In the next few weeks, a caravan of migrants from Central America — mainly Honduras and El Salvador — will reach the southern border of the United States, where they will likely attempt to apply for asylum. While the caravan is splintering into smaller groups, some of which are taking different routes or have decided to stop and apply for asylum in Mexico rather than the U.S., there remains about 1,000 people that will soon reach the U.S. border and attempt to enter in some form or another. This caravan has led to a flurry of fear-mongering and speculation by U.S. authorities — President Donald Trump has deployed troops to the border and referred to them as illegal immigrants.
The main issue that will determine the fate of the caravan seems to be how they will be defined by the U.S. government if they enter the country. All persons entering the U.S. have the right to seek asylum and for their petition to be considered in court. Waiting for their case to make its way through the courts gives them some respite, however, they remain at risk of deportation if their petitions are denied. Essentially, their fate rests on how the courts define their status. The UNHCR uses the following definitions:
Refugee:
A person who is outside his or her country of nationality or habitual residence; has a well-founded fear of being persecuted because of his or her race, religion, nationality, membership of a particular social group or political opinion; and is unable or unwilling to avail him— or herself of the protection of that country, or to return there, for fear of persecution.
Asylum-Seeker:
The general designation for someone who is seeking international protection. In some countries, it is a legal term referring to a person who has applied for refugee status and has not yet received a final decision on his or her claim. Not every asylum-seeker will ultimately be recognized as a refugee. However, an asylum-seeker should not be sent back to his or her country of origin until the asylum claim has been examined in a fair procedure.
Migrant:
Someone who chooses to move, not because of a direct threat to life or freedom, but in order to find work, for education, family reunion, or other personal reasons. Unlike refugees, migrants do not have a fear of persecution or serious harm in their home countries. Migrants continue to enjoy the protection of their own governments even when abroad and can return home.
Because the goal of those in the caravan in entering either Mexico or the US will be to seek asylum, they stand the best chance at remaining in the US if they are defined as asylum-seekers, not migrants, per the UNHCR’s definitions — which are not universal. Despite some international agreement regarding the definitions indicated above, countries are free to develop their own definitions, meaning that depending on where these migrants end up, they will have different prospects. Many have chosen to stay in Mexico for that reason — there, they will likely have a better chance of receiving a favorable asylum ruling because of Mexico’s definition of refugees.
Since the basis for their claims of asylum rests on the rampant gang violence in their home countries and lack of an effective state to protect them, their prospects for their refugee status applications to be approved would be greater in Latin America, including Mexico. The region adopted an instrument in 1984 called the Cartagena Declaration, which adopted the following definition for refugee:
Persons who flee their countries because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.
By classifying gang violence under “generalized violence,” this broad definition gives migrants a good chance of receiving refugee status, as compared to the the 1951 Convention on Refugees, which requires a threat of violence to come directly from the government. Thus, Mexico may be the asylum-seekers’ best chance at getting protected status — and it is a convenient place to seek refuge as well. The migrants have been invited to apply for asylum in Mexico, and they are already there, allowing them to forego the monthslong journey to the U.S.
While the restrictive definition of a refugee under the 1951 Convention presents its own problems to these asylum-seekers, entering the U.S. immigration and refugee application system comes with its own host of issues. The first issue is entry — Sale v. Haitian Centers Council, Inc. established in 1993 that immigration regulations do not apply to migrants who are still outside of U.S. territory. Therefore, if the migrants are stopped from entering the U.S., they are not protected and may not be able to apply for refugee status. The second issue is their port of entry. If they are able to enter at a legal port of entry, they can apply for asylum, and this application protects them from deportation while it makes its way through the courts. However, a recent addition to federal regulation disallows those who enter illegally from applying for asylum, making them subject to deportation.
President Trump has used the plight of these people as a political football to blame the Democrats for “horrendous laws” that make it too easy for migrants to enter the country. The United States is a country of immigrants, yet we seem wholly determined to do everything in our power to characterize immigrants as a source of evil in our country. From rumors of Middle Eastern terrorists hiding amongst the group of asylum-seekers to claims about the crimes in the caravan — and generally, the idea that immigrants are here to steal jobs and sell drugs — fear-mongering has led the country to a place where we refuse to welcome families fleeing violence into our country.