Central Americans in Immigration Court: Is Asylum Inevitable?

By Joe Guzzardi
September 4, 2014

The Central American aliens who flooded the border earlier this summer are now headed to immigration court. Although the very concept of a court hearing suggests that fairness should prevail, that’s doesn’t always what happens when the goal is asylum.

The variable is not so much the validity of the claims made in support of being allowed to stay in the United States but rather whether the petitioner has a lawyer.  Nearly 90 percent of aliens who don’t have lawyers are denied. For those who have representation, the question then becomes whether the judge is pre-disposed to granting a favorable decision.

In general, aliens have to convince a judge that they qualify for asylum because they have a credible fear of persecution based on race, religion ethnicity, or political leanings. Courts historically reject arguments that center on gang violence victimization because they’re considered hearsay and impossible to substantiate. Many alleged incidents can’t be documented. In a world of 7 billion people, asylum claims must be verifiable if they’re to have meaning.

Another variable in the asylum equation depends on which judge hears the applicant’s plea.  Some generous judges schedule follow-up hearings for as far in advance as 2018. By then, the alien has the option to either not show up or to appear and argue that during the years since he  first appeared, he’s attended school, established roots, and otherwise conducted himself admirably, arguments to which the judge will likely be sympathetic. According to Syracuse University which tracks immigration judges’ performances, some grant asylum to 85 percent of the cases they hear.

Border surgers have been given immigration court priority because, according to the president of the National Association of Immigration Judges Dana Marks, President Obama wants to give the appearance to a new wave of potential crossers that hearings which could result in their deportation will be promptly held.  But immigration advocates have surely sent the word back to Central America not to fear hearings but to view them as the first step to permanent residency.

Undeterred by the probability of hearings and contrary to the White House spin that the invasion has slowed, Central Americans continue to arrive in unsustainable numbers. While fewer so-called unaccompanied minors arrived this summer, nearly 11,000 family units entered during July and August. A family unit is defined as a group of adults traveling with children.

President Obama could end the crisis overnight if he would send immigration judges to the border to begin expedited removal hearings. Since few aliens qualify under the 2008 anti-trafficking law or have other credible claims, many, if not most, would be returned promptly.

Instead, the administration has encouraged the Central Americans to come and stay by allowing them to apply for amnesty under the credible fear guise. Although 82 percent of Americans disapprove of current immigration policy, the president persists because he apparently doesn’t care about preserving the historic U.S. nation’s sovereignty.

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Joe Guzzardi is a Californians for Population Stabilization Senior Writing Fellow whose columns whose columns have been nationally syndicated since 1987. Contact him at [email protected]