BORDER CRISIS EXPLAINED
Handling the ongoing situation with asylum seekers along the southern border is a political, practical and humanitarian challenge
Vance Winninham practices with Winningham & Stein, Oklahoma's oldest immigration law firm.
Who are the majority of recent arrivals at our southern border?
They are family members or relatives with minor children, mainly from EL Salvador, Honduras and Guatemala. Most hope to qualify as refugees under U.S. asylum law by applying at U.S. ports of entry along the Mexican border or after gaining entry to the U.S. illegally.
How does one qualify for asylum in the U.S.?
Extreme poverty or even starvation doesn't qualify someone. Aliens must show a credible fear of being persecuted in their home countries, based on race, religion, nationality, political opinion or particular social group. Most are asserting membership in a particular social group involving victims of targeted gang violence or extreme domestic violence. Those who are granted asylum may apply for permanent residence status (green card) after one year in refugee status. Dependents also may be granted asylum.
Since only about 10% of these migrants are granted asylum, why is there such a humanitarian crisis at the border?
The U.S. is legally obligated to protect all asylum seekers who make a potentially credible claim while their applications are processed. The Trump Administration so far has opposed paroling asylum seekers into the U.S., pending a decision on their claims. As a result, the U.S Citizenship and Immigration Service (USCIS) has a huge shortage of trained asylum officers compared with the large number of asylum applicants that have to be detained. Consequently, the U.S. Customs and Border Protection Agency (CBP) and the U.S. Immigration Control and Enforcement Agency (ICE) lack the resources and facilities to humanely detain this large number of asylum seekers. Meanwhile, the U.S. Department of Justice's (DOJ) Immigration Court System is understaffed with hundreds of thousands of backlogged cases pending.
What strategies has the Trump Administration pursued to deal with this increased flow of immigrants?
The government has been denying bond hearings to migrants with pending credible fear asylum claims while in expedited removal (deportation) proceedings. A federal court recently ordered they are entitled to bond hearings. This could allow them to reunite with their children while their cases are processed. The administration, after threatening to impose tariffs, obtained Mexico's agreement to allow those migrants currently waiting in Mexico to remain there. It also allowed those already in the U.S. seeking asylum to be forcibly returned to Mexico and made to wait there until their asylum cases are processed. This is referred to as the President's Remain in Mexico policy which is officially called the Migrant Protection Protocols (MPP). Because of high levels of crime in many Mexican border areas, a group of U.S. asylum officers is urging a federal appeals court to block the Trump Administration from implementing the agreement. The union representing U.S. asylum officers told the court this arrangement with Mexico violates both American law and morals. Last week, the administration had apparently persuaded Guatemala's president to enter into a bilateral or multilateral “safe third country” agreement. Under U.S. law this would have automatically allowed the administration to not only deny these migrants entry to the U.S., but to remove them directly to Guatemala where they supposedly would be “safe” while being processed for possible asylum. However Guatemala's Constitutional Court intervened and ruled the president can't enter into the agreement on his own authority. Several days ago, the Trump administration finalized and began implementing a new rule which could prevent future asylum claims for immigrants who travel across another country before reaching the U.S. Southern border. Under this new rule Hondurans and Salvadorans would have to file unsuccessful asylum applications in Guatemala or Mexico before they could apply in the U.S. Guatemalans would have to apply for and be denied asylum in Mexico. They could still seek “withholding of removal” protection under the Convention Against Torture (CAT). However most of these migrants could not qualify for CAT protection, which requires a higher standard of proof and doesn't grant access to many asylum benefits (e.g. no path to green card, citizenship, etc.). The validity of this rule is already being litigated in federal court. Some other deterrent strategies include: wanting to revoke the time limitation for holding children in detention (“Flores” settlement), revising the credible fear standard and restricting interim employment authorization for asylum applicants to work while waiting for their applications to be processed. What are some of the fixes which have been proposed to deal with the crisis?
Other than providing additional detention resources, some short- and long-term solutions could include: revive in-country refugee processing programs so families can initiate the asylum process while remaining in their home countries; streamline the credible fear determination process at the border; add additional asylum-trained officers and immigration judges; where appropriate, utilize electronic ankle bracelets as an alternative to detention; allow more access to non-governmental organizations and legal representatives, which has shown to substantially increase appearance rates at asylum interviews and court appearances; and increase aid to these countries.
But instead of making block grants, require it be targeted at gangs, domestic violence, police corruption, human smugglers, etc. Then audit expenditures and results (mini "Marshal Plans.")