Russian ballet dancers, Cuban baseball players and Chinese political dissidents. These are the kind of people fleeing persecution in their homelands who typically won asylum in the United States over the years.
In many cases, they were in the country for a theatrical performance, a conference or a sports tournament, then sought refuge. Think Martina Navratilova, the Czech tennis player, who defected during the 1975 US Open.
Over the past five years, though, the number of asylum applications has skyrocketed. Civil wars in Africa, gang violence in Central America and government crackdowns in China have contributed to a backlog of hundreds of thousands of cases and processing times of up to six years. This presents a range of challenges to US authorities, who are required under international law to give all the cases careful consideration.
Members of a caravan of Central American asylum seekers scale a wall at the US-Mexico border. The president has doubled down on his vow to fence off the border Source: Getty Images
This week, a caravan of 150 to 200 migrants, mainly from Honduras, Guatemala and El Salvador, is waiting at the Mexican border in Tijuana to claim asylum, hoping to win permission to stay in the United States.
But President Donald Trump has urged his administration to redouble its efforts to enforce border laws, referring to the caravan over the weekend as “that mess,” and declaring, “We have the worst laws anywhere in the world, we don’t have borders.”
Here’s a look at how we got here, and what America’s legal obligations are.
What is the legal backdrop?
The international agreement to protect asylum-seekers emerged after the horrific events of World War II. The United Nations signed the refugee convention in 1951, which the United States ratified and incorporated into law in 1980.
The goal is to provide a safe haven for those who can prove they are fleeing persecution in their homeland.
What’s the difference between a refugee and an asylum-seeker?
There are two ways people can win protection and the right to live permanently in the United States. In both cases, they must prove the same well-founded fear of persecution on account of race, religion, nationality, political opinion or membership in a particular social group.
People who apply and are selected overseas eventually enter the United States as refugees.
Many of them, hundreds of thousands, remain parked in camps as the refugee application process unfolds, typically over several years. That process involves several interviews with UN and US officials. The United States also conducts several layers of security screening.
People already on US soil apply for asylum.
Alexander Godunov, a principal dancer with the renowned Bolshoi Ballet, was granted asylum in the United States in 1979.
Dancer and actor Alexander Gudonov (left) was granted asylum by the US. Source: AAP
He was the first of several dancers to defect from the Bolshoi during that year’s tour in the United States. He requested asylum in New York City and received it immediately. Navratilova received asylum in October 1975, a month after filing for it.
During the 1980s, civil war in El Salvador displaced several hundred thousand people. Tens of thousands flocked to the United States and applied for political asylum.
Nowadays, the process of applying for asylum often takes years to complete, from start to finish. It involves interviews with US immigration officials and often with immigration judges.
Whether people entered the country legally or not, they are eligible to apply for asylum.
The surge
The world is suffering the worst refugee crisis since World War II. There are now a staggering number of refugees, asylum-seekers and displaced people — about 50 million.
Violence around the globe is pushing desperate people to seek safety across international borders. People from the Middle East and Africa are taking rickety boats and making treacherous treks to reach Europe.
They are less likely to show up at the southwest border of the United States than people from Latin America who are, relatively speaking, nearby and can come over land.
Refugees flee fighting in Eastern Congo DRC. Source: AAP
In recent years, violence in Central America — it has some of the highest murder rates in the world — has prompted tens of thousands of people since 2014 to make the perilous journey to the United States.
The migrants either turn themselves in at the border to US authorities or enter the country illegally. Regardless, they then declare that they are seeking asylum.
Before 2011, only one per cent of all arriving foreigners requested asylum. Today, one out of 10 apply, according to government officials.
The caravan
Jeff Sessions, the US attorney general, called the caravan now awaiting processing at the San Ysidro port of entry a “deliberate attempt to undermine our laws and overwhelm our system.”
“There is no right to demand entry without justification,” he said, adding that he would deploy prosecutors to handle cases.
Central Americans who travel with a caravan of migrants embrace before crossing the border and request asylum in the United States. Source: AAP
Indeed, there are signs that the administration is seeking to disqualify certain applicants, such as victims of domestic violence, who have sometimes won asylum. Recently, Sessions suggested they should not be eligible.
Yet the law does require authorities to accept and consider their petitions.
Because some migrants in the past have skipped their court hearings, President Trump has criticised the practice of releasing migrants, describing it as “catch and release.” In recent months, his administration has ordered border officers to, when possible, keep these migrants in detention, rather than release them.
“While these asylum-seekers are, on paper, eligible for consideration for release on parole, in reality ICE holds them in detention for long periods of time,” said Eleanor Acer, director of refugee protection for Human Rights First.
US officials say the administration is trying to figure out how to deal with the surge in asylum applications in a manner that is consistent with its international obligations.
Part of the problem is that immigration courts are clogged, and not just with asylum cases.
At of the end of March, there were 692,298 cases in the backlog, according to Syracuse University’s Transactional Records Access Clearinghouse, which tracks the trends. The average wait time for current pending cases was 718 days, or nearly two years.
Are their claims legitimate?
Central Americans who apply for asylum often have been threatened with death or suffered attacks at the hands of gangs. Often mothers flee to protect their children from recruitment.
“We have seen firsthand the extraordinarily violent conditions in the Northern Triangle of Central America that forces families and children to flee their homes in search of urgently needed safety in the US,” said Jennifer Sime, senior vice president of US programs at the International Rescue Committee.
“Those who qualify and are fleeing violence, who have no other route to protection, should be granted safety and asylum,” she said.
Immigrant advocates say their circumstances are akin to those faced by people escaping war in Syria or Somalia. However, it is more difficult for Central Americans to win their cases.
“A huge percentage of these people get deported,” said Marty Rosenbluth, an immigration lawyer. “It’s a really difficult struggle to win asylum.”
Rosenbluth said that all of his asylum cases based on gang violence have failed because his clients could not establish that they fit into a social group suffering particular persecution to qualify.
In some cases, judges have found that applicants fabricated or exaggerated their claims, though that is not usually the case.
Immigration court records show that more asylum cases were denied over the previous five years than have been granted. In fiscal year 2016, 62 per cent of asylum cases were denied, compared with 44.5 per cent five years earlier. Among Mexicans and Central Americans, the approval rate is substantially lower.
Are some people just looking for a better life?
Simply wanting a better life does not meet the international criteria to qualify for asylum. But there are people who apply anyway because it gives them some benefits, albeit temporarily, even if they ultimately lose their case.
Since the election of President Trump, unauthorised immigrants who have lived in the country for many years and fear deportation have been applying for asylum, knowing that they are unlikely to win, but hoping to remain in the country legally for a time.
While their application crawls through the courts, they can obtain work permits and driver’s licences.
The administration, which has taken a hard line on immigration, has said that it is seeking to expedite asylum cases and crack down on abuse.
“There is a significant increase in terms of individuals seeking asylum,” said Jennifer Higgins, an associate director at US Immigration and Citizenship Services who handles refugee and asylum issues. “Our goal is to make sure we have a fair and efficient asylum system. Right now we have individuals exploiting it. That means legitimate applicants will suffer.”
The government has also said that it will prosecute those who break immigration law.
In the case of the caravan, critics say that it would be a violation of international law to conduct speedy hearings for the caravan members at the expense of a full hearing of their claims.
“The Trump administration has made clear that asylum-seekers associated with the caravan will be subjected to detention, criminal prosecutions, and rushed proceedings, in essence punishing them for seeking refugee protection,” Acer said.
But Higgins said officials are assigning staff and officers to help house and process all those admitted for hearings, wherever they end up.
