Due to all of the misinformation in the news media and resulting outrage concerning illegal immigration, I decided to pause my coverage of gun control to address this issue. This blog is just a quick look at the topic and will not be accompanied by a white paper. Let’s begin with a simple fact. the Trump Administration does not have an immigration policy to separate children from their parents. The Trump immigration policy involves strictly enforcing current immigration laws.
Last March, a caravan of over 1000 migrants from Central America headed for the U.S. Southern Border with the intention of claiming asylum in the United States. On April 6, 2018, Attorney General Jeff Sessions announced a zero-tolerance immigration policy. An April 6 Department of Justice press release on their website states, “Attorney General Jeff Sessions today notified all U.S. Attorney’s Offices along the Southwest Border of a new “zero-tolerance policy” for offenses under 8 U.S.C. 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien. The implementation of the Attorney General’s zero-tolerance policy comes as the Department of Homeland Security reported a 203 percent increase in illegal border crossings from March 2017 to March 2018, and a 37 percent increase from February 2018 to March 2018-the largest month-to-month increase since 2011.” (1)
The Attorney General stated in the press release that the situation at our Southwest Border is unacceptable because Congress has failed to pass effective legislation that serves the national interest by closing dangerous loopholes and fully funding a wall along our Southern Border. As a result, a crisis has erupted at our Southwest Border that necessitates an escalated effort to prosecute those who choose to illegally cross our border. He stated, “To those who wish to challenge the Trump Administration’s commitment to public safety, national security, and the rule of law, I warn you: illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice. To the Department’s prosecutors, I urge you: promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens. You play a critical part in fulfilling these goals, and I thank you for your continued efforts in seeing to it that our laws-and as a result, our nation are respected.” (2)
U.S. Immigration Law
Immigration Law was created in 1952 by the McCarran-Walter bill of 1952 (Public Law No. 82-414). It brought together and codified all of the statutes that governed immigration law. The Immigration and Nationality Act (INA) stands alone as a body of law, but each section also corresponds to Title 8 of the U.S, Code. When immigration law is enforced using INA, it is being enforced as administrative law. When immigration law is enforced using Title 8 of the U.S. Code, it is being enforced for criminal prosecution by the Department of Justice. Thus the Attorney General was stating that anyone entering the United States illegally, in violation of 8 U.S.C. 1325(a) would be criminally prosecuted. Many of the parent/child separations that have created such ire after the release of pictures of children (in what appeared to be cage like enclosures) from the Obama Administration were separated because their parents were being prosecuted for violation of 8 U.S.C. 1325(a). Title 8 section 1325(a) states:
Any alien who (1) enters of attempts to enter the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18, or imprisoned not more than 6 months, or both and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.
Available Legal Options
The United States offers a number of humanitarian programs including the refugee and asylum programs.
The U.S. Refugee Admissions Program (USRAP)
The Refugee Admissions Program (USRAP) does not require migrants to travel to U.S. borders or ports of entry. Therefore, risking hazardous travel for themselves and their children can be avoided by those qualifying for this program. Although Admission to USRAP usually requires applying outside of your country of origin, applicants from Cuba, Eurasia and the Baltics, Iraq, Honduras, Guatemala, and El Salvador may be processed within their own countries. In addition, any persons identified by a United States Embassy in any location may be considered in exceptional circumstances.
According to U.S. law, a refugee is someone who is located outside of the United States; is of special humanitarian concern to the United States; demonstrates that they were persecuted or fear persecution due to race, religion, nationality, political opinion, or membership in a particular social group; is not firmly resettled in another country and is admissible to the United States. (3) The process for obtaining refugee status is:
- Receive a referral to the U.S. Refugee Admissions Program (USRAP) from the United Nations High Commissioner for Refugees (UNHCR), a U.S. Embassy or a designated non-governmental organization (NGO). There are three categories for processing referrals which are called priorities: Priority 1 is for individuals, Priority 2 is for specific groups deemed of special humanitarian concern to the U.S. and Priority 3 is for family reunification. Special humanitarian concern to the U.S. is established by Presidential Determination. FY 2018 the number of admissions for refugees of special concern are Africa – 19,000, East Asia – 5,000, Europe and Central Asia – 2,000, Latin America/Caribbean – 1,500, Near East/South Asia – 17,500. (4)
- Upon receiving a referral, the applicant will receive help with required applications and then be interviewed by a USCIS officer who will determine whether the applicant is eligible for refugee resettlement. Their case may include a spouse, unmarried child under 21 years of age and in limited circumstances, other relatives.
- Applicants approved will receive a medical exam, cultural orientation, help with travel plans, and a loan for travel to the U.S. Upon arrival, they will be eligible for medical and cash assistance. In addition, as a refugee, they may immediately work upon arrival to the U.S.
- Refugees must apply for a green card one year after coming to the U.S.
- Refugees who travel abroad must obtain a Refugee Travel Document in order to return to the U.S. (5)
I must emphasize that migrants from Honduras, Guatemala and El Salvador, who comprise the bulk of migrants currently illegally crossing our borders, do not need to even leave their countries to apply for the refugee program. This program offers many benefits including a path to citizenship, financial assistance for travel to the U.S. and medical and financial assistance upon arrival in the United States. They can legally work immediately upon arrival. So why would migrants risk their lives on hazardous journeys to live illegally in the United States? While not everyone will qualify for the USRAP, part of the answer also lies with the second humanitarian program, Asylum, which is used as a safety net for those who get caught illegally entering or living in the United States.
The Asylum Program and Its Loopholes
The Asylum Program is for people seeking protection in the United States because they have suffered persecution or fear that they will suffer persecution due to race, religion, nationality, membership in a particular social group or political opinion. Persons seeking asylum must already be in the United States or at a port of entry. Persons may apply regardless of how they arrived in the U.S. or their current immigration status. The concept of asylum is old and honorable, but our current immigration laws regarding asylum are vulnerable to abuse and may actually encourage illegal immigration, particularly on our Southern Border. (6)
There are two ways of obtaining asylum in the U.S. The first is through the affirmative process. Under the affirmative process, a migrant must file an application for asylum with USCIS within one year of his/her last arrival in the U.S. unless he/she can show changed or extraordinary circumstances. The process is administrative and non adversarial. Spouses and children under 21 in the United States may be included. Applicants are rarely detained by U.S. Immigration and Customs Enforcement (ICE) and are permitted to live in the United States while their application is pending. (7) Although most asylum applicants are not authorized to work, they may apply for authorization if their case is pending for more than 150 days. (8)
The second method of obtaining asylum is through the defensive process. Defensive applications occur when migrants are referred to an Immigration Judge by USCIS after they have been determined ineligible for asylum under the affirmative process and they do not have legal immigration status, or are caught in the U.S. or at a port of entry without proper documentation or in violation of their immigration status, or were caught trying to illegally enter the United States. The process is called defensive because asylum is requested as a defense against removal from the United States. Immigration Judges hear the cases in court proceedings (adversarial). (9) Those detained are often granted parole and disappear into the United States never to show up for court hearings. Allowing migrants who have entered and in many cases, lived in the United States illegally to apply for asylum and to grant them parole, has opened the entire program to abuse.
In fact, in 2016, 39% of aliens who were freed pending trial failed to show up for their hearings. Over the past 21 years, 37% of all aliens the U.S. permitted to remain free before trial (around 952,000 people) were ordered removed for not showing up for court. (10) In addition, only a small fraction of deportation orders are actually carried out. Of the 1,254,152 aliens ordered deported from 1996 through 2016, 76% of them remained in the U.S. (11)
The Asylum Program, like USRAP, is not open to everyone seeking a better job or a better way of life. Both of these programs are for persons fleeing their countries of origin because of persecution. However, the Asylum Program is overrun by those who seek to enter the U.S. illegally rather than submit to our normal immigration process and laws. According to a USCIS official, prior to 2013, approximately one out of every 100 arriving aliens sought affirmative asylum. Today one out of every ten request it. These claims have increased 1,700% from 2008 to 2016. Claiming asylum has become a fall back position to avoid deportation for those who get caught and do not qualify for asylum. Defensive claims have risen from less than 13,000 in FY 2010 to over 119,000 in FY 2017. Yet the number granted asylum rose by only 5,000 over the same time period. (12)
The smugglers and illegal migrants taking advantage of loopholes in our asylum program are flooding our immigration system and courts, jeopardizing those who truly need asylum by forcing them to compete with those who are gaming the system to avoid deportation. Obviously, legislation is needed that will assist those enforcing our border integrity and national security rather than hindering the prosecution and expedited removal of those who violate our laws, overwhelm our courts and jeopardize the function and integrity of an important humanitarian program.
(Further Reading at Amazon Discount Prices)
- “Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry,” Justice News, April 6, 2018, https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry
- Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry
- Refugees, U.S. Citizenship and Immigration Services, https://www.uscis.gov/humanitarian/refugees-asylum/refugees
- U.S. Department of State, Proposed Refugee Admissions for Fiscal Year 2018
- Refugees, U.S. Citizenship and Immigration Services
- Asylum, U.S. Citizenship and Immigration Services, https://www.uscis.gov/humanitarian/refugees-asylum/asylum
- Obtaining Asylum in the United States, https://www.uscis-gov/humanitarian/refugees-asylum/asylum/obtaining-asylum-united-states
- Asylum, USCIS
- Obtaining Asylum in the United States, USCIS
- Hans A. von Spakovsky, How to Get Our Immigrtion Courts Back to Enforcing Federal Law, The Heritage Foundation, May 18, 2017, https://www.heritage.org/immigration/commentary/how-get-our-immigration-courts-back-enforcing-federal-law
- Mark Metcalf, “The Immigration Scandal No One Is Talking About,” The Daily Signal, July 12, 2018, https://www.dailysignal.com/2018/07/12/the-immigration-scandal-no-one-is-talking-about/
- Telecommunication, USCIS, June 20, 2018
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