The Truth About Asylum and the Caravan

Although headlines about the migrant caravan dwindled within days of the midterms, the topic marches on in my mind. As an immigration attorney, I could chalk this up as an occupational hazard. But as I was finalizing a client’s asylum filing last week and stapling a passport photo to the application, it became clear that it is much more than that. In that moment, I saw the “face” of the migrant caravan and it was not a gang member, drug dealer, murderer, or rapist – it was a smiling three-year-old girl, wearing a bright pink bow.

In the interest of full disclosure, this three-year-old girl and her mother were not in the recent caravan that became an election ploy. They came in an earlier caravan from Central America. If you hadn’t heard about earlier caravans, it’s because they haven’t presented an actual threat to national security, despite what the current administration would like you to believe. The recent caravan’s timing had the misfortune of coinciding with midterms, which promoted a plethora of campaign-inspired misinformation. Trying to summarize (and politicize) asylum 280 characters at a time perverted an established legal process, steeped in history and international obligations.

The purpose of this article isn’t to change minds (although, that would be okay). Rather, it is to explain the established asylum process in the United States — a system that has long-standing, comprehensive laws in place. It already requires “extreme” evaluation and vetting of each asylum applicant, despite the administration’s lies about “open borders” and “loopholes for criminals.”

United States Asylum Law

United States asylum law is derived from international agreements written after World War II and intends to provide protection to people fearing or fleeing persecution in their homeland. The United Nations Universal Declaration on Human Rights states, “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” Although asylum is not defined in international law, it is generally recognized as the protections provided by a country to refugees on its territory. At the very least, asylum is understood to provide basic protection by not forcibly returning refugees to the country where their life or freedom would be threatened.

Under United States asylum law, “Any alien who is physically present in the United States or who arrives in the United States . . . irrespective of such alien’s status may apply for asylum . . .” Accordingly, the individuals in the migrant caravan are, in fact, following the law by presenting themselves at the United States border (“physically present in the United States or who arrives in the United States”) even without a valid visa (“irrespective of such alien’s status”).

“Extreme” Evaluation

There are three asylum application processes in the United States. The applicable process depends on the applicant’s specific circumstance. In the case of the recent caravan, the migrants have been presenting themselves to Customs and Border Protection officials at the U.S. border at Tijuana, Mexico / San Diego, California and claiming asylum. Since the migrants do not have valid visas for admission, they are detained and placed in expedited removal proceedings. This means that they will be immediately removed from the United States, without a hearing in front of an Immigration Judge, unless they can demonstrate that they have a credible fear of persecution or torture in their home country. Credible fear means that there is a “significant possibility” the migrant will be able to establish eligibility for asylum or a related form of relief in a hearing before an Immigration Judge.

To establish eligibility for asylum, a “trier of fact” must determine that the applicant is a “refugee” within the meaning of United States immigration laws. The pertinent part of that definition reads, “The term ‘refugee’ means any person . . . who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . .” Although persecution is not specifically defined in United States immigration laws, the Board of Immigration Appeals has consistently defined it as “the infliction of suffering or harm upon those who differ . . . in a way regarded as offensive.” Persecution is greater than discrimination and is determined on a case-by-case basis. To establish a well-founded fear of future persecution, the applicant must show that his or her fear is genuine and that there is a reasonable possibility that he or she will suffer persecution in the future. Moreover, an applicant must also prove that his or her government is unable or unwilling to provide protection from the persecution. An applicant can establish that the government is unable or unwilling to control the infliction of harm or suffering by showing his or her attempts to obtain protection from government officials, as well as a pattern of government unresponsiveness or complicity.

So, to summarize, before the migrants in the caravan can even apply for asylum, they have already been detained, placed in expedited removal proceedings, and undergone a credible fear hearing based on an exceedingly technical set of legal standards. Not to mention, if credible fear is not found, the migrant will be removed from the United States and unable to apply for asylum. Does that sound like “open borders” and “loopholes” to you? If you’re still uncertain, please keep reading; the actual asylum process hasn’t even started yet.

If granted a hearing, the migrant retains the burden of establishing eligibility for asylum in Immigration Court. According to U.S. immigration law, the Immigration Judge has broad discretion in determining that the migrant’s testimony “is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.” At the hearing, the Immigration Judge will consider the testimony of the migrant and may require corroborating evidence to weigh the credibility of the testimony against the other evidence of record.

When determining credibility, the Immigration Judge may consider all relevant factors, including but not limited to: demeanor, candor, or responsiveness of the migrant; the inherent plausibility of the migrant’s account; the consistency between the migrant’s written and oral statements; the consistency of statements with other evidence of record (including reports of the U.S. Department of State on the country conditions in the migrant’s home country); and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.

In other words, there is no presumption of credibility; it is entirely on the migrant to prove his or her claim. Given the emotional nature of these cases, this can be easier said than done. Asylum cases hinge on an applicant’s ability to relay details of kidnapping, extortion, murder, rape, gang recruitment, violence, etc., in a foreign court, complete with cross-examination from a government attorney and questioning from the Immigration Judge. Moreover, an applicant’s ability to produce corroborating evidence can be compromised by a number of factors, such as having to flee quickly without time to gather documents, political unrest, unavailability of witnesses, etc. Having observed my fair share of asylum interviews and hearings, I can attest that applying for asylum is a comprehensive, challenging process.

“Extreme” Vetting

In addition to the “extreme evaluation” of a migrant’s asylum claim, he or she must also undergo “extreme vetting” to ensure that no mandatory bars to his or her asylum eligibility exist. Mandatory bars to an applicant’s ability to be granted asylum in the United States include: persecuting others on account of race, religion, nationality, membership in a particular social group, or political opinion; being convicted of certain “particularly serious” crimes; committing serious nonpolitical crimes outside the United States; posing a risk to the security of the United States; engaging in terrorist activities or status as a representative of certain terrorist organizations; and, firmly resettling in another country prior to arriving in the United States.

Additionally, an applicant may be denied asylum based on previously denied asylum applications, as well as the existence of changed circumstances which materially affect the applicant’s eligibility for asylum. Finally, the applicant must demonstrate by clear and convincing evidence that the application has been filed within one year after the date of the applicant’s arrival in the United States. Contrary to the administration’s claims, asylum applicants already undergo significant background checks and fingerprinting to ensure that no “dangerous criminals,” or otherwise barred individuals, are granted asylum.

Takeaway

This is but a snippet of the complexities of U.S. immigration law, but I hope it is enough to illustrate that our current laws, procedures, and evidentiary burdens are a far cry from what anti-immigrant politicians and pundits mischaracterize as “open borders.” The migrant caravan should not be feared. For an administration so focused on law and order, it is unfortunate that they have said so much to discredit our existing asylum law that is, in fact, already keeping order.

Statistics and independent reporting bear out that the individuals in the caravan are not gang members – they are fleeing gang members. They are not drug dealers – they are fleeing drug dealers. They are not dangerous criminals – they are fleeing dangerous criminals. The real “faces” of the migrant caravan are those of mothers, fathers, aunts, uncles, brothers, sisters, sons, and three-year-old daughters wearing bright pink bows and smiling, despite it all.

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