It Is Legal to Seek Asylum

As thousands of asylum-seeking parents were separated from their children in recent months, the Trump administration actively portrayed them as law breakers who must be prosecuted and punished for coming to the United States.

Left out of the narrative is one well-established fact: it is legal to seek asylum.

The Immigration and Nationality Act, which governs our nation’s immigration law, makes clear that anyone arriving at the U.S. border or within the United States is permitted to apply for protection. U.S. law embraces both international and domestic legal obligations not to return any person to a place where they face persecution on account of one of several protected grounds.

Most everyone can apply for asylum, and where narrow exceptions apply, those individuals can apply for other forms of protection including withholding of removal or relief for those at risk of torture.

For those able to reach the U.S. border, many have been unlawfully turned away by Customs and Border Protection (CBP) officials who have told migrants that ports of entry are closed or that the U.S. no longer welcomes asylum seekers, at least from certain countries, among other justifications. Faced with no alternatives, many asylum seekers present themselves to Border Patrol between the ports of entry in order to seek protection. Following the Attorney General’s “zero tolerance” policy of prosecuting everyone apprehended between the ports of entry, many asylum-seeking parents were separated from their children for months so they could be prosecuted for entry-related crimes before being given a chance to ask for protection.

Confusion is triggered, however, by the existence of federal criminal offenses for unlawful entry (a misdemeanor) or unlawful reentry to the United States after having been deported or ordered removed (a felony). While there are many concerns with entry-related prosecutions, it is particularly problematic when asylum seekers are prosecuted while trying to seek protection

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