudication, not immigration enforcement.

Those professional asylum officers work for USCIS, the agency within DHS responsible for adjudicating applications for immigration status and benefits, including asylum applications. But the Trump administration wants to swap USCIS asylum officers for CBP officers. Why? Because they believe that CBP officers will be more hostile to asylum-seekers’ claims and more likely to deny cases at the credible fear stage. 

This proposal is highly concerning.

First, CBP is a law enforcement agency. CBP’s mission and responsibilities are incompatible with the sensitive, nonadversarial nature of credible fear interviews. Having a CBP officer conduct a credible fear interview is like having an arresting police officer also sit as the judge.  Consolidating enforcement and adjudication responsibilities threatens to undermine the neutrality and fairness of the screening process Congress carefully crafted.

Moreover, CBP has a long history of mistreating asylum seekers. CBP officers are required by law to ask individuals subject to expedited removal whether they fear persecution, and to refer every person who has such a fear to USCIS asylum officers for a credible fear interview. Yet CBP officers regularly fail to ask about fear of persecution; fail to refer individuals who express a fear of return; and interfere with asylum seekers’ ability to pursue their claims through harassment, threats, and misinformation. As a result, countless asylum seekers have been removed from the United States without having had any real chance to apply for asylum.    

For example, Braulia, a Guatemalan citizen and mother of four U.S. citizen children, was removed under an expedited removal order even though she told CBP officers that she was afraid to be sent to Guatemala because her father had been murdered and her mother had been targeted for extortion by gangs. Although Braulia told the officers that she was illiterate, they forced her to initial that she had read their account of her interview, which incorrectly stated that she did not claim fear. She was deported to Guatemala, where she was later raped and shot by a gang.    

CBP officers have also been documented using coercive tactics to convince individuals to agree to speedy deportations; providing false and misleading information on expedited removal forms; and physically and verbally abusing migrants in their custody. Between January 2012 and June 2015, CBP received nearly 1,300 complaints of physical abuse.

All of these facts support the administration’s conclusion that having CBP officers conduct credible fear interviews will stack the deck against asylum seekers and result in many more people being denied the chance to have their claims heard. That would put thousands of people at risk of being erroneously returned to danger or even death. And it would undermine the laws that Congress long ago put into place to protect people fleeing persecution.

“Do you want the Boston marathon bomber to vote?” is a provocative question that acts as a smokescreen concealing the real issue — why and when did America decide that people convicted of a crime should not vote?

The historical context for this comes from old English common law which justified the concept of “civil death” as punishment for conviction of treason or a felony because a person committing a crime had “corrupt blood,” making the person “dead in the law.” America did not immediately adopt this position because the Constitution was silent on voting rights — it neither granted nor denied anyone the right to vote.

Before the Civil War, as a Brennan Center report shows, voting rights and the loss of those rights weren’t linked to convictions. America did not incarcerate in large numbers, and states that adopted broad felony disenfranchisement did so after establishing full white male suffrage by eliminating property tests. After the Civil War, places like Louisiana granted poor illiterate whites the right to vote while denying poor illiterate Blacks the right to vote by basing the right on whether your grandfather could vote, hence the term “grandfathered in”.

In 1787, the Constitution considered Black people as three-fifths of a human being. Blacks voting was not an issue. Then came the Civil War and the 13th, 14th, and 15th Amendments. Enslaving people, except as punishment for a crime, was illegal. Birthright U.S. citizenship was established, explicitly including freed enslaved people. Black men got the right to vote. Over 2,000 Black men were elected to government offices, and they began purchasing or homesteading property and voting.

America responded. The exception in the 13th Amendment allowing slavery as punishment for a crime was paired with “Black Codes,” which basically criminalized Black life. Blacks convicted under Black Code laws were leased out to do work, providing cheap labor to boost the South’s faltering economy. In 1850, 2% of prisoners in Alabama were non-white. By 1870, it was 74%. At least 90% of the “leased” prison laborers were Black.  

In the 15 years between 1865 and 1880, at least 13 states — more than a third of the country’s 38 states — enacted broad felony disenfranchisement laws. The theory was simple — convict them of crimes, strip away the right to vote, imprison them, and lease them out as convict labor and Blacks would be returned to a condition as close to slavery as possible.

No one tried to hide the intent of these laws.

In 1894, a white South Carolina newspaper argued that amendments to the voting laws were necessary to avoid whites being swept away at the polls by the Black vote. In 1901, Alabama amended its Constitution to expand disenfranchisement to all crimes involving “moral turpitude” — a vague term that was applied to felonies and misdemeanors. The president of that constitutional convention argued that manipulating the ballot to exclude Blacks was justified because of the need to avoid the “menace of Negro domination,” especially since Blacks were inferior to whites.

It wasn’t just the South. In 1874, New York was the only state that required property ownership for Blacks to vote. This law clearly violated the 15th Amendment prohibition on race-based voting restrictions. A governor-appointed “Constitutional Commission” finally struck down the property law while, simultaneously, quietly amending the New York Constitution to impose felony disenfranchisement. New York could not prevent Blacks from voting because of poverty, so it found a solution in the criminal legal system.

What is the result of this history? Black Americans of voting age are more than four times as likely to lose their voting rights than the rest of the adult population. One of every 13 Black adults is disenfranchised. In some states like Virginia, Kentucky, Tennessee, and, until recently, Florida, one in five Blacks have been disenfranchised. In total, 2.2 million Black citizens are banned from voting. Thirty-eight percent of the disenfranchised population in America is Black.

The two states that allow people in prison to vote are Vermont and Maine, the two whitest states in the country. In many other states, incarcerated people are stripped of their vote but remain counted as part of the populations of the (often very white and rural) districts where they are locked up, boosting the electoral advantage of those districts. A 2003 study found that the larger the state’s Black population, the more likely the state was to pass the most stringent laws that permanently denied people convicted of crimes the right to vote.

America is isolated on this issue — and not in a good way. South Africa, Canada, Ireland, and Spain allow everyone in prison to vote. Germany disenfranchises for certain offenses like treason, but only for a maximum of five years. Finland and New Zealand disenfranchise only for election offenses and only for a few years beyond completion of a sentence. In France, only election offenses and abuse of public power warrant disenfranchisement. When we compare America to the other heirs of the English legal tradition, one thing becomes clear: The only reason our practice resulted in racial disparity is that we designed it that way.

Why aren’t we asking why countries around the world handle this issue so differently? Doesn’t revoking voting rights of people in prison unnecessarily strip them of dignity and make rehabilitation that much more difficult? Justifications offered now regarding disenfranchisement ignore the undeniable fact that the practice in America is clearly connected to an attempt to deny Blacks full rights as citizens. We cannot change what happened in the past, but we are better than that now — we can fix it now. Restoration of voting rights to people in prison is a concept we should all support. It is consistent with whom we claim to be.

Today the ACLU, the ACLU of Washington, the American Immigration Council, and Northwest Immigrant Rights Project launched a legal challenge to the Trump administration’s latest assault on people who have come to the United States to seek refuge from persecution: jailing asylum seekers without even allowing a judge to decide if there’s any reason to lock them up. Attorney General William Barr’s recent decision in Matter of M-S- seeks to eliminate this basic form of due process and puts thousands of asylum seekers at risk of being wrongfully imprisoned. 

M-S- specifically applies to individuals who enter the United States without documents and are apprehended by the authorities soon after they cross the border. Under the immigration laws, those individuals can be deported immediately—unless an asylum officer finds, after an interview, that they have a “credible fear” of persecution or torture, meaning there is a “significant possibility” that they legally qualify for asylum. Asylum seekers who pass this screening will then move on to a hearing on their asylum claims in immigration court.

ICE has the authority to detain asylum seekers while these immigration court proceedings move forward. But the asylum seekers addressed in M-S- have, until now, had the right to a bond hearing where an immigration judge would decide if he or she posed a flight risk or danger to the community and should be locked up, or should instead be released from custody.

M-S- eviscerates that basic form of due process. If the decision is allowed to go into effect, asylum seekers will now be locked up without any hearing before a judge. Instead, they will be left only with the option of asking ICE for release through what’s known as the “parole process”—a process that courts have found to be a sham. If not stopped, M-S- could result in the detention of thousands of men and women who shouldn’t be behind bars.

The decision also puts asylum seekers who have already been released on bond in jeopardy. Our lead plaintiff, Yolany Padilla, is seeking asylum from violence and persecution in Honduras, with her 6-year-old son. An immigration judge ordered her release on an $8,000 bond. Under the Attorney General’s decision, Yolany now faces the risk of being redetained—and separated from her child—even though a judge found she poses no flight risk and no threat to anyone.

For more than a century, the Supreme Court has held that all persons who have entered the United States have due process rights, and the Court has emphasized that “[f]reedom from imprisonment . . . lies at the heart of the liberty” protected by the Due Process Clause of the Constitution. The bedrock form of due process against unlawful detention is a hearing, before a neutral adjudicator, to decide if the person should be locked up. M-S- violates that basic right.

The decision is also pointlessly cruel and irrational. It makes no sense to lock people up without even having a judge consider whether they should be detained—it simply guarantees that we will imprison people who don’t need to be imprisoned. That is especially true when it comes to asylum seekers. Studies confirm that asylum seekers pose no threat to public safety and are highly motivated to fight their cases and show up for court. And nothing about a hearing prevents detention in the rare case where someone does pose a risk: the judge can just deny release. 

But ultimately this isn't about rational immigration policy or protecting public safety. The Trump administration always has made its real motives clear: it wants to deter immigrants from seeking refuge in the United States and punish people who apply for protection under our laws. But our Constitution does not allow the government to put people behind bars without due process of law.