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affairs and political stuff ....
Are Political Asylum Seekers Required to Request Protection through a U.S. Port of Entry? And a Whole lot more...
By Michelle Martin, PhD, MSW
What I want to address in this blog post is whether Attorney General Jeff Sessions’ assertion that the only legal way to request asylum in the United States is through a U.S. port of entry (or U.S. consulate) is accurate. I also want to explore how the government can distinguish between undocumented economic immigrants who cross the Mexico border without documentation to work, and those who cross the border seeking political asylum because they are fleeing persecution.
Myth 1: Political Asylum Seekers Required to Use a Port of Entry
According to speech to the National Sheriff’s Association delivered by Attorney General Jeff Sessions, on June 18, 2018, there is a ‘right way’ and a ‘wrong way’ to seek asylum in the United States. Crossing the border without valid documentation is definitely the wrong way.
Also according to Jeff Sessions, if an immigrant crosses the southern border without valid documentation, they are “flouting our laws,” and he appears to be suggesting that the only legal way to request political asylum is by requesting protection at a U.S port of entry.
So, is this correct?
No. According to U.S. asylum law, how immigrants enter the United States has no bearing whatsoever on their ability to apply for asylum. An immigrant can request asylum in the following ways:
In other words, even immigrants who cross the border without documentation have the legal right to apply for political asylum.
You don’t have to believe me. Here’s the section of the legislation pertaining to who has authority to apply for asylum in the United States, taken directly from the U.S. Code: Title 8: Aliens and Nationality. Chapter 12, Sub-Chapter II, Part I, § 1158 – Asylum (and no, I did not know this code number off the top of my head before writing this post).
(a) Authority to apply for asylum
(1) In general
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable… [Emphasis Added].
There are some exceptions though. For example, a person must apply for asylum within one year of having entered the country, and they can’t have previously applied for political asylum, unless their circumstances have changed.
So how do most political asylum-seekers get into the United States?
By breaking the law. The majority of political asylum-seekers either overstay a temporary visa, or cross the Mexican border without valid documentation.
Click here to see the full report, and then click Download.
That’s the funny thing about asylum law in the United States: an immigrant usually has to break the law in some way to get into the country, before they can apply.
But let’s say that many of the recent Central American immigrants did exactly as Jeff Sessions said they should do—they presented themselves to a U.S. port of entry and requested protection. If this is the "right way," then why are some being rejected by U.S. Border and Customs officials, due to lack of space?
Check out this article in the Texas Monthly, this article in the Washington Post, and this NPR article.
Myth 2: requesting asylum when in an expedited removal process will not halt deportation proceedings
Certain categories of immigrants entering the country are subject to an expedited removal proceeding, where they are deported immediately, without a hearing. Immigrants who enter through the country without valid documentation, (such as a visa, border crosser card, passport), either by crossing the border or going through a port of entry, are included as one of the categories. The expedited removal process was created in response to the Illegal Immigration and Reform and Immigrant Responsibility Act of 1996 (IRIRA), passed by Clinton.
The IIRIRA also requires the mandatory detention of certain immigrants, including asylum-seekers, if they are placed in an expedited removal process after entering the country without documentation (again, either by crossing the border or through a port of entry).
The decision to place an immigrant in an expedited removal process is made by a U.S. Customs and Border Protection (CBP) officer. CBP officers have blanket authority, and their decisions are not subject to review or appeal.
There is only one way to stop an expedited removal of an immigrant who crosses the border without valid documentation, and that is to claim political asylum.
Although expedited removals have been around since 1996, they weren't really used much until Bush and Obama, and they've skyrocketed under Trump.
In fact, they appear to be the bedrock of the Trump administrations immigration reform policy, initiated with an Executive Order (EO) signed on January 25, 2017 that focused on increased border security and immigration enforcement.
President Trump's border security EO is basically what AG Session’s “zero-tolerance” policy was all about—significantly expanding the use of expedited removals of immigrants crossing the southern border without valid entry documents.
So, let’s assume that immigrants from Central America have crossed the border without documentation, in an attempt to seek protection, because they were rejected from a U.S. port of entry, or because they did not know another way (there seems to be no indication that this group were trying to "sneak" across the border, so this scenario makes the most sense). What now?
Because they crossed the border without documentation, they would have been placed in an expedited removal process. But U.S. law dictates that immigrants slated for expedited removal who request asylum are to be immediately removed from expedited removal proceedings and referred to an asylum officer for processing.
Immigrants slated for expedited removal who have asked for asylum must first go through an additional screening process, that involves a "credible fear interview," before their full asylum case is heard before an immigration judge.
The screening process is a component of the expedited removal process (also implemented as a part of the Immigration Illegal Immigration and Immigrant Responsibility Act of 1996), to ensure that those with a credible fear of persecution aren't wrongfully sent back to their home country. The screening process also ensures that immigrants have a viable case before further processing.
Immigrants are allowed 48 hours to prepare for their credible fear interview with an asylum officer with the U.S. Citizenship and Immigration Services (USCIS). In order to pass the interview, immigrants must be able to convince an asylum officer there is a "significant possibility" of showing in an immigration hearing that they have suffered persecution, or they fear they will suffer persecution due to their race, religion, nationality, group membership (such as an ethnic group), or political opinion. Comprehensive vetting is also a part of the screening process.
If they pass the credible fear interview, their case is then referred to immigration court for a hearing a year or two down the road (this is because there is a lengthy investigative process and understaffing of immigration judges. If they fail their credible fear interview, they can appeal to an immigration judge who is required to hear their case within one to seven days. If the appeals process is unsuccessful, they are immediately referred back to an expedited removal process, and deported.
The standard for passing the credible fear interview was increased significantly in February 2017, under the Trump administration, and as a result, pass rates dropped from about 78% to about 68%. In addition, human rights groups have documented incidents where Border patrol has failed to refer immigrants requesting asylum for credible fear screening.
Despite the credible fear screening process being implemented as an interim measure to ensure both the protection of legitimate asylum-seekers and not clogging immigration courts up with invalid cases, President Trump has consistently referred to this screening process as a "loophole" in the law.
Also, several reviews by the bipartisan organization, U.S. Commission on International Religious Freedom (USCIRF) of Customs and Border Patrol (CBP) processing of asylum-seekers in 2007 and 2013 found numerous problems, including the failure of Border Control to refer immigrants requesting asylum to an asylum officer in 15% of cases, and the failure of asylum officers to follow standard procedures established to protect asylum-seekers from being returned home.
Quality reviews in 2016 and 2017 found even more problems, including CBP officers showing open hostility toward immigrants, and the failure of CBP officers to conduct credible fear interviews in accordance with the law in the majority of cases (72%). Additionally, a review by the ACLU found similar problems, including most immigrants not being asked by CBP officers if they had a fear of persecution if sent home, (which is a requirement of U.S. asylum law), not conducting interviews in a way that accommodated traumatized individuals who did not speak English, not providing immigrants with orientation materials that included information on pro bono attorneys.
Here are the questions I would like answered:
Have some (or all) of the Central American immigrants being placed in an expedited removal process and deported before having an opportunity to request asylum? And, are they being deported without their children?
Are the Central American immigrants being discouraged from requesting asylum altogether, with their children being used as bargaining chips, as some media outlets have reported?
What will happen to the Central American immigrants who are being processed as asylum-seekers? Is it the intention of DHS to keep them in detention even after they have passed a "credible fear" interview, perhaps for years, with or without their children?
Border control and immigration enforcement are very important, but the legislators of our immigration laws have always sought to balance respect for rule of law with compassion, for both native born citizens and immigrants.
So I find myself asking one more question: where's the compassion?
Dr. Michelle Martin is a social worker, policy specialist and Assistant Professor at California State University, Fullerton in the Department of Social Work, where she teaches social welfare policy, and researches dynamics related to immigrants, political asylum-seekers, refugees and other displaced populations.
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