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

Basically what I want to address in this 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). 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.

Are Political Asylum Seekers Required to Use a Port of Entry?

According to Jeff Sessions, there is a ‘right way’ and a ‘wrong way’ to seek asylum in the United States, and crossing the border without valid documentation is definitely the wrong way. He stated this very thing in a speech to the National Sheriff’s Association on June 18, 2018:

​​“We do have a policy of prosecuting adults who flout our laws to come here illegally instead of waiting their turn or claiming asylum at a port of entry. We cannot and will not encourage people to bring children by giving them blanket immunity from our laws.”

So, according to Jeff Sessions, if an immigrant crosses the southern border without valid documentation, they are “flouting our laws,” and he appears to be asserting 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. The majority of political asylum-seekers either overstay a temporary visa, or cross the Mexican border without valid documentation.

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.

Expedited Removals: What are they, how are they used, and what’s the problem?

When the reports began coming forward that the Central American immigrants were being turned away from U.S. ports of entry, I wondered if it was possible that in some way the Central American immigrants were being encouraged to cross the border without documentation, so they are subject to expedited removal—that is, apprehended and immediately returned to their country of origin. There’s no way to know this definitively until the many law suits filed against the government have unfolded a bit more, but I’ll admit, it did cross my mind. And, if this was occurring, if there was some purposeful intent on the part of the government to block the Central American asylees from entering the country through a port of entry, this would be highly unethical, and would violate U.S. asylum and international law.

But first, what are expedited removals?

Certain categories of immigrants entering the country are subject to an expedited removal proceeding, where they are deported immediately, without a hearing. Immigrants who enter through the southern border without valid documentation, (such as a visa, border crosser card, passport), are included as one of the categories.  

​The decision to place an immigrant in an expedited removal process is made by a U.S. Customs and Border Protection (CBP) officer. CBP officers have blanket authority, and their decisions are not subject to review or appeal. 

There is only one way to stop an expedited removal of an immigrant who crosses the border without valid documentation, and that is to claim political asylum. 
 Expedited removals have been around since 1996 (through the Illegal Immigration and Immigrant Responsibility Act), but they weren’t really used much until Bush and Obama, and they’ve skyrocketed under Trump. 

In fact, they appear to be the bedrock of the Trump administrations immigration reform policy, initiated with an Executive Order (EO) signed on January 25, 2017 that focused on increased border security and immigration enforcement.

President Trump’s border security EO is basically what AG Session’s “zero-tolerance” policy was all about—significantly expanding the use of expedited removals of immigrants crossing the southern border without valid entry documents.

So, let’s assume that immigrants from Central America have crossed the border without documentation, in an attempt to seek protection, because they were rejected from a U.S. port of entry, or because they did not know another way (there seems to be no indication that this group were trying to “sneak” across the border, so this scenario makes the most sense). What now? 

Because they crossed the border without documentation, they would have been placed in an expedited removal process. But 

U.S. law dictates that immigrants slated for expedited removal who request asylum are to be immediately removed from expedited removal proceedings and referred to an asylum officer for processing.

Unlike other political asylum-seekers, immigrants slated for expedited removal must go through an additional screening process that includes a “credible fear” interview with an asylum officer. This screening is used as an additional border control measure. The credible fear interview takes place within 48 hours 

of apprehension, and making the request for asylum. 

In order to pass the interview, immigrants must be able to convince an asylum officer they have suffered persecution, or they fear they will suffer persecution due to their race, religion, nationality, group membership (such as an ethnic group), or political opinion. 

If they pass the credible fear interview, their case is then referred to immigration court for a hearing a year or two down the road (this is because there is a lengthy investigative process, and a backlog of cases). If they fail the interview, they can appeal to an immigration judge who is required to hear their case within one to seven days. If the appeals process is unsuccessful, they are immediately referred back to an expedited removal process, and deported.
Here are the questions I would like answered:

Have some (or all) of the Central American immigrants being placed in an expedited removal process and deported before having an opportunity to request asylum? And, are they being deported without their children? 
Are the Central American immigrants being discouraged from requesting asylum altogether, with their children being used as bargaining chips, as some media outlets have reported?

What will happen to the Central American immigrants who are being processed as asylum-seekers? Is it the intention of DHS to keep them in detention even after they have passed a “credible fear” interview, perhaps for years, with or without their children?  

Border control and immigration enforcement are very important, but the legislators of our immigration laws have always sought to balance respect for rule of law with compassion, for both native born citizens and immigrants.

​So I find myself asking one more question: where’s the compassion? 

My next blog post: What are the “Dem laws” and “loopholes” the Trump administration keeps referring to? 

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