Friday, June 22, 2018

Open Letter to Stephen Miller, Advisor to President Donald J. Trump

Dear Mr. Miller:

As you are aware, thousands of persons from Guatemala, Honduras, and El Salvador are queuing up in Mexico at U.S. Ports of Entry in hopes of being able to apply for asylum in the U.S.  As a result of the overwhelming number of applicants, many of those who are allowed to enter and apply for asylum, are being taken into DHS custody where they may remain for very long periods of time while awaiting a hearing.  Others are being released into the U.S. after being given Notices to Appear before an Immigration Judge (most never appear for their hearing dates). Neither of these options would seems satisfactory or desired by the applicants or the government.

Please consider the below information regarding a possible alternative to this crisis.

Before I proceed, let me introduce myself. My name is Ben Ferro. I served as a District Director at the U.S. Immigration and Naturalization Service for twenty-three years in three major Districts at BuffaloNew YorkRomeItaly; and BaltimoreMaryland. As the Director in Rome one of my major responsibilities was to oversee and manage all immigration and security vetting and refugee and asylum processing of tens of thousands of persons from Europe and the Middle East, including those from Iraq, Iran, and the former Soviet Union.  Prior to this assignment, I was the Director of the first and only “Legalization Program” (Asylum Program) during the Reagan and Bush Administration.

As noted above, the current policy of DHS is to allow third-party nationals, i.e. persons who are not Mexican or Canadian citizens, who arrive in the United States at a port of entry to make a "credible fear of persecution" declaration, which is a skeleton precursor for making a formal application for asylum in the U.S.  Most of these arriving aliens are found to have a “credible fear”, based solely upon their own unsupported testimony. However, of these, most formal presented claims when adjudicated by an Immigration Judge months or even years later, are denied asylum.

By way of background, the reason that these arriving aliens are allowed to file for asylum at the port of entry is based in U.S. law- Section 208(a)(1) of the Immigration and Nationality Act which provides that any alien arriving at a U.S. Port of Entry may apply for asylum. However, Section 208(a)(2) of that same law states that this right to apply for asylum does not apply to a third-county national coming from a "safe third country", such as Canada or Mexico.  In such cases, that arriving alien may be made to return to Mexico or Canada, and either file an asylum claim with that country, or make a claim for U.S. refugee status at one of our many American Consulates located in those countries.

This is exactly how refugee processing is done overseas; prospective refugees apply for such status at an American Consulate or Embassy abroad.

If their application is granted, they are allowed to enter the U.S. as Refugees. If they are denied, it is up to the country where they are located to determine their continued presence there, if they are not citizens of that country.  The point is that, while they are waiting for the refugee process to be completed, they are waiting outside of the U.S.

Finally, I must point out that Aliens being allowed to enter the United States merely through the first stage “credible fear” process have, of course, not been screened before arriving in the United States. As you know many of these aliens come to the United States without documents or with false identities, and arrive from countries in which there is significant criminal and terrorist activity.  The “credible fear claims” of all aliens should be thoroughly vetted before they enter this country, and appropriate resources must be directed to the review of the asylum applications filed by those individuals while they await in “safe third countries.”

Sincerely yours,

Ben Ferro

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