Originally Titled: Trump’s Executive Order on Caravans and What Asylum Means
Originally Published: The Public Purpose Journal
November 25, 2018
There is a group of people that originated in Honduras, slowly moving through Mexico. It has been reported that they intend to approach the US-Mexican border and seek asylum within the United States. The news outlets covering the story of this group have referred to them as a caravan of migrants, refugees, asylum seekers, amongst other, more colorful language not seen in any legal documents.
President Trump has asserted that he will sign an Executive Order banning the caravan’s entry into the U.S. and deny their claims to asylum. The term ‘caravan’ disguises the various legal definitions of migrants. To clarify, a migrant is an individual that leaves his or her country to seek residence in another country. A refugee, is an individual that leaves his or her country of nationality who is unable or unwilling to return to that country because of persecution or a well-founded fear of persecution. An Asylee is a person seeking the protection of a country that is found to have well-founded fear of persecution.
The difference between the definition of refugee and asylee is marginal. Two individuals may face the same persecution and well-founded fear in their country of origin but the way in which they seek protection determines their title under the law. To be considered a refugee, the individual must register with the United Nations High Commissioner for Refugees, a U.S. Embassy, or with a specially trained non-governmental agency in their country of origin. This requires the individual to identify, locate, and register with one of the above stated offices and wait for the office to issue a refugee referral, with which the individual can then travel to the United States.
To be considered an asylee, the individual must be on U.S. soil or at a port of entry and file Form I-589, an application for asylum, within one year of arriving in the U.S. Asylees are permitted to bring their families with them and to include them on their application for asylum. There are two ways to apply for asylum, affirmative asylum and defensive asylum.
Affirmative Asylum applies to a person on U.S. soil who approaches U.S. Citizenship and Immigration Services to apply for protection. This is a person who is not being threatened with deportation. If their request for protection is denied, they are subject to removal.
Defensive Asylum applies to a person who is apprehended and is in removal proceedings. The person may file for asylum. Their case will be heard by a judge to determine if there is a credible fear of persecution that would prevent their deportation and return to country of origin. The individuals in this process do not have access to appointed legal counsel.
It would stand to reason, based on the definitions put forth in domestic law, that the caravan comprises migrants that may be asylum seeking. They are not refugees and are not governed by the refugee admissions process as they have opted to apply for protection at the border.
On Oct. 3, 2018, the U.S. District Court for the Northern District of California, filed an injunction against the decision to terminate Temporary Protected Status (TPS) for individuals from Sudan, Nicaragua, Haiti, and El Salvador. Until the resolution of the case, beneficiaries of TPS from the above stated countries will be permitted to remain in the U.S. with their valid documentation. This is of note in the case of the Oct-Nov Caravan if claim that there are a wide-ranging number of nationalities represented in the group is true.
Each year the President and Congress determine a ceiling for the number of refugees that will be admitted to the country. The number of asylum applications and cases cannot be easily regulated as they are filed on-the-spot by individuals, not through an agency or organization. In September, the current administration announced that the ceiling for refugee in FY 2019 would be 30,000. This is the lowest threshold set since the implementation of the Refugee Act of 1980. This stands in stark contrast to the information released by the UNHCR indicating that the number of refugees in the world is the highest it has ever been, a total of 68.5 milliondisplaced persons.
Secretary of State Mike Pompeo defended the decision to lower the refugee ceiling due to increasing numbers of asylum applications filed at ports of entry. The energy and attention of officials needed to be reallocated to the borders and the asylum applications filed there. While there is a backlog of asylum applications, there are a few important things to note in the context of President Trump’s looming E.O.
- The number of persons apprehended at the border in FY 2017 is not statistically significantly different than the number apprehended during the Obama years. At 310,531- the number of people attempting to enter the U.S., asylum seeking or not, shrivels in comparison to the over 1 million per-year that were attempting to cross the border between 1990 and 2001. There is not a crisis at the border. There was a crisis at the border.
- The Trump Administration overturned a 2014 procedural policy implemented by the Obama administration to streamline the resettlement process for unaccompanied minors from Northern Triangle of Central America. This policy was created to reduce backlog and more effectively provide the protection that domestic and international law calls for in the case of refugees and asylees. The 1980 Refugee Act had similar intentions, giving the President additional powers to adjust the ceiling in the case of humanitarian crisis so as to create policies and procedures that could more effectively respond to the needs of refugees and asylees.
- The U.S. is a signatory to the 1951 and 1967 U.N. Convention and Protocols on Refugees. This convention defines refugees, asylum-seekers and their rights. It also prohibits refoulment, the return of an individual seeking protection to their country of origin where they may face persecution. This also prohibits the restriction of movement, that is, detention. While the U.N. treaty allows for States to determine their own asylum application procedures, the right to free movement and the right to liberty and security of the person, protects refugees and asylum seekers for being mistreated in detention centers and the violation of their human rights and dignity. The U.S. Constitution, Amendment 14 protects even non-U.S. citizens from any action that denies their life, liberty, or property without due process of the law.
As a signatory to the high-profile U.N. treaty on refugees, the U.S. affirms its obligation to the international community to protect vulnerable populations in the understanding that other States will as well. The right to seek asylum is defined as a human right. The Universal Declaration on Human Rights has been called upon to defend U.S. intervening actions taken in the pursuit of protecting vulnerable populations facing violence and attack in their countries of origin.
The E.O. President Trump has threatened to sign will ban entry of the caravan into the U.S. and deny their applications for asylum before they’ve been filed. This is a violation of International Law, U.S. legal precedent, and the core values upon which the country prides itself.
The United States asserts itself as a force of good in the world, a warrior in the pursuit of morality, even greatness. The E.O. to deny the Caravan the right to asylum is not pursuant to making our country great.