Abstract: Reconciling international human rights for migrants seeking asylum in the United States against the need for deterring the untenable influx of illegal immigration at the U. S. southern border has been a delicate political and legal issue throughout the years. The Trump administration before and during the COVID-19 pandemic put in place more stringent enforcement policies such as Migrant Protection Protocols, raising criticism for the inhumane treatment of asylum seekers who were prevented from entering the United States. However, with the recent surge of migrants--especially children--since the election of Joe Biden as the new president, growing concerns for long-term stability has reignited demand for harsher measures against illegal crossings while still recognizing the rights of asylum seekers.
I. Introduction
Seeking asylum within the United States is a complex and arduous process which is largely a civil procedural matter, but can also be perceived as a criminal act depending on the particular circumstance of the asylum seeker. The process became increasingly complicated with harsher enforcement under growing anti-immigration sentiment during the Trump administration. The recent election of Joe Biden bodes well for more humane treatment of illegal immigrants seeking asylum, controversy regarding migrants (dating as far back as the Bush administration) is being reassessed. In addition, the attempt to fulfill campaign promises while trying to manage the inevitable surge of migrants at the southern border has become a critical and unavoidable challenge for the new administration.
This paper will attempt to outline the history of the asylum seeking process in the United States. It will begin by looking at both the criminal and civil proceedings and discuss the changes that were made during the Trump administration to deter the flood of migration, especially from the southern border. Moreover, the difficult transition in the migration policy since Joe Biden’s election to the presidency in November 2020 will be assessed.
II. Background
A major aspect of the asylum-seeking controversy in the United States centers around conflicting international and domestic laws and policies. For instance, under international law, an asylum seeker has the right to invoke asylum protection to avoid persecution in one’s home country. Specifically, by signing Article 31 of the 1951 Refugee Convention, the United States, like other contracting nations, cannot impose penalties on refugees seeking asylum despite having entered illegally if coming directly from a territory where their life or freedom was threatened, so long as they show good cause for their illegal entry or presence (Convention, 1951).
In accordance with this right, after passing an initial screening process, the asylum seeker must be given a fair and adequate hearing so long as the claim is asserted within a year of entry, according to the U.S. Citizenship and Immigration. However, in reality, the lengthy, bureaucratic process can hinder asylum seekers from making such claims or delay protection in the United States in many circumstances (Frum, 2019).
In order to fully understand how obstacles can occur, this cumbersome process of making asylum claims in the United States must be explained in greater detail. Under civil proceedings, asylum seekers can pursue one of two approaches. First, an affirmative declaration can be made through the U.S. Citizenship and Immigration Services (USCIS) if the person is in the country legally . The other is essentially a defensive recourse asserted during a removal proceeding or at the initial point of entry.
During an initial screening interview at the border or port of entry, if an asylum officer determines that the credible fear standard has not been met, then the applicant is sent to a removal proceeding. The applicant must present enough evidence of the threat of persecution or torture to the extent that they fear returning to their home country (American Immigration Council, 2020).
Alternatively, one can request asylum through the defensive process once in a removal proceeding called the Executive Office for Immigration Review (EOIR) within the Department of Justice. Before deportation, the individual may appeal by pursuing a truncated review process before an immigration judge. If the immigration judge overturns a negative, credible fear finding, the individual is placed in further removal proceedings, thereby potentially improving the prospects of receiving asylum. On the other hand, if the immigration judge upholds the negative finding by the asylum officer, the individual will be deported. In many instances, a defensive application for asylum is submitted to disrupt the removal proceedings and avoid deportation (Frum, 2019). On the other hand, one drawback is that such applicants are not provided legal counsel even if they can afford to get an attorney themselves.
If an individual is not granted asylum, they can still appeal the decision, but the waiting time can drag out for years. Prior to the Trump administration’s drastic changes in enforcement of illegal immigration, particularly at the U.S. southern border, those who were waiting for an appeal could remain in the country temporarily. However, one of the mandates issued by the Trump administration was to deport even asylum seekers along with other illegal immigrants until their day in court (American Immigration Council, 2021). This program was known as Migration Protection Protocols. Even more controversial was the Zero Tolerance Policy under former Attorney General Jeff Sessions, which separated children from their parents at the border. The parents were detained or deported while their children remained inU.S. custody (Schmidt, 2019). Fortunately, this latter program was terminated after much political and legal backlash.
Certainly not all unjust treatment of potential asylum seekers can be blamed on the Trump administration. Operation Streamline, adopted in 2005, embraced mass prosecution of illegal aliens, thereby obstructing individuals from receiving preliminary screening interviews by asylum officers, as well as not providing legal advice by attorneys who could have assisted them in their asylum defense. In addition, detainees waived their rights for appeal by signing plea agreements which may not even have been fully understood, due to language barriers and inadequate legal representation (Schmidt, 2019).
III. Changes under the Biden Administration
The Biden administration must reassess and restructure the immigration policies and procedures confounded by not only Trump but previous U.S. leaders. First and foremost, asylum seekers must be given their lawful protection under both international and domestic laws. The ongoing controversy over how to enforce illegal immigration laws without jeopardizing human rights may be one of the most important topics of discourse for the new U.S. President and the American people.
In alignment with his campaign promises, President Biden has taken some immediate actions to reverse some of the more draconian immigration policies put in place by the Trump administration, including lifting the travel ban from Muslim-dominated nations and terminating the Migration Protection Protocols program (American Immigration Council, 2021). He also issued an executive order to reinstate the pathway to citizenship for DACA recipients.
A more far-reaching and comprehensive proposal was sent to Congress in hopes of enacting a more permanent and enduring immigraiton reform act. Unfortunately, this proposal, referred to as the “United States Citizenship Act of 2021,” will be difficult to garner bipartisan support. Alternatively, additional executive orders may be necessary to reform immigration policies, but the long-term impact of these changes to immigration will be weaker than they would be if Congress passes the new immigration law.
In February, the Biden administration released a fact sheet which outlined the establishment of a task force whose responsibilities would include reunifying families separated by the Trump administration as well as attempting to understand the reasons for the influx of migration and to develop a more just and humane screening process for refugees and asylum seekers (FACT SHEET, 2021). The starting point of the ambitious goals laid before the task force is to not only terminate the migration protection protocol program but to redress the chaos and distressed circumstances migrant families are still grappling with today as a consequence of the hasty and inconsistent treatment they have faced at ports of entry in recent years.
For example, the Migration Protection Protocols (MPP) program was set up by the Trump administration in December of 2018. It is commonly known as the “Remain in Mexico Program for Asylum Seekers” because they were told to stay and wait in Mexico until their hearing dates. In the past they had been permitted to wait for their hearing dates in the United States. Biden ended this program, but some are still in Mexico waiting for proper hearings. The task force must try to figure out how the people in Mexico can come to the U.S. by coordinating efforts among Mexican and local authorities around the Southern border, the U.S. State Department, Department of Homeland Security, and potentially other Central American countries. All of this, of course, will require more money and manpower than is currently allocated.
Despite his campaign promises to his supporters, Biden must delicately weigh the pros and cons of his immigration reform with respect to migrants and the southern border. Currently, the U.S. is attempting to fight the COVID-19 pandemic both from a public health standpoint as well as an economic concern due to the detrimental effect the pandemic has had on businesses and individuals. Biden has hinted at the importance of managing expectations by stating that immigration reform will take at least a few months, if not years, to fully implement. The process will take time and not all immigration reform initiatives may be attained, especially without bipartisan support.
Meanwhile, according to the American Immigration Council, migrants who sought asylum during the COVID-19 pandemic have been in limbo, living in tent camps along the U.S.-Mexico border without any opportunities for employment, as many are not Mexican citizens. Some have, in desperation, attempted to cross the border despite the perils and have lost their lives. Moreover, some did not even have an opportunity to plead for asylum under Trump’s “metering” policy. Instead, these migrants have been told to wait in Mexico because the “quota” for asylum seekers had been met, thereby denying any access to the asylum process and forcing them to wait indefinitely in Mexico. Of course, the metering policy had been used previously by the Obama administration as well during an influx of Haitian refugee migration in 2016. However, that metering ended in a timely fashion once “the bottleneck” had been alleviated (Murray, 2018). In contrast, the current metering policy in Mexico continued until March 2020 when processing asylum seekers at the southern border was suspended due to the COVID-19 pandemic (Leutart & Arvey, 2020).
The Biden administration has continued to expel thousands of migrant families to Mexico under the public health law known as Title 42. Nevertheless, the number of families intercepted by US agents at the southwestern border soared to 17,773 in February, up from 6,173 in January (Jordan, 2021). Natural disasters like the hurricanes in Guatemala and Honduras, the harsh economic impact of the coronavirus pandemic, and Biden’s commitment to a more compassionate approach to immigration--especially toward migrant children who are excluded from Title 42--have compelled hundreds of thousands of people to attempt crossing the border aided by opportunistic smugglers known as coyotes.
The backlog in processing thousands of migrant children has been raising humanitarian concerns about how long they are sheltered before releasing them to relatives or friends in the U.S. Another daunting issue for the Biden administration is how to address the underlying causes of migration by confronting the instability, violence, and economic insecurity that currently encourages migrants to flee from their home countries. The administration must collaborate with foreign governments and international organizations to resolve these complicated matters (FACT SHEET, 2021).
IV. Conclusion
The asylum seeking process is complicated and arduous due to the conflict of international and domestic laws. While this paper has laid out the procedural hurdles asylum seekers must overcome once they enter the country, the more pressing matter currently seems to be how to deter the growing number of migrants who are seeking asylum from illegally crossing the southern border.
The Trump administration tried to restrict migrants at the southern border, first through its Zero Tolerance Policy which was later terminated, then with the Migration Protection Protocols and the metering policy which were also denounced by immigration rights advocates. Unfortunately, opening the borders even just for migrant children in recent months by the new administration has created an unprecedented surge. Thousands of children are attempting to seek asylum each month. Trying to find shelter for these children and to discourage others from crossing the border has been an ongoing debacle. The situation is dire and will remain unchanged until the newly created task force provides much-needed guidance.
References
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