Seeking Asylum At The U.S.-Mexico Border

Under current U.S. policy, the Department of Homeland Security (DHS) is allowed to engage in a process called “expedited removal.”

Under current U.S. policy, the Department of Homeland Security (DHS) is allowed to engage in a process called “expedited removal.”

These days there are no guarantees for anyone trying to escape poverty or violence in their country by seeking asylum in the United States. But for those who make the long and difficult journey through Central America and Mexico to reach official ports of entry on the southern border of the United States, the future is grim. Here’s what is happening.

Under current U.S. policy, the Department of Homeland Security (DHS) is allowed to engage in a process called “expedited removal.” This means it can conduct “rapid deportation” of certain non-citizens who are either found near the border, or come to an official port of entry.

However, different U.S. and foreign laws prohibit authorities from sending someone back to a country where their life or freedom is in jeopardy. To ensure that the border officials don’t inadvertently send anyone back into harm’s way, the U.S. government provides screening for asylum seekers facing immediate deportation.

According to recent news reports, there were so many asylum seekers in lines at border crossings in California, Texas and Arizona that some  people were forced to wait days, even weeks, before they could speak with immigration officials.  

At the Hidalgo, Texas, border crossing, parents and children reportedly slept on cardboard on a bridge dividing the U.S. and Mexico, while they waited  for immigration authorities to let them know it was finally their turn to state their reasons for wanting to enter the United States. Some were forced to brave what the media described as “sweltering heat” for several days.

Some lawyers also told the media that asylum seekers at the Nogales, Arizona, crossing were “camping out” for as long as five days to make a claim

The ‘Credible Fear’ screening process

The screening process begins when someone selected for expedited removal tells the Customs and Border Protection (CBP) officer that they are afraid of being persecuted or tortured; they are scared of returning to their country; or that they want to apply for asylum. As soon as that happens, the CBP official should refer him or her to an asylum officer who will conduct the initial screening interview.

If the individual seeking safety here convinces the asylum officer conducting the credible fear interview that he or she has a legitimate reason to do so,  it means that there is a “significant possibility” that he or she can also demonstrate his or her eligibility for asylum or the protection available through the Convention Against Torture. His or her case will then be sent to Immigration Court, which will consider the request for asylum.

On the other hand, if the officer finds the individual doesn’t have a valid reason for requesting asylum in the United States,  the officer will issue an order for his or her deportation (removal).  It is important to be aware that there is still hope at this point, because the asylum seeker has the right to appeal this decision. Specifically, he or she can do so before an immigration judge who will conduct a brief assessment of his or her circumstances. If the immigration judge disagrees with the asylum officer’s decision, the court proceedings will continue and the individual in question will be able to seek protection from deportation. But if the immigration judge agrees with the asylum officer’s decision, the person will be kicked out of the country.

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Why does the asylum process take so long?

This sounds fairly simple and theoretically, the process shouldn’t take all that long. Unfortunately, that is not the case — and in fact this process can often take years. One reason for this is the sheer number of pending cases in U.S. immigration courts.

According to some estimates, there were nearly 700,000 open deportation cases in these courts as of March 2018. The American Immigration Council also notes that  the average wait for people who had immigration court cases and ultimately received some form of relief — including but not limited to asylum — by that time was more than 1,000 days.

To make matters even worse, asylum seekers are often separated from the relatives who came with them while their cases are pending. Even if they are not detained, finding work and legal assistance during this time is also complicated.

Why are some asylum seekers detained?

By law, “arriving asylum seekers,” or those who claim they need protection when they get to an official port of entry,  have a right to stay here while their case is open. But because the government disputes this, many people lawfully seeking safety here are separated from their families and detained — often for prolonged periods.

Even after the government led by U.S. President Donald Trump claimed that it ended its “zero tolerance” immigration policy, which resulted in the separation of children and parents who entered the country illegally, the media reported ongoing issues. Specifically, news outlets reported that families who listened to the government and came to official ports of entry seeking asylum were still being turned away or separated, and that people were still being detained.

One of the explanations for this, as  The Texas Tribune reported in a July 2018 article, is that an idiosyncrasy of U.S. immigration law prevents  people who seek asylum at official ports of entry, rather than risking an illegal border crossing, from being be bonded out of immigration detention by a judge. Instead, their only hope for freedom while their case is pending is  “parole” — or short-term release from immigration detention — and these decisions can only be made by Immigration and Customs Enforcement (ICE).

Sadly, their chances of getting parole are slim. As the Tribune also reported, ICE officials working while President Barack Obama was in office had tremendous leeway when it came to granting parole. Last year, however, the Trump administration reversed that policy, and the ACLU alleges that parole rates dropped drastically.

In the summer of 2018, a federal judge ordered the government to review parole decisions for numerous asylum seekers held in “immigration jail” for prolonged periods, ranging from months to years. Specifically, the judge ordered the government to release those detainees if they’re moving forward with their asylum cases and if they’re not a flight risk or a danger to the community. However, that was limited to cases involving only five U.S. immigration offices across the country.

If you were detained, know someone who was detained or fear that a loved one was detained after seeking asylum at an official port of entry on the U.S.-Mexico border, it is crucial that you get legal advice as soon as possible. Don’t be intimidated or scared — you have a right to speak with an experienced immigration attorney who will fight for you. Contact us today.

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