The Alien in my Guest Room: Part 16
Asylum 101
Recently, a dyed-in-the-wool progressive neighbor dropped by and met our asylum-seeking houseguest Fernando for the first time. She was mystified at how he could be in the US legally when his entrance into this country involved scaling a wall and jumping clear of razor wire.
Confusion about how someone can enter the country via illegal means and still be here legally seems widespread on all parts of the political spectrum.
My Republican Trump-supporting cousin — let’s call him John-Juan (currently, he prefers the English version of his name) — tells me he is an expert on issues related to illegal immigration. He bases this claim on having lived in a community of undocumented immigrants (he calls them “illegals”) for years while he was married to a Mexican national in Florida or Illinois or Texas — we communicate via text and some information gets garbled. He and his family helped his ex-wife — and apparently many others — work through (and around) the US legal system. This life experience has certainly given him experience and knowledge that I don’t share. Yet despite his familiarity with immigration issues, he was as dubious as my progressive neighbor as to why it is incorrect to call Fernando “illegal.” (Other than the fact that by definition, people can’t be against the law; but we know what he means.)
Immigration law is hopelessly complicated and constantly morphing into different shapes, as laws and lawsuits make their way in and out of our legal system. But for the time being, the US Citizenship and Immigration Services puts it like this:
“You may apply for asylum in the United States regardless of your country of origin or your current immigration status.” (emphasis mine)
Look it up on their website: https://www.uscis.gov/humanitarian/refugees-asylum/asylum/questions-and-answers-asylum-eligibility-and-applications. That’s the government of the United States talking, even if John-Juan doesn’t like what it says. Current US asylum laws have existed in some form since the post-WWII era. They are designed to work in harmony with international laws that in turn are intended to curb massive human tragedies.
What is asylum, in layperson’s language? Foreigners who fear persecution (of certain specific types) in their home country can ask to settle in the United States for safety’s sake. Usually if they ask for such protection while they are outside of the US, they fall into the related category of “refugees.” Those who are already in the US — it bears repeating: no matter what their immigration status — can apply for asylum any time within their first year here. Once they fill out and file the correct paperwork — poof! like magic, those who were here illegally have changed their status to legal, until their case goes through due process and is decided by an immigration judge. At that point, they are granted asylum and get to stay for the duration; or they’re deported.
If it’s that simple (one might ask) why don’t these judges set up a booth at the site of the would-be Wall and hear cases as people cross over? Like everything with US immigration law, any appearance of simplicity is an illusion. Part of the answer is that there is an enormous backlog of asylum cases in the US system — much more so due to this administration’s “zero-tolerance policy.” Any one person’s wait for their day in court can take months, or even years. During that time, the asylum seeker is permitted to stay in this country — even if they started the process by entering without papers or overstayed a visa. As the US government might put it, regardless of their immigration status when they submitted their application. (I’m repeating myself intentionally.)
In the past, most people seeking asylum in the US have not been imprisoned, even those who snuck in or were smuggled in prior to submitting their application. Then what’s with the hundreds of thousands of people in detention centers now? The government can’t deport them right away, because they have a well-established legal right to apply for asylum. The current administration’s solution: imprison them all until their cases are decided. The legality and morality of that will be judged by our descendants.
John-Juan claims that if we as a nation were to start the asylum process as people enter, and then send the would-be immigrants on their way, not a single one would appear for their next court date. They’d vanish into the shadows, because they would have “made it.” Getting legal status wouldn’t matter. I have not yet shared with him that Human Rights First reports that from 89% to 98% of asylum seekers do appear for their court dates.
“What about the crime of entering the country illegally?” asks John-Juan’s mom Debbie. “That makes these people criminals by definition, and we should lock up all their alien asses.”
US law says people guilty of “improper entry” (that’s the technical term for sneaking in to the country) may have to pay a fine and be imprisoned for up to six months — but that’s after they have gone through our legal process, with all those guarantees of habeus corpus* (US Constitution Article I, Section 9, Clause 2)and “right to swift trial” (6th Amendment to the Constitution).
-*- “The writ of habeas corpus, often shortened to habeas corpus, is the requirement that an arrested person be brought before a judge or court before being detained or imprisoned.”– Dictionary.com (emphasis mine)
As a sidebar, each detainee costs us taxpayers up to $775 per day, which adds up to close to a quarter of a million dollars per person per year. According to Wikipedia, on any given day in 2018, an average of more than 42,000 would-be immigrants were in detention. $775 per day per migrant times 42,000 people times 365 days is upwards of $11 billion-with-a-B annually. (Check my numbers if you want; I wasn’t a math major.) I’d think that argument alone would sway tax-averse Republicans.
“But,” (my sole conservative friend, Mike, challenged me the other day) “they don’t have credible fear in their ‘shithole’ countries of origin,” (I’m quoting the man). They just want come to suck at the tit of American welfare programs. (I’m paraphrasing.) I told him that’s not for him to decide. The wannabe immigrants have the right to go through American legal channels to prove that they have credible fear in front of a judge. That judge, not the Fox News demographic, gets to make the call.
In practice, most migrants do not have legal representation and are incapable of defending themselves in a system and language they don’t understand. Most of them are deported when their day in court comes. Those fortunate enough to have pro bono lawyers (such as Fernando), or the resources to hire an immigration attorney, fare better.
Of course, parts of our immigration justice system are beyond broken — in many cases they have melted into utter surrealism. Immigrants are tricked into signing their own deportation papers. The occupant of the White House tweets out promises of immigration raids — no matter the intent or legal status of those raids, or whether they actually materialize, announcing them in advance puts us center stage in the Theater of the Absurd. Toddlers who barely speak (let alone speak English) are carried into courtrooms to defend legal claims by themselves.
Debbie (Juan-John’s mom) proudly insists her forebears entered the US “the right way.” If I were in the mood for a dip in the mind of a Fox News True Believer, I’d tell her that immigration law was vastly different for our ancestors who came through Ellis Island and similar ports of entry. My great grandparents didn’t need a visa, or even a passport; the entire immigration process usually took a few hours. More than ten million people have similar stories between 1892 and 1954. Before then, immigration law was even looser. No matter what her great-great-great-grands may have experienced as immigrants — even if they came over on the Mayflower — it’s not comparable to what’s happening today, and has no relevance whatsoever to the odyssey of Fernando or any of his peers.
Not to mention, applying for asylum is completely legal — and thus “the right way” — no matter your immigration status when you apply.
And then when she says, “They should just get in line!” I have been known to point out that There. Is. No. Line. (What line? Show me the line!) Every immigrant has a different story, and there are a baffling multitude of routes to citizenship and legal residency. One might come here as a refugee, another as a bridegroom of an American citizen, another as a qualified specialist in some obscure scientific discipline. All of them are applying to become Americans “the right way,” or to use other words, one of the legal ways. That includes Fernando, who entered without papers but then applied for asylum — because he was permitted to request asylum in his first year in the US, no matter his immigration status. (Have I mentioned that before?)
There are a whirlwind of other comments and questions that I don’t have time or space or expertise to address here. What about Safe Third Countries? Why are so many people trying to immigrate here from Mexico and Central America? What are the root causes and solutions of their problems back home? Is it valid to say that “the cruelty is the point” of current immigration policies? What is the role of racism in this whole discussion? How should we as country handle undocumented (non-asylum-seeking) immigrants? What about guest worker programs? But one query seems more important to me than many of these details:
Should the United States accept asylum seekers and refugees? Or has the time passed for “your tired, your poor, your huddled masses yearning to breathe free”?
This goes to the very heart of who we are — and who we want to be — as Americans, and as human beings.