The Shifting U.S. Policy on Asylum

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“We are going to build a big, fat, beautiful wall, and Mexico is going to pay for it.” Whether meant as a promise or a threat, we have heard this refrain repeated many times by President Donald J. Trump since 2015. The intended purpose of his wall, according to the President, is to prevent rapists, criminals, and drug traffickers from entering the United States through our southern border. But what about the children, women and men who are none of the above fleeing poverty, gang violence, crime and corruption who seek safe haven and asylum in the United States? What is the obligation of the U.S.?

While events at the border in recent months seem like a throwback to the Old Wild West, and with U.S. asylum policy changing sometimes on a daily basis, there are basic rules that govern who should or should not be admitted to the U.S., with or without a visa.

Rule of Law

Building upon the 1948 Universal Declaration of Human rights, the 1951 United Nations Convention Relating to the Status of Refugees defines who is a refugee . It sets out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum. The criteria for designation as a refugee and asylee is the same, except that the former is an individual outside the U.S. and an asylee is physically present in the U.S.

In 1980, the U.S. adopted the 1968 UN Protocol to the Convention pertaining to asylees and refugees. To qualify, an immigrant has the burden to demonstrate that he or she is “unable or unwilling to return to” his or her native country because of “persecution or a well -founded fear or persecution” on account of “race, religion, nationality, membership in a particular social group, or political opinion,” INA sec. 101(a)(42)(A). See also USCIS form I-589, Application for Asylum and Withholding of Removal.

Under U.S. law, a petition for asylum must be made within one year of arrival on U.S soil. INA Sec. 208(a)(2)(B). Immigrants in removal proceedings are not eligible for asylum. INA Sec. 235(d)(7)(B). On May 31, 2019, in a humanitarian gesture, the Trump Administration made an exception for unaccompanied minors, ie under age 18. INA sec. 208(b)(3)(C).

Policy in Flux

A citizen (or lawyer) could be excused if one finds shifting U.S. asylum policy confusing, particularly following the unwillingness of Congress to appropriate funds, estimated in the range of $25 billion, to build the President’s remaining unfenced 1,279 mile wall along the nearly 2000 mile U.S. – Mexican border.

In phases and multiple executive orders, Trump Administrative policy initiatives have included partially shutting down the federal government; separating children from their parents; reassigning TSA staff and federal air marshals to the border; declaring a national emergency for the purpose of spending unappropriated funds to build the wall; reduction of ports of entry for asylum seekers; threats to close all southern land border entries; deploying U.S. military to the border; firing the Attorney General and the Secretary of Homeland Security because of their “lack of toughness” on immigration; cuts in foreign aid to Central American countries (targeting Guatemala, El Salvador and Honduras, NB: not Belize); refusal by federal authorities to accept asylee applications unless the applicant enters the U.S. at a designated port; accepting asylum applications but then returning the applicant to a holding camp in Mexico; threatening to bus asylum seekers to “sanctuary cities” as “punishment”; and finally, threatening to impose a tariff up to 25% on Mexican goods unless Mexico takes remedial action.

Narrowing standards, the Trump Administration has redefined asylum to exclude gang and domestic violence in cases where local police fail to offer victim protection.

In May, 2019, more than 100,000 migrants sought refuge at the border. Sadly, those seeking escape from government corruption or poverty, unless they can show persecution or threat of persecution, do not qualify for asylum under U.S. law. Even those who have suffered persecution or threats of violence will have difficulty meeting their burden without police reports, hospital or medical records, court documents, photographs, newspaper accounts and other physical evidence to support their claim.

The U.S. approach to date fails both from a policy and legal standpoint.

Courts and Congress Weigh In

But if the Trump Administration has not had much success in stemming the flow of migrants, U.S. courts and Congress offer mixed results as well.

On June 3, 2019, , in Washington, DC, U.S. District Judge Trevor McFadden, a Trump appointee denied a House request to temporarily stop spending on the wall, saying Congress lacked legal standing to sue the president for allegedly overstepping his power by diverting billions of dollars in the defense budget intended for other purposes. The decision is at odds with U.S. District Judge Haywood Gilliam Jr. of the Northern District of California, an Obama appointee, temporarily blocking part of the wall plan a month earlier because the Administration was using money Congress never appropriated for that purpose.

Other federal courts have ordered the Administration to re-unite children separated from their parents; instructed that applicants may seek asylum even if they did not enter the U.S. at an approved port of entry; ordered the Administration to release unaccompanied minors from an unlicensed and “prison-like” detention camp in Homestead, FL based on the 1997 settlement agreement in Flores v. Reno (U.S. District Court, Los Angeles). That agreement set national standards for the treatment and placement of minors in INS custody (now Homeland Security).

Complaints over the treatment of migrants keep coming. A DHS Inspector General Report in May, 2019, found that the El Paso Border Patrol processing center designed for 125 persons was so overcrowded that detainees numbering up to 900 persons at one point, stood on toilets “to gain breathing space.” Relief was ordered.

On May 30, 2019, the ACLU filed suit in Louisiana against the Administration for denying release of 100s of detainees languishing in immigration prison after lawfully seeking asylum. According to the June 2, 2019, NY Times, the US is holding over 80,000 asylum seekers in detention.

On May 31, 2019, the ABA issued a report calling upon the federal government to “immediately find legal and humane alternatives to relieve the suffering” of immigrant children in custody.

On May 30, 2019, the National Foreign Trade Council, representing the largest exporters in the US, said that the Administration’s intent to impose tariffs on Mexican goods related to immigration issues would be a “colossal blunder” that could destabilize trade relationship with Mexico and cause significant damage to U.S. industries by way of retaliatory action. The U.S. Chamber of Commerce agreed.

Clearly there is a crisis at the border. The Administration’s latest approach has been to shift the burden to Mexico to solve the problem. Unclear, in this fog, is what would constitute a resolution.

As the battle along the border continues, comprehensive immigration reform remains elusive ever since the effort led by the Senate’s bi-partisan “Gang of Six,” including John McCain, Lindsey Graham and Ted Kennedy, in 2014. The GOP controlled House never brought the passed Senate compromise bill to a vote. Left on the table is what to do about the 800,000 DACA immigrants ( Deferred Action for Childhood Arrivals), the approximately 11 million undocumented immigrants in the U.S. and the shortage of workers to satisfy a growing U.S. economy.

Recently, the Administration has proposed an overhaul that would reduce family based immigration to be largely replaced by a merit based system favoring immigrants with points given for special skills, advanced education, and fluency in English, among other criteria. Asylum was not addressed. Given different priorities by Congress, the proposal is not expected to go far.

The Way Ahead

Our current asylum system is inefficient, costly, inhumane, unprepared, backlogged, and understaffed. Asylum cases are scheduled 2-4 years out. The fix includes more effective use of technology, better trained and increased border staff, modernized border and court facilities, more immigration judges and staff, an independent adjudicatory system apart from the Department of Justice, closer partnership with Mexico to resolve issues, and speedier “credible fear” interviews.

Likewise, the system would benefit from limiting detention to only those migrants with criminal records or national security issues, ending the separation of children and parents, working with and restoring foreign aid to Central American countries to eliminate some of the economic and sociological causes of mass migration.

Finally, there needs to be less heated derogatory rhetoric about migrants emanating from Washington, and a Congress willing to step up to bring U.S. immigration policy into the 21 Century.

With the present crisis at the border looming large, immigration policy is expected to play a significant role in the 2020 presidential campaign, in addition to a robust debate over “American values” and U.S. leadership in the world. Unquestionably, we can do better.


About The Author

George Bruno practices immigration law, of counsel, with Mesa Law LLC, in Manchester, NH, and is a principal in the International Resource Group, a consulting firm. He served as U.S. Ambassador to Belize, 1994-1997. He may be contacted at www.internationalresourcegroup.org


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.