Are Political Asylum Seekers Required to Request Protection through a U.S. Port of Entry? And a Whole lot more...
By Michelle Martin, PhD, MSW
What I want to address in this blog post is whether Attorney General Jeff Sessions’ assertion that the only legal way to request asylum in the United States is through a U.S. port of entry (or U.S. consulate) is accurate. I also want to explore how the government can distinguish between undocumented economic immigrants who cross the Mexico border without documentation to work, and those who cross the border seeking political asylum because they are fleeing persecution.
According to speech to the National Sheriff’s Association delivered by Attorney General Jeff Sessions, on June 18, 2018, there is a ‘right way’ and a ‘wrong way’ to seek asylum in the United States. Crossing the border without valid documentation is definitely the wrong way.
Also according to Jeff Sessions, if an immigrant crosses the southern border without valid documentation, they are “flouting our laws,” and he appears to be suggesting that the only legal way to request political asylum is by requesting protection at a U.S port of entry.
So, is this correct? No.
According to U.S. asylum law, how immigrants enter the United States has no bearing whatsoever on their ability to apply for asylum. An immigrant can request asylum in the following ways:
In other words, even immigrants who cross the border without documentation have the legal right to apply for political asylum.
You don’t have to believe me. Here’s the section of the legislation pertaining to who has authority to apply for asylum in the United States, taken directly from the U.S. Code: Title 8: Aliens and Nationality. Chapter 12, Sub-Chapter II, Part I, § 1158 – Asylum (and no, I did not know this code number off the top of my head before writing this post).
(a) Authority to apply for asylum
(1) In general
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable… [Emphasis Added].
There are some exceptions though. For example, a person must apply for asylum within one year of having entered the country, and they can’t have previously applied for political asylum, unless their circumstances have changed.
So how do most political asylum-seekers get into the United States?
By breaking the law. Currently, more immigrants overstay their temporary visas than cross the Mexican border.
Click here to see the full report, and then click Download.
That’s the funny thing about asylum law in the United States: an immigrant usually has to break the law in some way to get into the country, before they can apply.
But let’s say that many of the recent Central American immigrants did exactly as Jeff Sessions said they should do—they presented themselves to a U.S. port of entry and requested protection. If this is the "right way," then why are some being rejected by U.S. Border and Customs officials, due to lack of space?
Check out this article in the Texas Monthly, this article in the Washington Post, and this NPR article.
Dr. Michelle Martin is a social worker, policy specialist and Assistant Professor at California State University, Fullerton in the Department of Social Work, where she teaches social welfare policy, and researches dynamics related to immigrants, political asylum-seekers, refugees and other displaced populations.