Washington, D.C.—Members of the migrant caravan that spurred President Trump’s decision to deploy the National Guard are now arriving at various U.S.-Mexico border cities. Those who intend to apply for asylum have a challenging process ahead of them.
Here are important facts—compiled from factsheets on immigration and asylum put together by human rights advocacy group the Washington Office on Latin America (WOLA)—about what will most likely happen to the members of the migrant caravan now at the U.S.-Mexico border:
1) Crossing the border and deliberately seeking out authorities to request asylum is not illegal.
Applying for asylum is a human right guaranteed in U.S. immigration law and international law. Under those same laws, asylum seekers are not required to request asylum in countries that are closest to their place of origin, or the first “safe country” that they reach.
2) Petitioning for asylum in the United States is not “an easy ticket to illegal entry.”
Those who arrive at the U.S.-Mexico border and petition for asylum are not simply paroled into the United States. They must go through a multi-step process, the culmination of which is convincing a judge of their eligibility.
After turning themselves in and requesting asylum from a Customs and Border Protection (CBP) officer, asylum seekers are transferred over to Immigration and Customs Enforcement (ICE). Those who pass a round of security screenings are then eligible for a “credible fear” interview. These are conducted by U.S. Citizenship and Immigration Services (USCIS) asylum officers at the border, in order to determine whether the applicant qualifies for an asylum hearing. Only those applicants who are judged to have a “credible fear of persecution” pass on to the next stage.
However, a number of migrants with potentially strong claims for asylum never get this far. Research suggests many migrants who have fled circumstances that warrant a credible fear test will never be given one. According to a 2018 study by the Borderland Immigration Council, an immigration attorney coalition, and the Hope Border Institute, an immigration advocacy group, 76 percent of asylum attorneys interviewed described cases in which migrants reported being discouraged, threatened, or dissuaded from pursuing asylum. Human rights and immigrant rights organizations have also documented numerous cases of asylum seekers being turned back by CBP officers at U.S. ports of entry.
3) The credible fear test is not a guarantee of asylum.
The credible fear test is just one of several steps in a difficult process in which asylum seekers face legal tests and other hurdles. Only those who’ve passed a series of security tests—in which their names and fingerprints are vetted via a national security database, which scans records from federal, state, local, and foreign sources—are eligible for the credible fear test.
The USCIS officer conducting the interview for the credible fear test must assess the asylum seeker’s credibility by considering “demeanor, candor, or responsiveness … the inherent plausibility of the applicant’s account, the consistency between the applicant’s written and oral statements … the internal consistency of each such statement, the consistency of such statements with other evidence of record, and any inaccuracies or falsehoods in such statements, or any other relevant factor.”
If the USCIS officer finds that the individual has a credible fear of persecution or torture, his or her case will be referred to an immigration judge for a full hearing. This gives asylum seekers the opportunity to look for a lawyer and gather evidence to substantiate their claim.
4) Many adults applying for asylum are held in ICE detention centers, where they are at risk of poor treatment and abuse.
Even those applicants who have already passed the credible fear test and are awaiting a hearing in immigration court may continue to be held in detention. ICE officials have discretion to release people while they await their court date, but in many cases, ICE sets unreasonably high bond rates or denies parole requests even when the established criteria for asylum are met. A March 2018 lawsuit filed by the American Civil Liberties Union and other organizations alleges that asylum seekers are being held in detention in an attempt to deter them and others from seeking protection in the U.S. They found that in the first eight months of the Trump administration, 95 percent of release requests in five ICE field offices were denied, with an estimated 1,000 asylum seekers detained in these offices in 2017. There are no publicly divulged national numbers on how many asylum seekers are currently being held in detention.
5) Often, what determines the outcome of an asylum hearing before a judge is not the credibility of the applicant’s claims, but who the judge is and whether or not the applicant had a lawyer.
A successful asylum application largely depends on access to legal counsel. A 2015 study by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) showed that without legal representation, only 1.5 percent of women with children who had passed their credible fear interviews were given asylum in the United States.
The outcome of an asylum case is also greatly dependent on where the case is heard, and which judge handles the case. While many Central American families are fleeing similar situations, there’s a vast difference in how their cases are decided depending on the judge and the location of the court, according to an analysis of asylum decisions made by U.S. immigration judges. Whereas judges in New York grant asylum in more than 75 percent of the cases, in Atlanta almost 90 percent of asylum requests are denied.
Explore WOLA’s other factsheets and analysis for more information and context on what is driving asylum seekers from Central America to the United States, what happens to them once they apply for asylum, who they are, and how they fit into larger U.S. migration trends:
- Analysis: Migrant caravans are a humanitarian problem, not a security threat.
- Factsheet: Understanding the rising number of asylum requests by Central American migrants.
- Factsheet: Exposing myths behind U.S. migration trends.
- Factsheet: Alleged “loopholes” in the immigration and asylum process.
- Factsheet: Why are Central American families fleeing their homes?
- Factsheet: A border wall does nothing to discourage asylum seekers, and other facts about the wall.
- Analysis: Migrant caravans are no reason to send the National Guard to the border.