Before having any sort of meaningful discussion of how to treat people who seek asylum at the southern U.S. border, we need to understand how someone can—and can’t—apply for asylum in the first place.
In most cases, one has to violate immigration laws in order to get to the United States—and in the end, that’s legally okay. It’s almost expected. Which means that any bright-line analysis of who is “illegal” or not is almost nonsensical in this context.
Let’s imagine you live in a country like El Salvador, Guatemala, or Honduras. Maybe you’ve been getting death threats, or a family member has been killed and you think you’re next, or you’re part of the LGBTQ community and have seen others persecuted and are afraid the same will happen to you soon. You don’t have time to wait and see.
How do you get somewhere that’s safe? Perhaps you have relatives living in the United States. But you don’t have the level of education or financial means that would convince a U.S. consulate to give you a tourist or other visa to go there—visas are reserved for people who can show money and plans to, say, visit Disneyland and then go home again.
Nor can you apply for asylum from outside the United States. It’s procedurally impossible.
There is a separate process for qualifying as a refugee from outside the U.S., but it requires finding a United Nations agency handling such things and going through many bureaucratic steps. (You can’t even necessarily choose which country you’ll be sent to.) It’s unrealistic for many people who need to get out of a dangerous situation, fast, and who don’t live near an area where the U.N. is processing refugees. (See Asylum or Refugee Status: How to Apply.)
You’re not entirely out of luck, however. The U.S., in accordance with federal and international law, offers ways for people to apply for asylum when they get to, or after they’re within, U.S. borders.
True, applying for asylum is a demanding process, which involves preparing a written application, accompanying it with documents, clippings, and witness or expert accounts proving your identity and what you experienced or are afraid of, then attending an interview with a U.S. government official, and possibly being referred for further proceedings before an immigration judge. Many people are ultimately denied.
But at least you’d have a chance to apply—after, that is, finding a way to get to the United States. How do you do that? Most asylum seekers enter the U.S. by one of these means:
- They cross the border without permission.
- They come to the U.S. on some form of visa (tourist, student, exchange visitor) or on the visa waiver program, keeping quiet about the fact that they want to apply for asylum once they get here, because that could disqualify them for the very visa they’re applying for. (Also, some visa entrants ultimately wait to apply for asylum until after their permitted stay on the visa has expired, meaning they are then in the U.S. unlawfully.)
- They come to the U.S. border and ask to start the process of applying for asylum. This is a risky approach, giving one almost no time in which to find a lawyer or prepare, and one that might result in a summary refusal. Worse yet, the U.S. government is reportedly treating some asylum seekers as illegal entrants and detaining them and separating their families even without their even having attempted illegal entry.
Situations 1 and 2, above, are quite common in my experience as a lawyer. (I’ve represented numerous asylum applicants in the states of California and Washington.) Both involve some sort of unlawful behavior; either crossing the border illegally or misrepresenting one’s reasons for requesting a U.S. visa or entering the United States.
For any other type of immigrant, such behavior would be a problem. It could make them “inadmissible,” or ineligible for future immigration benefits such as a green card.
But that’s NOT the case for asylum seekers. Immigration law specifically exempts them from inadmissibility on grounds of unlawful entry or misrepresentation, when their reasons were basically to save their own lives. It makes sense. What other choice did they have? How else could they have gotten to the U.S. or applied for asylum?
Now we get to the crux of the current controversy and crisis. The U.S. government has reportedly been detaining people who come to the border and request asylum, as well as people who’ve crossed the border unlawfully and may wish to seek asylum. What’s more, it is pushing them through the asylum application system at unheard of speed, with little opportunity to prepare or present a full case.
An oft-heard justification is, “Well, they’re illegal, so what? They deserve it. We need to deter them.”
Of course they’re illegal, at the beginning. That’s how it’s been for years. That’s how the law is set up. They also have rights, under U.S. and international law, to have their pleas for safety heard.