My colleague Kausha Luna reported on March 30, 2018, in a post captioned "Caravan of Central American Illegal Aliens Heads to the U.S.", that more than 1,000 Central Americans (80 percent of whom are Hondurans) are "traversing through Mexico, to reach the United States' southern border." As she noted: "Upon arrival, they hope to make asylum claims."
There is nothing in that article or in other reporting about the caravan that suggests that any of those aliens has a visa to enter the United States. In fact, it doesn't appear that any of them had a visa to enter Mexico, either. Given these facts, when they arrive at the United States border, they will take one, or both, of two separate actions: entering the United States illegally across the border, or presenting themselves at a port of entry.
If they present themselves at a port of entry without proper documents, they will be deemed inadmissible to the United States under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA). If they enter the United States illegally, and are apprehended by the Border Patrol, they will likely be detained and in charged with removability under section 212(a)(6)(A)(i) of the INA.
Under section 235(b)(1)(A) of the INA, each of these aliens will be subject to expedited removal. Specifically, that provision states that "the [immigration] officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 208 or a fear of persecution."
It appears that the aliens in the caravan will be requesting asylum under the "credible fear" process. Attorney General Jeff Sessions explained that process in a speech he delivered on October 12, 2017:
The Department of Homeland Security is tasked in the first instance with evaluating whether an apprehended alien's claim of fear is credible. If DHS finds that it may be, the applicant is placed in removal proceedings and allowed to present an asylum claim to an immigration judge.
If, however, DHS finds that the alien does not have a credible fear, the alien can still get an immigration judge to review that determination. In effect, those who would otherwise be subject to expedited removal get two chances to establish that their fear is credible.
Under section 235(b)(1)(B)(v) of the INA, "the term 'credible fear of persecution' means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208." This is lower than the standard for asylum.
Sessions identified a number of key issues with that system:
[I]n 2009, the previous Administration began to allow most aliens who passed an initial credible fear review to be released from custody into the United States pending a full hearing. These changes — and case law that has expanded the concept of asylum well beyond Congressional intent—created even more incentives for illegal aliens to come here and claim a fear of return.
The consequences are just what you'd expect. Claims of fear to return have skyrocketed, and the percentage of claims that are genuinely meritorious are down.
The system is being abused to the detriment of the rule of law, sound public policy, public safety, and of just claims. This, of course, undermines the system and frustrates officers who work to make dangerous arrests in remote areas. Saying a few simple words is now transforming a straightforward arrest and immediate return into a probable release and a hearing — if the alien shows for the hearing.
Here are the shocking statistics: in 2009, DHS conducted more than 5,000 credible fear reviews. By 2016, that number had increased to 94,000. The number of these aliens placed in removal proceedings went from fewer than 4,000 in 2009 to more than 73,000 by 2016 — nearly a 19-fold increase — overwhelming the system and leaving those with just claims buried.
The increase has been especially pronounced and abused at the border. From 2009 to 2016, the credible fear claims at the border went from approximately 3,000 cases to more than 69,000.
All told the Executive Office for Immigration Review has over 600,000 cases pending — tripled from 2009.
And the adjudication process is broken as well. DHS found a credible fear in 88 percent of claims adjudicated. That means an alien entering the United States illegally has an 88 percent chance to avoid expedited removal simply by claiming a fear of return.
But even more telling, half of those that pass that screening — the very people who say they came here seeking asylum — never even file an asylum application once they are in the United States. This suggests they knew their asylum claims lacked merit and that their claim of fear was simply a ruse to enter the country illegally.
Given these issues, how is it that aliens from countries other than Mexico (OTMs) are able to pass through Mexico on their way to the United States to make asylum claims?
Mexico provides asylum. The United States Department of State (DOS), in its Country Reports on Human Rights Practices for 2016 for Mexico, notes:
The law [in Mexico] provides for the granting of asylum or refugee status and complementary protection, and the government has an established procedure for determining refugee status and providing protection to refugees. During the year [the Mexican National Refugee Commission (COMAR)] increased refugee status recognition by 60 percent. In the summer the [National Migration Institute (INM), "the administrative body responsible for enforcing migration laws and protecting migrants"] entered into an agreement with UNHCR to relinquish custody to UNHCR those migrants who, while in INM custody, claimed a need for asylum. As of August 31 the INM had turned over approximately 200 persons to UNHCR.
If the law in Mexico provides for the granting of asylum status, why would OTMs (like those in the caravan) not be required to seek asylum in that country before seeking asylum in the United States? Simply put, there is no requirement for them to do so under U.S. law.
The United States has a different arrangement with Canada. Under the Canada-U.S. Safe Third Country Agreement, "refugee claimants are required to request refugee protection in the first safe country they arrive in, unless they qualify for an exception to the Agreement." That law applies at land border crossings, and when aliens are attempting to enter one or another of the countries by train, and in limited circumstances at airports. There are additional exceptions to that rule for family members of specified individuals.
This means that, if an alien enters the United States, and seeks entry through a port of entry into Canada to make an asylum claim, Canada has the right to turn that alien around and send the alien back to the United States to make that claim. The same is true of traffic in the other direction. As U.S. Citizenship and Immigration Services (USCIS) has stated in its report on that agreement, the agreement has been in effect since December 29, 2004. With respect to the purposes of that agreement, USCIS explained:
When a significant number of individuals bypass an opportunity to seek protection in one country in order to achieve a migration outcome based on economic, cultural or social preferences, the objective of asylum systems — to provide protection to those who are fleeing persecution or torture — may become distorted. Asylum determinations are rendered more complex and public support for protection institutions is eroded if protection considerations are not emphasized over the challenges of irregular migratory flows. [Emphasis added.]
As noted, the United States does not have a similar agreement with Mexico, and for that reason, OTMs entering the United States without proper documentation through a port of entry along the Southwestern border cannot simply be returned to Mexico to make their claims.
Occasionally, a failure by an OTM to apply for asylum in Mexico (or any other safe-third Central or South American country through which the OTM passed) is grounds for a discretionary denial of asylum (asylum being discretionary relief), but such denials are extraordinarily rare. Instead, such a failure is usually simply overlooked when an asylum officer or immigration judge considers an asylum claim from an alien who has made such passage.
This is a significant weakness in the expedited removal process. And, as Luna stated in her post:
According to the director of Pueblo Sin Fronteras, from April 5 to April 9, a series of workshops will be hosted in Puebla, Mexico, by U.S. and Mexican lawyers [for the persons in the caravan]. The workshops will provide legal guidance on the issue of asylum or refuge in Mexico and [the] United States.
It remains to be seen how many of those OTMs will apply for asylum in Mexico. It is likely, however, that the vast majority will make their way to the United States to make their claims in this country.
To correct this flaw in the "credible fear" process, the attorney general or the Board of Immigration Appeals (BIA) could mandate the denial of asylum, in the exercise of discretion (and absent other, significant discretionary factors), to an OTM who fails to apply for asylum in a safe third country. It is questionable, however, whether the courts of appeals would sustain such a standard.
Instead, DOS should attempt to negotiate a safe-third country agreement with Mexico. If such an agreement cannot be reached, Congress may need to act to plug this loophole.