Yes, Asylum is “Legal,” but…

An 18-minute read.

Introduction

This post should take approximately 18 minutes to read, which is probably at least five longer than I imagined when I started writing it. There are some legal citations, not as many as some posts, but more than in others. Still, excluding those, I don’t think the subject is particularly complicated unless one means from a moral and/or religious standpoint; however, in any case, it presumes you have an open mind.

The other day, I, Hart Celler, was chatting (on the phone) with some online friends who only know me that way, and the subject turned to my pseudo ‘Twitter celebrity’—their description, not mine—and how, or more precisely, why I joined. 

The answer, I think, is simple, I got tired of propaganda, some of it driven by ignorance, and some of it intentional, but I’ll leave it to you, the reader, to decide whether there’s an accompanying agenda. 

From the moment Donald Trump rode down the escalator to announce his Presidential campaign, I listened closely to his rhetoric about and promises on immigration. As there’s a direct correlation between what I do and a President’s enforcement priorities and regulatory interpretations of the Immigration and Nationality Act (the INA), it’s nothing if not a good idea to try and anticipate them based on their platform and speeches. Further, I’m at a point in my career where I need to choose between pursuing a position within the Senior Executive Service (SES), the cadre of career people who actually manage Government Departments or Agencies on a day-to-day basis, or spending my remaining years punching the proverbial clock to collect my taxpayer-funded paycheck.

The truth is often uncomfortable

I didn’t hold out much hope for what I heard from the campaign trail, so I can honestly say that while disappointed with how little was accomplished during Trump’s one term, I’m not surprised. Before you scroll to the bottom or take to Twitter to sko͞ol me on ‘lIbtardS in CONgres’ or activist Federal judges ruling against him because ORANGE MAN BAD, keep in mind I regularly tweeted during the administration where I thought it was wrong, usually involving violations of the Administrative Procedure Act (the APA) and I believe pretty accurately predicting how things would end: injunctions by the aforementioned jurists. Further, while you might know of Stephen Miller, what you don’t is that I was approached on several occasions to provide suggestions on improving immigration enforcement’s effectiveness in light of an uncooperative Legislative and outright hostile Judicial branch. I can’t guarantee that my recommendations would have secured a second term, but some certainly would have slowed the orgy of Executive Orders the Harris… err, Biden administration is currently issuing. Is this statement arrogant, perhaps, but that’s not my intent and isn’t representative of my personality. It’s based upon feedback I received from law degree-holding White House staffers. Unfortunately, there was no competing with the likes of Jared, Ivanka, Mick, Mark (Meadows, not Morgan), Mercedes, and Brooke, and several people warned me about Stephen’s hostility towards perceived rivals. I apologize; I’ve unintentionally strayed far off course, so I’ll tell you what; maybe one day I’ll write a post about some of the recommendations I made, and you can decide for yourself.  

Now, where the Hell was I? Oh, yes, that’s right, asylum!

Mansplaining 240 characters at a time

I lurked on Twitter for some time, using my personal account to keep up with politics in the days leading up to the 2016 elections, and continued after the inauguration. Offline, I was aware that the numbers of aliens encountered along the Southwest border at and between Ports of Entry were down. However, I noticed as the initial “Trump Effect” started wearing off toward the end of Fiscal Year 2017 (September 30, 2017), more and more people were beginning to tweet things like ‘asylum is legal’ with little understanding or wanton disregard for the fact that yes, asylum is “legal,” but… entering the U.S. illegally, is not. 

To put asylum in context, an explanation about it is worthwhile, but first, let’s address the elephant in the room: illegal entry. Whatever your feelings about the following might be, entering the United States anywhere between Ports of Entry (POEs) is unlawful. Furthermore, doing so is a criminal act and has been since 1929. I don’t know why this is such a difficult concept for people to grasp, but not everything illegal is a crime. Still, every crime represents an act or behavior the government (whether Federal, State, or local) prohibits and is often something for which you can, through a finding or pleading guilty, lose your freedom within a predetermined period. To this day, I routinely receive responses indicating ‘crossing the imaginary line from a map isn’t a crime,’ or for those willing to acknowledge doing so is that it’s ‘no big deal.’ At that point, there’s usually a flawed comparison made to speeding, which absent additional circumstances like the amount over the limit, weather, alcohol or drug use, or if there was an accident, is an infraction, spitting in public, or jaywalking. In actuality, the first offense of Improper Entry or Entering Without Inspection (EWI), 8 U.S.C. § 1325(a)(1) is a Class B misdemeanor punishable by incarceration for up to six months—prosecution for it is how family separation, kids in “cages” (under Trump), etc. occurred.

Further, subsequent offenses are a felony that upon conviction can result in a sentence of up to two years. Additionally, if you have been previously removed, the post-1996 term for deported, there is a separate offense, 8 U.S.C. § 1326 for you, which starts at two years, and depending on the circumstances of your removal, i.e., were you a criminal alien, penalties start at two years with a maximum of 20 for those removed after a conviction for an aggravated felony. If you think this explanation was confusing, I apologize in advance as asylum will be worse and may require the headache medicine of your choosing or a stiff drink, but please, not both at once; I can’t afford to lose readers. 

Note: For those of you who can’t get enough of me, I recommend the Immigration Primer from the U.S. Sentencing Commission. While it states, “[i]t is not a comprehensive compilation of issues [nor] a substitute for reading and interpreting the actual cases, statutes, and Guidelines Manual[] [r]ather, [] a helpful supplement to those primary sources,” I find it lays out the statutory penalties for the most common immigration offenses in a way that is easier for those who aren’t paralegals, attorneys or Law Enforcement Officers.

Words mean things

I try not to act like the word police, but I’ll say one of my pet peeves is the term “claim asylum,” as if it were a prize or something owed to an alien though I concede I once described it in reply to someone as being “like a prize drawing [where] the alien must be physically present to win.” In actuality, asylum is a discretionary form of relief which the Executive branch may grant. Since I’m laying my cards out, while both, for practical purposes, result from the U.S’. ratifying the UN Protocol Relating to the Status of Refugees (now the combined Convention and Protocol) in 1968, and later passage of the Refugee Act in 1980, asylum and refuge—or any variation of the words—aren’t in the legal sense, interchangeable terms, nor are they synonymous.

Both Asylees (generally someone granted asylum, but used here as trying to receive it) and Refugees must have met the statutory definition of a refugee, which per 8 U.S.C. 1101(a)(42) is:

“(A) any person who is outside any country of [their] nationality or, in the case of a person having no nationality, is outside any country in which [they] 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, or (B) in such special circumstances as the President after appropriate consultation … may specify, any person who is within the country of [their] nationality or, in the case of a person having no nationality, within the country in which [they are] habitually residing, and who is persecuted or who has a well-founded fear of [it] on account of race, religion, nationality, membership in a particular social group, or political opinion.”

However, for all intents and purposes, that’s where the similarities end, and the two branch off onto separate tracks. Potential refugees are referred to the U.S’. Refugee Admissions Program and those selected arrive in the country legally through a Port of Entry, usually an international airport. On the other hand, “asylum seekers,” per the asylum statute, must request asylum (see what I did there) from within the U.S. or upon arrival to the country. Neither can, despite what you see in movies and posted on the internet, and by that, I mostly mean Twitter, request status at a U.S. Embassy or Consulate. 

Now that we got the difference between asylum and refuge out of the way, there are two types of the former, Affirmative and Defensive.

Affirmative Asylum is determined entirely by U.S. Citizenship and Immigration Services (USCIS). It is available to aliens physically present in the U.S. regardless of how they arrived or their immigration status when they apply. So, yes, this does include illegal aliens, provided they have never been in the custody of Customs and Border Protection (the Border Patrol or Office of Field Operations) or Immigration and Customs Enforcement and issued a Notice To Appear in Immigration Court.

Defensive Asylum is, as the name implies, a defense against removal (deportation) from the U.S. Like affirmative asylum, an interview with an Asylum Officer is supposed to determine if an alien has a credible fear of persecution based on one of the enumerated grounds, race, religion, political opinion, etc. However, it doesn’t, based on statistics, seem this is always the case despite statutes and regulations suggesting it should. Nevertheless, final determinations whether to grant asylum in defensive cases are made by Immigration Judges, who are employees of the Justice Department’s Executive Office for Immigration Review (EOIR), pronounced like Eeyore, the downtrodden donkey friend of Winnie-the-Pooh. Aliens can pursue it after one of the following has occurred:  

  • USCIS referred them after having been found ineligible for asylum after an affirmative request; 
  • They were apprehended by CBP trying to enter the U.S. and during the expedited removal process were found to have a credible fear of torture by an Asylum Officer;
  • They were deemed inadmissible at a Port of Entry; or
  • They were apprehended in the U.S. without proper documentation or in violation of their immigration status.

 

For the purposes of this post, we’re focusing primarily on the second one; apprehensions, or for the lack of a lengthier explanation, an arrest, between Ports of Entry, though the fourth could also apply if we limit it to apprehensions by the Border Patrol that occurs within the 100-mile Border Enforcement Zone though such aliens are technically subject to expedited removal per 8 U.S.C. § 1225(b)(1)(A)(iii)(II). Additionally, the third is not entirely dissimilar. However, unlike crossing the border, which we’ve covered being a crime, attempting or seeking to enter the U.S. is illegal if any of the grounds of inadmissibility, 8 U.S.C. § 1182(a) apply.

Inadmissibility is most often referenced in relation to decisions not to permit admission by an alien, and to a lesser extent, sometimes during removal proceedings but applies to border incursions as well.

An inadmissibility determination can occur for any number of reasons. They vary from the common, e.g., seeking entry without valid immigrant (7)(A)(i)(I) or nonimmigrant (7)(B)(i)(I) travel documents, to the obscure, like being a Nazi—no, not in the figurative sense, literally someone who per (3)(E) “during the period beginning on March 23, 1933, and ending on May 8, 1945, under the direction of, or in association with” the Nazi government of Germany, any government in any area occupied by the military forces of the Nazis, any government established with the assistance or cooperation of the Nazis, or government which was an ally of the Nazis, “ordered, incited, assisted, or otherwise participated in the persecution” or genocide. If you were curious why the U.S. Government moved recently to deport 95-year old Friedrich Karl Berger for having been a guard at the Neuengamme concentration camp, this is the underlying reason.

Myth-busting and the lowering of expectations 

There were a lot of myths perpetuated by both the political and ideological Left and Right during the Trump administration, which I was all too happy to bust, some because I wanted to; no, I mean I enjoyed doing so, while others occurred in the interest of honesty because I felt compelled. Here’s a look at the four most common, in order of relevance, not prevalence:

  1. Everyone apprehended at the Southwest border was an “asylum seeker” (the quotes here denote sarcasm). I don’t know if this claim stemmed from unfamiliarity with the subject of asylum and was then repeated because it was on Twitter or actually represented a desire to mislead people intentionally, or both. Either way, the reality is that 88.34% expressed no fear of persecution if removed from the U.S. The number who did at a Port of Entry was, at 37%, higher, but the combined average for both was 15.3% for the period between October 1, 2107, and September 20, 2019. While the numbers for FY 2020 won’t likely be released until this summer, don’t expect much change in the percentages given 977, 509 aliens were apprehended between Ports of Entry or deemed inadmissible at one in 2019. 

This isn’t merely my opinion; the numbers referenced notwithstanding, then-Acting Secretary Kevin McAleenan almost gleefully admitted as much in May 2019, in testimony before the Senate Homeland Security and Governmental Affairs Committee stating “100%” of families encountered at the border were being released into the community, cut clarifying “they aren’t necessarily asking for asylum… they don’t have to, they can go into an immigration proceeding, and not have to present that case”. This quote occurs at approximately 41:06. For those who follow me on Twitter, I could be mistaken, but think this is the origin of my derisive nickname for McAleenan: Kevin McOpen-borders. He also responds to Senator Johnson that those individuals ‘can work,’ but neglects to mention that’s only because he was using his discretion to issue Employment Authorization Documents (EADs better known as ‘work permits’) to them when by statute, asylum seekers, the real ones, are prohibited from even applying for an EAD until six months after their application has been submitted and only then when they have not received a determination. If the embedded video doesn’t work, here’s a link. https://www.hsgac.senate.gov/resources-needed-to-protect-and-secure-the-homeland

2. Trump was preventing people from seeking (claiming) asylum. It’s hard to quantify how inaccurate or disingenuous this assertion is. Because of the way the asylum statute, 8 U.S.C. § 1158 is written, the administration couldn’t “prevent” people from pursuing asylum if it wanted to. That said, it did try to foreclose some of the abuse of the system with the 2018 Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States, which would have limited request to Ports of Entry; training Border Patrol Agents to serve as ad-hoc Asylum Officersregulation on Safe Third Countries; and Asylum Cooperative Agreements with Guatemala, El Salvador, and Honduras. Had the first been written differently, the administration could have, per an obscure 2nd Circuit case from 2003, Sesay v. INS, potentially made asylum something people could not be granted even if they were found to have a valid case. Of course, Congress could have long ago limited asylum by land to Canadians, who don’t need it, and Mexicans, who seem to rarely pursue it by specifying that a request after an illegal entry be limited to exigency, e.g., someone being pursued by a persecutor. 

The primary complaint involved the use of the “controversial” process of metering, which eventually led to the Mexican Protection Protocols (MPP), better known as ‘Remain in Mexico’ made by people, many of whom I suspect don’t know enough about asylum to realize the issue involved limitations on resources, most notably Asylum Officers and detention space, because both are used to process asylum requests at Ports of Entry, but needed to be reallocated to accommodate line-jumpers who entered the U.S. illegally to do so. The number of Asylum Officers is a matter of public record, but it’s a figure that USCIS does not make easy to verify. For instance, in July 2019, then-Acting Deputy Secretary Ken Cuccinelli, who until October 2018 had been the Acting Director of USCIS, tweeted, “[m]ore than 200 asylum officers are conducting interviews and processing about 2,000 cases each week,” but in September 2018, the Migration Policy Institute, in its paper, The U.S. Asylum System in Crisis” citing comments made by USCIS Asylum Division staff during the Quarterly Stakeholder Meeting on August 7, and the 2016 version of the Affirmative Asylum Procedures Manual, stated [b]etween FY 2013-2018, after a period of flat funding, the number of asylum officers nearly doubled from 272 to 520, with authorization to hire up to 687″ and that the “significant cuts in refugee admissions ha[d] made it possible to detail (ed. the Gov’t term for a temporary assignment) refugee officers to asylum casework” to “boost its capacity.” It goes on to relay that “a large number of asylum and refugee officers have been assigned to handle the dramatic increase in credible-fear claims at the southwest border,” but that increases the number of affirmative asylum cases per year has “result[ed] in a backlog of 320,000 as of the end of June 2018, while “[c]redible fear claims at the border have also risen, … to 79,000 in FY 2017”, while “defensive asylum requests are about 30% of the record 746,000 cases of all types pending.” Needless to say, whether there were 200 Asylum Officers or 687 plus reassigned Refugee Officers, the average number of claims of fear at the border between 2017 – 2019, which required an interview, was using the CBP figures referenced previously likely 98,401 per year.

I could probably write an entire post on immigration detention, but I’d prefer not to do so here. That said, there’s insufficient detention capacity along the Southwest border. Take facilities for families, for example. As of the beginning of the current administration, there were two in operation in the U.S., the South Texas Family Residential Center in Dilley, Texas, and the Karnes County Residential Center in Karnes City, Texas. There is a third facility for families, the Berks County Residential Center, but it’s located in Leesport, Pennsylvania. This wasn’t simply a “Trump” issue; it’s one that has been going on for years. Both Trump and Obama’s Homeland Security & Health and Human Services Departments opened and closed facilitiesusually those for children, after relatively short periods of operation. Still, the Trump administration routinely did so in response to criticism or negative press coverage and by a series of DHS Secretaries at best apathetic about, and at worst outright hostile to enforcement of immigration law.

3. Prosecution and detention of asylum seekers is a violation of International Law. I’ll start by saying that “international law” is an idea or concept based on agreements between nations. Nations can enter into and withdraw from them, but rarely is one country prepared to force a recalcitrant one to do something it doesn’t want to. This was true before the League of Nations, true after it, and is still valid in the United Nations era. Case in point, while the U.S. ratified the UN CPRSR, it did not abdicate its national sovereignty regarding the prosecution of illegal entrants who purport to be seeking asylum, nor detaining them. The UN would prefer we didn’t do either, but especially not the former, and periodically recommends we discontinue doing so—a suggestion we’ve thus far been disinclined to take action on despite the document specifying: “[t]he Convention is both a status and rights-based instrument and is underpinned by a number of fundamental principles, most notably non-discrimination, non-penalization and non-refoulement. … [it] further stipulates that, subject to specific exceptions, refugees should not be penalized for their illegal entry or stay. This recognizes that the seeking of asylum can require refugees to breach immigration rules. Prohibited penalties might include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum.” And yet, despite our wanton disregard for our international betters, by requiring detention by statute, notice how, unlike the Progressive Left, you don’t see the UN on TV labeling these behaviors egregious “Human Rights abuses!”

4. Asylum shopping and the non-existent first-country application requirement. While assertions about the first three were almost always made by people on the Left, the media, and Immigration Attorneys, those on the Right routinely repeated this one. There are prohibitions against an “alien [] acquir[ing] a new nationality and enjoy[ing] the protection of th[at] country;” however, there is nothing which expressly prohibits shopping for the best or most advantageous country in which to request asylum. Further, there is no requirement in U.S. law or the UN CPRSR that an asylum seeker request relief in the first safe country they enter after leaving their own. It seems like a reasonable and logical expectation, but if it were true, we wouldn’t for most of the past decade had problems with extra-continental migrants coming to the Southwestern border to request asylum. There is an agreement within the European Union called the Dublin Regulation, which specifies third-country nationals must seek asylum in the first EU-member nation to which they arrive. Still, even it probably isn’t exactly what people envision when they assume such a requirement exists. The U.S. and Canada have a  Safe Third Country Agreement whereby we can expel individuals to Canada who entered the U.S. from it without first seeking asylum there, plus our now terminated agreements with Guatemala, El Salvador, and Honduras, which absent a trip from Nicaragua to Belize or Mexico, would have created a legal isthmus for would-be economic migrants whose only experienced persecution was poverty, lack of opportunities, government corruption and crime.

Mandatory detention and the broken clock

Unless you’re a late Millennial or a Zoomer, accustomed only to digital timekeeping, you’re probably familiar with the expression ‘even a broken clock is right twice a day.’ In the case of asylum, the clock is more analogous to a calendar. Rather than being right twice a day, it is seldom correct, and the pages are being comically ripped off to denote the exaggerated passage of time.

Chances are that you’ve heard about how “asylum seekers” are often forced to wait years before having their day in court, which probably isn’t such a bad deal for those who aren’t legitimately seeking relief from persecution, but are economic migrants in search of a better life for themselves and their children. What you’re probably less, or maybe not at all aware of is that detention is mandatory for inadmissible aliens (as I’ve said before includes border crossers) subject to expedited removal under 8 U.S.C. § 1225, even when they are seeking asylum, and there are statutory deadlines associated with applying for asylum and consideration of the request. 

Expedited removal was codified as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Within it are references to asylum, which were a response to the overwhelming of the system by Haitians in the late 80s and early 90s, and countless examples of abuse intended to preempt what we’ve been experiencing since Barack Obama’s second term.

8 U.S.C. § 1225(b)(1)(B)(ii), Referral of certain aliens, states:

“[i]f the [asylum] officer determines … that an alien has a credible fear of persecution [] the alien shall be detained for further consideration of the application for asylum”, while (b)(1)(B)(iii)(IV), Mandatory detention, as the title implies specifies applies to “[a]ny alien subject to the [asylum] procedures [] shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed [from the U.S.]”, and (b)(2), which is the parent paragraph of the Remain in Mexico program’s authority, in subparagraph (A), affirms that “[s]ubject to subparagraphs (B) [crewman, arriving aliens who have not been admitted or paroled, or stowaways] and (C) [aliens arriving from contiguous territory] … if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [removal] proceeding under section 1229a”. 

Furthermore, while companion regulations regarding “[d]etention [of aliens] pending credible fear review,” 8 CFR § 253.3, allows for their release, and courts have time-and-again ruled “asylum seekers” are eligible for bond hearings, the former clarifies that “[p]arole,” a legal concept in immigration whereby an inadmissible alien may be allowed to enter the U.S. for a predetermined purpose or period, it “may be permitted only when the Attorney General determines, in the exercise of discretion, that [it] is required to meet a medical emergency or is necessary for a legitimate law enforcement objective.”

Don’t these mandatory detention requirements lead to ‘indefinite’ detention; you’re no doubt asking yourself? Yes, but it isn’t supposed to. On the contrary, § 1158(d)(5)(A)(ii) – (iii) specifies that absent exceptional circumstances,

“the initial [] hearing on the asylum application shall commence not later than 45 days after the date an application is filed” and “final administrative adjudication of the asylum application, not including administrative appeal, shall be completed within 180 days.”

Just as there are requirements for how long it should take to complete the asylum process, the statute has requirements “the application [be] filed within 1 year after the date of the alien’s arrival in the United States”, which I’ve had spirited arguments—rhetorically, not the way people commonly use the term, about how the one-year filing deadline doesn’t and shouldn’t apply to inadmissible aliens in detention, and that completing the Application for Asylum, Form I-589 should be a condition of release, whether that’s due “to [] a medical emergency or is necessary for a legitimate law enforcement objective,” due to limited detention facilities, or in the case of the Harris… err, Biden administration, because it feels like it, intending for them to be the lucky recipients of a future amnesty after 71.6% (as of October 2020) are denied asylum and ordered by an Immigration Judge to be removed from the country.

Conclusion

To paraphrase the current, as of the publication of this post, White House Press Secretary, Jen Psaki, “to circle back,” yes, asylum is legal, but per statute, and at least prior to 12:01 p.m. on January 20, 2021, there were limitations on who qualified, and obtaining it required more than simply showing up to the U.S. border and whispering the magic words, “I love Joe,” sorry, President Biden, I meant ‘I feel persecuted!’ Only time will tell how much leeway to create border chaos the Democrat-majority House and Senate allow the administration to cause, or maybe more accurately try to accomplish what they think they can get away with before the midterm election forecast starts looking less rosy. In the meantime, if the preview we’ve been treated to in the first month is the sort of thing you voted against or didn’t vote for, I recommend you get to know the House or Senate staffer answering the phone because you so often call. (I’m obviously a fan of writing, but in this instance, it’s only likely to be met with a form letter that doesn’t in any way address your concerns). Still, please be nice to them because after being a Capital Police Officer, it’s undoubtedly one of the worst jobs in the fetid swamp of Washington, D.C.

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