What Could Happen Now That Migrants from the Latest Caravan are Arriving at the US-Mexico Border?

Some buses with potential refugees from Honduras arrived at the US-Mexican border on Tuesday. This marked the beginning of those from the now infamous caravan to arrive at the border. 

The question that arises now is what will happen to these migrants.

Many of the migrants will be claiming asylum. Asylum would permit the migrants to stay in the United States legally, with the possibility of applying for permanent residency and later citizenship. It is granted to people who show a reasonable fear of persecution because of race, religion, nationality, political opinion or membership in a particular social group. Many Central Americans are attempting to escape gang violence. Some are afraid of the new Honduran Government. Some women may be seeking protection from abusive domestic partners. 

Asylum is a legal immigration benefit. By law anyone present in the United States may apply for asylum, regardless of whether that person entered legally, or what that person’s immigration status is. 

For people making the dangerous trek northward, through Central America and Mexico to the United States, the Trump Administration wants them to apply for asylum in an orderly fashion, at legal ports of entry. Yet, the Administration has limited access to asylum procedures at ports of entry, reportedly to 100 applicants per port per day. With thousands of potential refugees already waiting in line to start the asylum application process, this could mean a wait of months or longer for those who just arrive at the Mexican side of the border. 

The alternative has been for Central American migrants to cross the border between ports of entry, surrender to an agent from Customs and Border Protection (CBP), and claim that they have a fear of returning to their home country. 

Once a person within the United States makes a claim of fear, CBP is supposed to stop the expedited removal process, and turn the migrants over to Immigration and Customs Enforcement (ICE) for detention and a credible fear interview. At a credible fear interview, an Asylum Officer will interview the migrant to test whether he or she has a credible claim for asylum. 

The Asylum Officer will also consider whether the person qualifies for two other humanitarian relief programs, called withholding of removal and protection pursuant to the Convention Against Torture (CAT). Both programs address aliens who believe their life and liberty may be in jeopardy if they were to return to their home country. Both programs have more stringent burdens of proof than asylum. Neither program leads to permanent residency or citizenship. But both permit the alien to remain in the United States if that alien qualifies. 

If it is determined that an alien does not qualify for asylum, which could be because of prior removals, criminal convictions, US security issues, or failing to apply for asylum within one year of entering the United States, but that alien still claims fear of returning to his or her home country, the Asylum Officer will conduct a reasonable fear interview instead of a credible fear interview. In a reasonable fear interview, the alien will only be considered for withholding of removal and protection pursuant to CAT.

If the Asylum Officer finds in favor of the alien in either a credible fear or reasonable fear interview, that alien will be referred to an Immigration Court to make their case. If the Asylum Officer does not decide in favor of the alien, the alien may request that an Immigration Judge review that decision. That review typically happens in an expedited fashion. 

There is a backlog of thousands of cases in the Immigration Courts. This means that it can take years for a case to be heard by an Immigration Judge. Keeping an alien detained while waiting for a hearing can be costly for the US Government. Often, a person with a favorable credible or reasonable fear interview result is released into the United States upon the posting of a bond. Failure to show up to Immigration Court results in a loss of the bond and an order of removal in absentia. This is what the Trump Administration calls “Catch and Release.”

Trump issued a Proclamation pursuant to newly released regulations that purports to disqualify any alien from applying for asylum if that person entered the United States from Mexico between legal ports of entry on or after November 9, 2018. The ACLU has challenged the regulations and the Proclamation as violating the plain language of the Immigration and Nationality Act, and for violating the Administrative Procedure Act, which sets the rules for how new regulations may be adopted. 

The Trump Administration’s hope was for the Proclamation to compel migrants from the latest caravan to wait at ports of entry, and not cross the border illegally. However, aliens who enter the United States after November 9th, and who express fear, are still entitled to a reasonable fear interview to be considered for withholding of removal and protection pursuant to CAT.  Regardless of the President’s Proclamation, if the alien goes before a judge, he or she can still argue that the Executive Branch cannot contradict the words of the statute. Therefore, the Proclamation and regulations are void, and the alien may still apply for asylum pursuant to section 208(a)(1) of the Immigration and Nationality Act despite entering illegally and not having a currently valid immigration status. 

By: William J. Kovatch, Jr.