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August 14, 2013

Asylum and the Border: Setting the Record Straight

Over the last few days, several news outlets have produced pieces relating to protection requests at the border that reflect —and sow—confusion about the complex expedited removal system and the asylum process.  Some fact-checking is in order.

A few  pieces claimed that  200 people attempted to enter into the United States from Mexico on a single day last week claiming a “credible fear” of “the drug cartels,”  and mislabeled the expedited removal law’s credible fear process as a “loophole” in our immigration system, implying, wrongly, that it is some kind of unfettered avenue that allows anyone to cross our borders for no compelling reason.  In fact, it is a limited but crucial safeguard designed to ensure that the United States does not summarily deport an individual fleeing from persecution without first assessing their protection request.

Some reports also confuse the passing of a “credible fear” screening interview with an actual grant of asylum, and that initial screening process with the overall immigration removal process.  One report speculated that the surge in protection requests appeared to have been spurred by the “Dream 9,” a group of young people who sought to protest the deportations conducted by the Obama Administration by entering the U.S. detention and deportation system at the border.  Several news reports, including a  FoxNews.com piece, mistakenly reported that these young people were actually granted asylum.  They were not.

U.S. immigration officers reportedly determined that the Dream 9 should not be summarily deported based on a “credible fear” screening interview, and put them into the immigration removal process.  While this means that they can  apply for asylum in that removal process, it certainly does not mean that they will be granted asylum.

The FoxNews.com piece also opined that “by claiming they have a ‘credible fear of persecution’ if returned to Mexico, the immigrant is entitled to a series of interviews, hearings, proceedings and appeals that can drag on for years.” In fact, the credible fear process itself is intentionally designed to be resolved in a matter of weeks .Immigration court removal proceedings, on the other hand, must often wait for years for a hearing date  due to the continued under-resourcing of the immigration court system. For a refugees seeking protection from persecution, these delays are not some kind of perk; instead they leave them  in limbo for years, and often leave their children stranded in difficult and dangerous situations abroad.

To clarify these misunderstandings, it is worth outlining some of the basics of the complex U.S. expedited removal, immigration and asylum systems. There are multiple steps that are potentially involved when an individual expresses a fear of return at the border.

Expedited removal – Individuals who seek entry at the border but do not have valid documents allowing them to enter the country are generally summarily deported at the border and returned to their home countries without being put into immigration court removal proceedings.  Individuals who express a fear of return should be referred for a credible fear screening interview, conducted by a Department of Homeland Security –U.S. Citizenship and Immigration Services asylum officer. (The bipartisan U.S. Commission on International Religious Freedom (USCIRF) has documented  failures to implement safeguards to protect refugees from being returned to persecution.)

  • Credible fear screening interviews – Individuals who express a fear of return are not automatically allowed to apply for asylum. Instead they are detained and should be referred for a credible fear screening interview.  If they do not pass this interview or a quick review, they are summarily deported under expedited removal.  If they do pass the screening interview, they are put into immigration court removal proceedings, where they may submit an asylum application.
  • Immigration court removal proceedings – Individuals in immigration court removal proceedings now have to wait several years in many cases for their immigration court hearing dates due to the extensive backlogs and lack of resources and staffing at the immigration courts.   Individuals who are put into immigration court removal proceedings can apply for asylum.
  • Asylum Grant – An individual who is apprehended at the border and goes through the credible fear process is referred into the immigration court removal process.  During that removal process, the individual can apply for certain types of relief including asylum but he or she must prove a well-founded fear of persecution in order to be granted asylum.  The government will assess the individual’s credibility and there are multiple measures in place to identify fraud or abuse in the system, as detailed in this fact sheet.

Several of the articles indicate in statements, primarily from unnamed sources and from Pete Nunez, a former U.S. Attorney and Chairman of the Board of Center for Immigration Studies, that the recent increase in arrivals at the Mexican border has been “orchestrated” and that these individuals have been told to use some “key words” to try to gain access to the United States.  A U.S. immigration official recently testified that the increasing violence in Central America could be a factor contributing to an increase in protection requests at the border.

If indeed there are individuals  or groups who are orchestrating any arrivals or encouraging fraudulent attempts to enter the United States, the U.S. government has many tools it can use to address this serious situation.  These tools include:

  • Investigate and prosecute any smuggling networks and perpetrators of fraudulent schemes.  The federal government has unprecedented resources available to it to investigate and prosecute alien smuggling and fraud.
  • Utilize the many existing safeguards in the asylum and immigration systems to identify any fraud or abuse.
  • The U.S. immigration courts should be adequately funded and staffed so that hearings can move ahead in a timely manner rather than being delayed for several years.  These delays undermine the ability of legitimate asylum seekers to receive protection and bring their families to safety.

The United States can and should take steps to address any abuses while also living up to its values and its commitment to protect the persecuted. The United States has a long history of providing refuge to victims of religious, political, ethnic, and other forms of persecution. The standards for a grant of asylum are quite rigorous under U.S. immigration law.  The principle of asylum is a core component of this country’s identity as a nation committed to freedom and respect for human dignity.