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But…but…the asylum process!

I have seen a new tactic from people who now claim that being in the U.S. illegally is not really illegal if you are going to claim asylum. Their new trump card (see what I did there?) comes from a clumsy reading of the asylum process. As usual it only takes a few minutes of actual reading to see that the claim that you can’t be in the U.S. illegally if at any point you plan on claiming asylum is laughably ignorant. There are two types of asylum, Affirmative Asylum and Defensive Asylum. Understanding the difference is critical to understanding the border situation.

Here is what the first section of the “Affirmative Asylum” process says:

STEP ONE: Arrive in the U.S.

To apply for asylum in the U.S., you must be physically present in the U.S. or seeking entry into the U.S. at a port of entry.

According to what you are supposed to believe, that means that if you want asylum you can just wander into the country and apply for it, or as some are trying to interpret it “If you are going to claim asylum it is not illegal to enter this country without permission”. But is that what it says and is that how the law is interpreted? Obviously not because we arrest and detain people who are in this country without permission all the time and many of them claim “asylum” after the fact.

Those that make this claim assume that all asylum seekers are the same. But maybe people that are not U.S. citizens are in this country in ways that are not illegal? Travel visas, work visas, student visas. The “physically present” clause seems aimed at someone who travels to the U.S. legally, like a student for example. While they are here legally there is a political revolution in their country and as a result they are legitimately afraid for their life. Since they are already “physically present”, they can apply for asylum. They don’t necessarily have to travel to a port of entry to apply for asylum, again because they are here legally. Those not already in the country legally that wish to apply for asylum are supposed to do so by appearing at a port of entry, for example Port Arthur in Texas, and indicate your intent to apply for asylum. This is important to note. According to Immigration services:

Affirmative asylum applicants are rarely detained by U.S. Immigration and Customs Enforcement (ICE). You may live in the United States while your application is pending before USCIS. If you are found ineligible, you can remain in the United States while your application is pending with the Immigration Judge. Most asylum applicants are not authorized to work.

Read that again. People that follow the legal process are a) rarely detained and b) may stay in the U.S. pending their hearing. I assume that those who are allowed in the U.S. but then don’t show up for their hearing are considered illegal like someone who snuck in but I don’t know that for sure. So who are the people being detained? Well the above describes “Affirmative Asylum”. Those being detained seem to fall into the category of “Defensive Asylum“.

Individuals are generally placed into defensive asylum processing in one of two ways:ยท

They are referred to an Immigration Judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or

They are placed in removal proceedings because they:

– Were apprehended (or caught) in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status,


– Were caught by U.S. Customs and Border Protection (CBP) trying to enter the United States without proper documentation, were placed in the expedited removal process, and were found to have a credible fear of persecution or torture by an Asylum Officer. See Questions & Answers: Credible Fear Screenings for more information on the Credible Fear Process.

See, now we are getting somewhere. This seems to describe the majority of the detention cases. If you get caught in the U.S. or trying to enter the U.S. without proper documentation, and are going to be removed from the U.S. and then claim asylum, you are considered to be a defensive asylum case, in other words your asylum claim is a response to being under threat of deportment which again seems to me to be a tactic used by people who refused to follow the legal procedure for asylum and are using asylum as a last ditch effort to keep from being deported. Because you have already been caught breaking the law, you are detained like anyone else breaking a law while you await your hearing. This is perfectly legal and within the stated intent of the asylum process.

The process is clear, logical and just. If you wish to claim asylum, present yourself with proper documentation so an honest decision can be made on your request at one of the many designated U.S. ports of entry. You almost certainly will not be detained unless there are extenuating circumstances and you will also be allowed to stay in the U.S. until your hearing.

On the other hand, if you are someone that has chosen to not follow this process, entered or attempted to enter this country illegally, get caught and then claim asylum in a desperate bid to avoid deportation, then the consequences for your actions are on you. Unfortunately if you have chosen to bring your children with you, they will also bear the consequences of your action just like anyone else that breaks our laws. That sucks in a bunch of ways but it is the result of irresponsible and illegal actions by people.

Not all asylum seekers are the same. Some people follow the rules and get what seems to me to be a very fair process. Many, many more do not and suffer the consequences. I can only assume that the reason many people don’t choose the affirmative asylum process is that they are not legitimate asylum seekers in the first place and are just claiming asylum, having been coached to do so in an attempt to game the system. They also no doubt delay the asylum process for people who applied for asylum the right way which is terribly unfair to those individuals.

The United States very generously accepts refugees and asylum seekers from around the world. We are not obligated to do so but we choose to do so anyway. Before you bash America or start making wild claims about the asylum process, you owe it to yourself to educate yourself about the law. The situation on the border is a mess. It is made worse by people that choose to ignore the process and seek entry illegally, only to claim asylum later. It is also made worse by Americans that rely on emotion and “muh feels” while making statements that are unsupported by the facts.

1 Comment

  1. Elvis A

    I enjoy reading your posts because of objectivity but I am bit unclear about this post. There are some issues that I would raise only to bring clarity. Are you saying you support the asylum process? If so did you consider the fact that in "3rd" world countries there are major issues with personal identification issues? I completely understand that a Country's lack of order does not constitute acceptance on US part but I mind you that more often than not the corrupt have the means to procure documentation and buy a clean slate for whatever reason they prefer. Let me be clear that the vast majority of people that can enter US legally have to have substantial financial and tangible means which may have been earned in ways no American would conceive. Again, it is not incumbent upon US to accept anyone but the process is very faulty and one can't presume unquestionable support for it. What perpetuates the problem, in my opinion, is the growth of government in every area of life. You can't be for smaller government and big government at the same time. Once you "remove" benefits, and by removing I mean allow people to support themselves without taking hard earned money from one group to give to another that refuses to work, then the immigration process becomes less complicated. I am not saying it is easy but one can't claim Biblical support for policies that have nothing to do with the Bible. I disagree with your conclusion that somehow the "muh feels" is on the wrong side of the argument. Again, I find your many articles irrefutable and really good but on this one there is not clarity on the subject. Elvis

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