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How Immigration Laws Regarding Refugees and Asylum Relate to the Situation at the U.S.-Mexico Border

Map_of_Central_America.pngOver 52,000 children, mostly unaccompanied by parents or guardians, have entered the United States via the U.S.-Mexico border this year after fleeing crime and violence in Central America. The majority of the children, according to news reports, have presented themselves to Border Patrol agents, but the sheer number of people is overwhelming the government’s ability to handle them. The issue has become highly politically charged. While some people view these children as undocumented immigrants subject to ordinary removal procedures, others want them treated as refugees, especially considering the situation in their home countries. The laws that apply to this situation are complicated, but important to understand.

The United Nations has called on the government to designate the children as refugees. Federal immigration law defines a “refugee” as someone who is outside of their home country and cannot return due to persecution or a “well-founded fear of persecution.” 8 U.S.C. § 1101(a)(42). The persecution must be based on a protected category, which includes race, religion, national origin or ethnicity, membership in some other group, or political opinion. A person must must also establish a “well-founded fear” in order to obtain asylum. U.S. Citizenship and Immigration Services (USCIS) further defines a refugee as someone from an area that is of “special humanitarian concern to the United States,” and who would be otherwise admissible as an immigrant. To obtain refugee status, a person must normally go through the U.S. Refugee Admissions Program (USRAP).

The children arriving at the border are mostly coming from countries in Central America that are experiencing substantial crime and unrest, particularly Honduras and El Salvador. San Pedro Sula, the second-largest city in Honduras, has become known as the “murder capital of the world,” with a murder rate between 169 and 193 per 100,000 inhabitants. By contrast, New York City’s murder rate is 5.1 per 100,000 people.

The cause of the influx of children is part of the political fight that has grown around the situation. Some people claim that the Deferred Action for Childhood Arrivals (DACA) program is encouraging young people to come to the U.S., but the DACA program is unlikely to benefit anyone arriving at the border now.

The government has already begun deporting some children to Honduras, despite a federal law that might prevent it from doing so. The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 essentially states that unaccompanied children from non-contiguous countries, meaning any country except Mexico or Canada, are presumed to be trafficking victims and cannot be deported.

Section 235(c) of the 2008 law allows placement of unaccompanied minor children in an Unaccompanied Refugee Minor (URM) program, as defined in 8 U.S.C. § 1522(d), if a “suitable family member” cannot be located to take custody. The Office of Refugee Resettlement (ORR), part of the Department of Health and Human Services (HHS), may provide assistance, contracts, and grants to states and private entities to provide services for these children. The law itself seems clear. The issue is the ability of the government to handle the number of children presently needing help under the law.

Samuel C. Berger is an immigration attorney who represents immigrants living in New York and New Jersey, individuals from abroad who wish to immigrate to the United States, and family members seeking to bring a loved one here. To schedule a confidential consultation to see how we can help you, please contact us today online or at (212) 380-8117.

More Blog Posts:

New Jersey Governor Signs Bill Based on DREAM Act Allowing Certain Undocumented Immigrants to Pay In-State Tuition at Public Universities, New York & New Jersey Immigration Lawyer Blog, January 22, 2014
Resources Abound to Help People Determine Their Eligibility for DACA, Including a new Mobile App, New York & New Jersey Immigration Lawyer Blog, October 17, 2013
Police, Prosecutors Advocate for Lebanese Immigrant Who Helped Crack a Murder Case, New York & New Jersey Immigration Lawyer Blog, January 5, 2012
Photo credit: By Cacahuate, amendments by Joelf (Own work based on the blank world map) [CC-BY-SA-3.0-2.5-2.0-1.0], via Wikimedia Commons.