Executive Orders, Caravans, and What Asylum Means

Citizenship, Immigration, Uncategorized, US Politics

Originally Titled: Trump’s Executive Order on Caravans and What Asylum Means

Originally Published: The Public Purpose Journal

Trump’s Executive Order on Caravans and What Asylum Means

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.

  1. 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.
  2. 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.
  3. 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.

The Development of and Legal Principles Behind Birthright Citizenship

Citizenship, US Politics
Originally Published: The Public Purpose Journal: American University’s School of Public Affairs Graduate Journal
Originally Titled: Threats to Birthright Citizenship
November 23, 2018

President Trump has recently spoken publicly about his skepticism over the United States’ Birthright Citizenship Policy. The discussion over the revocation of Birthright Citizenship has emerged as a potential strategy to lower the number of individuals in the United States as a result of immigration and to prevent the availability of citizenship to their children. President Trump has threatened to sign an Executive Order ending a 152-year-old amendment to the U.S. Constitution which has serious implications for Americans- of birth and naturalization.

The right of U.S. citizenship by birth was established with the 14th Amendment in 1866. The Amendment states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of the law, nor deny to any person within its jurisdiction the equal protection of the laws.”

The context out of which this amendment emerged is crucial in understanding the importance of its maintenance. Following the end of the Civil War and the emancipation of slaves with the 13th Amendment, the 14th Amendment sought to include newly freed slaves and their children into the citizenry of the United States. It affirmed their rights and privileges under the law. The context of this amendment to the Constitution was inclusion. Its purpose was to fill a gap left in the definition of who is American as crafted by the founding fathers.

The 14th Amendment and its applicability was scrutinized by racial prejudice and bias against an individual’s country of origin. This led to the Supreme Court hearing of U.S. vs. Wong Kim Ark. In this case, Wong Kim Ark was born to Chinese immigrant parents on U.S. soil. He spent his entire life as an American citizen living in California. Upon returning from a visit to China, U.S. custom agents denied his reentry into the United States and his claim of citizenship based on the fact that the Chinese Exclusionary Act was in effect. This prohibited Chinese immigrants from becoming naturalized U.S. citizens. The Supreme Court held that Wong Kim Ark was a U.S. citizen by birth and was entitled to the rights and privileges of any and all other U.S. citizens.

The decision maintained that any immigration law discriminating against country of origin did not apply to children born on U.S. soil. The Court referenced an 1853 Pamphlet published in Philadelphia, stating:

“The right of citizenship… is incident to birth in the country… The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle.”

Your parents’ country of origin does not affect your status as an American.The decision of the court and the legal principle from which the 14th Amendment draws is jus soli, meaning right of soil. The origin of jus soli in U.S. citizenship law informally borrowed from English common law and was the primary method for determining who was American before the Civil War. Slaves were not given citizenship rights until after emancipation and the 14th Amendment. In an 1844 New York case, the court held that a child born to foreign nationals visiting or only temporarily residing in the United States was still entitled to U.S. citizenship. Though formal citizenship law did not appear as an amendment to the Constitution until 1866, there is clear precedent for the reliance on and upholding of jus soli in determining citizenship and American identity before.

This stands in contrast to the principle of jus sanguinis, meaning right of blood, that originated in Europe in response to shifting borders and the displacement of citizens from origin states. Following the redrawing of geopolitical boundaries in Europe throughout the 19th and 20th century, German leadership proposed a policy of determining national identity and belonging through ancestry rather than by location. Jus Sanguinis in its origin, was proposed as a method for reuniting separated families and granting citizenship rights to children born abroad to citizens. Though its basis in nationalist sentiment would later be used for oppression and genocide, in its origin, jus sanguinis was intended to be inclusive.
Jus Soli is primarily used in the Western Hemisphere and is the primary method for granting citizenship in a little over 30 countries. Many states’ citizenship law encompasses elements of both jus soli and jus sanguinis.

In examining the place for Birthright Citizenship in U.S.policy, there is not definitive right or wrong, especially when other developed countries’ policies are examined. Many European states rely heavily on narrowly defined Jus Sanguinis and still other developed, comparable countries rely on a restricted definition of Jus Soli. There is a strong argument to be made on behalf of both principles.

In moving forward in the debate over Birthright Citizenship, a few suggestions should be made:

  1. The debate over limited citizenship, naturalization, and immigration controls has sociological, political and economic components. It would be irresponsible to ignore data essential to the decision making process beyond demographic data. The economic cost and benefits of awarding the nearly 250,000 babies born to immigrant parents in 2016, (the last year such data can be accessed).
  2. Birthright Citizenship is not an all-or-nothing policy and should not be treated as such. The adjustment of the policy to have more stringent restrictions could be a meaningful step in meeting the goals of and maintaining the values of the American people. Many comparable, developed countries have restricted policies based on jus soli. Congressman Steve King, representing Iowa’s 4th Congressional District, introduced a Bill in the House in January 2017 that sought to address the issue of Birthright Citizenship, seemingly combining principles of jus sanguinis and jus soli. The amendment would require one parent to have citizenship or be a legal resident alien for the child, born on American soil, to be considered a U.S. citizen. The language of the Bill is subtly exclusionary. All 11 of the Congressmen named on the Bill in its introduction were members of the Republican party (two of the congressmen were defeated in reelection campaigns, one resigned following accusations of sexual harassment).
  3. When changes are proposed to such a fundamental policy, the American people should have an opportunity to engage with the system and voice their support or opposition. Recent polls have indicated 65% of respondents support the continuation of Birthright citizenship, a number that has actually increased since Trump took office. An Executive Order may be the quickest way to shift policy, it is not the most effective, or legal, channel for amending the Constitution. Legal scholars from around the country have stepped forward offering insight into potential outcomes of such an Executive Order.

In conclusion, the debate over Birthright Citizenship speaks to the core principle of who is American and who is not. While the United States has long been a country of immigration, this is not the first time the question over birthright citizenship has emerged and it will most likely not be the last. As Americans grapple with the defining of who is a citizen and what it means to be American, there is value in the recollection of our core values.
E Pluribus Unum, a statement that served as the motto in the founding of the United States and appears on the official seal not only of the President but on the seal of the Vice President, Congress, and the Supreme Court. E Plurbius Unum serves as the motto of the U.S. and is present in every office charged with the duty of governing the country. What does this Latin phrase mean exactly?
“Out of many, one.”
The union of varying peoples is as integral to and symbolic of the American identity as the bald eagle.

The best outcome of the debate is the involvement of the elected officials comprising our legislature and their careful consideration of the extensive body of research on migration, citizenship, and legal precedent that exists around this issue.
The question of belonging and membership in the American system will go unanswered until then.