Can You Request Asylum At the U.S. Border?

If you can't obtain a visa and successfully enter the U.S. before applying for asylum, you might have to request it at a border, airport, or other entry point. But this might not result in U.S. entry.

If you can get a visa to come to the United States, such as a tourist visa, you can in theory apply for asylum when you arrive, by telling the inspections officer that you fear returning to your country and wish to apply for asylum. However, various barriers have been erected in recent years, as described below. Now is probably not the time to try this strategy.

Migrant Protection Protocols ("Remain in Mexico" Policy) Forbids U.S. Entry

Under the Trump Administration, the U.S. agreed with Mexico to institute what were called Migrant Protection Protocols (MPP), more commonly known as the "Remain in Mexico" program. Under this program, asylum seekers are not allowed into the U.S. to have their claims for asylum heard. Instead, they are sent to Mexico to await the outcome of their cases. This means waiting in difficult and often dangerous conditions, where it's hard to even stay in communication regarding one's upcoming hearings or other processing.

Although the Biden Administration has tried to end MPP, a federal court disallowed this in mid-2021, and the matter is still being appealed.

Public Health (Title 42) Used as a Reason to Block Asylum Seekers

As an additional way of blocking entry to asylum seekers, the Trump administration immediately expelled most migrants attempting to enter at the U.S.-Mexico border, including asylum seekers. This was based on supposed public health grounds and COVID-19 concerns, under Title 42 of the U.S. Code.

The Biden Administration has held to this practice, though it makes exceptions for unaccompanied children. They are instead taken into the temporary care of the U.S. Department of Health and Human Services (DHHS), which tries to place them with sponsors, such as relatives already living in the United States.

Preferable Option: Wait Until You're In the U.S. to Apply for Asylum

If you have some other way to enter the U.S., such as on a tourist visa, you can apply for asylum by mailing in an application, with supporting documentation, on Form I-589. The form and instructions are available for free download on the USCIS website. However, if at all possible, you should get help from an attorney.

If You Must Request Asylum at the Port of Entry

Even without hurdles such as the MPP and Title 42 expulsions, there are many reasons to avoid requesting asylum at the port of entry to the United States.

One is that CBP inspections officers have the power to quickly find someone inadmissible and deport them, in which case the deportee will not be allowed to return for five years. This can happen if an inspector believes that someone is making a misrepresentation (committing fraud), or misrepresented the truth when getting a U.S. visa, or does not have proper entry documents. This quick deportation procedure is known as "summary exclusion." It can be applied to anyone except people entering the United States under the Visa Waiver Program (according to a 1999 decision by the Board of Immigration Appeals).

Nevertheless, there is an exception to the summary exclusion process for people who fear persecution and request asylum. So, even if you do not have the proper documents or you have made a misrepresentation, you could still be allowed to enter the U.S. if you make clear that your reason is to apply for asylum and you can show that you'd be likely to win asylum. But making this clear is a challenge.

After you have said you want to apply for asylum, you're supposed to be immediately given a "credible fear" interview by an asylum officer. The purpose of this interview is to make sure you have a significant possibility of winning your case. Most importantly, the officer will want to be sure that your request is based on a fear of persecution. This interview is supposed to be scheduled quickly, within one or two days, but it has been taking longer.

If the officer isn't convinced of your fear, you will need to request a hearing before an immigration judge. If you don't, you will be deported from the U.S., and not be allowed to return for five years. The judge is supposed to hold the hearing within seven days, either in person or by telephone.

If the judge finds that you have a credible fear of persecution, you'll be scheduled for a full hearing. In that case, you should seek an attorney. This proceeding will take place in Immigration Court, before a judge, and with an attorney representing the Department of Homeland Security (DHS).

Detention While Awaiting Your Asylum Hearing

Most asylum applicants are held in a detention facility at this point. Depending on the latest policy it might be possible to request release, called "parole."

The applicants most likely to be granted parole are those who can verify your identity, have family or other contacts in the area, can post a bond (money that's given up if you don't show up for future hearings), and can show you'll be financially supported until a decision is made on your asylum case.

If you fail to convince the immigration judge of your credible fear of persecution, you will be deported (removed) from the United States.

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