Asylum Law – Myth vs. Reality

It’s a common assertion in the mainstream media’s coverage of the ongoing border crisis: aliens have a right to enter the U.S to apply for asylum.

For example, in a recent article, High Country News contends that, “By law, anyone who reaches U.S. soil has the right to apply for asylum, and anyone who can establish a credible fear of returning home must be granted a hearing.” The online outlet, which specializes in regional news from the Southwest, followed its allegedly concise and accurate summary of asylum law with a blanket declaration that, “Most [recent asylum seekers]are fleeing rampant violence, corruption and the escalating impacts of climate change that are making parts of Central America and Southern Mexico practically uninhabitable.”

Taken together, such assertions are presented as a compelling argument that the Trump administration is legally obligated to admit the stream of migrants currently besieging our southern border, hear their claims and grant a sizeable number of them permission to remain in the United States.

There’s a fundamental problem, however. The type of arguments made by High Country News, and other news outlets that blatantly favor an open borders agenda, are predicated on a profoundly mistaken reading of asylum law.

Asylum is governed by 8 U.S.C. § 1158. The provisions of § 1158, do stipulate that any alien who is physically present in the United States, legally or illegally, may apply for asylum. But those aliens can’t just show up and say, “I am afraid to go home.” The relevant law is much more complicated:

• First off, an asylum seeking alien must demonstrate a credible fear of persecution by the government of his/her home country, or parties that the government is unable or unwilling to control.

• Persecution is harm inflicted by the government, or agents acting on its behalf, that is more than harassment, unpleasantness or basic suffering. In short, the term “persecution” describes things like extrajudicial imprisonment, torture, deliberate starvation, genocide, or slavery.

• The claimed persecution must have been on account of the alien’s race, religion, nationality, political opinion or membership in a particular social group.

People fleeing generalized conditions of civil strife (e.g., political unrest, economic recession, civil war, regime change) do not have a credible fear of persecution. And, as High Country News notes, most of the current asylum seekers are fleeing crime, poverty and natural disasters.

While often tragic, none of those conditions constitutes persecution. Aliens who fail to demonstrate they have a credible fear of persecution don’t have a legitimate asylum claim and are not entitled to any further hearing.

High Country News claims that, “The Trump administration has tried to deter people from seeking asylum altogether by restricting applications and turning many asylum seekers away.” In reality, however, the Trump administration has merely attempted to bring order to a defective system by applying the law as written. With a modicum of careful research, that should be obvious, even to journalists with no legal background and little experience with immigration.