Over the past few weeks, we have seen a spike in outrage over the separation of immigrant children from their parents at the U.S. border. Particularly horrifying are the reports that the children were being kept in cages, as if they are dogs. To be clear, our office has been speaking out against the practice of dividing immigrant families for years. We have long held the position that families should never be forcibly torn apart by the state.
Enacted in May, the Administration’s tougher family immigration policy ignited a major crackdown on family immigration, leading to the initial removal of 2,300 from their parents. These children have been lost in the system. Nonetheless, additional separations followed, which, according to some sources, exceed 11,000. While the policy was reversed by Executive Order yesterday, the Administration is not backing down from their hardline stance. We want to state in unequivocal terms: we must be vigilant in refusing to allow such a policy from being put into place in the future, for the good of undocumented immigrants and for our own sake.
The children who have been taken away from their parents do not present any sort of security threat. They are not at fault, but they are certainly being traumatized. These children will eventually either end up living in our country, or they will be sent back to their home countries to live as our neighbors. How is it in our best interest to inflict trauma – which may very well leave lasting psychological scars – on our future residents or neighbors? We have seen the physical and emotional damage that comes of venomous cross-border relationships (think Palestine-Israel or Pakistan-India). By carrying out policy that treats parents and children who are coming to our country in hopes of a better life as less-than-human creatures, we are setting ourselves up for broken and possibly hostile relationships with our neighbors to the south.
Many of these families have every legal right to be here, and we have punished them prematurely, based on the presumption of guilt. We’re not supposed to do that in this country. Innocent until proven guilty. U.S. Code 1158 states in unequivocal terms that people who think they have a legitimate claim to asylum can show up here in our country. They have a whole year after they arrive to come forward and explain why they need asylum. This time limit does not even apply to children. Our law is written this way, yet we treat the people who may very well be trying to follow it like animals. (See U.S. Code 1158 at the end of the article for more information.)
In addition, overly harsh immigration policies such as the family division policy that was just rescinded lead to negative international attention on our country. The promotion and protection of human rights is a key purpose and guiding principle of the United Nations. The UN’s International Bill of Human Rights protects individuals against human rights abuses, and its Office of the UN High Commissioner for Human Rights (OHCHR) has the authority to investigate human rights situations and issue reports on them. There is no reason to doubt that the OHCHR may investigate the U.S. when we make choices like caging of children and dividing children from parents as a human rights abuse. Such human rights abuses can lead to international sanctions on the U.S., a problem that may threaten our economy and our personal well-being.
U.S. Code 1158 is very clear about the asylum process so the Administration does not need to re-invent the wheel with their zero tolerance policy. The U.S. Code isn’t policy. It is the law of the land. Considering all of these factors, please join us as we continue to speak out against the harmful immigration policies currently in place in our country. We must stand up for what is right, just, and beneficial for all families, no matter where they’re from.
Please contact our office to talk to an immigration expert today if you have any questions about this or any other immigration issue. We are here to help.
U.S. Code 1158
(a)Authority to apply for asylum
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.
(A)Safe third country
Paragraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality or, in the case of an alien having no nationality, the country of the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.
Subject to subparagraph (D), paragraph (1) shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien’s arrival in the United States.
(C)Previous asylum applications
An application for asylum of an alien may be considered, notwithstanding subparagraphs (B) and (C), if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified in subparagraph (B).
(3)Limitation on judicial review
No court shall have jurisdiction to review any determination of the Attorney Generalunder paragraph (2).
(b)Conditions for granting asylum
The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title.
(B)Burden of proof
The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section 1101(a)(42)(A) of this title. To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.
The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant’s burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.
Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.
the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;
the alien is described in subclause (I), (II), (III), (IV), or (VI) of section 1182(a)(3)(B)(i) of this title or section 1227(a)(4)(B) of this title (relating to terrorist activity), unless, in the case only of an alien described in subclause (IV) of section 1182(a)(3)(B)(i) of this title, the Attorney General determines, in the Attorney General’s discretion, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States; or
(i)Conviction of aggravated felony
The Attorney General may designate by regulation offenses that will be considered to be a crime described in clause (ii) or (iii) of subparagraph (A).
The Attorney General may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under paragraph (1).
(D)No judicial review
There shall be no judicial review of a determination of the Attorney General under subparagraph (A)(v).
(3)Treatment of spouse and children
A spouse or child (as defined in section 1101(b)(1)(A), (B), (C), (D), or (E) of this title) of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying, or following to join, such alien.
(B)Continued classification of certain aliens as children
An unmarried alien who seeks to accompany, or follow to join, a parent granted asylum under this subsection, and who was under 21 years of age on the date on which such parent applied for asylum under this section, shall continue to be classified as a child for purposes of this paragraph and section 1159(b)(3) of this title, if the alien attained 21 years of age after such application was filed but while it was pending.
An asylum officer (as defined in section 1225(b)(1)(E) of this title) shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child (as defined in section 279(g) of title 6), regardless of whether filed in accordance with this section or section 1225(b) of this title.
the alien no longer meets the conditions described in subsection (b)(1) owing to a fundamental change in circumstances;
the alien meets a condition described in subsection (b)(2);
the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality or, in the case of an alien having no nationality, the country of the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien is eligible to receive asylum or equivalent temporary protection;
the alien has voluntarily availed himself or herself of the protection of the alien’s country of nationality or, in the case of an alien having no nationality, the alien’s country of last habitual residence, by returning to such country with permanent resident status or the reasonable possibility of obtaining such status with the same rights and obligations pertaining to other permanent residents of that country; or
the alien has acquired a new nationality and enjoys the protection of the country of his or her new nationality.
(3)Removal when asylum is terminated
An alien described in paragraph (2) is subject to any applicable grounds of inadmissibility or deportability under section  1182(a) and 1227(a) of this title, and the alien’s removal or return shall be directed by the Attorney General in accordance with sections 1229a and 1231 of this title.
The Attorney General shall establish a procedure for the consideration of asylum applications filed under subsection (a). The Attorney General may require applicants to submit fingerprints and a photograph at such time and in such manner to be determined by regulation by the Attorney General.
An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General. An applicant who is not otherwise eligible for employment authorization shall not be granted such authorization prior to 180 days after the date of filing of the application for asylum.
The Attorney General may impose fees for the consideration of an application for asylum, for employment authorization under this section, and for adjustment of status under section 1159(b) of this title. Such fees shall not exceed the Attorney General’s costs in adjudicating the applications. The Attorney General may provide for the assessment and payment of such fees over a period of time or by installments. Nothing in this paragraph shall be construed to require the Attorney General to charge fees for adjudication services provided to asylum applicants, or to limit the authority of the Attorney General to set adjudication and naturalization fees in accordance with section 1356(m) of this title.
(4)Notice of privilege of counsel and consequences of frivolous applicationAt the time of filing an application for asylum, the Attorney General shall—
advise the alien of the privilege of being represented by counsel and of the consequences, under paragraph (6), of knowingly filing a frivolous application for asylum; and
(5)Consideration of asylum applications
(A)ProceduresThe procedure established under paragraph (1) shall provide that—
asylum cannot be granted until the identity of the applicant has been checked against all appropriate records or databases maintained by the Attorney General and by the Secretary of State, including the Automated Visa Lookout System, to determine any grounds on which the alien may be inadmissible to or deportable from the United States, or ineligible to apply for or be granted asylum;
in the absence of exceptional circumstances, the initial interview or hearing on the asylum application shall commence not later than 45 days after the date an application is filed;
in the absence of exceptional circumstances, final administrative adjudication of the asylum application, not including administrative appeal, shall be completed within 180 days after the date an application is filed;
any administrative appeal shall be filed within 30 days of a decision granting or denying asylum, or within 30 days of the completion of removal proceedings before an immigration judge under section 1229a of this title, whichever is later; and
in the case of an applicant for asylum who fails without prior authorization or in the absence of exceptional circumstances to appear for an interview or hearing, including a hearing under section 1229a of this title, the application may be dismissed or the applicant may be otherwise sanctioned for such failure.
(B)Additional regulatory conditions
The Attorney General may provide by regulation for any other conditions or limitations on the consideration of an application for asylum not inconsistent with this chapter.
If the Attorney General determines that an alien has knowingly made a frivolous application for asylum and the alien has received the notice under paragraph (4)(A), the alien shall be permanently ineligible for any benefits under this chapter, effective as of the date of a final determination on such application.
(7)No private right of action
Nothing in this subsection shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.
(e)Commonwealth of the Northern Mariana Islands
The provisions of this section and section 1159(b) of this title shall apply to persons physically present in the Commonwealth of the Northern Mariana Islands or arriving in the Commonwealth (whether or not at a designated port of arrival and including persons who are brought to the Commonwealth after having been interdicted in international or United States waters) only on or after January 1, 2014.
(June 27, 1952, ch. 477, title II, ch. 1, § 208, as added Pub. L. 96–212, title II, § 201(b), Mar. 17, 1980, 94 Stat. 105; amended Pub. L. 101–649, title V, § 515(a)(1), Nov. 29, 1990, 104 Stat. 5053; Pub. L. 103–322, title XIII, § 130005(b), Sept. 13, 1994, 108 Stat. 2028; Pub. L. 104–132, title IV, § 421(a), Apr. 24, 1996, 110 Stat. 1270; Pub. L. 104–208, div. C, title VI, § 604(a), Sept. 30, 1996, 110 Stat. 3009–690; Pub. L. 107–56, title IV, § 411(b)(2), Oct. 26, 2001, 115 Stat. 348; Pub. L. 107–208, § 4, Aug. 6, 2002, 116 Stat. 928; Pub. L. 109–13, div. B, title I, § 101(a), (b), May 11, 2005, 119 Stat. 302, 303; Pub. L. 110–229, title VII, § 702(j)(4), May 8, 2008, 122 Stat. 866; Pub. L. 110–457, title II, § 235(d)(7), Dec. 23, 2008, 122 Stat. 5080.)
 So in original. Probably should be “sections”.