AUSTIN — Ahead of his visit to El Paso last Sunday, President Joe Biden laid out a plan to help address the influx of people turning up at the United States’ southern border in an effort to enter the country.
CNHI News spoke with several immigration lawyers and immigration experts based in Texas to break down what it means to seek asylum, who is eligible and what other misconceptions they hear surrounding the process.
WHAT IS ASYLUM?
Someone who is seeking asylum is also known as asylee. While asylees are in the same category as a refugee, in that they are typically fleeing violence or some form of discrimination, they are different.
A refugee is a person who has been processed outside the United States through the United Nations High Commission for Refugees. Once granted refugee status, they are resettled in a different country, including the U.S.
An asylee is a person whose claim is typically processed once they have reached the United States. They come to the country, apply for asylum, present their case to an immigration judge and then have their case adjudicated.
Zenobia Lai, executive director of the Houston Immigration Legal Services Collaborative, added that the asylum process, while sounds simple, can take from several months to two years before a conclusion is reached.
Currently, there are more than 2 million pending cases in immigration court, per Transactional Records Access Clearinghouse data.
WHO IS COMING?
The U.S. border has seen a sharp rise in people coming to its southern border in the hopes of seeking asylum. Most come from Latin American countries that have struggling democracies such as from El Salvador, Guatemala Honduras and Peru.
Haiti and Venezuela, as well as others, are also facing extreme violence, leading families to make the decision to leave their home country in search of a better opportunity.
While undocumented immigrants are often mischaracterized as criminals and a danger to society, Lai said that is not the case.
“They are here to seek protection from persecution,” she said.
WHO QUALIFIES FOR ASYLUM?
A common misconception is that any non-U.S. citizen can just show up to a U.S. port of entry, ask for asylum and be immediately allowed into the country. Immigration lawyers say that is untrue. It is actually a long and arduous process and few make it through successfully. This is primarily because asylum is only available to a narrow group of people.
Federal law dictates that they have to demonstrate “a well founded fear of persecution” based on five specific categories: race, religion, nationality, political opinion or membership in a particular social group, such as a member of LGBTQ+.
Those who are fleeing because they are unable to get work due to a failed government or a collapsed economy, those who lose their property or livelihood due to climate change or those who face general rampant violence would not qualify, said Audrey Mulholland, an attorney at Texas RioGrande Legal Aid.
“General violence, even often wartime violence, does not make somebody eligible for asylum because asylum requires being targeted for one of those five categories,” she said. “Indiscriminate violence does not make somebody eligible for asylum, even if they have suffered tremendously.”
Even with those narrow categories, experts add that it is difficult to be granted asylum.
Lai estimates that those seeking asylum without a competent attorney have a success rate of about 1%. Those with a good attorney have a success rate of about 9-10%.
In 2021, the latest data available, the U.S. provided asylum protection to 17,692 individuals, according to U.S. Department of Homeland Security data..
Separate data estimates there are roughly 1.6 million asylum applications pending.
“It’s not easy to win asylum,” Lai said. “Even if you fit all the criteria, it doesn’t mean that you win.”
Curtright said that such low chances of being granted asylum, on top of the fact that it is a dangerous journey, demonstrates how desperate individuals must be.
“When you’re in El Salvador and the local branch of MS 13 is threatening to assault you and your family to make your children become gang members and it’s extorting you so that you can’t even feed your family, you don’t care too much about your chances (of) winning asylum in the United States, you care about getting out of that situation,” he said.
WHAT RIGHTS DOES AN ASYLEE GET?
Under typical federal immigration law, known as Title 8, a person not only has the right to seek asylum but they can also gain additional rights during the process. For example, if an aslyee’s application is pending for 150 days or more, they can apply for a work authorization.
Lai said because the process is so long, allowing people to do work to support themselves and their families, as well as make a living, is practical because it makes them less burdensome on government services.
Once granted asylum, the individual can live and work freely in the United States. After one year of being granted asylum, they can apply for a green card which allows them to become legal permanent residents.
Five years after being granted asylum, the individual can apply for citizenship. This requires several prerequisites including knowledge of the English language, a test and a clear background check.
Lance Curtright, an immigration attorney in Texas, adds that it is critical for asylees to follow the process correctly and remain in good standing, as any infraction no matter how small can be cause for their application to be denied. He added that this includes the way that they enter.
“(Entering the country illegally) is a crime,” he said. “If you want to file for asylum, you don’t want to start on the wrong foot with the United States government.”
WHO ENFORCES IMMIGRATION?
Immigration law is federally enforced, but in recent years has seen frequent changes.
While Texas Gov. Greg Abbott has emphasized the state’s Operation Lone Star, people can only be expelled by federal immigration enforcement officers. However, Texas has dedicated its own money – more than $4 billion so far – to secure the border. This includes building walls on land where it is able to, stacking shipping containers along the border and sending thousands of Texas National Guard members to assist federal law enforcement officers in the apprehension of those who illegally enter the country.
Texas Republican leaders often condemn President Joe Biden for what they say is a lax stance on immigration. This, they argue, has encouraged thousands of migrants to attempt to enter illegally.
Last week, Biden laid out a multi-pronged plan to address some of the issues facing immigration prior to his visit to El Paso. Those new policies include greater consequences for those who enter illegally, new pathways for a more orderly asylum process and increased funding for 2,000 new asylum officers and personnel and 100 new immigration judges.
Biden added that these are only short-term fixes and it would be incumbent upon Congress to enact more permanent solutions.
WHAT IS TITLE 42?
Title 42 is a pandemic-era rule put in place under the guise of public health precautions.
It was put in place in March 2020 by the Trump Administration as a measure to reduce the spread of the coronavirus pandemic. It initially targeted individuals from specific Latin American countries but has since been used to expel nearly everyone who attempts to come to the U.S. There are only a few exceptions for unaccompanied minors and family units wishing to seek asylum, experts said.
Some immigration experts say that Title 42 is not only a violation of federal law and the rights of immigration, but also has worsened the problem. They argue that since Title 42 has prevented anyone from seeking asylum, those who were going to attempt to come to the U.S. anyway are just waiting it out in Mexico. This, they said, has created worse problems for migrants and U.S. immigration enforcement in general.
First, as they wait in Mexico, overwhelmed resources have led to the popping up of tent cities often infiltrated by the Mexican cartels. Migrants who were already escaping horrific conditions are now subjected to kidnappings, rapes and gang violence.
Title 42 has also created a bottleneck, where, without the measure, the U.S. would have likely seen a steady stream of migrants over time. With Title 42 halting asylum but individuals still seeking to enter the country, thousands are attempting to come at one time.
Curtright said the back and forth on Title 42’s status has also exacerbated frustration among awaiting immigrants who make the decision to enter the country illegally.
“What we’ve actually created as a system which encourages illegal entries, rather than prevents them,” he said.
This can be seen with the often cited record breaking number of apprehensions.
Immigration experts say because Title 42 simply expels undocumented migrants without repercussions, they often come over multiple times. This has likely inflated the number of apprehensions.
Mulholland said that if she could emphasize one thing, it is that most people do not want to leave their home country. In fact, Mulholland said in speaking with clients, almost all said coming to the U.S. was a last ditch effort to try and save their lives or save their children’s lives, adding that life in their home country had become untenable and unsafe.
“Asylum seekers are vulnerable and are only leaving their country to seek safety and protection,” she said.