Current Legal Issues

Asylum and Due Process

Asylum and Due Process

Perhaps after you read the law which follows you might want to watch the YouTube video at the end. The question is: Who is able to be deported without a hearing and who is entitled to asylum and why. Perhaps a walk-through Title 8 U.S.C.  Sec. 1158 will help.  To begin with anyone who enters the country illegally can be deported immediately, unless they claim to be entitled to asylum. 

In general, anyone who is physically “present” in the U.S., even if the person does not arrive at a designated port of arrival, may apply for asylum. The Attorney General of the United States can decide to accept an individual or arrange for safe passage to another country with whom the U.S. has a multilateral agreement, unless the individual is an “alianchild”.  The application for asylum must be filed within one year of being “present”. Only those who have been previously denied asylum cannot apply unless the Attorney General agrees based on a change of circumstances or for other good cause. 

The Secretary of Homeland Security prescribes the requirements to be granted asylum. The applicant has the burden of proving the applicant’s status. 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 Attorney General is authorized by the current law to decide to grant asylum to an alien. Certain classes of individuals are not entitled to asylum. They are known criminals, individuals believed to be a danger to the security of the United States, are or have been involved in terrorist activity, or has been “firmly resettled” in another country. Only the spouse or child is entitled to be united with an alien who is granted asylum.  A child is anyone who is not married and is under the age of 21.

The Central Americans and others have learned how to play the asylum game and overwhelm the system then claim that their incarceration is inhumane. The media is a key player in the asylum game blaming the executive branch and ignoring the fact that the current law does not allow the executive branch to determine if a claim for entry based on asylum is legitimate. In effect the same case has to be retried many times. Once by the Attorney General and then once again by a judge of immigration. (Executive Office of Immigration Review). Take a third bite at the apple, by a paper review by a Board of Immigration Appeals which sits in Falls Church Virginia. A fourth bite at the apple upon appeal to the Circuit Court of Appeals, finally ending up in some cases before the U.S. Supreme Court. 

Conclusion: Given the threat to national security that currently exists which is unlike anything prior to 911 Congress must act to secure our borders and pass legislation to prevent individuals from gaming the system, and manufacturing humanitarian issues, which are used by the media to gin up controversy. Since the due process clause only applies to citizens and resident aliens, the constitution does not require due process for an individual who enters illegally and who has not established a nexus within the country. Congress has the authority to pass legislation to grant authority to one of the executive agencies to immediately deport individuals who enter illegally, whether or not they are seeking asylum. 

YouTube Video Press Conference