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Explainer

Is it legal to cross the U.S. border to seek asylum?

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Families escaping violence and persecution in Guatemala, Honduras, El Salvador and other countries in crisis have undertaken a dangerous journey to seek safety in the United States.

People arriving at the U.S. border have the right to request asylum without being criminalized, turned back or separated from their children—even during a pandemic. Here’s how the process works:

What is asylum?

Asylum is a form of protection granted to individuals who can demonstrate that they are unable or unwilling to return to their country because of persecution or a well-founded fear of persecution on account of:

  • race,
  • religion,
  • nationality,
  • membership in a particular social group,
  • or political opinion.

The right to seek asylum was incorporated into international law following the atrocities of World War II. Congress adopted key provisions of the Geneva Refugee Convention (including the international definition of a refugee) into U.S. immigration law when it passed the Refugee Act of 1980.

 

Who is an asylum seeker?

An asylum seeker is someone who has fled their home in search of safety and formally applied for legal protection in another country. Because he or she cannot obtain protection in their home country, they seek it elsewhere. Asylum seekers may be of any age, gender, socio-economic status or nationality—though the majority come from regions of the world that are suffering from conflict, disaster and weak rule of law.

“Asylee” is the term used in the U.S. for people who have been granted asylum. According to U.S. immigration law, a person granted asylum is legally allowed to remain in the country without fear of deportation. They qualify to work, travel abroad and apply for their spouse or children under the age of 21 to join them.

Are asylum seekers refugees?
  • Yes
  • No
  • It depends

To be granted asylum, one must meet the definition of a refugee. However, international law recognizes that the refugee status determination process can be lengthy and complex. Therefore, asylum seekers should receive certain protections before a state has officially recognized them as refugees. Asylum seekers begin their process either at the U.S. border or within the U.S.

"A refugee is inherently a refugee even if a government hasn’t yet made that determination," says IRC immigration director Olga Byrne. "If you meet that definition and you’re fleeing danger, you should not be penalized for your manner of entry, and you should not be turned away at the border to a country where you’d face persecution."

Is seeking asylum legal?

Yes, seeking asylum is legal—even during a pandemic. Asylum seekers must be in the U.S. or at a port of entry (an airport or an official land crossing) to apply for, or request the opportunity to apply for, asylum. "There’s no way to ask for a visa or any type of authorization in advance for the purpose of seeking asylum,” says Byrne. “You just have to show up."  

During the COVID-19 pandemic, epidemiologists and other public health experts have made clear that asylum seekers and their children can be safely processed at the border using public health measures, and repeatedly called for the U.S. government to rescind Trump Administration policies that misuse public health to turn away asylum seekers.

How do people seek asylum at the border?

Asylum seekers who arrive at the U.S. border are typically placed in either immigration court removal proceedings, where they will have a future opportunity to make their case for asylum before an administrative judge, or in expedited removal proceedings, which allow border agents to order an individual deported from the U.S. without a hearing before a judge.

However, under U.S. law, if a person in expedited removal states a fear of return to their home country or intention to apply for asylum, they will be referred for a credible fear interview conducted by a trained asylum officer within U.S. Citizenship and Immigration Services (USCIS).

The asylum seeker must prove to the officer that there is a “significant possibility” he or she is eligible for asylum, and must also be subject to a credibility assessment. If the officer makes a positive finding, the asylum seeker is referred to an immigration court where they will have the opportunity to apply for asylum before an immigration judge. If the individual does not meet the credible fear screening standard, he or she can be deported.

In the IRC's Welcome Center for asylum seekers, a husband and wife sit with their back to the camera as they discuss their journey as asylum seekers. The wife is holding their 2-year-old daughter.

19-year-old Stephanie and her 22-year-old husband Thomas were forced to flee Honduras with their two-year-old daughter, Judy, because of gang violence.

Photo: Andrew Oberstadt/IRC

Having a legal representative significantly increases the likelihood of success in asylum cases. One study found that asylum seekers who had submitted an asylum application before the immigration court were five times more likely to be granted asylum if they had a lawyer. (To learn more, read IRC staff attorney Kayla Moore's account of an asylum seeker who had to make his case without a lawyer.) 

Due to a Trump Administration policy called “Remain in Mexico,” tens of thousands of asylum seekers at the U.S. southern border have had to wait for their immigration court appearance in Mexico. There they've often ended up in unsafe housing, or no housing at all. Women girls, and families with children are at risk of violence, including sexual assault, extortion, kidnapping and homicide.

The administration later used COVID-19 as an excuse to turn away asylum seekers altogether

Some individuals who are already in the U.S., such as those who may have entered on a tourist visa or other temporary visa, may also apply for asylum. In those circumstances, the process for asylum varies.

Where do asylum seekers in the U.S. come from?

In late 2019, Venezuelans and Central Americans were among the largest groups of people to apply for asylum in the U.S.

Three million Venezuelans have left the country since 2015 due to growing insecurity, instability and violence. People living in northern Central American countries such as Honduras, Guatemala and El Salvador are enduring violence akin to a war zone. 

“The hardest part about living in El Salvador is the violence,” says 23-year-old Valentina, who fled to the U.S. after her family was threatened by gangs. “This is what makes life hard, because you leave your house and you don’t know if you’ll return. So yes, this is a war.”

Women and girls seeking safety are stuck in shelters filled beyond capacity with families who lost their homes to hurricanes Eta and Iota, which struck the region in November 2020. Privacy is limited in these shelters and reports of sexual violence are on the rise.

The two storms left 3.4 million people in need of urgent assistance. In 2021, 45.4 million people across the region are expected to be forced into poverty by the COVID-19 crisis.

Valentina, a refugee from El Salvador, stands on a bridge in Dallas, TX, and looks out over the water.

"In El Salvador, you don’t know if you’ll make it home alive at the end of the day," Valentina, a refugee resettled in Dallas, Texas, told the IRC.

Photo: Andrew Oberstadt/IRC

People fleeing their homes often seek safety elsewhere within their countries, moving multiple times to no avail. They embark on the journey to the U.S. because they are absolutely desperate and must escape, despite the dangers of the journey. 

“Currently there is no place scarier than their homes,” says Meghan Lopez, regional vice president of the IRC in Latin America. 

The danger does not end after they flee; asylum seekers from Central America must also overcome the extremely dangerous path north fraught with gang violence similar to the areas they are fleeing, gender-based violence targeting women, girls and the LGBTQ+ community, and risk of human trafficking of children, teens and women. For that reason, many Central Americans fleeing to the U.S. border have traveled together in caravans for safety.

How did seeking asylum change under the Trump Administration?

Rather than offering safe haven, the Trump Administration issued policies—often in violation of both U.S. and international law—that blocked people from claiming asylum and created standards that departed from decades of precedent. These new policies made obtaining asylum more difficult in certain cases, separated families, and forcibly returned asylum seekers—including women and children—to Mexico to wait for their claims to be processed. 

The ramifications of these policies are still being felt; for instance, over 600 of the parents separated from their children under the administration’s “Zero Tolerance” policy still cannot be found.

“Remain in Mexico” remains one particularly egregious policy. Under the policy, asylum seekers make their claim in front of a U.S. border official, then are sent right back to Mexico to wait for their case to be heard by an immigration judge in the U.S. Though local communities have made valiant efforts to welcome turned-away asylum seekers, resources are stretched thin and already-vulnerable families are finding themselves in danger of kidnapping and assault.

Most recently, the Trump Administration used the COVID-19 pandemic as an excuse to further block asylum seekers at the border. These policies did little to protect the public and in some cases threatened to worsen the U.S.’s public health crisis.

What can President Joe Biden do to help asylum seekers?

Through humane and competent action, the Biden Administration can end cruel policies like “Remain in Mexico,” respond to the current humanitarian crisis, and address an increase in arrivals at the border—all during a pandemic. 

Lincy Sopall stands in her studio for her fashion design business. She is wearing a pink button down shirt and smiling. Behind her is a desk, supplies for her work, and a large American flag.

"Refugees and asylum seekers are a big group of people with dreams and hopes and one goal," says Lincy Sopall, a transgender woman and asylee living in the U.S. after enduring abuse in Honduras. "We come with the goal of helping the country that opens its doors to us and our families."

Photo: Andrew Oberstadt/IRC

President Biden has already issued a number of Executive Orders impacting asylum seekers at the U.S. border, including one that creates a task force to reunite separated families and others that begin to outline a vision for a humane asylum system and reversal of Trump Administration policies. He has also announced plans to begin to provide a safe and credible pathway to 25,000 asylum seekers whose cases were stalled and who were impacted by "Remain in Mexico." A number of reforms are also included in the U.S. Citizenship Act of 2021, the immigration bill introduced to Congress in February.  

The IRC has released a step-by-step roadmap to safely protect the rights of asylum seekers and recommends three critical actions in the administrations’ first 100 days: 

1. Increase humanitarian assistance at the border, including Personal Protective Equipment (PPE), testing resources and other supplies for COVID-19 prevention. 

2. Reverse the damages of the Trump Administration and use executive actions to restore critical protections to asylum seekers. This should include ending family separation and protecting the rights of children, as well as ending Remain in Mexico. 

3. Combat the violence and instability in Central America that is causing people to flee. Create more pathways to safety by rebuilding refugee resettlement. 

Other recommendations include finding alternatives to immigrant detention and ensuring universal legal representation for asylum seekers. 

“This is a matter of political will and policy.” says Byrne. “If the Biden administration gets it right, the U.S. can credibly urge the international community to step up and share responsibility worldwide. If not, the consequences will be measured in lives lost and in regional and political instability.”

Find out more about what's happening at the U.S.-Mexico border.  

How can I help asylum seekers?

Donate to help the IRC provide critical aid to refugees and asylum seekers worldwide. 

Speak out. Tell the Biden Administration and Congress to repair the broken asylum system, reunite families and ensure that the country never again turns its back on people seeking safety. 

To learn more, explore the IRC’s full set of recommendations detailing how the Biden Administration can protect asylum seekers in its first 100 days. 

How does the IRC help asylum seekers? 

The IRC provides critical support to asylum seekers on both sides of the U.S. southern border. That includes providing warm meals, clothing, transitional shelter and travel coordination to more than 8,000 asylum seekers released from U.S. government detention since June 2018. We are also working alongside partners to respond to asylum seekers’ urgent needs. 

In Mexico, the IRC is working with local partners to aid migrants and asylum seekers stuck in border towns. We support programs that work with women and girls who have experienced violence. We also worked with local partners to launch a COVID-19 public health awareness campaign and, in the spring of 2020 to set up a “triage hotel” where asylum seekers can be tested for COVID-19 and can quarantine before moving into shelters.

Most recently, we launched InfoDigna, part of our Signpost project. Launched with partners like Mercy Corps, Google, Microsoft, Twilio, Cisco, Tripadvisor and Box, the digital platform includes an interactive map that connects asylum seekers and migrants in Mexico to shelters, health care providers and other services.