By John Bruning, Staff Attorney, The Advocates for Human Rights

The idea that there is a “line” misunderstands the immigration system. There is no line, at least not one that the majority of immigrants in the United States can join. Nor is there a singular “right way” to immigrate. Instead, the Immigration and Nationality Act is a labyrinth of different types of visas, requirements, exemptions, exceptions, and bars. In a sense, some of those visas do have a line, in that Congress caps the number of certain types of visas that can be issued per year and per country. For example, some family-based visas are “oversubscribed” (meaning there are more applications pending than visas that can be issued). As an example, visa petitions for unmarried adult children of US citizens have a 7-year wait for most countries; but the government is only now processing applications from Mexicans under this category that were filed in January 1999. Siblings of US citizens have a 14-year wait time, and an even longer wait for potential immigrants from India, Mexico, and the Philippines. Family-based visas, such as the two types above, require the applicant to be the spouse, parent, child, or sibling of a US citizen, or spouse, parent, or child of a permanent resident. Even then, spouses and minor children of a US citizen and parents of an adult US citizen are ineligible if they have ever been deported or if they have entered the US without authorization (though this can sometimes be fixed by the immigrant returning to their country for a period of time); everyone else must wait outside the US and additionally cannot have overstayed a visa or worked without government permission. Employment-based visas work similarly, but with even more rules and regulations.

Without a family member already established in the US, lots of money to invest, or particular high-demand skills, the only other way to apply to come to the US from abroad is through the Diversity Visa, which is a random lottery to bring 55,000 immigrants to the US annually from countries with low admissions in prior years. Over 11 million prospective immigrants applied last year. The majority of visas for Central and South America and the Caribbean have tended to go to countries like Venezuela, Ecuador, and Cuba, with few going to Central American countries; the list of eligible countries changes each year, but El Salvador, Guatemala, and Honduras are often excluded, and Mexicans are not eligible. But that also doesn’t mean that 55,000 immigrants actually come to the US under this program; the last two years, most of the selected diversity immigrants were not permitted to enter the US due to COVID-19. As a result, they lost their visas, and may have lost their only chance to ever come to the US.

There is no other application process, no other line to wait in. 

The only “legal” option left for many people—not just from Mexico and Central America, but from all corners of the Earth—is to come to the US-Mexico border and request asylum. There is no way to apply for asylum from outside the US; rather, asylum-seekers may only request asylum at a port of entry or within the US, regardless of their immigration status or manner of entry. In that vein, noncitizens can apply immediately (or even months) after entering without authorization, after overstaying a visa, or after being placed in removal proceedings, all of which often are characterized in the media as “illegal” but is explicitly allowed for under the asylum statutes, as asylees and refugees are presumed to be more focused on their survival than the immigration regulations of the country where they are seeking refuge. 

Asylum has strict requirements: 1) the applicant must show that they experienced and/or have a well-founded fear of severe harm, at the hands of government officials or private actors that the government is unable or unwilling to control; 2) the harm is due to their race, religion, nationality, political opinion, or membership in a particular social group (a distinct group of people recognized by general society); and 3) they are not able to safely relocate within their country. Numerous bars to asylum exist, and the various determinations about whether harm is severe enough, whether the persecution occurred on account of a protected characteristic, the role of the government, and the definitions of the “particular social group” are all extremely nuanced and the governing laws vary from place to place. Asylum is not available to migrants fleeing gang and cartel violence; and refugees fleeing civil war or prohibitions on practicing their religion still may not be eligible for asylum unless they can present evidence that they personally are likely to be harmed or killed. 

Much of asylum law over the past several decades has been intended to limit, rather than expand, who can receive asylum. Arbitrary limits to asylum processing, including the Migrant Protection Protocols, metering, and Title 42 (a law used to summarily deport many asylum-seekers without any process), have further eroded the ability of immigrants to “do it the right way.” 

Absent these options, undocumented immigrants have no legal route to become permanent residents or citizens. With no viable options, as they contemplate fleeing their countries for their physical and/or economic survival, the only line they have access to is the line in the desert dividing the United States and Mexico.

Certainly, given the byzantine nature of immigration laws, most Americans (and many immigrants, for that matter) don’t really know how immigration law works. But many of the pundits, reporters, and politicians promoting the “line” narrative know—or should know—better. The purpose of their narrative goes beyond just dehumanizing migrants and justifying their detention and deportation and the pain it causes their families; it carries with it the implication that immigrants who didn’t “wait in line” or “do it the right way” simply chose to willfully avoid an “easy” pathway to citizenship for some nefarious purpose, further accenting invective over the past several decades around the “illegality” of migration and the linkages between irregular migration and terrorism.

From the 11-15-21 Conversations with Friends newsletter