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January 2019, Volume 25, Number 1

Caravans, Birthright, Census

Over 99,000 foreigners applied for asylum in FY18, up from 56,000 in FY17; over 60 percent of asylum applicants were from Central Americans. There is a backlog of over 200,000 asylum cases.

There are two kinds of asylum applications. Offensive applications are from those who are not in the custody of the US government, such as Chinese students with F-1 visas in the US who fear returning. Defensive applications are from those who are held by the US government, such as Central Americans who enter the US illegally.

When illegal entrants are apprehended by the Border Patrol and request asylum, they must pass a credible fear test adminisetered by USCIS asylum officiers demonstrating that they face persecution at home. About 75 percent of Central Americans pass this credible fear test, but fewer than 10 percent are subsequently recognized as refugees by immigration judges.

Caravans. Several thousand Hondurans on October 12, 2018 left San Pedro Sula to march through Guatemala and Mexico to the US to apply for asylum. As they marched north, President Trump threatened to cut off aid to Honduras and to tear up the new USMCA trade agreement if they reached the US. Trump said that border security is "far more important" to him than USMCA, the successor to NAFTA.

In 2014, when Central Americans first began arriving in large numbers, Congress approved a $750 million aid package for the Northern Triangle countries of Guatemala (17 million residents), El Salvador (6.5 million) and Honduras (nine million).

When the migrant caravan reached Mexico's southern border, migrants were told that 100 to 200 a day could apply for asylum in Mexico, after which they would have to remain in government shelters at least 10 days and wait 45 days for a decision on their application.

Instead, over 7,000 migrants entered Mexico and began to march toward the US border. By December 2018, there were 4,500 Central Americans in Tijuana, where the mayor declared an humanitarian emergency and criticized Mexico's federal government for not providing sufficient aid.

Some 200 to 300 Hondurans leave their country each day. Most say they are fleeing gangs, domestic violence and other crime, which ex-US Attorney General Jeff Sessions determined is not a basis for asylum in the US. An Easter 2018 caravan had about 1,500 people, including a third who applied for asylum in the US.

Caravans make it easier for migrants to travel through Mexico, but the publicity they attract may make it harder for the migrants to enter the US. At the Mexico-US border, many migrants enter illegally and are apprehended by the Border Patrol. In November 2018, almost 60 percent of those apprehended on the Mexico-US border were families or unaccompanied children who asked for asylum.

How should foreigners who apply for asylum at the US border be treated? US law allows children apprehended at the border to be detained a maximum of 20 days. This means that Central Americans arriving with children are often released after applying for asylum; many live with family and friends while their cases are pending. Most Central Americans who apply for asylum have relatives in the US.

President Trump criticized this catch-and-release policy, saying that it encouraged parents to enter the US illegally with children in order to be released into the US. The Trump administration in May-June 2018 implemented a short-lived family separation policy, separating children from parents and encouraging the parents to agree to return to their countries of origin.

In November 2018, President Trump said that only foreigners who enter the US legally may apply for asylum for the next 90 days. Asserting that unauthorized migration was detrimental to the national interest, Trump said that unauthorized foreigners would not be able to apply for asylum, although they could apply for other protections in the US. A federal judge blocked the implementation of this catch-and-detain policy.

Mexico offered caravan migrants humanitarian visas that allow them to live and work in Mexico for a year, and recruited Central Americans to apply for asylum, obtain a Mexican social security number, and apply for jobs in Tijuana manufacturing plants known as maquiladoras that are seeking workers for wages of $10 to $15 a day. In November-December 2018, some 3,500 Central Americans completed job applications with firms offering about $65 a week and health coverage via the Mexican Social Security Institute.

Mexican President Andres Manuel Lopez Obrador said that migrants who apply for asylum in the US will receive work visas in Mexico and remain there while their applications for asylum are processed in the US, waiting in Mexico for a hearing before a US immigration judge. DHS limited the number of migrants who could enter the US legally and apply for asylum to about 200 a day. There was a list of 2,000 migrants waiting for credible fear interviews at US ports of entry in December 2018.

One survey found that the average years of education of Honduran men in the caravan was six years, lower than the average 10 years of men born in Tijuana. Profiles of migrant communities in Guatemala and Honduras emphasize the lack of formal sector jobs that offer hope for advancement and encourage emigration from areas with growing populations and fixed areas of agricultural land.

The Trump administration is considering several other options, including a last-in, first-out system that would have asylum applications filed by the newest arrivals handled first, so that those whose applications are denied can be removed quickly. Another option is to require asylum applicants to wear ankle bracelets for the several years normally required to hear an asylum case and appeal, and another is to require those who cross the Mexico-US border illegally to "voluntarily" give up their children to foster care or to be detained with their children. Parents would waive the child's right to freedom after the 20 days specified in current law.

Not all of the foreigners who pass credible fear interviews and enter the US apply for asylum. DOJ Executive Office of Immigration Review data suggest that up to half of foreigners who pass credible fear interviews do not apply for asylum.

The US also resettles refugees, persons who flee their countries of citizenship and fear returning to face persecution. The US resettled about 22,500 refugees in FY18, and the ceiling for FY19 is 30,000.

Birthright. President Trump in October 2018 announced that he could issue an executive order to end birthright citizenship, the practice of giving practically all babies born in the US automatic US citizenship. The 14th amendment to the constitution, ratified in 1868, says that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

Opponents of birthright citizenship say that unauthorized foreigners are not subject to the jurisdiction of the US, just like children of diplomats who are born in the US.

About 30 countries, including Canada and Mexico, grant birthright citizenship. Most countries in Europe and Asia require at least one parent to be a citizen for the baby to be an automatic citizen.

Census. The Trump administration plans to include a question on the 2020 Census to ask respondents if they are US citizens. The Census Bureau says citizenship data are needed to enforce the 1965 Voting Rights Act, but states and cities that sued to block the citizenship question say that asking about citizenship would reduce the participation of Asian and Hispanic minorities who tend to vote for Democrats.

Critics say minorities are less likely to provide any data to the census if they are asked about their citizenship; the census stopped asking about citizenship in 1950. The American Community Survey, which collects data between censuses on a sample of households, asks respondents about their citizenship.

DACA. The Ninth US Circuit Court of Appeals in November 2018 ruled that the Trump administration used flawed and inadequate reasoning to cancel the Deferred Action for Childhood Arrivals program. Since 2012, DACA has allowed 800,000 unauthorized foreigners brought to the US before age 16, and who graduated from US high schools, to receive two-year work and residence permits.

About 700,000 unauthorized foreigners had DACA status in November 2018. One of the three appeals court judges cited the success of a DACA recipient who opened her own law practice to conclude that Trump's ending of DACA was "arbitrary, capricious, or otherwise not in accordance with law."

Politics. Democrats took control of the House in November 2018 midterm elections, while Republicans maintained control of the Senate. Many of the Democrats elected to the House were women; there will be a record 100 women among the 435 House members in 2019.

Commentators agreed that the November 2018 midterms show the US more divided politically than ever, with blue Democrats moving further away from Trump and red Republicans becoming more supportive of Trump. Women were 52 percent of voters; they voted Democratic by an 18 percent margin.

There were 11 immigrants among the 535 members of the outgoing Congress. Rep. Pramila Jayapal (D-WA) is an immigrant from India who had an H-1B visa and was among the first members of Congress to call for the abolishment of ICE. Jayapal is a member of the Congressional Progressive Caucus, which introduced a bill to abolish ICE but later withdrew it.

The Democratic Party is generally pro-immigration, but most Democratic voters do not reward Democrats for being very pro-immigrant. By contrast, many Republican voters punish Republicans who are not sufficiently tough on unauthorized migration. President Trump and some Republicans accused Democratic-leaning groups of funding Central American caravans.

Democrats controlled Congress in 2007, but the bipartisan Comprehensive Immigration Reform Act failed to win Senate approval despite the support of President Bush. President Obama in 2008 promised comprehensive immigration reform, but only after recovery from the 2008-09 recession.