The migrant caravan was in the news before the midterm elections and although it is not the topic of the day, the refugees are still trekking towards America. One splinter group, made up mostly of LGBT members, arrived in Tijuana late Monday night. Donald Trump signed an order last week ordering that the refugees who do not present themselves at a legal point of entry, i.e. through a legal border point, will be deported without the opportunity to claim asylum. However, it is more complex than that.

Those that want a quick primer on the asylum process can watch the 5-minute explainer video.

Asylum in the United States is governed by U.S. law and international commitments the United States has agreed to.

Asylum seekers and refugees are processed under two separate methods under American law. Both methods deal with how individuals, who are fleeing persecution in their home countries, can live in the country. Refugees are those who are screened and selected oversees by American officials. Asylum seekers are those who arrive in America, either with a temporary visa, through a U.S. port of entry requesting asylum or who have entered the country illegally and request asylum.

The Migration and Refugee Assistance Act of 1962 provided extensive public assistance programs as well as educational opportunities, including English language schools to immigrants from the Western Hemisphere.

Prior to the Refugee Act of 1980, the United States managed asylum seekers and refugees via a several uncoordinated programs. As a result of Vietnamese fleeing the war, whose ships who were denied access to neighboring countries, a cohesive law was enacted. The public outcry over their predicament in the U.S. led the government to admit 25,000 Vietnamese refugees in June 1978. In addition to the Vietnamese refugees, the Soviet Union began to allow Soviet Jews to emigrate, further stressing the American hodgepodge refugee programs.

The Soviet immigrants created a new wrinkle to American refugee policy. In 1972, when the Soviet government began allowing the Jews to emigrate, the immigrants’ exit visas stated that Israel was their destination. However, in 1978, Soviet Jews realized that the defacto American policy was to accept anyone who chose to come to America. Nearly two-thirds of them ended up in the United States, instead of Israel.

Prior to the Vietnamese and the Soviet Jews, the United States had an influx of Cuban refugees starting in 1965 and ending about 1973. But in 1978, when Castro was willing to release 1,500 political prisoners, the United States once again faced the problem of a legal void under the 1965 Immigration and Nationality Act. The 1965 Act permitted “conditional entry” of up to 17,400 refugees annually. The refugees were limited to those from Communist countries or from the Middle East. The Cubans, the Soviet Jews and the Vietnamese overwhelmed the system.

In 1980, the United States formalized its cohesive refugee law under the Refugee Act. The act governs todays would be immigrants requesting asylum. However, the law kept in place the preference to identify and process refugees in their home countries rather than in the United States. In addition to the fact that the United Nations does not recognize refugees until they leave their countries, the U.S. law did not adequately deal with everchanging geopolitical necessities.

To deal with the growing number of refugees, the United States government relied on provision 212(d)(5) of the 1965 immigration law that allowed the attorney general to “parole” immigrants into the country on a temporary basis. Although intended for “temporary” basis, the American government clearly understood that the 1978 immigrants were relocated to the United States on a permanent basis. Congress opposed the misuse of the “parole” provision to process permanent immigrants under a section of the law intended for one, or two individuals meeting certain conditions, including not intending on immigrating permanently.

As the United States government continued to be overwhelmed by asylum seekers and refugees from the fluidity of geopolitics across the world, lawmakers were forced to enact a cohesive law that dealt with immigrants fleeing persecution. The U.S government decided that it preferred to identify and process refugees in their home countries rather than at the border or in America.

Individuals processed oversees and accepted as refugees by the American government are immediately given the Refugee status and allowed to immigrate to the U.S. After on-year in the country, those under the Refugee status may apply for Permanent Residence. Five years after first arriving they can apply for U.S. citizenship.

The law limits the number of Refugees to 50,000 annually. However, the president, with the support of Congress, can increase the number of refugees for each new fiscal year. Each October 1, a formal Presidential Determination establishes the number of refugees to be allowed into the country. Additional Presidential Determinations can be issued as necessary to deal with geopolitical changes throughout the year.

Thus, the number of refugees allowed each year is constantly in flux.

On October 4, 2018, Donald Trump issued his latest Presidential Determination on refugees for Fiscal Year 2019. In it, Trump authorized 30,000 refugees for FY2019. The Trump Administration allocated 11,000 from Africa; 4,000 from East Asia; 3,000 from Europe and Central Asia; another 3,000 from the Caribbean and Latin America and 9,000 from Near East/South Asia. The determination allows that “unused admissions” be allocated to other regions as needed. Trump’s memorandum allows “persons in Cuba, Eurasia, the Baltic, Iraq, Honduras, Guatemala, El Salvador” and “persons identified by a United States Embassy in any location” and “in exceptional circumstances” to be processed for refugee status.

But America’s preference to process refugees in their home countries created problems for America because the United Nations’ definition for refugees does not include individuals who are in their home country.

The United Nations does not recognize an individual as a refugee until they have abandoned their home country. The United States, on the other hand, prefers to identify refugees it will accept in their home countries before allowing them to travel to America. Initially the Refugee Act did not officially accept asylum applicants, those who show up on American soil and request asylum. This is because the American government preferred to prescreen would be refugees in their countries before extending them access to the country. However, this stance contravened the UN Protocol related to the Status of Refugees.

In response, the American government added Section 208 to the Immigration and Naturalization Act. The Section 208 created an asylum category and even provided for access to federal benefits to those who qualified.

The language of the U.S. Refugee Act defines a refugee as one who “is outside his or her homeland, unable or unwilling to return or otherwise claim its protection because of persecution or a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion.” The language is derived from the 1951 Convention related to the Status of Refugees. The American language adhered to the UN mandate, but the American government kept insisting on pre-qualifying refugees in their home countries. Those that chose to make their way to America before being vetted by American authorities are processed as asylum seekers, under the loophole carved into Section 208. The section paroles immigrants into the country until their refugee status can be assessed under the Refugee Act.

It is the American government’s own bypassing of its own law, the U.S. Refugee Act and its insistence to process refugees in their home countries that has led to the current debacle.

The process applied by the U.S. government ignores its own law and the UN agreement on refugees. Section 208 is a loophole designed to keep America’s commitment to the UN while keeping its preference to process refugees in their home countries.

The migrant caravan is asserting refugee status under the United Nations and forcing the American government to deal with them through the U.S. Refugee Act. But the American government is insisting on processing them through Section 208. It is important to point out that Section 208 is a parole process not designed, but used anyway, for refugees.

Complicating the issue more is Donald Trump’s memorandum on the asylum seekers. Although the law clearly allows asylum seekers to request asylum regardless of how they enter the country, the Trump Administration has ordered its departments to not process those who enter the country illegally.

Executive orders and presidential memorandum both direct and govern the actions of government agencies and officials. Both have the force and effect of law. Executive orders must be published in the Federal Register. Memorandums can be added to the Register if the president determines that they have “general applicability and legal effect.” Trump’s memorandum was published in the Register on November 9.

Until the Trump memorandum is challenged in court and adjudicated, Trump’s order remains the official policy but not the law.

However, because of America’s commitment to the United Nations Convention against Torture, any immigrant who crossed the border illegally can request asylum under the fear of undue hardship upon being returned to their country. It is a much higher standard for the refugee to reach but the U.S. government must process the refugee before deporting them to their home country, thus delaying the deportation that the Trump Administration is trying to fast track.

America’s policy on immigrants is being forced into public discussion by the migrant caravans. The solution to the debacle is for America to decide whether it will adhere to its UN agreements or will it insist on treating immigrants in a hodgepodge manner.

Not usually discussed is that the Refugee Act, including the United Nations definition of refugees, excludes individuals that are displaced by natural disasters or war that are generally considered to be refugees.

Author’s note: I am trying out explainer videos to explain complex issues. I would appreciate your comments and suggestions.

Martin Paredes

Martín Paredes is a Mexican immigrant who built his business on the U.S.-Mexican border. As an immigrant, Martín brings the perspective of someone who sees México as a native through the experience...