Central American asylum seekers are not breaking the law by seeking asylum in the United States. Asylum seekers are individuals who have fled their home countries due to a well-founded fear of persecution based on their membership in a particular social group or political opinion. Seeking asylum is a legal process protected under international law and recognised by US immigration law. However, the path to asylum has become increasingly challenging, especially for Central Americans, due to restrictive policies and executive orders implemented by the US government. These policies have curbed the legal right to seek asylum and created barriers for asylum seekers, leading to concerns about violations of due process and asylum protections guaranteed by US law.
Characteristics | Values |
---|---|
Asylum seekers' countries of origin | El Salvador, Honduras, Guatemala, Mexico, Brazil |
Asylum seekers' destination countries | United States |
Asylum seekers' reasons for seeking asylum | Threats, violence, police authorities unable or unwilling to help |
US government's response to asylum seekers | Turning away asylum seekers, implementing policies to restrict asylum |
US courts' response to asylum seekers | Preventing asylum seekers from having their expedited removal orders reviewed by a federal judge |
US immigration law | Requires asylum seekers to be in the US or at a port of entry to request asylum |
US government's position on asylum seekers' rights | The US has a responsibility to hear and ensure fair hearings for asylum claims |
US government's actions on asylum seekers | Implementing policies to curb illegal immigration and expedite removal of non-citizens |
US Supreme Court's response to asylum seekers | Sidestepped debate on illegal immigration, left intact ruling against Central American asylum seekers |
US immigration courts' approval rates for asylum seekers | Dropping dramatically, particularly for Latin American immigrants |
US government's position on asylum seekers' legal status | Considers asylum seekers akin to non-citizens denied entry at the border |
What You'll Learn
The US government's stance on Central American asylum seekers
The Refugee Act of 1980
The United States passed the Refugee Act in 1980, which provides a legal framework for individuals fleeing persecution based on "race, religion, nationality, membership in a particular social group, or political opinion" to seek asylum in the country. This Act ensures that those seeking asylum within the US or at its borders are not sent back to places where they face persecution.
Recent Developments
In recent years, there have been several developments that have impacted the ability of Central American asylum seekers to find refuge in the US:
- Title 42: Implemented in March 2020, this policy uses the COVID-19 pandemic as a pretext to expel asylum seekers without offering them the opportunity to seek protection. This has resulted in thousands of documented cases of violent attacks, including rape, torture, and abduction.
- Migrant Protection Protocols (MPP) or "Remain in Mexico": This policy forced asylum seekers to wait out their US immigration court cases in Mexico, often without access to legal counsel. While the Biden administration attempted to end this program, it was blocked by a federal court and later upheld by the Supreme Court.
- Asylum Ban: Implemented by the Biden administration, this policy bars asylum seekers who passed through another country on their way to the southern US border unless they had previously applied for asylum and were denied or secured an appointment through the CBP One app.
- Executive Order on Asylum Rights: In June 2024, the Biden administration issued an executive order that temporarily suspended the right to seek asylum for individuals arriving at the southern border away from official points of entry or without a CBP One app appointment. This order remains in place until the daily southern border encounter average drops below 1,500 for 28 consecutive days.
- Lower Court Rulings: In one instance, a group of Central American women and their children sought to challenge their expedited removal orders, arguing that their constitutional rights were violated. However, a lower court ruled against them, stating that they were akin to non-citizens denied entry at the border and were not entitled to a court hearing. This ruling was upheld by the US Supreme Court.
Impact of Restrictive Policies
The impact of these restrictive policies has been significant. Asylum seekers have faced prolonged detention, family separation, and increased vulnerability to violence and persecution. Additionally, the backlogs in US immigration courts have continued to grow, resulting in longer wait times for asylum applications to be processed. Despite these challenges, asylum seekers have gone on to become integral members of their communities, contributing to the economy and society.
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The legal right to seek asylum
The right to seek asylum is enshrined in Article 14 of the Universal Declaration of Human Rights (UDHR), which states that everyone has the right to "seek and to enjoy in other countries asylum from persecution". The UDHR is a founding document for more specific international human rights treaties and conventions, which together form a comprehensive and legally binding system for the protection of human rights.
The 1951 United Nations Refugee Convention, drafted in response to the displacement of people in Europe after the Second World War, defines a refugee as a person who is outside their own country, has a well-founded fear of persecution due to their race, religion, nationality, membership of a particular social group, or political opinion, and is unable or unwilling to return. Countries that have signed and ratified the Refugee Convention, such as Australia, are legally obliged to help individuals seeking asylum from persecution.
Central American refugees have a legal right to seek asylum in the United States. Human Rights Watch has stated that the US has a responsibility to hear asylum claims and ensure fair and due process for all asylum seekers. This is particularly important given the high levels of violence and persecution in countries such as El Salvador, Honduras, and Guatemala, which have forced hundreds of thousands of people to flee their homes.
While seeking asylum is legal, the process of claiming asylum and obtaining refugee status can be complex and challenging. In some countries, such as Australia, the laws and policies governing asylum seekers have been subject to frequent changes and amendments, impacting the rights of those seeking protection. Asylum seekers may face challenges such as immigration detention, lack of proper identification or documentation, and lengthy and difficult application processes.
It is important to note that the right to seek asylum does not guarantee that asylum will be granted. Each case is assessed individually, and the burden of proof often falls on the asylum seeker to demonstrate a well-founded fear of persecution. In some countries, such as the United States, approval rates for asylum seekers have been dropping, and certain groups, such as Latin Americans, may face additional challenges in obtaining asylum.
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The asylum application process
Central American asylum seekers have a legal right to seek asylum in the United States. However, the process is complex and involves multiple government agencies. Here is a detailed overview of the asylum application process:
Eligibility for Asylum
To be eligible for asylum in the United States, an individual must meet the international law definition of a "refugee." This means they must demonstrate that they are unable or unwilling to return to their home country due to past persecution or a well-founded fear of future persecution based on their race, religion, nationality, membership in a particular social group, or political opinion. Asylum seekers must also apply for asylum within one year of arriving in the United States, although there are some exceptions to this rule.
There are two primary ways to apply for asylum in the United States: affirmatively and defensively.
Affirmative Asylum
An individual who is not in removal proceedings may apply for affirmative asylum through the U.S. Citizenship and Immigration Services (USCIS). They must complete a Form I-589, Application for Asylum and for Withholding of Removal. If the USCIS asylum officer denies the application and the applicant does not have lawful immigration status, they are referred to an immigration court for removal proceedings, where they can renew their asylum request through the defensive process.
Defensive Asylum
An individual who is in removal proceedings may apply for defensive asylum by filing their application with an immigration judge at the Executive Office for Immigration Review (EOIR). In this case, asylum is sought as a defence against removal from the U.S. It is important to note that EOIR does not provide appointed counsel for individuals in immigration court, and they must retain their own attorney.
Asylum Processing Rule
Since 2022, a third pathway, known as the Asylum Processing Rule, has been available for some individuals entering the United States. Under this rule, individuals are first put into expedited removal and given a credible fear interview. If they express fear of persecution or torture, they are referred to an asylum officer for a non-adversarial Asylum Merits Interview within 21-45 days. The asylum officer can then grant or deny asylum. If asylum is denied, the case is referred to an immigration judge, and the individual is assessed for eligibility for withholding of removal and protection under the Convention Against Torture.
Additional Considerations
Regardless of the pathway chosen, asylum seekers must be physically present in the United States or at a port of entry to initiate the process. They must also provide evidence of past persecution or a well-founded fear of future persecution, and their own testimony is usually critical to this determination. Certain factors, such as posing a danger to the United States or committing a serious crime, may bar individuals from being granted asylum.
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The impact of asylum policies
The asylum policies have had a profound impact on asylum seekers, migrants, refugees, and host communities throughout Latin America and the Caribbean (LAC) region. While there has been a publicized drop in the number of displaced people crossing into the United States, there is a rising amount of movement throughout the Americas. Political instability, increased gang violence, economic struggles, slow recovery from COVID-19, and climate change have driven this increase, affecting multiple countries in the LAC region.
The asylum ban, which requires asylum seekers to have previously applied for asylum in transit countries, is contributing to a surge in asylum requests throughout the LAC region, adding strain to the countries' asylum systems. Mexico, for example, registered a 30.5% increase in new applicants for refugee status by the end of May 2023 compared to the previous year.
The Los Angeles Declaration, intended to foster a coordinated approach among governments in the hemisphere, has fallen short of its goal. It has impeded the region's ability to address pressing issues collectively and hindered progress towards comprehensive solutions to migration flows in Latin America and the Caribbean.
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The role of non-governmental organisations in supporting asylum seekers
Non-governmental organisations (NGOs) play a critical role in supporting asylum seekers, including those from Central America, by providing essential services and advocating for their rights. They fill gaps in government services and help asylum seekers navigate complex legal and social systems.
In countries like Greece, which has been a prominent host nation for refugees, NGOs have stepped up to address the rights and needs of refugee women, a group that has been disproportionately impacted by the reduction in safeguards for asylum seekers. They provide a range of services, including information and resource provision, documentation support, psychosocial support, personal development, education, and employment assistance.
NGOs also play a pivotal role in South Africa, where they are spread across all provinces. For example, the Scalabrini Centre of Cape Town works with migrants, refugees, and asylum seekers to welcome, protect, promote, and integrate them into local communities. They offer various services to help them navigate the challenges they face in their decision to move and within the host country.
In the case of Central American asylum seekers, they often face targeted violence, rape, and disappearances in their home countries, forcing them to seek safety elsewhere. While seeking asylum is a human right, these individuals often encounter legal barriers and policies that make it difficult for them to obtain asylum status.
NGOs are crucial in ensuring that the rights of asylum seekers are respected and that they receive fair and timely hearings of their claims. They advocate for policies that protect asylum seekers and challenge practices that undermine their rights. By providing legal assistance and supporting asylum seekers throughout the process, NGOs help to ensure that individuals are not left in limbo or detained indefinitely while awaiting a decision on their claims.
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