Check out 8 US Code § 1158. Asylum.
Section a. 1:
"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"
So they do NOT need to enter at a "designated port of arrival".
And they can ONLY apply once they have crossed the border.
ERGO: Asylum seekers are NOT crossing the border illegally.
As with many other places in the law, it's a matter of intent.
Intent is the difference between accidental wrongdoing and criminal action.
- If you pick up a box at the side of the road, thinking it is trash, you have not committed larceny or theft. You did not have the intent to deprive the rightful owner of the object.
- If you cause a death, but there was no intent to cause harm, it is not murder; it is negligent homicide or manslaughter.
- If you trip and fall, knocking someone else over, it is not assault and battery, even if the person you knocked over is seriously hurt.
What Jeff Sessions has done, in prosecuting all those who cross the border, is to assume that all the potential asylum seekers are lying. He is assuming that their cases are baseless, and furthermore, it appears that he is assuming that they have tried to enter the country before.
Entering without proper papers is a misdemeanor, usually not worth prosecuting (deportation is the penalty). Only if someone who has previously been deported tries to enter, giving false statements, does it rise to a felony which might incur imprisonment.
And Sessions is treating these people, who have not yet seen any sort of judge, as felons. Convicted ones, at that.
Treatment of children gets complicated.
ReplyDeleteSection a. 2. E says "Subparagraphs (A) and (B) shall not apply to an unaccompanied alien child"
Subparagraph A says asylum seekers may be sent to a third country, as long as that country agrees ("bilateral or multilateral agreement" and the person will have equivalent asylum protection as they would here.
Subparagraph B gives a time limit of one year for applying for asylum (once you are in the US).
So unaccompanied kids can't be sent to a third country, and they don't even have to apply for asylum within any particular time frame. Section a. 3. C says an asylum officer is initially responsible for an unaccompanied child once asylum application is made. But it doesn't really say what happens to the child in between arrival and asylum application, which might be years.
A related section of the code (§1225) dictates the inspection process. On the one hand, virtually all aliens are to be considered as "applicants for admission", regardless of how they got here or how long they've been here. That conveys a certain status, and (supposedly) guarantees "inspection" by an immigration officer. And if the applicant says they intend to apply for asylum, the case must be turned over to an asylum officer.
Unfortunately, that officer has a great deal of discretion: "if the officer determines that an alien does not have a credible fear of persecution, the officer shall order the alien removed from the United States without further hearing or review".
The only saving grace here is that the officer must make a written report of his decision, to be provided to the applicant, and that report be appealed to an immigration judge. (I am not quite sure how this differs from the "further hearing or review" that is prohibited above). Review shall be done "as expeditiously as possible ... in no case more than 7 days after the date of the determination..."
However, the ultimate decider is the Attorney General, so currently Jeff Sessions.
This law is worth exploring. Many things being done today, in my opinion, fulfill the letter of the law but certainly not the spirit or original intention.