Tags: asylum | immigration | mexico | trump

U.S. Asylum Policy Gets Corrected by Trump and the Courts

U.S. Asylum Policy Gets Corrected by Trump and the Courts
U.S. President Donald Trump gives pauses to answer a reporters' question about a whistleblower as he leaves the Oval Office at the White House September 30, 2019 in Washington, D.C. (Chip Somodevilla/Getty Images)

Tuesday, 01 October 2019 05:40 PM Current | Bio | Archive

On September 11, 2019, the U.S. Supreme Court decided that President Donald J. Trump's effort to control, in part, illegal immigration into this country was permissible by temporarily lifting a stay of a lower federal court decision, which granted a nationwide injunction blocking a Trump administration enforcement of a “third country” asylum rule.

The decision in Barr v. East Bay Sanctuary Covenant by the Supreme Court stopped a lower court's attempt to skewer the asylum law of the United States until there was a final judicial resolution.

The "third country" rule in immigration jurisprudence means that a foreign national seeking entry into the United States cannot claim asylum in the U.S. if that person traveled through another country before entering the U.S. and did not claim asylum in that intervening “third country.”

Travelers from El Salvador passing through Guatemala or Mexico must apply there for asylum protection before trying to claim asylum at the U.S. border.

For instance, travelers from Cuba or Syria or Nigeria must seek asylum in Panama, if they travel there before arriving at U.S. border.

All persons claiming asylum in the United States have the burden of proof that they are eligible for asylum. The asylum-seekers must demonstrate that they have a well-founded fear of persecution or future persecution in the homeland because of race, religion, nationality, political opinion, or membership in a particular social group. (8 USC section 1158 et seq., see also, INS v. Cardoza Fonseca, 480 U.S. 421, (1987))

A person claiming asylum must be physically present in the United States, regardless of how the person entered the country and regardless of current immigration status. If a person is outside the country, the person must apply for refugee status. The asylum application must be made by a person within one year of arrival in America.

It is a crime for a foreign national to enter the United States without inspection (8 USC section 1325). However, this is mitigated by a claim of asylum. If a person loses his/her claim of asylum in the immigration court, more than likely the deportation process begins.

The asylum-seekers from Central American countries are now the largest number of foreign nationals claiming asylum. Within those countries, El Salvador, Honduras, and Guatemala — a.k.a. the Northern Triangle — send the most asylum-seekers.

Now, the standard reason for asylum claims by persons from these three countries is gang violence. Gang violence is a fact in each of these countries, but whether gang violence is an acceptable reason for asylum is still in review.

USA Today on September 24 published a story that asserts poverty as a moving force for people from Guatemala to flee to the United States. The asserted Guatemalan poverty is due to the United States pressuring the Guatemalan government to destroy framers' poppy fields — poppies equals heroin. The farmers' loss of the poppy crops revenues, as the story states, is just one of many reasons for Guatemalan migration.

95 percent of all migrants entering the United States are economic migrants in one form or another.

In a surprise ruling, the U.S. Court of Appeals for the Ninth Circuit (Innovation Law Lab v. McLeenan, No. 19-15716, 2019) overruled a California U.S. District Court. The Appellate Court permitted the Trump administration rule, allowing the administration to require asylum-seekers to stay in Mexico while their claim is adjudicated.

The “Remain in Mexico” policy for asylum-seekers is formally known as Migration Protection Protocols (MPP). MMP enforcement began in January 2019. Since then, an estimated 3,000 Northern Triangle nationals have been returned to Mexico awaiting Immigration Court hearings. The Trump administration was able to work with Mexico to accept these asylum-seekers awaiting hearings.

Innovation and East Bay cases are significant immigration victories for Trump. His immigration policies appear to be changing “open-border” immigration decisions and rules. It is a step in securing the U.S. borders.

The Trump administration learned from the mistakes of past administrations. Very few asylum-seekers permitted to remain in the United States ever show-up as ordered to for hearing on the merits of their claim of asylum.

Now, that problem is being solved. Trump gets no credit for this border success.

Meanwhile, the Trump administration is and has been working out "accords," "memorandums of understanding," and "agreements" with Mexico and Central American countries by which the United States can divert asylum-seekers from the U.S. borders to partnering countries. The U.S. uses the term “asylum cooperation agreement” for this border security effort.

The Trump administration believes these cooperation agreements will reduce the number of asylum-seekers from all nations.

Open-border advocates realize they are in a different ballgame with President Donald J. Trump.

James H. Walsh was associate general counsel with the U.S. Department of Justice Immigration and Naturalization Service from 1983 to 1994. Read more reports from James Walsh — Click Here Now.

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Open-border advocates realize they are in a different ballgame with President Donald J. Trump.
asylum, immigration, mexico, trump
Tuesday, 01 October 2019 05:40 PM
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