The recent surge of young migrants from Central America means immigration judges across the U.S. are deciding who can stay — and who must go back home.
But amid the emotional debate surrounding the issue, what exactly is the law when it comes to immigration and asylum seekers?
Maria Cristina Garcia, a professor of immigration and refugee history at Cornell University, spoke with Morning Edition‘s Steve Inskeep about the law that’s likely to be applied in these cases.
How does one become eligible for asylum in the U.S.?
Asylum seekers must be able to prove that they, among other things:
- Have been singled out for persecution because of their race, nationality, religion, membership in a particular social group, or political opinion.
- Could not have received protection from their home government.
- Could not have avoided persecution by moving to another part of their country.
- Face imminent danger if they return to their country of origin
- Have not inflicted harm on others and have not been convicted of any serious crime.
- Do not pose any national security risk to the U.S.
How are immigration hearings different than criminal court hearings?
There is no presumption of innocence. “In immigration hearings, there is a presumption of guilt and deception until merit or worthiness is demonstrated,” Garcia said.
Also, unlike criminal court, there is no guarantee of legal representation. Asylum seekers might receive a hearing, but no attorney is provided to them. For that reason, advocacy organizations are scrambling to arrange pro-bono representation for many of the recently arrived immigrants.
What is Temporary Protective Status?
The Immigration Act of 1990 authorized status known as Temporary Protective Status. TPS can be offered to foreign nationals already in the U.S. who are unable to safely return to their home country because of natural disaster, armed conflict or some other extraordinary situation.
It’s one alternative legal route that “might be available to the unaccompanied children,” according to Garcia.
TPS isn’t ideal: It doesn’t provide an avenue to normalize one’s status, nor does it offer the rights and privileges that citizenship offers. Still, if someone is desperate and in need of safe haven, TPS could provide a valuable temporary fix.
It would be within the power of the administration, working with the State Department, to offer some unaccompanied minors TPS as a legal way to remain and work in the U.S., Garcia said. The status would presumably expire as soon as the State Department determines that conditions in their home countries have sufficiently improved.
So, does Congress really need to act?
Not according Garcia. “So many people are talking about immigration reform and the need for Congress to come back and finally pass some omnibus immigration reform package,” she told Inskeep. “But there are resources within the existing law that the administration could explore if it chose to do so to accommodate these children.”