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The Migrant Caravan Explained

Over mid to late fall of 2018, a up to 7,000 residents of Honduras, Nicaragua, and other Central American countries decided to leave their homes and head to the United States border to claim asylum at the port of entry. The group has attained media attention over the past several weeks and was used briefly as a talking point in the 2018 Midterm Elections as reasons for additional border security. With the amount of scrutiny, the caravan has received, it is possible to assume that this is the only time such a caravan has made its way toward the country. These caravans are a somewhat regular occurrence, albeit on a smaller scale. The conditions exist for these groups to form, as there is mass poverty, instability, and violence that affects millions, and there is increased safety by travelling in groups.

Several factors that have contributed to the size of the caravan. These include increased ability for groups in Central America to organize due to increased access to electronic communication and media coverage and a snowballing effect of additional migrants joining the caravan when made aware of its presence in their localities. Additional speculative factors contributing to the size of the caravan may include: increased awareness of the existence of a caravan because of media attention due to heightened political rhetoric about fears of immigration and opposition pushback and a belief that U.S. immigration/migration policy may become more restrictive in the future.

Legal Claims of the Caravan

In order to claim asylum in the United States, one must be “unable or unwilling to return to and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.” There is no provision for those fleeing poor economic conditions, though there is some ambiguity in this statute. This statute can protect migrants fleeing from unjust government action on the basis of the categories specified. However, the language, in particular “membership in a particular social group or political opinion” can protect individuals from other entities, such as criminal organizations that may have control over an area or region.

Those in the caravan may have valid claims to asylum on the grounds of fleeing persecution from criminal activity due to the inability of the government to control this activity. Possible scenarios may include fear of dangerous repercussion due to failing to pay a “protection fee” to a local gang, having spoken out against gang activity, having blown a whistle on corrupt law enforcement, or a fear of harm resulting from refusing to acquiesce and assimilate to criminal or gang culture. This interpretation and others like it, however, may now be excluded. In July 2018, then Attorney General Jeff Sessions said the Administration will no longer grant asylum to those on the grounds of gang violence or “personal crimes” such as domestic violence. “Our nation’s immigration laws provide for asylum to be granted to individuals who have been persecuted, or who have a well-founded fear of persecution, on account of their membership in a ‘particular social group,’ but most victims of personal crimes do not fit this definition — no matter how vile and reprehensible the crime perpetrated against them." This new policy is being challenged by Grace v. Sessions.

The opportunity to apply for asylum exists for all foreign nationals, regardless of status. However, President Trump has said that he intends to limit asylum applications to those applying at a port of entry. This policy would prevent migrants from entering the country until their cases are adjudicated; a process that may take several years. This policy is also being challenged in East Bay Sanctuary v. Trump, and the judge has temporarily halted enforcement while the case is considered. In the event the administration loses both of these cases, there is no guarantee a majority of the migrants truly qualify for asylum. The data show that at least 75% of cases are denied. A major obstacle for asylum seekers is often a lack of credible and compelling evidence to back their claims.

The Asylum Process

If the migrants are allowed to cross the border, they have one year to submit applications for Asylum “affirmatively.” Or, if they fail to do so before being placed into removal proceedings, they may apply for asylum “defensively.” The first steps in processes differ somewhat, but in both a key phase is the “credible fear” interview, in which an immigration officer assesses the applicant to ensure they meet one of the established criteria for asylum as mentioned in the law. If this interview is passed, the case is referred to an immigration court.

While their asylum cases are pending, foreign nationals with no other status may be detained unless granted parole. The administration has been blocked from wholesale detention of migrants under Damus v. Nielsen. While their cases are pending, the migrants with no other status may not able to work without other valid status until at least 150 days have passed. It may take several years for asylum cases to be adjudicated given the overloaded nature of the current U.S. Immigration system.

We have been closely monitoring the case of the migrant caravan for patterns and precedents in the asylum process. In addition to this we have over 25 years of experience handling complex waiver and asylum cases. Contact us today for a review of your case.

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