Over the weekend, President Donald Trump took to Twitter to make this point about migrants arriving on the US-Mexico border with authorization: “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.”
His tweet raised questions about due process, guaranteed under the Constitution’s Fifth and Fourteenth Amendments and allowing for fair treatment under the law. Charles Kuck, an Atlanta-based immigration attorney and past president of the American Immigration Lawyers Association, says while unauthorized migrants already aren’t given a chance to make their case in court, asylum-seekers are protected under US law and international refugee and asylum laws.
“Due process currently exists for asylum-seekers,” Kuck says. “Somebody comes across the border illegally, is caught or turned themselves into a Border Patrol agent and says, ‘I want asylum.’”
At that point, they are interviewed by an asylum officer — called a “credible fear interview.” From October 2017 through January 2018, US Citizenship and Immigration Services conducted almost 30,000 interviews and found asylum-seekers’ fears credible in about 76 percent of cases. Those who pass the interview are given a hearing in front of an immigration judge.
Asylum cases can take years and the success rates varies greatly depending on where the applicants are from and whether they have a lawyer. The Transactional Records Access Clearinghouse at Syracuse University analyzed immigration court data over about six years and found that 70 to 90 percent of asylum claims by people from Mexico, Haiti, Honduras, El Salvador and Guatemala are denied. About 20 percent of applicants from China and 17 percent from Ethiopia are denied. Judges decide about 20,000 to 30,000 cases per year.
(Trump tweeted early Monday morning that he is against hiring more immigration judges to hear the backlog of asylum cases: “People must simply be stopped at the Border and told they cannot come into the U.S. illegally. Children brought back to their country......”)
“And that's the limit of their due process,” says Kuck. “They do get to appeal that, of course, to an appeals court. But they can be deported while that appeal is pending if a stay is not granted by the court.” A “stay of removal” is a court order to delay deportation while an appeal or other litigation is in process.
People who cross the border without authorization and do not express fear of returning to their home country do not have these opportunities.
“It consists of only a low-level immigration officer and their supervisor determining that that person has either come to work illegally or doesn't have proper papers and they can then be turned around immediately, usually within 24 hours,” says Kuck. They are also banned from returning for many years — regardless of their family ties or basis for immigration to the US — because of laws passed in 1996 that further penalize people who enter the country illegally.
More about the immigration laws passed in 1996: 20 years ago, asylum-seekers were not automatically put in immigration detention
Asylum-seekers, however, are treated differently.
“The reason why asylum-seekers are exempted from immediate removal from the United States is because of our international treaty obligations,” says Kuck. “The United States has a long history, prior to the signing of the Refugee Convention in 1967, of turning away asylum-seekers. We turned away boatloads of Jews during World War II and we didn't want to go back to that time.”
“So our laws, as we treat asylees coming in the United States and refugees outside the United States, are controlled both by international law and by the US law interpretation of those international treaty obligations. It's not something we can simply ignore,” he says.
Kuck’s analysis is that Trump’s tweet is “more a sales pitch than it is an actual policy of any kind.”
“Could, theoretically, Congress say that anybody who's caught illegally in the United States any time is automatically deported? They could say that. I don't think the Supreme Court would uphold that, particularly for those that have long-term residence in the United States, even if it was undocumented. But certainly for people at the border they could say that if you really want asylum you have to apply outside the United States.”
“But that contradicts the basis of asylum,” says Kuck, “which is for people presenting themselves at the border and would clearly violate our international treaty obligations.”