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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, Haiti, Venezuela, Cuba, Nicaragua, 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.

Lincy Sopall sits at a desk holding a pencil and looking at a sheet of paper. Her supplies for her fashion design studio are behind her.

Lincy Sopall, a transgender woman who faced abuse and persecution in Honduras, received asylum in the U.S. in 2018 and works as a fashion designer. She says of her decision to flee: "I had only two choices: leave Honduras and live or stay and die."

Photo: Photo: Andrew Oberstadt/IRC

Who is an asylum seeker?

An asylum seeker is someone who has fled their home in search of safety and 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. Under 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 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 IRC director of asylum and immigration legal services Olga 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.

How do people seek asylum at the border?

Despite established rights under U.S. and international law, people’s access to asylum at the border was severely limited under the Trump Administration and many of the most severe policies continued well into the Biden Administration.

In March 2020, the Trump Administration implemented a public health rule to turn away most asylum seekers at the border–without giving them a chance to present their cases for asylum. The rule is commonly referred to as “Title 42” because its legal authority derives from Title 42 of the U.S. Code. 

After over a year of calls to end Title 42 from health officials and advocates, President Biden finally announced that the policy would be terminated, effective in May of 2022.

Another policy, called the Migrant Protection Protocols (MPP) or “Remain in Mexico,” forces certain asylum seekers to wait out their U.S. immigration court cases in Mexico with little or no access to legal counsel. The Biden Administration initially terminated the program before a federal court ordered its reinstatement. 

Although the administration is fighting the MPP case in court and has issued a new memo attempting to terminate MPP, it has since worked with Mexico to continue and even expand the program. These changes were supposed to address humanitarian concerns. In actuality, asylum seekers continue to be stuck in limbo, and the changes put Haitians and other Black asylum seekers particularly at risk. 

As a result, people are being forced into dangerous conditions in northern Mexico. In some cases, they face threats similar to the ones that they fled. In 2021, the border cities Tijuana and Ciudad Juarez ranked within the top five municipalities in Mexico with the highest instances of homicide, femicide, kidnapping, domestic violence and human trafficking.

“Here in Tijuana, we’re in exactly the same conditions that people are fleeing from, everything from cartels and violence to gang presence,” says Kathy Kruger, who works for IRC -partner Casa del Migrante in Tijuana, Mexico. Local shelters and organizations like hers have made heroic efforts to help asylum seekers despite strained resources. 

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

Language barriers and racism have made the situation particularly dangerous for Black asylum seekers, as they face discrimination and violence on their journey and at the border. In just one example, the Haitian Bridge Alliance and Espacio Migrante documented extensive evidence of discrimination in Tijuana, particularly as it relates to accessing services during the COVID-19 pandemic.

Those asylum seekers who do make it to the U.S. will eventually have to make their case to stay in immigration court. There, the outcome can be vastly different depending on whether or not they can access legal representation. Unlike in the U.S. criminal legal system, asylum seekers are not guaranteed a government-funded lawyer. 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.)

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

A substantial number of asylum seekers are fleeing violence, persecution, and natural disasters in Haiti and the northern Central American countries of Guatemala, Honduras and El Salvador. Asylum seekers also come from Venezuela, Cuba, Nicaragua, Brazil, India, and African countries, such as Eritrea, Ghana, Ethiopia and Cameroon. A small number of Ukrainians have crossed the border from Mexico to ask for asylum.

"People are usually displaced within their own countries first,” says Meghan Lopez, the IRC’s regional vice president for Latin America. “However, the vast majority encounter risks and deteriorating living conditions similar to the ones they fled, leaving them no choice but to seek safety elsewhere.”

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

For instance, 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.”

Honduras is considered the most dangerous country in the region, with a homicide rate of 38 per 100,000 people. Gender-based violence is rampant; one woman is killed every 36 hours. With chronic gang violence, extreme weather caused by climate change and the impacts of COVID-19 worsening the crisis, the number of people in need of aid has more than doubled since 2020.

In Haiti, killings and kidnappings are on the rise, with 40% of the capital city Port-au-Prince controlled by criminal groups. Gangs also have control over ports and transport routes, blocking the flow of basic goods and hampering humanitarian access to deliver aid. 

In the summer of 2021, the assassination of Haiti's president was followed by a powerful earthquake and a tropical storm that hit within days of one another. Infrastructure and services in Haiti have been decimated in the last decade. Haiti is also experiencing the world’s longest recession, with an estimated 60 percent of the population living in poverty.

After they flee their home, asylum seekers must survive the extremely dangerous journey north, the path fraught with gang violence similar to the areas they are fleeing; gender-based violence targeting women, girls and the LGBTQ+ community; the risk of human trafficking of children, teens and women; and, for Black asylum seekers especially, racism and discrimination.

In a makeshift encampment in Mexico, a Haitian family--a mom, dad and young daughter--look straight at the camera while sitting on the ground next to their suitcases and blankets.

A Haitian family in a makeshift encampment in Mexico where they have been waiting to claim asylum in the U.S. The Biden Administration has used Title 42 to turn away Haitians and other asylum seekers at the border.

Photo: Getty

What must President Joe Biden do to help asylum seekers?

“The hopes we have in the new government is what we have been waiting on for a long time,” says Yolani, a Honduran asylum seeker placed in MPP and awaiting proceedings in Nogales, in Mexico. “Only now, with the new president, they are much greater. But [Biden] needs to see that we are still here. We haven’t gone anywhere and our wait continues.”

Upon taking office, President Biden 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 began to outline a vision for a humane asylum system and reversal of Trump Administration policies. 

The termination of Title 42 was a welcome step toward ensuring people fleeing violence and persecution can exercise their right to seek safety in the U.S. Here are the other urgent changes the Biden Administration needs to make: 

  • End MPP (“Remain in Mexico”) once and for all. 
  • Immediately expand capacity to process asylum seekers at ports of entry along the Southern border. 
  • End Immigration and Customs Enforcement (ICE) detentions, expulsions, and deportations during the coronavirus pandemic. 
  • Urgently scale up partnerships with humanitarian organizations on both sides of the border that can meet the needs of asylum seekers. Civil society groups in border communities — including the IRC — have come together to form coalitions and increase collaboration with local governments to welcome asylum-seekers and provide sanctuary.
    Civil society has the expertise and the infrastructure to help the administration achieve its goals of safe, regular, and humane migration processes that respect the right to seek asylum.

“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.”

How can I help asylum seekers?

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

A new bill introduced in the Senate would prevent the Biden Administration from ending the policy, known as Title 42, that denies people at the U.S.-Mexico border their legal right to asylum. Take action today to tell your senators to oppose this harmful legislation

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 transitional shelter, humanitarian assistance, medical care, legal orientation, and travel coordination to more than 50,000 asylum seekers released from U.S. government detention since June 2018. 

Throughout the U.S., the IRC provides legal services, case management, mental health and medical evaluations, and other services to asylum seekers in 25 offices.

In Latin America, the IRC works across the arc of the crisis: We are responding to the Venezuela crisis through local partners in Venezuela as well assisting Venezuelan refugees in Colombia and Ecuador. We also support vulnerable people in northern Central America (Guatemala, Honduras and El Salvador) and along the main migration corridors in Mexico, from the southern to the northern borders.

The IRC’s work in Latin America includes supporting women’s protection and empowerment, including violence prevention and protection of women, girls and members of the LGBTQ+ community who have been survivors of gender-based violence. We provide cultural orientation and support, as well as economic recovery and development. We also provide health services that include; primary, sexual and reproductive health care, and; mental health and psychosocial support. 

In recent years, we launched critical information services for asylum seekers and vulnerable communitie: InfoPa’lante in Colombia, CuéntaNos in northern Central America and InfoDigna in Mexico are all part of our global Signpost project with partners including Mercy Corps, Google, Microsoft, Twilio, Cisco, Tripadvisor and Box. The digital platform includes an interactive map that connects asylum seekers and migrants to shelters, health care providers and other services. An additional service, ImportaMi, serves unaccompanied children who recently arrived in the U.S. 

After the earthquake that hit Haiti in August 2021, we provided funding to support local organizations FOSREF, FADHRIS and Kay Fanm. Their work includes programs that prevent gender-based violence, maintain mobile health clinics, provide shelter and rebuilding materials, as well as other critical support for Haitians to help address the conditions that are causing many to flee their country.