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In the autumn of 2018, controversy surrounded a caravan of thousands of migrants travelling mainly from Honduras, but also from Guatemala, towards Mexico and the southern border of the United States. President Donald Trump claimed (without presenting evidence) that the contingent included criminals and unknown Middle Easterners, and as the caravan slowly approached Mexico, some conservative opponents of illegal immigration stoked fears with false or misleading claims that the migrants were burning U.S. flags, and that the caravan was a liberal conspiracy funded by the financier George Soros. Public attention was also focused on the personal circumstances of some of the migrants and their motivations for travelling to the United States. Like Guatemala and El Salvador, Honduras is the site of rampant violence related to gangs and drug trafficking and has one of the highest murder rates in the world. In June 2018, the Council on Foreign Relations, a non-partisan think tank with a focus on international affairs, wrote of this crisis that: Against that background, observers sympathetic to the plight of those who were part of the October 2018 caravan began sharing a meme which sought to reject an argument frequently made by those who opposed the migrants' right to enter the United States: that the migrants' actions were illegal. On 22 October, the General Board of Church and Society of the United Methodist Church, one of the largest Christian denominations in the United States, posted the following meme to Facebook: The following day, the meme was further promoted (in a modified format) by the left-wing Facebook page The Other 98%: A convention in Geneva vs. the Geneva Conventions Article 14 (1) of the 1948 Universal Declaration of Human Rights states: Everyone has the right to seek and to enjoy in other countries asylum from persecution. Built on this foundation, the two major pieces of international law which set out the rights and obligations of countries as regards refugees and asylum-seekers are the 1951 Convention Relating to the Status of Refugees (commonly known as the Refugee Convention) and the 1967 Protocol Relating to the Status of Refugees. Both documents can be found here. The 1951 convention took place in Geneva, Switzerland, which occasionally prompts observers to refer to it as the Geneva Convention, as the October 2018 meme does. However, Geneva Conventions should be reserved for describing a separate series of agreements signed in 1949 (and afterwards) which set out the humanitarian rules of war, placing obligations on countries around the treatment of wounded enemy combatants, prisoners of war, and so on. With that clarification in mind, let's look at what international and U.S. law says about the legality (or otherwise) of entering the United States without proper authorization and documentation. 'An illegal act' The U.N. Refugee Agency describes the 1951 Refugee Convention as follows: Those rights include: As one of the signatories to the Refugee Convention, the United States is obliged to honor these provisions. Federal law (U.S. Code Title 8, Section 1158) sets out the following: The key phrase there is irrespective of such alien's status. This means that, whether a migrant entered or is present in the United States legally or illegally, they still have the right under international and U.S. law to apply for asylum and remain in the United States while their application is being processed. So the language in the meme is somewhat inaccurate or muddled. Firstly, it is not a myth that entering the U.S. without proper authorization and documentation is illegal. It is illegal, by definition. But when it comes to asylum, the point is that whether a refugee entered the country legally or illegally doesn't impinge on their right to apply for asylum. Article 31 (1) of the 1951 Refugee Convention states: Second, the meme claims that the Refugee Convention gives migrants fleeing violence the right to enter legally. This is a somewhat confused assertion. Non-citizens don't exactly have a right to enter the U.S. Rather, the U.S. government and its agents and officials can give non-citizens conditional permission to enter the United States. The 1951 Refugee Convention has no bearing on whether or not a migrant or non-citizen has permission to enter the United States. What the meme appears to be claiming is that if a migrant is fleeing violence, their entry into the United States is legal by virtue of the fact that they are fleeing violence. This is inaccurate. Whether a migrant is fleeing violence or persecution does not have a bearing on the legality or illegality of their entry into the United States, although obviously such factors could potentially form the basis of a successful asylum application later on. The asylum application process The procedures involved in requesting and getting asylum in the United States can be relatively complicated and time-consuming. However, based on guidelines published by the American Immigration Council and U.S. Citizenship and Immigration Services (USCIS), an agency of the Department of Homeland Security, the following is a rough outline of how a migrant can obtain asylum in the United States: 'Fleeing violence' As we have outlined, the legality of a migrant's entry or presence in the United States is determined by whether they have the correct authorization and documentation, and not whether or not they are fleeing violence or persecution in their home country. Likewise, migrants have a right to apply for asylum in the U.S., regardless of whether they entered or remained in the country legally or illegally. However, it should be pointed out that fleeing gang violence of the kind often seen in Honduras and Guatemala, the home countries of those who joined the migrant caravan in October 2018, may well not form the basis of a successful asylum application. In June 2018, Attorney General Jeff Sessions published a major ruling which overturned a 2014 decision by the Board of Immigration Appeals, relating to domestic abuse and gang violence as grounds for asylum. In brief, Sessions ruled that asylum should be reserved for individuals who are suffering persecution or violence on the basis of their membership of a group that has a common immutable [unchanging] characteristic: The Attorney General drew a distinction between victims of group-based persecution and violence, and what he called victims of private criminal activity. On the question of gang violence, Sessions wrote: The American Civil Liberties Union has challenged Sessions' ruling in federal court, in a case that was still pending as of 25 October 2018. For the time being, however, the Refugee Convention alluded to in the United Methodist Church's meme may not offer much protection or assistance to those Central American migrants approaching the U.S. in the October 2018 caravan, even if they are fleeing violence, and regardless of whether they enter the country legally or illegally.
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