It’s all for the same reason.

Sunday, January 12th, 2014
By: Jonathan MontagJ.D.

Congressmen and commentators complain about alleged spiking of  asylum fraud at our borders. l

The Obama administration is allowing young people who finished high school to remain in the U.S. without fear of removal.

Immigration courts are administratively closing proceedings rather than ordering aliens out of the country.

These three trends have made the news in recent weeks. While it may appear at first blush that the second and third trend are the manifestation of soft-hearted (or humane, take your pick) policies implemented because of the failure to pass comprehensive immigration reform legislation. As for the first trend, the increase in asylum claims could be viewed as the result of soft-hearted (or humane, take your pick) policies at the borders regarding the treatment of asylum seekers. As asylum seekers are not routinely detained for the duration of the period they are pursuing their claims and it can take years to resolve a case, asylum seekers have incentives to make false claims and then gain access to the United States.

While there may be truth to the first blush, all three are actually related to another phenomenon, the massive delays in immigration court, Board of Immigration Appeals, and federal appellate court adjudication of cases. At present, some immigration courts are setting initial hearings, think arraignment, for 2015. Final hearings are being set for 2017. BIA cases are backlogged two years and some cases a lot longer. Appellate court cases are pending three years. Congress refuses to appropriate money to hire judges and build and support courtrooms to deal with the backlog. Consequently, the immigration court and appellate processes are falling more and more behind.

Faced with the backlog and neither money nor legislation to slow or reverse it, administrative action is necessary to stem the flow of people into immigration court proceedings and to provide more-expedient extra-judicial relief to people in the system. Hence, deferred action for young people and prosecutorial discretion for many, but not that many, in the system.

As for asylum claim increases, though it is easy to blame the increase in claims on fraud, it is probably more prudent to blame it on:

1. An unending drug war in Mexico;
2. Rampant criminality in Mexico as a result of the drug war breakdown in social order;
3. Widespread poverty and lawlessness in Latin America;
4. A civil war in Syria;
5. The collapsing Iraqi state, not only putting Christians in jeopardy, but now innocents in the
crossfire of a Sunni-Shi’ite civil conflict (war?);
6. Unresolved conflicts in the Horn of Africa and concomitant harsh government treatment of perceived enemies and foreigners;
7. Continued fall-out from the Arab Spring in Egypt and Libya.

It is hard to find an area of the world where asylum claims are not germinating or where human rights and economic situations are improving.

Of course, “merely” fearing for one’s life is not a basis for asylum. Asylum claims must be predicated on specific grounds – political opinion, religions, race, nationality, and social group – so many claims where people are legitimately in fear for their lives are denied.  (For doubters, listen to oral argument in Henriquez-Rivas v. Holder, where the issue was not whether an alien would be harmed if she returned to El Salvador for testifying against gang members, but rather whether her harm would be on account of membership in a social group.

Fear for one’s life motivates people to seek asylum whether they are technically eligible or not. Think of a Syrian seeing killing all around her and pondering whether her fear of death is the result of a political opinion or religion or whether she is just stuck in the middle of a civil war and then deciding to seek safety in the United States. Hardly likely. Think of a Mexican whose is threatened with beheading or kidnapping or both and wondering whether he legitimately belongs to a particular social group before seeking protection in the United States. Hardly likely. Now, if an asylum seeker knew his case would be resolved in months rather than years, only those with great fear would seek asylum and, in the case of Mexicans, might not even try at all. On the other hand, if a person is not safe in their homeland and deciding an asylum claim could take years, why wouldn’t a person seek safety?

Until the backlogs in the immigration system are significantly reduced, either by appropriations or legislation, one can expect more prosecutorial discretion, more deferred action, and more people willing to flip a coin on asylum in the United States, knowing it could take ten years for the coin to hit the ground. Posted January 12, 2014.


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