Four of the Worst Takes on Asylum

News stories about asylum seekers at the southwestern US border are regularly greeted with uninformed comments from politicians, op-ed writers, and social media users. We’ve compiled a list of four of the worst claims about asylum seekers, with explanations of the actual situation. Please feel free to use our list if you encounter any of these claims.

1. They should apply for asylum from within their own countries instead of taking the long, dangerous journey to the United States.

Migrants cannot apply for asylum from outside the United States. The U.S. asylum system is only for people inside the country or at the border.

U.S. law (8 U.S. Code § 1158) defines an asylum seeker as someone seeking refuge at the U.S. border or from within the United States:

Any alien who is physically present in the United States or who arrives in the United States [emphasis added] (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.

U.S. law provides a different system for people seeking protection from inside another country. These people are seeking status as “refugees”; this status is defined in 8 U.S. Code § 1101. But people seeking refugee status can’t just visit a U.S. consulate to apply; they usually must go through a “refugee process” involving an international refugee agency. Moreover, this refugee process isn’t available in most of this hemisphere’s nations.

The Obama administration did set up a refugee program called the Central American Minors (CAM) program, and the Biden administration is restarting it. But this program is very limited. During nearly two years of operation under Obama, only about 5,000 Central Americans managed to enter the United States through CAM.

2. Most asylum seekers pass through Mexico—and sometimes other countries—on their way to the U.S. border, so they need to apply for asylum in those countries, not here. Besides, they’d be better off in places where people speak Spanish.

Migrants are not required to apply for asylum in Mexico or other Latin American countries. U.S. law only requires asylum seekers to apply in a country they pass through if that country has a safe third country agreement with the United States.

Here too 8 U.S. Code § 1158 is very specific. The right to seek asylum in the United States is denied only in cases where

the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality or, in the case of an alien having no nationality, the country of the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection…

Canada is the only country with which the United States has a formal safe third country agreement. The Trump administration negotiated agreements with El Salvador, Guatemala, and Honduras relating to asylum seekers, but even that administration didn’t have the nerve to designate these as “safe third country agreements.” The three Central American countries clearly didn’t meet the required standards for protecting the asylum seeker’s life or freedom, and they are incapable of providing a full and fair procedure for handling asylum claims.

Media coverage often overlooks one important reason asylum seekers come to the United States rather than nearby countries: Many have family and friends here who can give them help and a place to stay as they pursue their claims. This an especially important consideration for the many family groups with small children and few resources.

Incidentally, there are more than 50 million Spanish speakers in the United States. Mexico is the only country in the world with a larger Spanish-speaking population.

3. Asylum seekers need to enter the country properly at a port of entry; otherwise, they can’t apply for asylum.

How asylum seekers enter the country has no effect on their right to apply for asylum; neither does their immigration status.

This is yet another case where the law is perfectly clear: 8 U.S. Code § 1158 states that

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival  [emphasis added] and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status [emphasis added], may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.

There are various reasons why asylum seekers would decide cross the border between ports of entry, including the presence of dangerous gangs in some Mexican cities near the ports of entry. Border agents also frequently find excuses to impede asylum seekers at the ports of entry. The problem has gotten worse since the outbreak of the COVID-19 pandemic, which the U.S. government has used as a pretext for blocking still more asylum seekers.

4. Most asylum seekers are just trying to get into the United States and disappear. Once inside, most never attend their court hearings.

The government doesn’t provide reliable statistics showing the rate of court attendance by asylum seekers, but studies show that most do in fact attend their hearings.

Determining the rate at which asylum seekers “disappear” is extremely complicated, but the overwhelming evidence is that very few simply remain in the country without pursuing their claims. A University of Pennsylvania Law School study showed a 95 percent attendance rate between 2008 and 2018 for people who had applied for relief through asylum, cancellation of removal, or some other legal option for remaining in the country.