Author: US Asylum Lawyer Alena Shautsova
“Border security”, “illegal immigration”, “undocumented migrants”, “open border”…. I have no doubt you have heard these expressions somewhere in the past year… These are common words used to describe the state of US Immigration system. Instead of focusing on reforms in the work visa sector, speeding up family immigration and improving investment immigration, or dealing with tremendous domestic and overseas processing backlog, the parties are involved in heated arguments over something that these days look almost unsolvable: the surge of migrants coming to the US seeking protection and better life.
Border crossing and asylum have been pertinent issues in the United States for many years now. More recently, in a drastic turn of events, there has been a surge in the number of migrants leaving the United States for Canada (via crossing the U.S.- Canadian border on foot in unauthorized border crossing points). The migrants cite long processing times, homelessness, and free bus tickets provided, for example, by NYC administration as reasons for crossing into Canada.
Canadian Prime Minister Justin Trudeau has since been under increasing pressure to come to an arrangement with President Biden on the complete closure of the border to asylum seekers. This is a result of the sudden surge in illegal crossings into Canada by asylum seekers. Many of these migrants are beneficiaries of the New York City (and other aid agencies) free bus fares. Prime Minister Trudeau has also noted that he will discuss the issue with President Biden when he (Biden) comes to Ottawa on March 23 and 24.
What awaits migrants in Canada one may ask?
According to a CNN reporter:
“Prior to 2022, Daoud said, asylum-seekers in Canada would often receive a Refugee Protection Claimant Document, or RPCD, soon after arriving in the country. The critical document not only serves as identification for asylum seekers, but it also allows them to apply for certain provincial benefits and a coveted work authorization while their asylum cases are reviewed.
Now, because of a backlog, the best most may get upon arrival is the appointment to receive an RPCD. “We’re seeing eight months, one year, a year and a half, two years. Some of them get their appointment pushed up,” said Daoud. “Some of them have to wait and that’s becoming a problem.””
But is there anything else that attracts migrants to cross into Canada illegally? Yes, of course there is something! It is a loophole in the agreement between the US and Canada. According to the Safe Third Country Agreement between the US and Canada, a person who is the United States attempts to enter Canada legally, will be returned back to the US to seek asylum there. But if the same person crosses into Canada avoiding legal check point, the mentioned agreement does not apply.
So, as you can see, if you are a law-abiding person trying to do thing the right way, in the eyes of the migrants you will be punished: not allowed to seek asylum in the US simply because you transited through it. But if you avoid the legal checkpoint, you will be rewarded with a chance of seeking asylum with all its benefits and path to citizenship!
Let’s circle back to the United States now and see why currently asylum seekers face hurdles in voicing their claims. Currently, to come to the US, migrants are using CBP One App which allows them to come into the US legally without a visa or parole, if they meet an exception to Title 42 rule which is set to expire in May of 2023. However, upon entry a person is immediately placed in Immigration court removal (deportation) proceedings. A set of documents such us I 94, I 862 is provided, and a migrant is released. But this is false safety. An Immigration court hearing is going to be scheduled for the person, yet there is uncertainty as to when. In the United States an asylum seeker must file their asylum claim using form I 589 within one year of entry. If a person is placed in removal proceedings, the claim has to be filed with the Immigration court. But Immigration courts (that are already suffering from more than 2M case backlog) will not accept your claim until your case appears to be active in their system. And that may take months and months to happen, despite the fact that at the time of the entry, a person could have received a set date to come to court as printed on their documents. Now, it is expected that a person would know that if his/her case is not active in the Immigration court system they can send their case to USCIS in the meantime, just to save the one year filing deadline. But how many people will know that? Also, the US, unlike other countries, does not provide any benefits to asylum seekers while their cases are pending (on a federal level; the local government may have various programs such as temporary free housing, food assistance, or free bus tickets. Many do not understand all these complications in filing systems, they miss their one year filing deadlines, and as a result get disqualified from asylum in the US and path to permanent residency). All these hurdles force migrants to seek better options elsewhere, but also undermine access to justice.
I am positive that the United States can do better. Ideas of mobile asylum unites (officers that would be located close to the border providing expedited screening) were voiced, but to date there was no effective implementation of those plans. How about modernizing the court hearing system? Allowing a migrant to choose the first available spot on the calendar, performing remote Asylum interviews (after all if video mode is good enough for courts, it should be good enough for USCIS as well) will sped up the affirmative asylum process releasing the deadlock on the tremendous backlog.
As of the date of this article, however, the backlog in the Immigration court system and USCIS keeps growing, without a clear answer as to who, when and how will stop it.
If you need help with your asylum claim, reach out for assistance at 917 885 2261 (consultation fees apply).