For migrants seeking lawful entry into the United States, it is really difficult to be allowed entry. That may be part of the reason why so many migrants are crossing the border outside of the regulated points of entry.
There are three main categories for entry into the United States legally, with the most common being family reunification. If a would-be immigrant has a family member who is a citizen or permanent resident, the chance of lawful entry is much better than for those who have no family members currently legally residing in the U.S. I wrote about family reunification last week.
Employment is the second best way to gain entry into the United States as an immigrant. And finally, a would-be immigrant can’t hope to win the diversity lottery, which allows up to 55,000 persons into the U.S. legally each year with an emphasis on person coming from “low-sending” countries and regions.
If a migrant does not fit into one of these categories, then the best hope for lawful entry is via asylum, or pursuant to the United Nations Convention Against Torture which allows for migration to escape one’s home country where they may face torture.
But having an asylum application approved presents an uphill battle for most migrants. The standards are strictly enforced opportunities for review of an initial decision denying asylum are limited.
U.S. law refers to those individuals who seek asylum as a means of lawful entry into the U.S. as “refugees.”
The Immigration and Nationalization Act defines “refugee” as “any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
In order to have an asylum application approved for entry into the United States, applicants must show that they have been subjected to “persecution” or have a “well-founded fear of persecution” because of membership in a particular class.
Those classes include a “particular social group” or the holding of a “political opinion” presumably in opposition to governmental authority.
Litigation in this area therefore surrounds three main issues.
The first is whether the invidual has faced “persecution” or has a credible fear of “persecution.” One person’s “persecution” may be an immigration official’s “overreaction.”
The second is whether the individual is a member of a particular social group. To be considered a “social group” the members must share common immutable or fundamental traits like sex, color, or kinship ties, or shared past experience. The group must also be “socially distinct.” And finally, the group must be “particular.”
Threading the needle is not only difficult, it is practically impossible.
In one case, an asylum applicant defined her particularized and distinct social group as “single Honduran women age 14 to 30 who are victims of sexual abuse within the family and who cannot turn to the government” for protection. The assigned immigration judge concluded that this group would not satisfy the legal requirement.
As I continue to dig into the immigration quagmire, I am coming to the conclusion that legal immigration to the United States is a practical impossibility. And that is likely why illegal border crossings are becoming so rampant. The game is rigged and desperate migrants will therefore find other ways.
The Law Office of Eric R. Brown 
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