The Congressional Research Service (CRS) released an updated Legal Sidebar document on June 10, 2019, that outlines the immigration laws governing the admissions and exclusions of foreign nationals at the U.S. border. The report sought to clarify the detention and removal processes for foreign nationals, including procedures for asylum seekers, along with examining the treatment of children considering the current state of confusion regarding policies being implemented at the southern border. The CRS report predated the July 16, 2019, joint EOIR DHS regulation mandating a bar to asylum eligibility for asylum applicants who did not apply for asylum in a third country while en route to the United States.
The Trump administration has been enforcing a “zero tolerance” policy to criminally prosecute foreign nationals who attempt to enter the United States illegally at the southern border. This has sparked growing concerns over the separation of children from parents facing prosecution. A class action lawsuit filed in California federal district court is arguing that the practice violates due process protections.
The CRS report explains the special rules concerning the treatment of children. Unaccompanied children who arrive at the U.S. border are placed in formal removal proceedings instead of being subject to expedited removal. Children who come with family members are treated in the same manner as adults but may be subject to either expedited or formal removal proceedings.
The Immigration and Nationality Act of 1952, amended (INA), governs the removal of foreign nationals in the U.S. Certain foreign nationals who arrive undocumented at the U.S. border are subject to an expedited removal process in which such persons are detained pending removal from the United States without a hearing or further review.
According to INA provisions regarding asylum seekers, foreign nationals who express a credible fear of persecution or torture, if removed to a particular country, are detained pending formal removal proceedings. For years, such individuals have been afforded the possibility of being released on bond or parole at the Department of Homeland Security’s discretion. Attorney General William Barr reversed this position in April 2019. His decision has been challenged in federal court.