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Caravans and Consulates: Should Asylum Seekers Have More Options?
By: Curtis Pierce, Feb. 2019
In the autumn of 2018, a caravan of Central American migrants seeking a better life traveled from Honduras to the southern border of the United States. Many were fleeing a combination of violence, poverty, and persecution. Thus far, there have been two reported deaths of Guatemalan children associated with the caravan.  There has also been much reporting about separating children from their parents. Whether or not the migrants technically qualified as “refugees” under the Immigration and Nationality Act,  many intended to seek asylum. The issues connected with the caravan raise questions about our asylum laws and procedures through which applicants apply.
This article will discuss the laws regarding asylum and the current requirement that in order to apply, those seeking asylum must be physically present in the United States. The definition of refugee will also be explored. It will also consider whether US embassies and consulates should be authorized to adjudicate asylum claims. Is it fair or logical to require those fleeing persecution to travel to the United States to present their claims? Is such a requirement necessary? And if US embassies were empowered to adjudicate asylum claims, is the doctrine of consular non-reviewability, which gives consulates the last word in approving or denying applications for visas, appropriate when dealing with their rulings on refugee asylum claims? This article will examine these and related questions. Empowering consulates to adjudicate asylum cases may not prevent all people in dire circumstances from coming to the United States by any means possible in order to file their claims. However, it could be a step toward improving the current system.
PHYSICAL PRESENCE REQUIREMENT AND SEPARATION OF MINORS
Current law requires asylum seekers to travel to the United States in order to apply.
"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…."
8 U.S.C. § 1158(a)(1) (emphasis added).
The issues that have arisen with the migrant crisis show how problematic this physical presence requirement is. Under current law, if the migrants had attempted to present an asylum claim at a US embassy, they would most likely have been informed by the officials there that US embassies do not accept or adjudicate asylum claims. Thus, under present law, those who wish to seek asylum usually have no alternative but to travel to the United States in order to make their claim.
Traveling to the United States for this purpose, and then applying for asylum at a port of entry, is also perfectly legal. It is only those who enter by stealth who are subject to fines and imprisonment.  For those applying at a port of entry, as opposed to entering illegally, nothing in the law requires authorities to separate parents from children. And the law requires that children be reunited with their parents if they find themselves in government custody alone. Under current law, minors are only to be separated only from “unrelated adults.”Flores v. Sessions, 862 F.3d 863, 872 (9th Cir. 2017); see also Reno v. Flores, 507 U.S. 292 (1993). 
In short, under current law, those seeking to apply for asylum are required to leave their home country and enter the United States, after which an asylum application may be filed. Despite the expense, physical hardship and risks that such a journey may entail, under present law there is no alternative route even for those most entitled to asylum.
Should Congress consider changing the current law? Allowing US embassies and consulates to adjudicate asylum claims would provide some clear benefits that should appeal to those on both sides of the political aisle.
First, in a consular setting, the US government would have no incentive and indeed no argument to justify separating parents from their children. That problem arises when asylum seekers accompanied by their children present their claims at a port of entry, and the parents are then detained during the initial stages. Although federal regulations do not require the detention of asylum applicants unless the credible fear finding is negative, applicants are routinely detained throughout the credible fear interview, presumably to assure that they will not abscond and remain in the United States unlawfully if the claim is ultimately denied.  If the applicants were outside the United States, this would clearly not be an issue, for they and their children would be outside the country during the entire process. They would be permitted to enter the United States if and only if their claims were approved. The government in this setting would have no reason or incentive to detain applicants or separate children from their parents.
Second, giving embassies and consulates the authority to adjudicate asylum claims would eliminate the incentive for those seeking asylum to come here by any means possible, including fraud and illegal entry. The President recently sought to limit the ability to seek asylum where the applicant entered illegally. However, his action was promptly enjoined by a federal district court: “Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”  Yet even if the President’s action had been upheld, it would likely have had only a limited deterrent effect on those seeking to enter the country illegally. For while such applicants might generally be barred from applying for asylum after their illegal entry, they could still seek related forms of relief (including withholding of removal) under international treaties and under the Convention Against Torture. 
Moreover, under existing federal law, using fraudulent documents to enter the United States, while a negative discretionary factor, is not an absolute bar to asylum.  For some applicants the only way to flee persecution is through the use of fraudulent documents. Again, if there were other options available, such as posts outside the United States where applicants who fear persecution could make a claim, this might cut down on the use of fraud and resorting to illegal entry in order to gain entry to the US to apply for asylum. 
Finally, by allowing US embassies and consulates to adjudicate asylum claims, many more individuals who have meritorious claims would be able to assert them. As federal law now stands, only those with the means and ability to journey safely to the United States can invoke the benefits of US asylum law. And since the overwhelming majority of these claims are in the end denied (only 11.3% were granted in 2016),  many if not most of those who undertook their asylum trek to the United States will be disappointed in the outcome.
United Nations and Refugees Outside the United States
Those who practice immigration law often receive inquiries from family members in the United States who have relatives in countries at war. Practitioners are frequently asked how a loved one who is both outside the United States and in harm’s way can apply for asylum. The answer is typically that unless the United Nations High Commissioner for Refugees (UNHCR)has designated the family member a refugee, there is nothing an immigration attorney in the US can do to help unless the relative whose life is in jeopardy were here in the United States.
To receive UNHCR refugee status, a displaced person must go through a Refugee Status Determination (RSD) process, which is conducted by the government of the country of asylum or the UNHCR, and is based on international, regional or national law. The UNHCR follows a set of guidelines described in its Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status to determine which individuals are eligible for refugee status.  In order to qualify under the U.S. Refugee Admissions Program, a refugee normally must:
· Be of a designated nationality and fall within the priority categories for that nationality in that region; or
· Be outside their country of origin, unless authorized by the President;
· Be referred by a U.S. Embassy, UNHCR or a non-governmental organization (NGO);  and
· Meet the U.S. definition of refugee as determined by the DHS/USCIS;
· Not be excludable under INA Section 212(a); 8 U.S.C. 1182(a)
· Have access to a U.S. refugee processing post or DHS/USCIS officer; and
Would it not make better sense to similarly allow those seeking asylum to apply while they are outside the United States? To the extent that US consulates and posts are currently overburdened with immigrant visa applications, and thus wary of the prospect of increased asylum applications, Congress might consider setting up special posts in designated areas dedicated exclusively to adjudicating asylum claims. 
Consulates and Non-Reviewability
If embassies and consulates were empowered to consider asylum claims, should they have the last word as to whether or not the request is approved? In other matters traditionally within their jurisdiction, embassies have generally had the final say. In Knauff v. Shaughnessy, the Supreme Court said: “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”  The Knauff Court established the general doctrine that a consular officer’s decision to grant or deny a visa petition is not subject to judicial review.
The principle of consular non-reviewability has long existed. An alien has “no constitutional right of entry” to the United States. Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). The Supreme Court “without exception has sustained Congress' ‘plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.’ Boutilier v. INS, 387 U.S. 118, 123 (1967).” 408 U.S. at 766. Accordingly, “[f]ederal courts are generally without power to review the actions of consular officials.” Rivas v. Napolitano, 677 F.3d 849, 850 (9th Cir.2012).
The Supreme Court has noted that precedents from over a century ago “held broadly that the power to exclude aliens is ‘inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers — a power to be exercised exclusively by the political branches of government.”  Based on this precedent, the federal courts have created a “common law doctrine that generally precludes any meaningful judicial review of consular decisions regarding the issuance or denial of visas.”  And see Kerry v. Din, 135 S. Ct. 2128 (2015) (consular officers need not cite the factual basis for denial and may simply cite the statutory provision in denying applications for an immigrant visa). 
If the asylum laws were amended to allow applicants to apply outside the United States, the question of non-reviewability would have to be revisited. Under current law, those who enter the US unlawfully and who then apply for asylum are permitted to appeal adverse decisions. It would therefore make no sense to deny the same appellate rights to those applying outside the country’s borders and who have never violated any United States immigration laws. Congress could thus establish a Board of Consular Asylum Review whose decisions would be subject to judicial review by a federal court. A lesser level of procedural protection would severely undermine the objective of providing sanctuary to those with meritorious claims, while at the same time promoting lawful entry into the United States.
Are They Out Of Touch With the Plight Of Today’s Refugees?
In June 2018, then Attorney General Jeff Sessions issued a decision in Matter of A-B- which sought to make it much more difficult for those seeking asylum to do so based on domestic or gang violence.  While the Supreme Court has yet to consider the validity of this promulgation, Matter of A-B- was recently rejected by a federal court which found that “there is no legal basis for an effective categorical ban” on asylum claims based on personal violence .  As the court explained, “because it is the will of Congress – not the whims of the Executive – that determines the standard for expedited removal, the Court finds that those policies are unlawful.” 
Noteworthy in Matter of A-B- is the following language:
“An alien may suffer threats and violence in a foreign country for any number of reasons relating to her social, economic, family, or other personal circumstances. Yet the asylum statute does not provide redress for all misfortune.” 
This statement, while hard to refute, raises the question of whether it may be time to revisit and revise our asylum laws so that they respond to the plight of current-day refugees? Would doing so necessarily open the floodgates?
Our asylum laws are based on theUniversal Declaration of Human Rights (UDHR) which was adopted by the United Nations in 1948, in response to atrocities committed by Nazi Germany. The UDHR states that the rights it sets forth must be guaranteed to “[e]veryone … without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”  It goes on to state that “[e]veryone has the right to seek and to enjoy in other countries asylum from persecution.”  Tracking these criteria, the U.S. asylum statutes require that a refugee’s unwillingness to return to their home country be based on “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”  Those of us who practice immigration law are acutely aware that today’s asylum seekers are often those fleeing civil war and gang violence, circumstances that do not qualify under this antiquated and restrictive definition.
While the United States offers Temporary Protected Status (TPS) to individuals who are temporarily unable to safely return to their home country because of ongoing armed conflict,  does this justify our failure to provide asylum to those who are fleeing a civil war? The current narrow definition of refugee is not responsive to the fears of refugees in our modern world. What if the asylum statute were amended to allow refugees fleeing a civil war to qualify? What if the laws were amended to allow those being persecuted by gang or domestic violence to quality for asylum? Would this necessarily open the floodgates to millions of refugees from all around the world?
There are a number of reasons as to why it would not. First, the annual number of refugees is severely limited. The State Department sets the annual refugee cap which has declined dramatically in recent years. For fiscal year 2019, the Trump administration has limited the number of refugees who may enter the United States to 30,000, a significant drop from the 45,000 ceiling set for the 2018 fiscal year.  Moreover, the number of individuals who are in fact granted asylum may come nowhere close to meeting the annual cap. 
Second, there are regulations currently in place that in effect limit the number of people who qualify for asylum. For example, if an applicant who otherwise qualifies is able to internally relocate to another part of their country where they would be safe, and if it is reasonable for the applicant to do so, that applicant no longer qualifies for asylum.  If the first step of the internal relocation analysis shows that an applicant is able to internally relocate, the Immigration Judge must next determine whether “under all the circumstances, it would be reasonable to expect the applicant to do so.”  This means that if someone has a genuine and substantiated fear of gang violence or domestic violence in one part of El Salvador, but has the means of relocating to another part where he or she would not be in danger, such an individual would not qualify.
There are numerous ways to expand the existing definition of refugee while at the same time insuring that not everyone in the world who faces threats and violence automatically qualifies for asylum in the United States. An expanded definition of refugee need not “provide redress for all misfortune.” Nevertheless, an updated asylum statute – e.g., one that reaches those fleeing from civil war and those who have been victims of gang violence – would provide relief to deserving applicants who do not qualify under the current outdated definition.
It would be naïve to suppose that adoption of the proposal made here would end the flow of the desperate and impoverished who flee to the United States in order to seek asylum. Yet by offering these individuals the alternative of applying for asylum in their home or a neighboring country, they could avoid a difficult, dangerous and costly trek to the United States, one that could end with their being turned away at the border, an order of expedited removal,  or worse. The proposal could reward those with meritorious claims, promote legal immigration, and even save lives.
*The author would like to thank the following individuals for their invaluable insight and knowledge: Christopher May, Hon. Lee O’Connor, Kathy Alfred, John Craig, Paul Medved, and Marsha Mihok.
 Felipe Gomez Alonzo, an 8-year-old boy died on Christmas Eve. He was the second Guatemalan migrant child to die in U.S. custody. The other Guatemalan child, 7-year-old Jakelin Caal, died December 8 in El Paso. She showed signs of sepsis, a potentially fatal condition brought on by infection, according to officials. (U.S. News.com, December 30, 2018)
 8 U.S.C § 1158.
 “[A]ny alien who … attempts to enter the United States at any time or place other than as designated by immigration officers … shall … be fined… or imprisoned not more than 6 months.” 8 U.S.C. 1325 (emphasis added).
 The Flores settlement requires the federal government to do two things: to place children with a close relative or family friend “without unnecessary delay,” rather than keeping them in custody; and to keep immigrant children who are in custody in the “least restrictive conditions” possible.
 8 CFR 208.30(g). Procedures for a negative credible fear finding.
(1) If an alien is found not to have a credible fear of persecution or torture, the asylum officer shall provide the alien with a written notice of decision and inquire whether the alien wishes to have an immigration judge review the negative decision…. If the alien requests such review, or refuses to either request or decline such review, the asylum officer shall arrange for detention of the alien. [Emphasis added.]
 East Bay Sanctuary Covenant v. Trump, 2018 WL 6053140 at *1 (N.D. Calif., Nov. 19, 2018), stay denied, ___ U.S. ___, 2018 WL 6713079 (Dec. 21, 2018) (4 justices would have granted stay).
 See, e.g., Convention Relating to the Status of Refugees (189 U.N.T.S. 150, entered into force April 22, 1954) . United Nations [Internet]. 1951; United Nations Convention Against Torture & Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 3, S. Treaty Doc. No. 100-20 (1988).
 The BIA has instructed that “the discretionary factors should be carefully evaluated in light of the unusually harsh consequences which may befall an alien who has established a well-founded fear of persecution; the danger of persecution should generally outweigh all but the most egregious of adverse factors….The use of fraudulent documents to escape the country of persecution itself is not a significant adverse factor while, at the other extreme, entry under the assumed identity of a United States citizen with a United States passport, which was fraudulently obtained by the alien from the United States Government; is very serious fraud.” Matter of Pula, 19 I. & N. Dec. 467, 474 (BIA 1987).
 The ACLU's brief in East Bay Sanctuary argued those "fleeing persecution are desperate and often unsophisticated, have no understanding of the option to apply for asylum at a port, are forced by gangs and others to enter away from designated ports of entry, or cannot realistically travel to such ports because of danger and distance."
 In 2016, 180,617 affirmative and defensive asylum applications were filed; of these only 11.3% were granted. Dep’t of Homeland Security, Office of Immigration Statistics, 2016 Annual Report: Refugees and Asylees 5-7 (Jan. 2018).
 RSD can be done on a case by case basis as well as for whole groups of people. Which of the two processes is used often depends on the size of the influx of displaced persons. There is no specific method mandated for RSD (apart from the commitment to the 1951 Refugee Convention ) and it is subject to the overall efficacy of the country's internal administrative and judicial system as well as the characteristics of the refugee flow to which the country responds.
 While embassies cannot adjudicate asylum claims, they could refer applicants to the U.S. Refugee Admissions Program.
 One post could be set up as a pilot program to explore this option.
 U.S. ex rel. Knauff v. Shaughnessy , 338 U.S. 537, 544 (1950).
 Kleindienst v. Mandel, 408 U.S. 753, 765 (1972) (internal citation omitted) (citing The Chinese Exclusion Case, 130 U.S. 581, 609 (1889); Fong Yue Ting v. United States, 149 U.S. 698 (1893)).
 Challenging the Doctrine of Consular Non-Reviewability in Immigration Cases, Donald S. Dobkin, 24 Georgetown Imm. L.J. 113 (2010).
 There are currently limited exceptions. In Chiang v. Skeirik, a federal district court recognized that judicial review is available to a visa applicant “alleg[ing] constitutional violations in the application procedure.” According to the Chiang court, such actions are not challenges to the denial of the visa, but rather simply ask the court to review the lawfulness and constitutionality of the regulatory procedures followed by the consular officers.529 F.Supp.2d 166 (2007).
 Matter of A-B- , 27 I. & N. Dec. 316 (A.G. 2018), overruling Matter of A-R-C-G-, 27 I. & N. Dec. 388 (BIA 2014), an earlier precedential BIA decision that officially recognized domestic violence as a basis for asylum. In Matter of A-R-C-G-, the BIA found that “married women in Guatemala who are unable to leave their relationship” was a viable particular social group. Id. at 392. Although A-R-C-G- narrowly focused on the social group analysis as an avenue to obtain asylum for domestic violence survivors, the decision formally recognized violence occurring within the home—not otherwise recognized as a gender- or family-based claim—as a basis for asylum after years of legal uncertainty.
 Grace v. Whitaker , 344 F. Supp.3d 96, 126 (D.D.C. 2018).
 Id. at 105.
 Matter of A-B- , supra, 27 I. & N. Dec. at 318.
 Universal Declaration of Human Rights, Art. 2.
 Id. at Art. 14(1).
 8 U.S.C. § 1101(a)(42)(A).
 8 U.S.C. §§ 1254a(a)(1), 1254a(b)(1)(A).
 U.S. Dep’t of State, Bureau of Population, Refugees, and Migration,Proposed Refugee Admission for FY 2019, at 14; New York Times, Sept. 17, 2018. Moreover, these annual caps may be much higher than the number refugees actually admitted.
 Thus, during FY 2018, when the refugee cap was 45,000, only 22,491 people – less than half the cap – were actually granted asylum. Mother Jones, Oct. 2, 2018.
 8 C.F.R. § 1208.13(b)(1)(i)(B).
 “(3)Reasonableness of internal relocation. For purposes of determinations under paragraphs (b)(1)(i), (b)(1)(ii), and (b)(2) of this section, adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties. Those factors may, or may not, be relevant, depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate. ” 8 C.F.R. § 1208.13(b)(1)(i)(B)(emphasis added). See also Matter of M-Z-M-R-, I. & N. Dec. 28 (BIA 2012).
 If an alien is found not to have a credible fear of persecution or torture, the asylum officer shall provide the alien with a written notice of decision and inquire whether the alien wishes to have an immigration judge review the negative decision. 8 CFR § 208.30. If the immigration judge concurs with the asylum officer's determination that the alien does not have a reasonable fear of persecution or torture, the case shall be returned to the Service for removal of the alien. 8 CFR § 208.31.
Curtis Pierce is a Certified Specialist in Immigration & Nationality Law by the State Bar of California Board of Legal Specialization. He has been a member of the California Bar since 1986. From 1992-1995, he taught Constitutional Law at the Sorbonne (University of Paris). He received his Bachelor of Arts degree with a major in Political Science from U.C.L.A, where he graduated Cum Laude. He obtained his Juris Doctor from Loyola Law School in Los Angeles. His firm’s website may be found at www.cpvisa.com.
Copyright 2019, Curtis Pierce, all rights reserved; reposted on www.bibdaily.com by permission.