STEVE INSKEEP, HOST:
What is President Trump trying to say about judges and due process? Over the weekend, the president wrote on Twitter that he wanted to deport migrants without referring to judges or courts first. At a campaign-style rally last night, the president tossed aside proposals for more immigration judges to hear deportation cases.
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PRESIDENT DONALD TRUMP: We have thousands of judges already. So if a person comes into our country, steps one foot, they take their name, they bring them to court. They then release them, they go into the country. You never see them again. It's the craziest thing I've ever seen. So I said today - I said today, I don't want judges. I want ICE and Border Patrol agents.
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INSKEEP: Sounds straightforward, but what's hard here is matching the president's statements with basic facts. Let's recall, the Constitution requires due process for anyone in the United States, including a migrant. Yet some migrants are swiftly deported without seeing a judge already. Theresa Cardinal Brown worked on immigration policy in the administrations of Presidents Obama and George W. Bush, and she's now at the Bipartisan Policy Center. She's in our studios. Good morning.
THERESA CARDINAL BROWN: Good morning.
INSKEEP: Does a migrant have a right specifically to a court hearing before being deported?
BROWN: Well, I'd say it depends. And the one thing I would say is that the immigration law sets out exactly who is entitled to a hearing before a judge, who can be deported administratively without a hearing. So if the president wanted to do away with the courts, he'd have to go through Congress to do it. He can't just do that by himself.
INSKEEP: So is this the basic rule? If you are not claiming asylum, if you're just somebody crossing the border looking for work and they just caught you as you're crossing the border, they can throw you right back.
BROWN: Yeah. That's a process called expedited removal. And that's done without going to an immigration judge. But if you - that process also lays out in statute that if someone subject to expedited removal expresses a fear of returning home or an intent to apply for asylum, then they must be referred to an immigration judge. So that's when the process diverges.
INSKEEP: And it sounds like those are the people the president is unhappy with, according to our White House correspondent Scott Horsley, who said the administration considers that an inconvenient loophole, that you can say I'm here applying for asylum; I have a fear of violence in my home country, and therefore, I need to see a judge to see if I have a right to stay. Is there any way, legally, to deny that person a court hearing?
BROWN: Not if they express a credible fear. So the process is that if you say you have a fear of going home, you're interviewed by an asylum officer to determine if that is a credible fear. That standard's not terribly high, but it's there. And if the officer thinks you have a credible fear then you must be referred to an immigration judge to file your asylum claim.
INSKEEP: Wait a minute. So this is not exactly what the president has been saying. The president has been saying, you just say the magic word asylum, and you get to stay in the United States for years waiting for a court hearing. First, you talk to a government official who sees you're making it up.
BROWN: Yeah. You do.
INSKEEP: And then you go to a judge.
BROWN: Exactly.
INSKEEP: OK. So there is that, but then there's the question of who qualifies for asylum at all. The attorney general, Jeff Sessions, has narrowed who can apply for asylum anyway. He wants it to be about political violence, political fear, political persecution, not gang violence or domestic violence. Are there any legal or international rules governing who the United States can say gets to be an asylum-seeker?
BROWN: Sure. So the international asylum conventions that the United States is party to say that asylum is if you have a fear of persecution on account of membership in a particular social group or race, ethnicity, something like that. What the attorney general said recently in a decision that is binding on all of the administration is that if your persecution, if your fear of violence is not from the government but from private actors - say, domestic violence by a significant other or spouse...
INSKEEP: Gangs in El Salvador.
BROWN: ...Or gang violence or crime. That's a higher bar. First of all, there's not necessarily an inherent social group in being a victim of domestic violence in a country. And if you're saying that it's not the government persecuting you, you have a pretty high burden of proof to show that the government is unable or unwilling to prevent that violence from happening to you. The other thing he said is that for most individuals, you do need to say, why isn't it a viable thing for you to just go to another part of the country? Why do you have to come to the United States?
INSKEEP: Yeah.
BROWN: So that is raising the bar for asylum. And it's overturned some precedents that have been in place for about 10 years.
INSKEEP: But they can legally do that.
BROWN: They can legally - the attorney general can do that. What will happen most likely is, is individual cases go through the immigration courts with this new precedent. There is an opportunity to appeal some of those decisions to federal court, and federal courts weigh on whether or not that's the right standard.
INSKEEP: Briefly, let me ask about something else because the president last night complained about the number of incomplete cases. His complaint is that people get in the United States and wait for years for a hearing, and they get to live in the United States in meantime. Let's listen.
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TRUMP: I heard a number today which is hard to believe. We have 700,000 people waiting to go on trial, 700 - this isn't from Trump. It was a disaster for Bush - although, we very much appreciated Laura Bush's lovely letter - it was a disaster for Bush. It was a disaster for Obama.
INSKEEP: Side reference there to Laura Bush saying that she protested the separation of parents and children. But 700,000 people waiting to go on trial because of Bush and Obama. You worked in those administrations. What went wrong?
BROWN: So a lot of those cases - yeah, the backlog started in the Bush administration, but it really accelerated under Obama because of the Central Americans arriving. Most Mexicans can be deported pretty immediately. Central Americans, again, often have due process. That created the backlog. The president's saying that he just wants to do away with the courts. You know, obviously, he can't do that without Congress. The other option that many in Congress are looking at, well, how about we grow the courts? What happened under both Bush and Obama is we grew the border apparatus, number of Border Patrol agents, number of people could be apprehended. We didn't grow the back end of the system, the courts. That's resulted in this backlog that takes two years. If we were to add more judges, reduce that backlog to a couple months, that would probably help with the problem the president is trying to address.
INSKEEP: And Republicans and Democrats have been talking about that. Theresa Cardinal Brown of the Bipartisan Policy Center, thanks.
BROWN: You're welcome. Transcript provided by NPR, Copyright NPR.