"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
THE HILL: NOLAN COMMENTS ON THE “CARAVAN” — Plus, Friday Bonus: An Index Of All 162 Of Nolan’s Published Articles!
The only solution is to find a way to process their asylum applications outside of the United States.
In July 2014, I suggested a way to do this to deter unaccompanied alien children from making the perilous journey from Central America to seek asylum in the United States. I proposed working with United Nations High Commissioner for Refugees (UNHCR) to set up refugee centers in Central America for children to make it unnecessary for them to travel to the United States.
A few months later, President Barack Obama announced the establishment of a Central American Minors (CAM) refugee program to provide in-country refugee processing by U.S. Citizenship and Immigration Services (USCIS) for qualified children in El Salvador, Guatemala, and Honduras.
Trump could establish such a program that would be open to adults too.
He also should be able to persuade UNHCR to process asylum seekers who come to the United States at a location outside of the United States if processing is limited to aliens who enter without inspection.
Notwithstanding claims to the contrary, undocumented aliens do not have a right to apply for asylum in the United States. Asylum is a discretionary form of relief. The asylum provision in the Immigration and Nationality Act just states that eligible aliens “may” be granted asylum.
The United States, however, is a signatory to the UN’s Convention and Protocol Relating to the Status of Refugees. This means that it cannot return or expel “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
This obligation could be met by arranging for UNHCR to process their persecution claims in some other country with the understanding that an agreed upon number of them would be accepted by the United States as refugees.
It would have to be a very large number to make the program politically feasible.
Aliens who enter without inspection would be placed in expedited removal proceedings. The ones who fear persecution would be transferred to UNHCR. Asylum seekers also could go directly to the processing centers without having to make the journey to the United States.
The alternative is to accept the fact the that our 2,000-mile border is open to anyone who is willing to cross it illegally and ask for asylum.
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Go on over to The Hill at the above link to read Nolan’s complete article.
I disagree with Nolan’s statement that because asylum is, in the end, discretionary, there is no right to apply for asylum at the border or in the United States. The statute, 8 USC 1158(a)(1), specifically states that: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) irrespective of status, may apply for asylum in accordance with this section or . . . .”
It couldn’t be clearer that ANY MIGRANT, whether documented or not and whether applying at a port of entry or not, who reaches the U.S., including the border, is legally entitled to apply for asylum. While the ultimate granting of the application might be discretionary (I note, however, that current Article III Court decisions restrict the grounds for discretionary denial), the right to apply is clear. Moreover, in light of the obvious care and comprehensiveness that Congress used in insuring that EVERYONE at the border or in the U.S. could at least apply for asylum, I doubt that “blanket denials,” based solely on nationality and/or method of arrival would be proper exercises of discretion.
However, Nolan is correct in that the Supreme Court has held that the INA.s right to apply for asylum does not apply extraterritorially to individuals stopped before they can reach U.S. territory (such as interdiction).
Nolan and I agree on a major point: The Trump Administration should be using the overseas refugee processing provisions of the Refugee Act, the auspices of the UNHCR, and cooperation with other countries who have signed the UN Convention & Protocol to address forced migration issues abroad, closer to the sending country, wherever possible.
However, this Administration has shown little interest in doing that. Threats of sanctions, welshing on our own obligations to take overseas refugees under the Act, false characterizations of the refugees as “criminals and terrorists,” and threats to reduce or eliminate foreign aid aimed at solving the very infrastructure and societal problems that produce refugee flows are certainly not ways to show leadership and to inspire international cooperation in solving refugee problems.
Finally, for “Nolan’s Fan Club,” here’s a link to all 162 of his published articles:
