The recent surge of young migrants from Central America means immigration judges across the U.S. are deciding who can stay — and who must go back home.
But amid the emotional debate surrounding the issue, what exactly is the law when it comes to immigration and asylum seekers?
Maria Cristina Garcia, a professor of immigration and refugee history at Cornell University, spoke with Morning Edition's Steve Inskeep about the law that's likely to be applied in these cases.
How does one become eligible for asylum in the U.S.?
Asylum seekers must be able to prove that they, among other things:
- Have been singled out for persecution because of their race, nationality, religion, membership in a particular social group or political opinion.
- Could not have received protection from their home government.
- Could not have avoided persecution by moving to another part of their country.
- Face imminent danger if they return to their country of origin
- Have not inflicted harm on others and have not been convicted of any serious crime.
- Do not pose any national security risk to the U.S.
How are immigration hearings different from criminal court hearings?
There is no presumption of innocence. "In immigration hearings, there is a presumption of guilt and deception until merit or worthiness is demonstrated," Garcia said.
Also, unlike criminal court, there is no guarantee of legal representation. Asylum seekers might receive a hearing, but no attorney is provided to them. For that reason, advocacy organizations are scrambling to arrange pro bono representation for many of the recently arrived immigrants.
What is Temporary Protective Status?
The Immigration Act of 1990 authorized status known as Temporary Protective Status. TPS can be offered to foreign nationals already in the U.S. who are unable to safely return to their home country because of natural disaster, armed conflict or some other extraordinary situation.
It's one alternative legal route that "might be available to the unaccompanied children," according to Garcia.
TPS isn't ideal: It doesn't provide an avenue to normalize one's status, nor does it offer the rights and privileges that citizenship offers. Still, if someone is desperate and in need of safe haven, TPS could provide a valuable temporary fix.
It would be within the power of the administration, working with the State Department, to offer some unaccompanied minors TPS as a legal way to remain and work in the U.S., Garcia said. The status would presumably expire as soon as the State Department determines that conditions in their home countries have sufficiently improved.
So, does Congress really need to act?
Not according to Garcia. "So many people are talking about immigration reform and the need for Congress to come back and finally pass some omnibus immigration reform package," she told Inskeep. "But there are resources within the existing law that the administration could explore if it chose to do so to accommodate these children."
DAVID GREENE, HOST:
U.S. immigration judges are making decisions with lives in the balance. They are deciding which of thousands of young migrants from Central America stay or go.
STEVE INSKEEP, HOST:
This week on MORNING EDITION, we reported on a deportation hearing in Los Angeles for Jefferson Reyes. Patricia Corrales is the lawyer for this 11-year-old from El Salvador.
PATRICIA CORRALES: The gangs there were trying to recruit him specifically and recruit young kids like him. Many of these children, they fear for their lives. They come to the United States seeking refuge.
INSKEEP: For Reyes and other kids to stay, they need to find an opening in U.S. law. So this morning we will discuss what the law is.
GREENE: A limited number of people will be granted refugee status. The official quota allows just 5,000 refugees this year from across Latin America and the Caribbean.
INSKEEP: Other new arrivals can ask for asylum, but that's hard to get as we learned for Maria Cristina Garcia. She teaches immigration and refugee history at Cornell University.
MARIA CRISTINA GARCIA: The burden of proof is always on the individual asylum-seeker who, like a refugee, must offer compelling evidence that they've been singled out for persecution because of race, religion, nationality, etc. They also have to prove that they could not have received protection from their government, that they could not have avoided persecution by resettling in another part of their country, that they face imminent danger should they return to their country of nationality, that they did not persecute anyone or inflict harm or commit certain types of crimes and that they are not a national security risk. Unlike criminal courts are there's a presumption of innocence until guilt is proven, in immigration hearings there's a perception of deception and guilt until merit or worthiness of asylum is demonstrated.
INSKEEP: Some weeks ago on this program, we spoke with Cecelia Munoz. She is one of President Obama's advisers on immigration, and she said quite flatly that the vast majority of the young people who have been arriving in recent months are just going to be sent back - that that's just the law. Is she right?
GARCIA: Yes, I believe she is. The system is designed to move people quickly through adjudication and remove them from the United States as quickly as possible. That's how the system is designed.
INSKEEP: Designed to move people quickly, although of course one of the problems, as it's been described, is that the system does not move very quickly.
GARCIA: You're right that there is a backlog at present. Those who crafted the law never envisioned that so many people would be petitioning for asylum at U.S. borders. There is another status however, that might be available to the unaccompanied children. The Immigration Act of 1990 authorized the status known as TPS -temporary protected status - which can be offered to foreign nationals already in the United States who are unable to safely return to their country because of natural disaster or armed conflict or some other extraordinary situation. Now, this status isn't ideal, but for those who are desperate and who need safety, it is a status that is possible.
INSKEEP: Is that fully within the power of the Obama administration to grant that status if the president were to decide it was the wise thing to do?
GARCIA: Yes, it does and working with the State Department - the way TPS works is that individuals are allowed to remain in the United States until the Department of State assesses that conditions in their homeland has sufficiently improved.
INSKEEP: Well, I feel like I'm learning another thing here because there was a much-publicized meeting some weeks ago at which it was said President Obama told his advisers, listen, we have to do a better job of sending kids back because we just have people violating the law and we have to enforce the law. You seem to be describing a situation in which in reality, the president of the United States has a fair amount of discretion and the government of the United States broadly has a fair amount discretion, depending on the political situation in the United States about what they want to do and how they want to enforce the law.
GARCIA: Yes, you're absolutely right. It requires political will to explore these various recourses. So many people are talking about the need for Congress to come back and finally pass some omnibus immigration reform package, but there are recourses within the existing law that the administration could explore if it chose to do so to accommodate these children.
INSKEEP: One more thing - would you make a comparison for me if you feel comfortable doing so? We're talking about Central Americans fleeing to the United States, seeking asylum or seeking refugee status. There are refugees all over the world - there are Syrians who go into Turkey, there are Iraqis who for while fled, fled to Syria. Are refugees in those countries treated any differently than people who seek refugee or other status in the United States?
GARCIA: Yes - I mean, the real burden of refugee crisis worldwide are the countries that border areas of conflict, and those countries are forced to accommodate millions of refugees. There are refugee camps that are the size of U.S. cities and in those refugee camps - the people who live there don't have a chance to earn a livelihood, to practice their professions. Medical care and education are rudimentary at best. So those who do come to the United States and ask for protection - while there are many flaws in the system, there are protections here that refugees worldwide do not necessarily experience.
INSKEEP: Maria Cristina Garcia teaches immigration and refugee history at Cornell. Thanks very much.
GARCIA: Thank you, Steve. Transcript provided by NPR, Copyright NPR.