FACT CHECK: Do Asylum-Seekers Have To Illegally Enter The US?

Emily Larsen | Fact Check Reporter

Attorney Rabia Chaudry said in a tweet Sunday that people must be in the U.S. in order to apply for asylum, and that asylum-seekers on the southern border have to figure out how to get inside.

Verdict: False

People may apply for asylum at U.S. ports of entry without illegally entering the country.

Fact Check:

The Trump administration has faced backlash after increased prosecution of illegal immigrants at the southwest border led to the separation of migrant families. Secretary of Homeland Security Kirstjen Nielsen clarified the administration’s policies in several tweets Sunday, including its position on humanitarian protection in the form of asylum.

“If you are seeking asylum for your family, there is no reason to break the law and illegally cross between ports of entry,” Nielsen said.

Chaudry, who gained notoriety after NPR’s “Serial” series highlighted the case of her friend, Adnan Syed, responded to the tweet. “You cannot apply for asylum unless you are in the US. There is no visa allowing you to enter to apply for it. You have to figure out how to get inside to apply, ie crossing the border,” she tweeted, and called Nielsen a “liar.”

Individuals may apply for asylum at a port of entry without illegally entering the country. While the law allows people illegally in the U.S. to apply for asylum, they do not have to “figure out how to get inside” before applying.

“You may apply for asylum if you are at a port of entry or in the United States,” the U.S. Citizenship and Immigration Services website states. “You may apply for asylum regardless of your immigration status and within one year of your arrival to the United States.”

Nielsen reiterated at the White House press briefing Monday that asylum-seekers do not have to cross the border illegally. “You do not need to break the law of the United States to seek asylum,” she said. “DHS is not separating families legitimately seeking asylum at ports of entry. If an adult enters at a port of entry and claims asylum, they will not face prosecution for illegal entry.”

Some people seeking asylum at ports of entry are not easily able to apply, though. Many reports say that asylum-seekers are being turned away and told to come back later because there is no room to process everyone. Immigration advocacy groups filed a lawsuit last year that argues that Customs and order Protection is illegally turning away asylum-seekers.

Other reports say that some parents who applied for asylum were still separated from their children. Democratic Rep. Carolyn Maloney shared a story on Twitter about asylum-seekers who were separated from their families, though it is not clear if those families illegally entered the U.S. before seeking asylum. An American Civil Liberties Union (ACLU) lawsuit alleges that a Congolese woman was separated from her 7-year-old daughter after applying for asylum at a port of entry.

Nielsen clarified in a tweet that the Department of Homeland Security (DHS) would separate families who seek asylum at ports of entry “if the child is in danger, there is no custodial relationship between ‘family’ members, or if the adult has broken a law.” Critics say that it is not clear how DHS determines whether the adult is not the child’s legal guardian or whether the child is not safe.

There are two classes of asylum applications: affirmative asylum and defensive asylum.

Affirmative asylum-seekers either apply at a port of entry or begin an application for asylum within a year of arrival to the U.S., even if they have entered the country illegally. They are subject to a non-adversarial interview with an asylum officer.

Those who are apprehended after crossing the border illegally or who are being processed for removal from the country can apply for defensive asylum. Defensive asylum applicants endure a more adversarial, court-like hearing.

Asylees must meet the legal definition of a refugee: someone who is unable or unwilling to return to his or her home country because of persecution due to race, religion, nationality, membership in a particular social group or political opinion.

The Trump administration has called for reform to asylum laws. Attorney General Jeff Sessions said in a ruling reversing a Department of Justice Board of Immigration Appeals decision last week that not all victims of domestic violence or gang violence should be eligible for asylum under the “member of a particular social group” category.

“Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” he wrote. “The mere fact that a country may have problems effectively policing certain crimes — such as domestic violence or gang violence — or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”

Nielsen said at the White House briefing Monday that many people fraudulently seek asylum. “We need to reform our asylum laws to end the systemic abuse of our asylum system and stop fraud. Right now, our asylum system fails to assist asylum-seekers who legitimately need it,” she said. “We must fix the system so that those who truly need asylum can, in fact, receive it.”

The U.S. had 642,700 pending asylum claims at the end of 2017 – a 44 percent increase from 2016 and much more than any other country, according to U.N. data. Germany had the second most claims outstanding at 429,300.

The rise in migrant families being separated at the border is largely the result of the Trump administration’s new “zero-tolerance” policy toward illegal entry. Sessions announced in April that immigration enforcement would prosecute everyone who crosses the southwest border illegally.

Because federal law prohibits migrant children from being detained in federal detention facilities, they are separated from parents or guardians who are held for prosecution and referred to the Department of Health and Human Services (HHS). HHS then attempts to place the children with an adult sponsor or holds them in government shelters.

Chaudry did not respond to a request for comment.

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Emily Larsen

Fact Check Reporter