by Tanner D’Ortenzio

The United States Refugee Act of 1980 was an amendment to the Immigration and Nationality Act of 1965. The main goal of this amendment was to establish a permanent and transparent system for the admission of refugees into the United States. The INA with the addition of The United States Refugee Act provides the U.S. government with a legal obligation to accept potential refugees and asylum seekers. With the steadily increasing amount of asylum seekers, this piece of legislation is incredibly applicable to the situation we face at our borders today. Thousands of men, women, and unaccompanied children are making the dangerous trek north due in part to the extreme rise in violence in parts of Central America, with an extreme concentration in the three countries belonging to “The Northern Triangle”. In the 1980s, Honduras, El Salvador, and Guatemala (the countries that make up The Northern Triangle) were the battleground for various Central American Wars, this decade of violence left this region with “a legacy of violence and fragile institutions.” (Labrador, et al) This aforementioned legacy has placed the burden of gang violence, drug trafficking, and rampant corruption on the innocent people of Central America. These three countries are some of, if not the, deadliest non-waring countries in the world. According to the UN Office on Drugs and Crime’s International Homicide Statistics database, El Salvador and Honduras have the first and second highest homicide rates in the world, El Salvador with a rate of 83 homicides per 100,000 people and Honduras with a rate of 57 homicides per 100,000 people. While Guatemala sits at the 15th highest rate of homicide with 27 homicides per 100,000 people. For context, the United States has a homicide rate of 5 percent. (UNODC) The humanitarian crisis to our south has given way to thousands of people applying for asylum, leading to a backlog in our immigration courts of over 800,000 cases awaiting resolution. Furthermore, those 800,000 cases do not even include the addition of 330,211 previously completed cases that were reopened by the previous Attorney General Jeff Sessions.  This number is only increasing and with the potential removal of U.S. foreign aid to Central American countries, our immigration courts are delving further and further into chaos.

Before exploring the crisis in our courtrooms, a key distinction must be made between the definition of a refugee and an asylum seeker (or asylee). To be categorized under the status of refugee an individual must seek referral only from outside the United States and must meet the definition provided by section 101(a)(42) of the previously Immigration and Nationality Act:

any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion

​According to the U.S Citizenship and Immigration Services, asylum status is granted to individuals who meet three criteria:

​Meet the definition of refugee

Are already in the United States

Are seeking admission at a port of entry

There are two separate ways to apply for asylum in the United States: affirmative asylum process or defensive asylum process. According to theNational Immigration Forum, “Under both processes, asylum seekers must indicate a “well-founded fear” of persecution in their home countries during a credible fear interview with immigration authorities. Otherwise, they are ordered for removal.” To apply for the affirmative asylum process an individual must be physically present in U.S. borders or apply at any port of entry. While the United States Citizenship and Immigration Services (USCIS) does not require any information as to how individuals entered the United States, they do require that asylum application must be completed within one year of entering the country. While this sounds like ample time, both the Department of Homeland Security and the USCIS fail to notify asylum applicants of this deadline, which results in the deportation of thousands of confused asylees. This problem was addressed in the case Mendez Rojas v. Johnson where Judge Ricardo S. Martinez “held that the government’s failure to provide adequate notice of the one-year deadline constitutes a violation of the immigration statue, the Administrative Procedure Act (APA), and class members’ due process rights under the Fifth Amendment.” (Dobrin & Han) The second option, the defensive asylum process, is for individuals who have been ordered for removal either through the denial of the affirmative asylum process from the USCIS or after apprehension from either the U.S. Immigration and Customs Enforcement or Customs and Border Protection. (NIF) The time it takes to attain asylum status varies significantly. For individuals accepted into the affirmative asylum process, the USCIS plans an initial interview under 45 days after the completion of the application with a decision made in 180 days or less. But those in the defensive asylum process must pass through the previously mentioned backlogged immigration court system.

According to TRAC Immigration, a nonpartisan group that provides information about U.S. federal immigration enforcement, from January 2017 to November 2018 the number of pending cases increased by a shocking 49.7 percent. This statistic does not include the 330,211 previously completed cases turned pending. (TRAC) If our court system was to receive no new cases, it would take approximately 5.1 years to address the million-plus cases currently causing the blockage. (TRAC) In 2018, the Justice Department set a 700 cases per year quota on the small group of 395 judges. If any judge does not meet the quota, there is a high potential of that judge losing their position. Some judges believe this quota and other policies are an attempt by the Trump Administration to coerce decision making. According to Margaret McManus, a retired New York Judge, “They never told us what to do with the case, they said, ‘Do the case.’ It wasn’t outcome-oriented.” (McManus) Another prong of the new policies directed towards the immigration courts is complete monitoring of the progress and performance of each Judge. In an interview with The New York Times,  Los Angeles Judge Ashley Tabaddor says how the new policies are “psychological warfare” and how her fellow judges were being forced to sacrifice immigrants their rights in court for a quicker, more streamlined process. There is no one solution to our court backlog crisis, but steps must be made in ensuring the rights of potential U.S. Citizens and victims of violent crimes. An obvious solution would be to increase funding to the Executive Office for Immigration Review. This would allow for not only an increase in much-needed resources but the potential for the hiring of dozens of new judges. Another solution would be to increase the use of prosecutorial discretion. The American Immigration Council explains how “Prosecutorial Discretion is the authority of a law enforcement agency or officer to decide whether and to what degree to enforce the law in particular cases.” (AIC) TRAC Immigration also shows how the Obama Administration on averaged closed 2,400 per month from February to June 2016 while from February to June 2017 the Trump Administration closed fewer than 100 cases. Another solution would be to limit asylum claims and to limit access to immigration courts. While this does seem like a solution to the crisis, this proposal restrains asylum seekers and places restrictions on their rights as human beings. Our government has a clear, legal obligation to hear these people out in court and give them a fair chance at freedom. Any steps taken towards restricting this chance of freedom are ignoring not only the legal obligation our laws have placed before us but ignoring the moral obligation we have of providing a fair system.