WASHINGTON — Led by Sen. Robert Menendez, Democratic lawmakers have been pushing for asylum to be open to the thousands of undocumented minors who have crossed the border in recent months.
“Some of the children will qualify for protection under asylum, trafficking and other laws, while other children will not,” Menendez said last month. “All of these families and children deserve to have these cases heard.”
But the process for gaining asylum status in the United States is very difficult — especially in the case of minors.
Although thousands of the undocumented immigrant minors could meet the criteria for asylum in the United States, federal law also requires that minors be reunified with their parents in all cases except in situations in which reunification would be against their best interests.
“The law itself, the policy, is to reunify these children with their parents. I think that at some point, most of them are going to be going home,” said David Leopold, an immigration attorney and former president of the American Immigration Lawyers Association.
“This isn’t going to be one blanket grant of asylum,” Leopold said.
Nearly 50,000 undocumented immigrants, many of them children, have crossed the border in recent months — a complex crisis that has overburdened U.S. detention facilities.
Republicans have argued the undocumented immigrants need to be deported with expediency. Democrats have argued many of the undocumented immigrants are “refugees.”
Federal law gives unaccompanied minors an automatic right to make a claim for asylum — even if the chances of having it granted are slim.
“Children are entitled to be heard on the question of asylum. But let’s be honest … we can’t expect a child to understand our asylum laws” and the requirements for making a claim, Leopold said.
Indeed, even for adults who meet one or more of the criteria to make a potential asylum claim, navigating the legal system is extremely difficult.
For most asylum seekers, the bar is extremely high. For instance, adults, or children who come to the United States with one or more parents, must demonstrate they are part of a targeted class that is suffering persecution at the hands of the government, or that the government is unable or unwilling to protect them.
Immigration courts require asylum seekers to provide concrete evidence of their claims. That means gathering documentation, affidavits, and other evidence.
And even if asylum seekers can put together a case, in many areas along the border — particularly in Texas — judges rarely grant asylum claims. In El Paso, for instance, immigration judges denied 87% of asylum requests between 2007 and 2012 — far higher than the national 50.6% average.
“Sometimes they question the authenticity of your documents, putting your whole credibility at risk,” said Nancy Oretskin, an attorney with the Southwest Asylum and Migration Institute who works with asylum seekers held in detention centers in New Mexico and El Paso, Texas. “Winning an asylum case when one is in detention … it’s incredibly difficult,” Oretskin said.
For unaccompanied children, however, there is a second set of anti-human trafficking laws passed by Congress in the mid-2000s that provide a much broader set of potential protections, in asylum cases. Specifically designed to protect minors from traffickers, thousands of the children flooding into the U.S. could, in theory, be covered by this law “because it isn’t persecution based,” Leopold said.
But with so many minors making claims, there are concerns that the Border Patrol and others now tasked with assessing the asylum claims of undocumented immigrant minors are simply not up to the task.
Shifting members of the Department of Homeland Security’s “Asylum Corps” — investigators trained in handling asylum cases from around the world — could help ensure minors’ claims get a proper vetting because “there are serious questions about … the border patrol’s ability to do this. And that’s not a knock on the border patrol,” Leopold explained.
“The most frustrating thing is that the law is so complicated in this area,” Leopold said, warning that asylum cases can only be addressed on a “case-by-case basis,” although that hasn’t stopped politicians on both sides from capitalizing on the situation.
“You have politicians sound biting this in so many ways,” Leopold lamented.
UPDATE 1:18 pm
White House spokesman Josh Earnest acknowledged Monday that the majority of the unaccompanied minor immigrants will end up being deported. “It’s unlikely that most of the kids who go through this process will qualify for humanitarian relief, which is to say that most of them will not have a legal basis — will not be found, through that court process, to have a legal basis to remain in this country,” Earnest said during his daily briefing with reporters.