Migrant Caravan and Immigration Law
In the past few weeks, our current administration has attempted to depict the immigrants arriving through the Caravan of Migrants as criminals, gang members and has gone as far as calling it an “invasion.” While the president, Donald Trump, has vowed to close borders, and along with it oppose the rights of immigrants to seek asylum he is not only violating their legal rights but creating an environment that may give rise to severe consequences, including potential deaths of many immigrants.
Currently, there are over 8,200 immigrants to who have traveled for more than 2,500 miles from Nicaragua, Guatemala, and Honduras in hope of seeking asylum and being afforded some hope for a life that does not involve a fear of death.
This caravan started on October 12, 2018, where a group of Hondurans gathered to escape the persecution they have suffered in their county. Currently, there are over 8,200 immigrants who have traveled for more than 2,500 miles from Nicaragua, Guatemala, and Honduras seeking asylum and hoping for a life that does not involve a constant fear of death.
Do immigrants have the right to apply for asylum?
After World War II, the United Nations (UN) recognized asylum as the method for immigrants to escape from persecution in their countries. The U.S. signed on to the Geneva Convention in 1949. Based on the migration effect that WWII caused, the United States enacted the Refugee Act of 1980 which was created to grant protection to people who request asylum in the United States.
The Refugee Act defines refugee as:
“Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person habitually resides, and who is unable or unwilling to return to, and is unable to unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
For an immigrant to apply for asylum he/she must be in the United States or present themselves at the U.S. border.
The asylum seeker (asylee) must be within the United States to legally apply for asylum. You can request asylum at the port of entry to the United States or after entering the United States. An immigrant can also apply for asylum within the first year that the alien has been in the United States.
There are two ways of obtaining asylum in the United States; the affirmative process and defensive process.
To obtain asylum through the affirmative asylum process you must be physically present in the United States. You may apply for asylum status regardless of how you arrived in the United States or your current immigration status.
The process starts with the filing of a Form I-589, Asylum Application, and Withholding Removal. This is a twelve (12) page form in which the asylee explains his situation and must demonstrate that he posses a well-founded fear of persecution in his home country.
An officer then conducts a credible fear interview. This interview has a low burden of proof and if the immigrant is found credible they can either be put in detention or enter to the United States while they wait for the completion of their asylum case which can take years.
A defensive application for asylum occurs when someone requests asylum as a defense against removal from the U.S. For asylum processing to be defensive, you must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR).
Do the Immigrants have the right to due process?
The Fifth Amendment of the United States Constitution states that:
“no person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.”
The United States Supreme Court has ruled that “once an alien enters the country, the legal circumstance changes, for the due process clause applies to all persons within the United States.”Zadvydas vs. Davis (2001).
According to the Refugee Act, and the Geneva Convention, every person who escapes from persecution in their home country has the right to seek asylum. Denying migrants their right to seek asylum, and sending them back to their countries without due process will result in a potential threat of death for many immigrants. Further, by closing our borders to asylees we are not only violating Federal and International Law, but we are creating abetting an environment that violates basic human rights.