Seeking Asylum: Border Crossing and the Role of Immigration Courts

By Emma Davies
Emma Davies  is a freshman in the College of Arts and Sciences at the University of Pennsylvania

In recent months, political discourse has turned its gaze towards the US-Mexico southern border in response to developing plans to build a wall, to the separation of migrant children from their families, to murmurs that caravans of migrants are trying to enter the country and to the supposed influx of illegal immigrants. The judicial system plays an dynamic role in responding to these various concerns, both realized and hypothetical. Particularly, the judicial system of immigration courts acts as a flawed and bogged-down means of addressing the legal rights and limitations of the many actors involved in border crossing [1]. ​

Primarily, families fleeing gang violence and persecution in Guatemala, Honduras, and EL Salvador represent a large portion of the population attempting to enter the US through the southern border. People have the right to enter legally without persecution or family separation, under a form of protection called asylum status. Additional immigrant statuses, Temporary Protected Status (TPS) and Deferred Enforced Entry (DED) act as alternative forms for migrants within the country to legally remain in the United States on a temporary basis [2]. 

Asylum status is available to those at ports of entry or already in the county who have been persecuted or fear persecution due to race, religion, nationality, and/or subscription to a particular social or political group [3]. To claim asylum, individuals must file an application called the I-589 within a year, go through fingerprinting and background checks, go through an interview, and then wait for the decision of an asylum officer [4]. Individuals who are apprehended on the border or in the US, without proper identification, must go through the defensive asylum process. Through this process, one must demonstrate credible fear and attend a courtroom-like appearance in front of an immigration judge, who decides if they are eligible for asylee status [5]. 

Currently, immigration surveillance at borders and in certain cities has been described by the American Civil Liberties Union as “militarized” [6]. Abuses ranging from racial profiling and excessive force occur at the hands of border patrol officers. For those who make it across the border, new executive policies have drastically reduced the number of individuals allowed to apply for asylum. Immigration courts are backed-up with 800,000 pending cases and applicants typically must wait an average of 700 days to have their case heard [7]. Underfunding of courts, lack of judges, increases in migrants, have all contributed to this backlog [8]. In the interim, pools of people wait in enforcement facilities, which have been noted for their unsafe and prison-like conditions. Under the current administration, in order to get around the Flores case--a 1997 case that prevents holding children or families in secure detention institutes for more than 20 days---resulted in the separation of children from their families. Eventually, a federal judge in California blocked its implementation. For some, however, they have to wait across the border in Mexico until the arrival of their court date. Ultimately, for those who eventually receive asylum, the lengthy waiting periods delay people’s ability to assimilate, get a job, and mentally adjust to a new life. For those who eventually are not granted asylum, it simply delays an inevitable and disappointing re-location.

Before asylum seekers can make it to trial, they must go through a “credible fear” screening, historically 75% who go through this interview process are determined to meet this requirement.  However, a sentiment of exclusivity has permeated into the legal process of applying for asylum status prompted by the decisions of the executive branch. Under the new administration, administrative officials have vowed to reduce this statistic [9]. Welfare is not considered carefully over desires to reduce government expenditures and the number of asylees. Many times these practices push against notions in the Constitution that establish the protection of individuals regardless of citizenship status.

Apathy and statis in the pre-trial phases is followed by questionable policies in an overworked and discontented court system. Due to backlog and under-funding, judges themselves express high-rates of burnout and dissatisfaction . Some judges have been reported to have had more than 3,000 cases on their docket. This pressure undermines the integrity of their court decisions. Some judges have been reported to make decisions in an average of seven minutes. This haste can often lead to mis-informed split decisions and puts particularly vulnerable cases, at threat of harm [10].

At the center of this remains another key issue. Due to the fact that deportation is considered a civil rather than criminal case, immigrants on the defensive, facing removal, do not have a right to counsel. Studies show that those with access to counsel fare better. Detained immigrants who received counsel were 2x more likely to apply for relief from detention and 5x to be granted that relief [11]. For those without counsel, the load falls on them to show a burden of proof that they have faced past persecution or have a “well-founded fear” of persecution by recounting their trauma. Often, they face complications that work against their case, such as lack of information or understanding of the process and lack of language access.

On June 11, 2018, Attorney General Jeff Session narrowed the scope of “well-founded fear”, announcing that gang violence and domestic violence would not be valid grounds to qualify for asylum status. This overruled a past policy that had been utilized by abused and vulnerable women and children. Under this past policy, “ married women in Guatemala who are unable to leave their relationship” were recognized as a “specific group” facing well-founded fear [12]. Eventually, U.S. judge Emmet Sullivan challenged Session’s new proposal in a DC lawsuit, arguing that it violated both administrative and immigration law [13]. 

Ultimately, only 20% of those who seek asylum receive asylee status, and under the current administration this number may lower [14]. Immigration courts operate in a murky middle ground between providing justice and furthering political motives. Within the broader context of executive-level immigration policies, asylum-seekers face a complicated and changing immigration process. Inefficiency and counterproductive policy decisions place an undue burden on migrants, and threatens the notion of America as a welcoming country to immigrants.

The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
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References
[1] Luxen, Micah, Jessica Lussenhop, and Raijini Vaidyanathan. "National Emergency: Is There a Crisis on the US-Mexico Border?" BBC News. February 15, 2019. Accessed April 21, 2019. https://www.bbc.com/news/world-us-canada-44319094.
[2] "How the United States Immigration System Works." American Immigration Council. March 26, 2019. Accessed April 21, 2019. https://americanimmigrationcouncil.org/research/how-united-states-immigration-system-works
[3] United States Code, 2006 Edition, Supplement 5, Title 8 - ALIENS AND NATIONALITY, § Chapter 12-Immigration and Nationality-Subchapter 1-General Provisions.
[4] "The Affirmative Asylum Process." US Citizenship and Immigration Services. September 02, 2009. Accessed April 21, 2019. https://www.uscis.gov/humanitarian/refugees-asylum/asylum/affirmative-asylum-process.
[5] "Obtaining Asylum in the United States." U.S Citizenship and Immigration Services. September 03, 2009. Accessed April 21, 2019. https://www.uscis.gov/humanitarian/refugees-asylum/asylum/obtaining-asylum-united-states.
[6] "ICE and Border Patrol Abuses." American Civil Liberties Union. Accessed April 21, 2019. https://www.aclu.org/issues/immigrants-rights/ice-and-border-patrol-abuses.
[7] Shear, Michael D., Miriam Jordan, and Manny Fernandez. "The U.S. Immigration System May Have Reached a Breaking Point." The New York Times, April 10, 2019. Accessed April 21, 2019. https://www.nytimes.com/2019/04/10/us/immigration-border-mexico.html.
[8] "Empty Benches: Underfunding of Immigration Courts Undermines Justice." American Immigration Council. June 17, 2016. Accessed April 21, 2019. https://www.americanimmigrationcouncil.org/research/empty-benches-underfunding-immigration-courts-undermines-justice.
[9] Shear, Michael D., Miriam Jordan, and Manny Fernandez. "The U.S. Immigration System May Have Reached a Breaking Point." The New York Times, April 10, 2019. Accessed April 21, 2019. https://www.nytimes.com/2019/04/10/us/immigration-border-mexico.html.
[10] "Empty Benches: Underfunding of Immigration Courts Undermines Justice." American Immigration Council. June 17, 2016. Accessed April 21, 2019. https://www.americanimmigrationcouncil.org/research/empty-benches-underfunding-immigration-courts-undermines-justice.
[11] Eagly, Ingrid, Esq., and Steven Shafer, Esq. "Access to Counsel in Immigration Court." American Immigration Council. December 13, 2016. Accessed April 21, 2019. https://americanimmigrationcouncil.org/research/access-counsel-immigration-court.
[12] Arya, Reena. "Attorney General Issues Precedent Decision, Matter of A-B." Catholic Legal Immigration Network. Inc. Accessed April 21, 2019. https://cliniclegal.org/resources/attorney-general-issues-precedent-decision-matter-b-seeking-limit-protection-asylum.
[13] Hals, Tom. "Court Rules in Favor of Asylum Seekers, against Trump Policy." Reuters. December 20, 2018. Accessed April 21, 2019. https://www.reuters.com/article/us-usa-immigration-asylum/court-rules-in-favor-of-asylum-seekers-against-trump-policy-idUSKCN1OI2BI.
[14] Shear, Michael D., Miriam Jordan, and Manny Fernandez. "The U.S. Immigration System May Have Reached a Breaking Point." The New York Times, April 10, 2019. Accessed April 21, 2019. https://www.nytimes.com/2019/04/10/us/immigration-border-mexico.html.
Photo Credit: Loren Elliott/Reuters