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Copyright © 2019 Albuquerque Journal
Under immigration law, the United States allows people who come to this country to file an asylum claim if they “have suffered persecution or fear they will suffer persecution” due to race, religion, nationality, membership in a particular social group, or political opinion, according to the United States Citizenship Services website.
Asylum seekers arriving at the border are making a case not just to be let into the country, but to be allowed to stay. Here is how it works:
The process for migrants seeking asylum starts when a person steps foot on U.S. soil, either by presenting him or herself to Customs and Border Protection officers at an official port of entry or by crossing the border elsewhere and surrendering to Border Patrol agents.
Once an individual is in custody, immigration authorities do an initial interview to get information and to ask why the person entered the country. They also do national and international criminal background checks on the person and verify the birth certificates of any children with the consulate offices of the migrants’ home country as part of an effort to identify whether the children are with their parents. This usually only takes a few days and migrants and families remain in holding facilities during this period.
CBP and Border Patrol can request an expedited removal for anybody without documents and unauthorized to be in the United States, but deportation is put on hold when someone asks for asylum.
A minor who is not with a parent, relative or other legal guardian is turned over to the Office of Refugee Resettlement, under the Department of Health and Human Services, which cares for the child. HHS makes an effort to find a parent or other guardian in the U.S., and after a vetting process, releases the minor to parents or family members. Otherwise, the child or teen may stay in a shelter for migrant youth or foster care while their cases move through the asylum process.
Credible fear interviews
Those seeking asylum are entitled to a credible fear interview with an asylum officer. The credible fear interviews can occur anytime from within a few days to months later. Most make it past this initial screening process and on to the next step. If their claim is deemed not credible, that person faces deportation. Individuals are often detained while waiting for these interviews.
However, some asylum applicants simply get a “notice to appear” before an immigration judge – bypassing the credible fear interview. Migrant parents with children often fall into this category and are released under orders of supervision pending their first appearance in court. Minors on their own remain in custody under care of Health and Human Services, which ensures they make their court appearances.
Before they are released, ICE processes the migrants to get their personal identifying information and verifies the sponsor the migrant chooses as well as the address where the asylum applicant will stay. In the vast majority of cases, the sponsor is a relative or close friend. In the rare case that a migrant does not know someone in the U.S., a non-profit organization can step in to provide a sponsor.
Migrants released at this point are usually fitted with ankle tracking devices as part of the alternative to detention program. The program also requires the asylum seeker to check in on the phone or in person and respond to calls from the monitoring officers. The monitoring officers also contact family and friends to check on the migrant and can make unannounced home visits. A removal officer is assigned to the case to keep track of whether the migrants check in, if required, and appear in court. If they don’t, that triggers a deportation order.
First appearance before judge
Migrants are then issued an order to appear before an immigration judge, which is usually scheduled within a few weeks to several months. The order also allows the family to travel to the location of their sponsor and prevents them from being taken into custody by immigration authorities during that time. This appearance before a judge occurs in the city where they have moved. Migrants, their sponsor, or charities pay for a bus ticket or other means of transportation to the city where the family will stay. The government does not cover any of the cost. Migrants typically have up to two weeks after they are released to do their first check-in with ICE.
By now, people who are required to have credible fear interviews should have had them, and they should be completed before asylum seekers make their first court appearance before a judge.
During the initial appearance, which is very short, the court schedules a formal hearing on the merits of the case. The Department of Justice has started prioritizing family units and scheduling the most recent arrivals’ court dates earlier so they appear in a matter of months rather than years, but it depends on the backlog in each state.
Formal asylum hearing
The formal asylum hearing includes testimony and evidence presented by the migrant and U.S. government to a judge, who decides whether to grant asylum. Approval rates vary widely depending on the judge and whether an asylum seeker had legal representation. The overall denial rate in fiscal year 2017 – the most recent figures available – was more than 60 percent. For Central Americans, the denial rate is closer to 80 percent. Those who are not granted asylum face a final order of removal and must leave the country or risk deportation. Some are taken into custody right away. Families are often given up to two weeks to get their affairs in order and if they don’t turn themselves in by the deadline, ICE will arrest and deport the parent(s) and children. Minors without a parent who are not granted asylum are deported and turned over to a government child or family service agency in their home countries.
Not a short process
There is a backlog of more than 800,000 cases in immigration courts. The length of time migrants wait for a formal hearing depends on the backlog in a particular state. If asylum seekers are in the U.S. more than 180 days, they can qualify for a work permit. But any change in their situation, a move for example, can restart the 180-day clock and delay the work permit. Although they are legally allowed to live and work in the country, asylum seekers do not qualify for legal residency or citizenship during this time.
8 hours on the border by Albuquerque Journal on Exposure