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The Law of Asylum in the U.S.A and International Violations

The Law of Asylum in the U.S.A and International Violations

By Anusha Nagavarapu

Introduction

The United States has remained a beacon of hope for millions of refugees who run from their nations in the fear of persecution. The U.S has maintained, since time immemorial, the position that it will never return a foreign national to their country where there exists a danger to their life or freedom. The basis for their safety in the U.S is that a significant fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion[1] must be demonstrated in order to seek asylum in the U.S. All of this is enumerated in the provisions of the Immigration and Nationality Act (INA). The Congress has incorporated this definition of refugee into the Refuge Act of 1980, as well.[2]

The United States became a party to the United Nations Protocol, 1967 in the year 1968. This relates to the Status of Refugees, and embodies the principle of Nonrefoulment, which basically means that an alien would not be sent back to a country wherein there lies any danger to his life. While the Protocol does not entail that a signatory must and should accept refugees, it guarantees a specific set of rights and protections to foreign nations who meet the definition of refugee. The definition of refugee was codified in The Refugee Act of 1980, and provisions for asylum were also included.

The number of people seeking asylum in the United States fluctuated erratically in recent decades; this being an indication of the changing global scenarios, especially in North and Central America. The number of asylum seekers was as few as less than 5000 per year, and drastically spiked in 1981 owing to the mass exodus from Cuba. This again skyrocketed in the year 1988, owing to the civil wars in Central America, and repressive policies in China.[3] The number of asylum cases increased to as many as 150,000 in 1995, adding to an existing record of 500,000. This was due to the repressive situations in Haiti and Central America. The need to manage the abundance of cases efficiently was felt, and hence led to the fundamental reforms in 1994 and 1995, thereby creating an asylum system. As soon as this system was implemented, the application levels dropped to a minimum of 40,000 per year.

Some Key Concepts

What is Asylum?

Asylum is a protection granted to foreign nationals already in the United States or at the border who meet the international definition of a “refugee.” The United Nations 1951 Convention and 1967 Protocols defines a refugee as a person who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted “on account of race, religion, nationality, membership in a particular social group, or political opinion.”1 Congress incorporated this definition into U.S. immigration law in the Refugee Act of 1980.

Following are some definitions defined by Amensty International, a leading human rights organization.


Who is an Asylum Seeker?

An asylum-seeker is someone who has left their country seeking protection but has yet to be recognized as a refugee. During the time that their asylum claim is being examined, the asylumseeker must not be forced to return to their country of origin. Under international law, being a refugee is a fact-based status, and arises before the official, legal grant of asylum.

 

Who is a Migrant?

A migrant is a person who moves from one country to another to live and usually to work, either temporarily or permanently, or to be reunited with family members. Regular migrants are foreign nationals who, under domestic law, are entitled to stay in the country. Irregular migrants are foreign nationals whose migration status does not comply with the requirements of domestic immigration legislation and rules. They are also called “undocumented migrants”. The term “irregular” refers only to a person’s entry or stay. Amnesty International does not use the term “illegal migrant.”

 

Who are Maras?

It is a colloquial name commonly given to organized groups from the Northern Triangle of Central America that are characterized by violent criminal activities and generally associated with territorial control.

 

What is ICE?

Immigrations and Customs Enforcement (ICE) is an agency of the United States government that falls under the Department of Homeland Security (DHS). ICE is generally charged with carrying out detentions and deportations of irregular migrants. Its functions normally pertain to the interior of the United States, rather than the border areas.

Present Scenario under the Trump Administration

Donald Trump, President of the United States carried out a series of steps so as to limit the number of applicants of asylum to the United States. Citing the danger of being “invaded” by Central American migrants, the Trump Administration has introduced several policies that are intended to the changed the asylum system and limit the ability of those seeking protection in the United States to succeed with their claims.[4] Trump executed a number of policies so as to ensure that individuals seeking asylum, arriving from the Southwest border are deterred from doing so, as the number of grounds upon which immigration officers and asylum officers can grant asylum are narrowed down to a minimum.

On 25th January 2017, the “Border Security and Immigration Enforcement Improvements” was signed[5]. Trump signed an order entitled “Enhancing Public Safety in the interior of the United States”[6] which embodies the immigration enforcement within the United States, thereby increasing the functions and number of agents of ICE, and prioritising deportation for all immigrants especially those suspected of crimes. The order also ensures cancelling of funding to “Sanctuary cities” wherein they refuse to oblige with ICE and other federal authorities with respect to apprehending irregular migrants.

On the 27th of January, Trump signed an Executive Order known as “The Muslim Ban”[7]. A similar executive order on the same lines was signed on March 6th, which restricted the entry of refugees from six major Muslim countries.  Along with this, a suspension on the Refugee admissions Programme was called for a period of 120 days. Some main points of concern in this regard are that to reduce the total number of refugees to be admitted to the United States from 110,000 to 50,000.

The measures incorporated under the Trump Administration embody a “zero-tolerance” approach towards border control. It involves prosecution of even first time border crossers, without catering to why they are crossing the border in the first place. A situation may arise wherein it may be for asylum, which the policy clearly fails to take into consideration owing to its lack of humanitarian approach. During President’s Trump brief tenure as President, the number human rights violations have been rampant. Under his administration, families have been detained at the border; their children have been separated from them, which went on to becoming a legal prohibition by way of injunction by the federal courts.[8]

What remains an appalling aspect of the administration’s actions are those that exclude gang and domestic violence as grounds to seek protection. In the Matter of A-B-[9], it was held that the social group in question must exist independently of the harm asserted as a grounds for asylum, and that applications based on persecution by nongovernment actors must clearly demonstrate that the government either condone the persecution or “demonstrated an inability to protect victims,” It was made clear that this decision applies to both cases of domestic violence, and gang violence, as well.

 

Misconceptions v/s The Reality

The actuality is that refugees seeking do not come there to steal American jobs. It’s foolish to believe that someone on the run for their lives is doing so with the sole purpose of career advancement. The people that cross the border do so, due to fear of persecution owing to uncontrollable situations. The proof of this lies in the very fact that thousands still go over the border seeking asylum, in the hope that they will be protected despite Trump’s arbitrary and non-humanitarian approaches. Multiple research findings have provided evidence of a sharp decline in economically motivated immigration from Latin America from 2000 onwards, with predictions for total immigration to reach zero by 2050.[10] The irony remains that Trump’s oppressive policies would not reduce the number of immigrant applications seeking economic betterment, rather it only deters those seeking asylum in the USA.

Asylum claims from The Northern Triangle (that being the deadly states of El Salvador, Honduras and Guatemala) rose by 555% between 2010 and 2015.[11] These have been known to be the most deadly conflict zones with homicide rates from eight to ten times higher than the level considered by the World Health Organisation to be an “epidemic”. All of these and many other factors point to one conclusion alone: The asylum situation in the U.S is in severe crisis and something needs to be done about it.

Amensty International spoke with a family of nine from El Salvador who were living under a small, constricted room on the border of Mexico and Guatemala. In their paper[12] they write about how a woman, Emilia worked in a bakery and her husband Jose, as a bus driver in San Salvador. Their two eldest sons, out of eight were killed by maras in broad daylight in 2009, as he was getting off of a bus. When their second eldest son was killed, Emilia told Amensty International, “she couldn’t believe it; the same story was repeated itself again.” Emilia and her family were allowed protection in Mexico in April 2017.

 

Another reality that most fail to comprehend: Migrants are not criminals.

International and US domestic law protects those present in the United States in an irregular manner. The point of logic that is to be understood here is that people running for their lives cannot afford documentation. How is one expected to have proper documentation? Owing to their culture, background and other extenuating circumstances it isn’t unreasonable to assume that they wouldn’t be aware of their rights, let alone be able to afford legal attorneys so as to follow procedure.

Nicole Ramos, the US Attorney who provides pro bono legal assistance to asylum-seekers on the Tijuana – San Diego border“You shouldn’t need an attorney in order to seek asylum at the border.”

Another example of the clear cut inhumanity prevalent in the United States.

The law exists for the people, and not the other way around. Deeming scenarios involving asylum to be “illegal entry” and imposing criminal penalties on undocumented immigrants is arbitrary and a severe violation of their human rights. Stigmatizing terms such as “criminal aliens” that exist within no legal framework of the US is a bigoted action against their freedom and liberty, at best. The UN Refugee Convention and its 1967 Protocol mentions that “States are not allowed to apply punitive measures to those seeking asylum.” What is to be gathered from this is that President Trump has adopted a hateful rhetoric towards immigrants. It isn’t about them stealing American jobs; it isn’t about legal procedure, either. It’s bigotry, the embodiment of which we can see in the present United States President.

 

Violation of International Laws

The Principle of Non Refoulement is one which binds the U.S under the 1967 Protocol of the UN Convention Relating to the Status of Refugees and as a principle of international customary law. It provides, under Article 33 of the Convention that “States must not return persons to territories where their “life or freedom” would be threatened. This is considered as a non-derogatory principle by States. This basically entails that the U.S is under a mandatory international obligation to grant asylum to individuals seeking international protection. As a result, they are entitled not only to access to the territory and to fair and efficient asylum procedures, but also to be allowed an interview with an asylum officer.

In another report by Amensty International, evidences have been documented of non-admission of asylum seekers at the border as early as 2015. No written records exist with that of asylum officers, which goes to show that CBP Agents take full and extreme advantage of the fact that they are allowed wide discretion under administrative guidelines, thereby acting arbitrarily and violating domestic as well as International Law.

 

Conclusion

What is required at this point in time, isn’t the construction of a wall, or the selective oppression of migrants that come seeking asylum owing to life threatening conditions. A public affirmation allowing asylum seekers eligibility to enter the United States and seek protection is an ideal world that many across the borders only dream of. America remains a beacon of hope to many helpless individuals. It’s the place on looks to from across the world, with a gut wrenching feeling of awe, so as to suggest that there does exist something which makes America so“great”.

A rectification of previous erroneous statements that conflate asylum seekers is an essential at this point. It isn’t law, procedure, or anything but the lives of many that matter. United States has adjusted over 1 million foreign nations to legal permanent resident status each year. Asylum is a situation that requires consideration of facts, circumstances and evidence, the basis upon which fair and just procedure must be carried out.  There is no number against which human value can be measured against. The time has come to understand the importance of human rights, and to condemn violation of the same.

 


[1] INA §208; 8 U.S.C. §1158

[2] Refugee Act of 1980, 8 U.S.C § 1101(a) (42)

[3] Ruth Ellen Wasem, Asylum and “Credible Fear” Issues in U.S Immigration Policy (Washington, DC: Congressional Research Service, 2011), https://fas.org/sgp/crs/homesec/R41753.pdf

[4] DOJ, “Attorney General Sessions Delivers Remarks to the Association of State Criminal Investigative Agencies 2018 Spring Conference” (prepared remarks, Scottsdale AZ, May 7, 2018) www.justice.gove/opa/speech/attorney-general-sessions-delivers-remarks-association-state-criminal-investigative.

[5] The White House, Office of the Press Secretary, Executive Order: Border Security and Immigration Enforcement Improvements, 25

January 2017, (Hereafter Border Security Executive Order in following footnotes) available at: https://www.whitehouse.gov/the-pressoffice/

2017/01/25/executive-order-border-security-and-immigration-enforcement-improvements. Last accessed 21 May 2017

[6] The White House, Office of the Press Secretary, Executive Order: Executive Order: Enhancing Public Safety in the Interior of the United

States, 25 January 2017, available at: https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancingpublic-

Safety-interior-united. Last accessed 21 May 2017

[7] The White House, Office of the Press Secretary, EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES, 27 January 2017, available at: https://www.whitehouse.gov/the-press-office/2017/01/27/executive-orderprotecting-

Nation-foreign-terrorist-entry-united-states. Last accessed 21 May 2017

[8] Memorandum from Jeff Sessions, U.S Attorney General, to federal prosecutors along the southwest border, Zero-Tolerance for Offenses under 8 U.S.C § 1325 (a), April 6, 2018, www.justice.gov/opa/press-release/file/104951/download; White House, “Executive Order 13821 of June 20, 2018: Affording Congress an Opportunity to Address Family Separation”

[9] Matter of A-B-, Respondent, 27 I&N Dec.316 (Attorney General, June 11, 2018), www.justice.gov./eoir/page/file/1070866/download

[10] See for example, Brookings Institute, Why Undocumented Immigration from Latin America to the US will slow to a Crawl, March 2017, available at: https://www.brookings.edu/blog/brookings-now/2017/03/23/why-undocumented-immigration-from-latin-america-to-the-u-s-willslow- to-a-crawl-even-without-a-border-wall/. Last accessed 16 May 2017. Also see: Pew Research Centre, More Mexicans leaving than coming to the US, Nov 19, 2015: http://www.pewhispanic.org/2015/11/19/more-mexicans-leaving-than-coming-to-the-u-s/, accessed on 31 March 2017.

[11] Amnesty International, Home Sweet Home? Honduras, Guatemala and El Salvador´s role in a deepening refugee crisis, 14 October

2016, AMR 01/4865/2016

[12] Facing Walls, USA and Mexico’s Violations of the Rights of Asylum-Seekers, Amnesty International, 2017

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