Seeking Asylum Along the Southern Border

By Adam W. Marshall, Esq.

The Universal Declaration of Human Rights was proclaimed by the United Nations seventy years ago this December. It states clearly and unequivocally that “All human beings are born free and equal in dignity and rights.”

Because not all nations place equal value on human dignity and human rights, parts of the world have experienced unprecedented flows of refugees seeking asylum and protection. The United States has long held itself out as a champion of the rights of refugees and asylum seekers around the world.

On November 9, 2018, a proclamation issued by President Donald Trump and a regulation adopted jointly by the United States Departments of Justice (DOJ) and Homeland Security (DHS) combined to make a significant change to the asylum process in the United States.

Although nationwide enforcement of this new procedure was temporarily blocked by order of the U.S. District Court in the Northern District of California on November 19, 2018, it is important to understand, as the world commemorates Human Rights Day, the requirements that exist for those who seek asylum in the United States and how these recent developments may affect the process.

Asylum is a status granted by the government of the United States that provides legal protection and other benefits to foreign nationals, allowing them to reside and work in the United States.

In order to be granted asylum, the foreign national must qualify as a refugee. According to U.S. immigration statutes, a refugee is defined as “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .” 8 U.S.C. § 1101(a)(42) (emphasis added).

An application for asylum may be made by anyone “who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival. . .) irrespective of such alien’s status. . . .” 8 U.S.C. § 1158(a)(1) (emphasis added). The granting of asylum by the United States includes the ability of immediate family members to also proceed through the asylum process and contemplates an ultimate path to citizenship.

Asylum is not automatically granted; to prove actual or a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group or political opinion requires that the asylum seeker provide credible, direct and specific evidence supporting the applicant’s claim. Thousands of asylum applications are rejected each year.

With respect to those who cross into the United States along the southern border with Mexico, the November 9 presidential proclamation and the DOJ/DHS regulation allow asylum to be sought only by those who enter the United States through a designated port of entry. This directive specifically excludes from the asylum process anyone who enters the United States anywhere else along the southern border, at least for the ninety days following the effective date of the proclamation.

A port of entry is any location that is specifically designated by the United States as a point of entry to the United States by aliens and citizens. Along the approximately 2,000-mile border between the United States and Mexico, there are 48 towns, municipalities and cities that have such ports of entry.

The stated rationale behind the presidential proclamation is “[t]he continuing and threatened mass migration of aliens with no basis for admission into the United States” that has “precipitated a crisis and undermines the integrity of our borders.” The ultimate goal of the new policy is to “maintain the effectiveness of the asylum system for legitimate asylum seekers who demonstrate that they have fled persecution and warrant the many special benefits associated with asylum.”

Regardless of the accuracy of the proclamation’s rationale or the laudability of its goal, the attempt to exclude from the asylum process those who cross the border at places other than ports of entry directly contradicts the very specific statutory language of the immigration law passed by the United States Congress that allows a foreign national to request asylum even if entry into the United States was not made through a “designated port of arrival.”

This exclusion is also inconstant with the 1967 United Nations Protocol Relating to the Status of Refugees, which was acceded to by the United States in 1968. Article 31 of the protocol requires that “Contracting states shall not impose penalties, on account of their illegal entry or presence, on refugees who. . . enter or are present in their territory without authorization. . . .”

The District Court cited each of these contradictions in its November 19, 2018 order temporarily restraining enforcement of these changes to the asylum process.

There have been recent border closings and conflicts at ports of entry, perhaps most notably at the San Ysidro border crossing between Tijuana, Mexico and San Diego, California on November 25, 2018. There have also been reported significant reductions in the numbers of asylum applications actually accepted at ports of entry.

When these facts and events are combined with the administration’s intention, through proclamation and regulation, to further limit asylum seekers, it is hard to argue that it is treating access to asylum consistently with the letter or spirit of either the United Nations Protocol or the United States’ own immigration statutes.

In the end, whether this new restriction on asylum seekers ultimately goes into effect will be decided at a hearing in the District Court that is currently scheduled for December 19, 2018. While it is unclear what will ultimately happen, this is unlikely to be the last attempt by the current administration to alter the immigration policy of the United States.