As thousands of asylum-seeking parents were separated from their children in recent months, the Trump administration actively portrayed them as law breakers who must be prosecuted and punished for coming to the United States.
Left out of the narrative is one well-established fact: it is legal to seek asylum.
The Immigration and Nationality Act, which governs our nation’s immigration law, makes clear that anyone arriving at the U.S. border or within the United States is permitted to apply for protection. U.S. law embraces both international and domestic legal obligations not to return any person to a place where they face persecution on account of one of several protected grounds.
Most everyone can apply for asylum, and where narrow exceptions apply, those individuals can apply for other forms of protection including withholding of removal or relief for those at risk of torture.
For those able to reach the U.S. border, many have been unlawfully turned away by Customs and Border Protection (CBP) officials who have told migrants that ports of entry are closed or that the U.S. no longer welcomes asylum seekers, at least from certain countries, among other justifications. Faced with no alternatives, many asylum seekers present themselves to Border Patrol between the ports of entry in order to seek protection. Following the Attorney General’s “zero tolerance” policy of prosecuting everyone apprehended between the ports of entry, many asylum-seeking parents were separated from their children for months so they could be prosecuted for entry-related crimes before being given a chance to ask for protection.
Confusion is triggered, however, by the existence of federal criminal offenses for unlawful entry (a misdemeanor) or unlawful reentry to the United States after having been deported or ordered removed (a felony). While there are many concerns with entry-related prosecutions, it is particularly problematic when asylum seekers are prosecuted while trying to seek protection.
People fleeing life or death situations cannot often wait in their home countries to secure a visa or even use their true identity documents to depart their country and travel onward. Moreover, there is no way to apply for asylum from outside of the United States; overseas refugee processing is only available to select populations in specific locations and in very small numbers. Only 1,500 refugees may be admitted from all of Latin America and the Caribbean in fiscal year 2018; a mere 126 refugees from that region had been admitted as of June 2018.
To be clear, asylum seekers have a right to apply for asylum, not to be granted asylum. Once an individual tells a DHS official after being stopped at the border that they are afraid, asylum seekers must be processed and referred to asylum officers who assess an asylum seeker’s claims. Enforcement officers, such as CBP officers or Border Patrol agents, are not allowed to make these determinations.
The Refugee Convention also makes clear that countries are precluded from penalizing individuals requesting protection from persecution or torture in their country of origin. Indeed, in 2015 the Department of Homeland Security (DHS) Inspector General noted that the prosecution of those “who express fear of persecution or return to their home countries” was “inconsistent with and may violate U.S. treaty obligations.”
The United States must stop its criminalization of asylum seekers. Rather than treating them as law breakers, our country must adhere to its legal obligations to afford protections to those in harm’s way.