Are political asylum-seekers required to request protection through a US port of entry

Are Political Asylum Seekers Required to Request Protection through a U.S. Port of Entry? And a Whole lot more...

8/1/2018

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:

Coming into the country on a temporary visa (school, vacation, conference), overstaying the visa, and then applying for asylum,
Crossing the border without documentation and applying for asylum once inside the country,
Asking for protection at a U.S. port of entry, or
Asking for protection at a U.S. consulate.

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.

Osla McKercher

6/24/2018 07:51:16 pm

Thanks, Michelle. Good article. I've been wondering specifically about the "port of entry" issue.

Dr. Michelle Martin

6/26/2018 06:15:47 pm

Thanks Osla!

ripuanewhole

6/24/2018 11:35:43 pm

Hi Michelle,

So I'd like to start with an apology. I am a over 40 conservative civil engineer. I enjoy debating politics on multiple platforms, one of which is facebook. A lib friend of mine shared your 9 Myths about Trump's 'zero-tolerance' policy. My initial take on it was that you were purposefully trying to deceive the public, and I wrote a rather thorough debunking (You've since closed the comments for that page). We are both Christians, and it was it was tailored to him. Not wanting all that work to go to waste, I searched for your blog, and copied and pasted. Took me a while, but I'm finally getting to the apology part, but here we go... I directly accused you of lying, and due to writing it late at night, I didn't take the time to tailor it as a polite and direct response to you. For that I apologize. I have since read a few more of your blogs and concluded that you probably weren't intending to mislead people, you are just stuck in a leftist group think and writing from that perspective. I would enjoy the opportunity to respond to any counter arguments you may have on that particular topic.

In regards to this Asylum post, I don't have much to quarrel with you on. I haven't researched this topic thoroughly, but what you wrote appears to be accurate enough that I don't feel obligated to. My only issue is what you didn't say. You correctly point out that people can legally ask for asylum after illegally crossing the boarder. What you didn't address is the governments right to prosecute them for that illegal entry, which is what Jeff Sessions was talking about with correct and incorrect methods for seeking asylum. In summary, I believe that you and Sessions are both correct.

The other issue that you left out is the validity of these asylum requests. Considering the fact that 3% (This number came from a poltifacts link you provided in your previous post http://www.politifact.com/truth-o-meter/statements/2017/oct/19/jeff-sessions/jeff-sessions-claim-about-asylum-system-fraudulent/ ) of asylums from Mexico are granted, it is pretty clear that the vast majority of these requests are not valid, and are abusing the system. Here is a link summarizing some basic information on asylum qualifications and how to apply. https://www.immihelp.com/gc/asylum.html

I agree with you that we need to be compassionate, but we also need to secure our borders, protect our citizens, and follow the rule of law. I agree with you that child separation shouldn't be used as a weapon against invalid asylum requests, but this predicament of not being able to incarcerate children with their parents has been partially forced on us by the courts. It has also been forced on us by parents knowingly and willfully putting their children in horrible situations. Do those parents not hold any accountability?

My solution is to change the asylum laws allowing the government to do a quick check on the basic validity of each request to weed out the requests that are clearly invalid. Provide an attorney to each applicant, give them 30 min to prep, and then spend 10 minutes before the judge, recording everything for transparency. If they get through the 1st round, then they go through the normal process. Set up a special asylum centers where families are housed together in humane conditions while they wait their turn for the asylum process. Any one captured for illegally crossing the border would be immediately transported to an asylum center. Those who fail to apply at a port of entry and cross illegally would be documented in our system, and only provided with 1 opportunity to apply for asylum, receiving immediate deportation for any following attempts. What do you think? How do you think the feds should handle asylum requests when they are being swamped by people looking for an illegal way into our country?

mamainprogress

6/26/2018 01:29:38 pm

Rip, I came to this blog much the same way you did. I saw the myths post, wanted to know more about the person who wrote it, and found myself here. I was also troubled by what was NOT said, which you've already covered. I agree with you and find your solution to be reasonable. I feel for families who are suffering, but I also know there are many more who claim asylum than those who truly seek it. The left and the right are both misleading the public, by omission or flat out lies, and I'm sickened by the division it's causing. Thank you for civilly presenting an opposing view.

6/26/2018 06:15:16 pm

Hello! First, apology accepted (and thanks for that). You're right...no desire to deceive, and to be honest, I'm really not trying to change anyone's mind. But this is my area of research and I've spent years working in this area. Now onto your questions (which are good!). This is really complicated, and made worse because often those of us who have strong opinions in this area are operating off a different set of facts. For instance, our borders aren't being flooded. We don't have a huge problem with migrants coming in and committing violent acts. The cartels bring drugs in, but not through undocumented migrants. And terrorists are more likely to come in through our northern border (or on a visa) than our southern border. There's a tremendous amount of false information being spread around, which is stoking fears, but the stats just don't support the rhetoric.

Your suggestion of doing a quick check on the validity of each asylum case is exactly the system we have for asylees coming in through the southern border. So here's how it works. Immigrants come across the border without documentation and either present themselves to Border Control or are apprehended. They are put into detention, and because they came through the southern border without valid documentation, they are immediately put into an expedited removal process. This process was put into place in 1996 (through legislation) but it wasn't really used until 2004 under Bush. Obama used it quite liberally as well. With expedited removals, they're pretty much sent home within days, But the way the law reads (rightly so) is that if immigrants request asylum at any point before deportation. deportation proceedings halt, and they are transferred to an asylum officer within 48 hours to go through a screening process. The screening process involves a "credible fear" interview (I write about this in my post). The threshold is very high, and if they don't pass, they can appeal to an immigration judge, and the assigned judge has 1 to 7 days to hear the appeal. If the decision to reject is upheld then they are immediately placed back into an expedited removal process and deported. I'm just not sure we can speed that up any faster, and it's pretty much what your suggesting. Also, while it may sound like a good idea to demand that migrants present themselves only at ports of entry, it just isn't feasible, which is why the ports of entry were turning so many of the Central American migrants away. With political asylum-seekers they are not trying to "sneak" in...they cross the border and immediately report to Border Control because they want to apply for asylum. I think what's happening is that people are conflating undocumented economic migrants from Mexico, with political asylum seekers from Central America.

In terms of how I think the federal government should respond to the current crisis, I have a few thoughts on this. First, the reality is that we share a border with a very poor country, that also shares a southern border with even poorer countries. This is our reality. The majority of immigrants from Latin America serve a very important purpose in our country, which is why so many US companies recruit in small poor villages throughout Mexico. So what I'd like to see is the government demand that US companies use the H2A and H2B visas (temporary worker visas). But US companies don't like those because they can't exploit the workers as easily (they can still economically exploit them, but just not as much). I think only 3% of agricultural workers are on an H2A visa right now, when an estimated 70% of farm workers are undocumented. The Justice Department used to go after these companies (Google Tyson charged criminally), but then the farm and meatpacking lobbies threw an absolute fit with Congress, and since 2001, only three companies have been charged (and the criminal charges against Tyson were dropped, despite a tremendous amount of evidence). In many respects, Congress' hand's are tied...the lobbies have convinced them they cannot survive without the cheap labor, and our economy is highly dependent on this underground economy, but Republicans are also very committed to tough border control. So anyway, I'd like to see ethics put above economy in this situation and rather than scapegoating undocumented economic migrants, let's rip the cover off of this underground economy, where US companies directly recruit, and the government and ICE looks the other way. Now, about the political asylum-seekers from Central America. First, I want all of our hearts to break because of what they are enduring. Second, every one of them should be able to go through a credible fear interview, and then released pending their immigration hearing (assuming they pass). My next blog post is going to debunk the myth that they don't show up for these hearings, because according to the Justice Department's own statistics, the absentia rate is very small. They show up, and if they ar

Manny Robledo

7/23/2018 10:15:49 am

Michelle,
I appreciate your direct references to the law and data on the use of H2A Visas. I agree that the political rhetoric is not accurate on both sides. I also agree with you 100% that companies directly recruiting and relying on the illegal labor market should be penalized severely to stop this abuse. However, you lost me with your assertion that we are not a compassionate people, and the inference that we should not follow the law in the name of compassion. From Wikipedia, "In absolute numbers, the United States has a larger immigrant population than any other country, with 47 million immigrants as of 2015. This represents 19.1% of the 244 million international migrants worldwide, and 14.4% of the U.S. population." "According to the 2016 Yearbook of Immigration Statistics, the United States admitted 1.18 million legal immigrants in 2016." In my opinion, based on my own feelings," Trump's popularity on the subject of immigration stems from a feeling that we're being taken advantage of and not being acknowledged for the compassion that we do show through legal immigration system. How much is enough? 20 million a year? 50 million a year? Whatever the number it should be set be the political process not through self-help illegal entry. Also, talking compassion, if it's just a matter of fear of persecution then why don't the Central American immigrants seek asylum in Mexico? Finally, black markets develop as a result of over-regulation. Aside from low wages, illegal workers are less likely to organize or sue their employers.

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Are Political Asylum Seekers Required to Request Protection through a U.S. Port of Entry? And a Whole lot more...

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