Legal Advice to Enter the U.S. and Seek Asylum

Asylum-seekers must understand the policy changes under the Trump administration

By Doug Mentes, Esq. | Last updated on January 26, 2023

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New immigration policy came in 2018, and most notable is a policy shift termed “zero-tolerance.” This requires asylum-seekers enter the U.S. through a valid port of entry, as opposed to crossing the border and surrendering to border patrol. The penalties are harsh. The policy has led to federal criminal prosecutions, and resulted in mass detentions and separations of asylum-seeking parents from their children.

What Is Asylum?

Asylum is protection granted to foreign nationals already in the United States or at a U.S. border, who meet the definition of “refugee.” Under U.S. and international law, a refugee is a person unwilling or unable to return to their home country due to past persecution or a well-founded fear of persecution in the future because of their:
  • Race
  • Religion
  • Nationality
  • Membership in a particular social group
  • Political opinion

How To Apply

Under U.S. law, any person who is physically present in the U.S. or who arrives in the U.S. may submit an application for asylum. This is regardless of whether they arrived through a designated port of entry or not, and irrespective of the person’s status. With some exceptions, the law allows foreign nationals up to one year to apply for asylum once in the U.S. Jonathan Montag has been practicing U.S. immigration law for over 20 years near the border in San Diego. He says the method to request asylum is to “go to a port of entry—land border or airport—tell the officer that you’re afraid to go back to your country and you’re asking for asylum.” Montag explains, the officer is “supposed to arrest you and start you in the process of applying for asylum.” What about persons who cross the border but not through a port of entry? “Even if people cross into the country illegally, they still have the legal right to apply for asylum,” says Montag. Ideally, everyone should have identification: their passport, ID documents from their country, birth certificates. The ID documents are important because, to make your asylum claim, you need to show your identity and the reason why you’re afraid to go back to your country,” Montag says. “It’s their burden to prove their identity and to prove the fear of why they don’t want to return. The more they have to prove their story, the better.” Montag also advises asylum-seekers with family members in the U.S. to send those documents in advance so the documents don’t get lost during the intake process.

What Happens Next?

After the asylum-seeker is taken into custody, “they’re interviewed by an immigration officer,” Montag says. “That’s when they initially lay out the reasons they’re afraid to go back.” If they make this claim, an asylum officer will conduct a credible fear interview—asking in more detail what the person’s fears are. “If the asylum officer determines that there is a credible fear and the person would win an asylum case, they then refer the case to an immigration court and the immigration judge can decide if the person qualifies for asylum here,” says Montag. Applicants unsuccessful in the asylum process will also be referred to the immigration court, but for removal process, which gives asylum-seekers once last opportunity to make their case.

What Is the Zero-tolerance Policy?

The new wrinkle, Montag adds, is prosecuting people for crossing in, as opposed to coming in through a port of entry—policy that makes little sense in light of the asylum-seekers’ right to apply for asylum regardless of method of entry. “None of this prosecuting everybody who comes across illegally to seek asylum has ever been the policy before. This zero-tolerance policy is brand new,” says Montag. “If you wandered your way through Central America and avoided the gangs and being raped and robbed along the way—or endured it—then get here to find out the port of entry is 80 miles west. But the United States is right across the way; the highway is there. You’d cross, get on the highway and wave down the border patrol. You would think that’s the smartest way to do it,” says Montag. “To find out that’s a crime, and you’re going to get arrested and separated from your family for that, that’s a bit of a shock—particularly if you are not evading officers, you’re just crossing in and looking for officers to surrender to.” Asylum-seekers looking for legal services, or to file a lawsuit for unfair treatment and other questions regarding these laws should seek the advice of legal counsel. For more information on this area of law, see our immigration overview.

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