Ask an Expert: Richard Middleton sheds light on the legal rights of migrants reaching the United States

by | Apr 22, 2019

Middleton edited and contributed to a recently published book, “Unequal Protection of the Law: The Rights of Citizens and Non-Citizens in Comparative Perspective.”
Ask an Expert: Richard Middleton

Richard Middleton, an associate professor of political science, edited and contributed to a recently published book, “Unequal Protection of the Law: The Rights of Citizens and Non-Citizens in Comparative Perspective.” (Photo by August Jennewein)

Images of migrants moving through Mexico and gathering near the southern border of the United States have been playing regularly on cable television news for months while debate rages in Washington and throughout the country about issues of immigration.

Consensus on anything has been difficult to find, but it is clear that an increasing number of families has been trying to make its way into the United States from Latin America.

The New York Times reported last month that, in the first five months of the fiscal year that began in October, the Border Patrol detained 136,150 people traveling in families with children, compared with 107,212 during all of fiscal 2018.

The news coverage has also given attention to the question of how the United States treats migrants and their legal rights.

Richard Middleton, an associate professor of political science at the University of Missouri–St. Louis who also teaches at Saint Louis University School of Law, edited and contributed to a recently published book, “Unequal Protection of the Law: The Rights of Citizens and Non-Citizens in Comparative Perspective.” It examines the rights of citizens, migrants, refugees and immigrants and offers analysis of how various migrant, refugee and immigrant populations are disproportionately disadvantaged under national laws as compared to citizens in the same jurisdictions.

In the latest installment of the “Ask an Expert” series, UMSL Daily spoke with Middleton on what the law says about how migrants should be treated.

How did you become interested in this topic?

My research primarily focuses on how the intersection of race, ethnicity and one’s legal status under the law relative to being a citizen or noncitizen can affect the realization of a person’s rights before the law, the development of public policymaking and individual legal and political incorporation into a community.

In addition to that, I have worked in the field of immigration law for going on 10 years now. So the practical work that I do as an immigration law attorney really guides and informs my research. I’m able to translate what immigrants are actually facing and confronting in terms of legal barriers and hoops – and, in addition to that, social and economic factors that really challenge their ability to lead stable, peaceful, meaningful lives – into timely research questions.

Who are most of your clients? Where are they coming from in St. Louis?

Most of my clients are Spanish-speaking persons from Latin America. In our region, one group of migrants that is currently arriving includes individuals who are seeking protection or asylum under U.S. law. They’re fleeing violence. They’re fleeing, in some instances, a lack of police and governmental protection in places such as Guatemala, Honduras and El Salvador. These are three locations that quite a few migrants are coming from and arriving at our southern border. In addition to that, immigrants come from all parts of the world to our region seeking to be reunified with their family or seeking to engage in employment for either a temporary amount of time – on temporary work visas – or to work and live permanently in the United States.

Is what’s happening at the southern border with so many families arriving and seeking asylum showing up in St. Louis too?

Yes, I get quite a few inquiries for legal representation for asylum cases. Legal service providers here in St. Louis are really just swamped, for lack of a better word, with requests for legal services for individuals who have future court dates for an asylum hearing in the immigration court system. One legal services provider, the Migrant and Immigrant Community Action Project, from time to time has had to close their intake of new clients because they are full with current asylum cases. There’s great demand and a great need to fill legal services for asylum seekers.

What is the justification for asylum that most of them present with?

It varies, but for example, in some instances you’re looking at women and children from Guatemala, El Salvador and Honduras. A lot of these women are escaping violence at the hands of either their husband, a domestic partner, and they’re not being protected by government officials in those countries. In addition, the children from those countries are really being groomed by gangs for participation. The parents don’t want them to join those gangs. Oftentimes the repercussion for not acquiescing to joining those gangs is bodily harm or death. So a lot of the mothers who are bringing their children are trying to get their children away from the gangs and the violence surrounding the gangs.

What is the difference in legal rights someone has as an asylum seeker?

The Immigration and Nationality Act basically says in Section 208 that any person in the United States has a right to apply for asylum. There’s a timing requirement in which it must be done, and if you don’t meet the timing requirement, you have to show good cause why you didn’t. But the immigration code clearly spells out that any alien – which means a noncitizen – who is physically present in the United States or who arrives in the United States – whether or not at a designated port of entry and including an alien who is brought to the U.S. after having been interdicted in international or U.S. waters – irrespective of such alien status, may apply for asylum. The law is pretty broad in terms of to whom it grants the right to apply for asylum.

Are the rights as an asylum seeker different than the rights of someone who isn’t seeking asylum and is here undocumented?

Because of the nature of the claim for asylum – a well-founded fear of persecution such that the person can’t go back to their country of origin because they will be persecuted for one or more grounds – the law tends to grant more protection to asylum seekers. The U.S. Congress clearly from a policy standpoint says we don’t want to be hasty in vetting a noncitizen and say, “OK, prima facie, on the surface, it doesn’t appear you have a grounds to enter the United States.” We don’t want to be hasty and just send you back if you tell us you’re going to be persecuted, you’ll be killed, you’ll be tortured, if we send you back.

Those individuals who don’t make that claim – who come in to work or come in to visit – those individuals don’t have very many rights to enter. Under U.S. immigration law, individuals who seek to enter the United States are subjected to many legal grounds that may render them inadmissible.

I understand that’s the case for people presenting at the border. What rights does an undocumented person have if they’re already in the country?

Once a person has effectuated an entry into the United States but is unlawfully present, the U.S. Constitution grants that person some rights. But there are other questions about what rights a person has that move beyond the right to just be in the country. For example, do you have a right to rent a house? Do you have a right to buy a house? Do you have a right to attend a public university? Do you have a right to secure a driver’s license? Do you have a right to open a bank account? There are a whole host of other policy topics that we can look at and ask what rights do you have.

These issues have been explored to varying degrees by the U.S. Supreme Court. The easy way to think about it is the U.S. Supreme Court has said that when a person enters the United States, even if they enter the United States illegally, that person does have a package of rights. It is not the full gamut of rights, but there are a host of important rights afforded to such a person. The Supreme Court has said in general those rights include the U.S. Constitution’s Fifth Amendment right to due process and the equal protection component that extends from that, the 14th Amendment protection of due process and equal protection and the Sixth Amendment protections afforded to individuals who are accused of crimes. These are the main legal rights afforded to all noncitizens.

This is U.S. law deciding what rights people get. What does international law say about how you have to treat migrants?

It depends on what rights you’re talking about because there are many different international conventions and each one touches upon many different topics. There are some more nuanced, specialized international conventions. For example, there’s a convention on the status of refugees, and that convention would certainly be in line with what the current section of the law INA 208 says: an individual should have a right to make pretty much an unfettered claim of asylum.

You have the Universal Declaration of Human Rights. You have the International Covenant on Civil and Political Rights. You have so many different international conventions that cover what rights migrants should have either when they are seeking refuge or when they have settled into their new home country.

Another important question is what effect do those conventions have? The reality is that when a country enforces laws, it is going to enforce its own laws first. So domestically, international conventions aren’t likely to be allowed to trump U.S. law in most U.S. courts.

What if anything is distinct about the way the U.S. treats migrants?

The research that I’ve done has looked at, for example, how the constitution in the Dominican Republic defines who’s Dominican with regard to who’s born in the country versus how the United States looks at U.S. citizenship when you’re born in the United States.

If you’re born in the United States, you’re a U.S. citizen as long as you’re subject to the jurisdiction of this country. There are only a handful of categories of people who when born in the United States are not subject to the jurisdiction of this country – children born to foreign diplomats, children born to foreign enemies engaged in hostile occupation of our country and also Native Americans born on tribal lands and owing allegiance to their tribe. It took the Indian Citizenship Act of 1924 to grant Native Americans citizenship. Those are the only three exceptions.

In the Dominican Republic, they have a similar clause in their constitution, and it basically says that if you’re born in the Dominican Republic, as long as you’re not born to someone in transit, you’re a Dominican citizen. The definition of “in transit” has really now become broadly defined in such a way that it has excluded so many people who were born to migrants from Haiti. The Dominican Constitutional Court even applied its interpretation of “in transit” retroactively, and it has said the government must inventory who was born to Haitian migrants in the Dominican Republic going back to 1929.

How a country chooses to enforce its laws is as significant as what the laws are, right?

The U.S. Supreme Court has said that an unlawful entry is a civil violation, not a criminal violation. But there is a section of federal law that makes it a criminal violation to unlawfully enter the country. So the question becomes when a person comes to the border and they enter unlawfully, do you begin a criminal prosecution or do you just go through the typical civil procedure, which is to expeditiously remove them or detain them and allow them to have a hearing in an immigration court? What we saw last year with Attorney General Jeff Sessions and President Donald Trump was a decision to begin using the criminal statute to prosecute unlawful entries into the United States.

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