With many fleeing life-threatening conditions including gang violence and domestic abuse, the thousands of migrants who make up what has become known as the “migrant caravan” hoped the United States would be a place of refuge after their long journeys.
Instead, some of them were met with tear gas at the U.S.-Mexico border in Tijuana on Nov. 25, after at least one migrant reportedly threw rocks at Border Patrol agents.
“Here’s the bottom line, nobody’s coming into our country unless they’re coming legally,” President Donald Trump said after the incident, although applying for asylum is a process protected by both international and national laws.
Now, Trump wants to make asylum-seekers wait in Mexico while their immigration court hearings play out, and the incoming Mexican government supports it, the Washington Post reported. But experts say that might not be possible under current law.
It’s just the latest hiccup in the Trump Administration’s approach to asylum-seekers on the southern border.
“There really isn’t any way under U.S. law to just have somebody wait in Mexico for their asylum proceedings to go forward,” Denise Gilman, director of the Immigration Clinic at University of Texas Law School, tells TIME. “And even perhaps more importantly, there are very serious international obligations that prevent the United States from forcing a family or an individual to remain in Mexico.”
Here are the facts.
Is asylum a legal process?
According to U.S. Citizenship and Immigration Services (USCIS), asylum is a protection status migrants can apply for if they have reason to believe they will be persecuted in their home country on the basis of race, nationality, religion, political opinion or membership in a social group. People who have been granted asylum can then apply for a green card, and, eventually, citizenship. However, most asylum seekers are not granted asylum. In fiscal year 2018, the U.S. Justice Department reports that only one in five applicants achieved it.
While migrants who seek asylum should meet the definition of a refugee to be considered, applying for asylum and refugee statuses are different processes in the United States. To apply for asylum, you must already be present in the United States. To apply for refugee status, foreign nationals must obtain permission to come to the U.S. before entering and receive a referral to the U.S. Refugee Admissions Program for consideration.
How do you seek asylum in the U.S.?
There are two ways to apply for asylum, per the USCIS: affirmatively or defensively. When applying affirmatively, migrants submit a form to the U.S. Citizenship and Immigration Services within one year of arriving in the U.S. After that, affirmative asylum applicants are fingerprinted and interviewed. From there, an officer will approve or deny their status. Those who are denied can be referred to immigration court for a judge to make a final decision — a process that can take years.
Migrants who were apprehended, either at a port of entry or shortly after crossing into the United States, are slated for immediate expedited removal if they cannot provide proper legal documents. Migrants in this situation who claim a fear of returning to their origin country and pass a credible fear screening interview are referred to an immigration judge for full consideration of their asylum claims in deportation proceedings. They will be allowed to apply for asylum as a defense against deportation, along with migrants picked up well within the interior of the United States who are also placed into deportation proceedings and permitted to apply defensively without need for a credible fear screening, Gilman said.
Space to house defensive asylum seekers is limited — and expensive. It costs $134 per day to maintain one adult detention bed, and $319 per day to maintain a family bed, according to CNBC. Things are especially tricky when adult migrants come to the U.S. with their children, and a federal agreement limits how long children can be held in detention. This is especially relevant now, as the number of family units seeking asylum continues to increase as other undocumented border crossings remain at decade lows, according to Theresa Cardinal Brown, the director of immigration and cross border policy at the Bipartisan Policy Center and a former policy official at both U.S Customs and Border Protection and the Department of Homeland Security.
“Overall, the southern border is much, much more secure, it is much much harder to come in an undocumented way across the U.S.-Mexico border — that is undeniably true,” she says. “What has changed is that we are seeing a new migratory pattern that we have not experienced before, where a majority of those trying to enter the United States are families with children who are seeking asylum and are not from Mexico.”
Given a child can only be detained for a limited amount of time, and that the cost of detaining any migrant is high, asylum-seekers are sometimes released to their friends or family members in the U.S. as they await their immigration court proceedings. Some are released on their own recognizance, others pay a bond or are ordered to wear GPS ankle monitors.
Trump has referred to this series of steps as “catch-and-release,” a term which is not used by the government.
What laws govern the process of seeking asylum?
Prior to World War II, there were no clear routes to obtaining asylum status in the United States. In 1939, the United States notoriously turned away a ship full of 937 migrants, which included mostly Jewish people fleeing Nazi Germany. Initially denied entry by Cuba, the boat sailed “so close to Florida that they could see the lights of Miami,” according to the United States Holocaust Memorial Museum. A State Department telegram reportedly indicated the passengers must “await their turns on the waiting list and qualify for and obtain immigration visas” before docking. By the end of the Holocaust, more than 250 of the passengers had died. The United States formally apologized for its inaction in 2012.
In 1951, the United Nations held a convention that established who was considered a refugee and to what rights they’d be entitled. The United States was not a signatory of this convention, though it did accede to its 1967 Protocol, which removed the geographical and time limitations the convention set.
The 1980 Refugee Act brought the United States into compliance with international standards established by the United Nations Convention and its protocol. The act formulated the country’s first comprehensive and statutory procedure for claiming asylum in the U.S.
Can Trump make refugees wait for their hearings in Mexico?
It’s complicated. “We certainly have an obligation not to send somebody back to any country in which they would be in danger of harm or torture,” Brown says. “That’s against international treaty law; that’s against U.S. law.”
But whether migrants not from Mexico who pass through the country on their way to the U.S. can be considered safe from harm or torture is another question, according to Gilman. It is unlikely any official deal could be finalized until President-elect Andrés Manuel López Obrador takes office on Dec. 1.
“If the country where the person is being required to stay may deport them to their home country, then the country that has required them or allowed them to stay in that third country is essentially indirectly creating a likelihood that the person may be returned home to danger,” Gilman said.
Brown cited part of Section 235 in the Immigration and Nationality Act as something the Administration may try to hinge this proposal on. It says the attorney general may return a migrant “from a foreign territory contiguous to the United States” to that territory pending a proceeding, though it is not abundantly clear whether that provision could apply to asylum seekers.
Another justification the Trump Administration could potentially try is a “safe third country agreement,” which is when two nations bilaterally agree that the other is safe for refugees. The U.S. has an agreement with Canada, which generally requires asylum seekers arriving in either country to make their asylum claims in the first safe country they arrive in. If the U.S. had a deal of that sort with Mexico, migrants fleeing Central America would naturally go through Mexico on the way to the United States, thus requiring them to file their asylum claims there. However, no such agreement between the U.S. and Mexico exists yet.
Additionally, Gilman said Mexico might not be a safe option for some of the migrants leaving Central America. “It’s completely disingenuous to suggest that there will be an evaluation of asylum seekers who might be at risk remaining in Mexico,” she says.
And if the agreement does somehow become codified — perhaps through Section 235 of the Immigration and Nationality Act or a new safe third-party agreement with Mexico — Gilman argued it would be a blight on the country for years to come: “It’s reminiscent of other times in history when we have turned away refugees from our borders, which we look back on now with great shame.”