sringwal
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Enter at Your Own Risk: Criminalizing Asylum-Seekers – Columbia Human Rights Law Review
hrlr.law.columbia.edu
"Particularly disturbing is the targeting of asylum-seekers, employing the criminal justice system and the illegal entry statute in the “zero tolerance policy.” Under this policy, children, including toddlers, are seized and languish for months and years separate from their families, many of whom are seeking asylum. Directly contrary to federal statute and international law, another policy makes anyone who enters the country without inspection ineligible for asylum. Kirstjen Nielsen, Trump’s second Secretary of the Department of Homeland Security (“DHS”), ordered asylum applicants to await the lengthy processing of their claims in cartel-ruled border areas of Mexico, with no realistic safe shelter and deprived of all meaningful opportunity to exercise their statutorily-guaranteed right to access to counsel—a necessity, given today’s convoluted asylum law."
Why Don't Unauthorized Migrants Come Here Legally?
United States Conference of Catholic BishopsMigration and Refugee Services Migration Policy and Public Affairs Issue Briefing Series, Issue #1 Why Don't They...
So, why didn't they just "stand in line" to do so? For the large majority of unauthorized immigrants, no such "line" exists. Under the current immigration legal framework, lawful immigration to the United States is restricted to only a few narrow categories of persons.xvii Most current unauthorized immigrants residing in the United States are ineligible to enter legally with a "green card" as a lawful permanent resident for the purpose of living and working in the country. This is because most do not have the family relationships required to apply for lawful entry; they do not qualify as asylees because of economic hardship as such status is available only to those who are fleeing persecution; and the majority of the unauthorized do not hold advanced degrees and work in the high-skilled professions that would qualify them for work-sponsored lawful permanent residency.
U.S. immigration laws provide three core means by which an immigrant may obtain lawful permanent residency.(xviii) First, a qualified family member in the United States may petition to bring a foreign-born family member to the country lawfully. U.S. Citizens may petition for lawful permanent residency for their spouses, parents, children or siblings. Lawful Permanent Residents in the country may petition for their foreign-born spouses and unmarried children. To do so, sponsors must demonstrate an income level above poverty line and must commit to financially support the sponsored, foreign-born family member so that they do not become a public charge. The foreign-born immigrant, in turn, must meet all other eligibility requirements.(xix) However, there are numeric limitations on most of these family-based categories, resulting in backlogs for entry that often range anywhere from five years to nearly 20 years.
Second, immigrants fleeing political persecution or a well-founded fear of future persecution on account of their race, religion, membership in a particular social group, political opinion or national origin may seek political asylum in the United States or qualify for refugee status. To do so, they must meet a high evidentiary burden. Even if they do qualify for refugee status, there is an annual cap on the number of refugee admissions to the United States, which is set annually and is typically between 70,000 and 80,000.(xx) Most of today's unauthorized immigrants are fleeing poverty in their home countries, not political persecution. As a result, they do not qualify for asylum.
Third, and significantly, there are various immigration categories for workers to be sponsored by a U.S.-based employer to come to the United States to work and live lawfully. However, these categories are limited to multinational executives and professors; those with advance degrees, the exceptional in the arts, sciences or business; and narrowly-defined, specialized workers.xxi Today's unauthorized immigrants are largely low-skilled workers who come to the United States for work to support their families. They work in the agricultural, meatpacking, landscaping, services, and construction industries in the United States. They fill the ranks of U.S. businesses, large and small throughout the country. Over the past several decades, the demand by U.S. businesses for low-skilled workers has grown exponentially, while the supply of available workers for low-skilled jobs in the United States has diminished.(xxii) Yet, there are only 5,000 green cards available annually for low-skilled workers to enter the United States lawfully.(xxiii) This number stands in stark contrast to the estimated 300,000 immigrants who enter the United States unlawfully each year, most of whom are looking for work.(xxiv) The only alternative to this is to secure a temporary work visa through the H-2A (seasonal agricultural) or H2B (seasonal non-agricultural) visa programs which provide temporary status to low-skilled workers seeking to enter the country lawfully. While H-2A visas are not numerically capped, the requirements are onerous. H-2B visas are capped at 66,000 annually. Both only provide temporary status to work for a U.S. employer for one year.(xxv) At their current numbers, these are woefully insufficient to provide legal means for the foreign-born to enter the United States to live and work, and thereby meet our demand for foreign-born labor.
