May 17, 2024


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Is it legal to cross the U.S. border to seek asylum?

Is it legal to cross the U.S. border to seek asylum?

Families escaping violence and persecution in Latin American countries such as Honduras, Haiti, 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, used for political stunts or separated from their children. Here’s how the process works:

Editor’s note: Get the latest on the Biden Administration’s proposed “asylum ban” and find out what it means for people seeking safety. 

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.

Is it legal to cross the U.S. border to seek asylum?

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 they 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. Asylees have the opportunity to become permanent residents, and eventually, citizens, provided that they meet all other requirements.

Are asylum seekers refugees?

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.”

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 senior director for asylum and legal protection 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.”

Read Natalia’s story of having to flee her home in Honduras and travel thousands of miles, determined to find a safe place to raise her children.

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 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.

Why are asylum seekers being transported to Washington, DC, Martha’s Vineyard and other cities?

The IRC is deeply concerned about ongoing reports that asylum seekers are being transported by state and local governments from U.S. southern border states to cities around the country, often without informed consent, coordination or planning. 

Based on the statements of political leaders, these destinations often appear to have been chosen for maximum media coverage, rather than through prioritizing the needs of people seeking safety in the United States. As a result, asylum seekers have often been lost, confused, and disconnected from humanitarian services in the destinations they have been sent to.

Asylum seekers should not be used for political stunts.

Government-supported transportation can, and should, be used as an effective tool to support the American asylum system, in line with international law. Asylum seekers must have the opportunity to receive water and food, medical screenings, contact family members and gather personal belongings prior to being transported from the southern border. Any government-supported transportation of asylum seekers must consider the trauma people have experienced and ensure their dignity is respected.

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.

What is Title 42? 

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.

Between March 2020 and May 2023, Title 42 had been used to justify the expulsion of nearly 3 million people. 

Public health officials agree that Title 42 does not protect people from COVID-19 and the rule has faced a number of legal challenges for undermining the U.S.’s obligations to asylum seekers under domestic and international law. There is no public health rationale for denying people their legal right to claim asylum at the U.S. border. 

The rule is scheduled to end on May 11, 2023, coinciding with the end of the federal public health emergency order for COVID-19. However, a number of other policies, including Biden’s proposed asylum ban, still threaten the rights of asylum seekers at the U.S. – Mexico border.

What is Biden’s proposed “Asylum Ban”?

While the IRC welcomes the end of Title 42, we are concerned about the consideration of creating new restrictions on asylum. President Biden’s proposed ‘asylum ban’ would bar asylum seekers who passed through another country on their way to the southern U.S. border unless they had previously applied for (and been denied) asylum elsewhere or managed to receive an appointment at a port of entry through a new U.S. government app for smartphones.

This policy stands in stark contrast to campaign promises to overhaul inhumane asylum and deportation processes. It will limit the legal rights to seek protection in the U.S. and leave vulnerable asylum-seekers in dangerous conditions. 

“The Biden administration has made great strides in reasserting the U.S. role in humanitarian leadership and its role as a safe haven,” says IRC senior vice president for resettlement, asylum, and integration, Hans Van de Weerd. “We urge the administration to maintain this commitment, rescind the proposed asylum ban, and build back an asylum system in the U.S. that is safe, orderly, and humane.

Find out more about Biden’s proposed ‘asylum ban’ here.

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

What was “Remain in Mexico?” 

Another policy, called the Migrant Protection Protocols (MPP) or “Remain in Mexico,” forced certain asylum seekers to wait out their U.S. immigration court cases in Mexico with little or no access to legal counsel. Although a federal court also blocked the Biden Administration’s attempts to end this program, the Supreme Court later ruled in the administration’s favor.

For over three years, MPP impacted more than 75,000 asylum seekers, requiring them to wait out their U.S. court hearings in Mexico–mostly in northern border towns. There they faced the often impossible expectations to gather evidence and prepare for a trial conducted in English while struggling to keep their families safe.

“As Mexico receives historic numbers of new asylum claims and the U.S. continues to implement policies that push asylum seekers back into Mexico, humanitarian infrastructure in the country is increasingly strained and more people are stuck in highly vulnerable situations,” explains Rafael Velásquez, country director for the IRC in Mexico.

The impact of restrictive policies 

The impact of MPP, alongside nearly 3 million Title 42 expulsions, has required Mexico to fulfill growing humanitarian needs as asylum seekers wait, sometimes for years, to seek safety in the U.S. Families are finding themselves at risk of murder, rape, extortion and other violence. Organized criminal networks and human smugglers have targeted desperate asylum seekers and profited from the border policies that deny them their rights.

“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 late March 2023, a fire at a National Migration Institute detention center In Ciudad Juárez resulted in 39 deaths and left others severely injured. “This is proof of the extremely urgent need to ensure that there are systems in place to provide safety for people in need of international protection,” says Velásquez. 

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 northern Central America. Asylum seekers also come from Cuba, Nicaragua, Brazil, India, and African countries, such as Eritrea, Ghana, Ethiopia and Cameroon. Some Afghans and many people displaced by the war in Ukraine have crossed the border from Mexico to ask for asylum.

“Mixed migration through Mexico — usually onwards to the United States — has been a longstanding mechanism for people fleeing violence and conflict from the Caribbean and Central and South America,” explains Velásquez. “However, we have seen a particular increase in the number of asylum seekers from all over the world transiting through the country, including from places as distant as Asia, Africa and Europe.”

Maria sits across the table from her daughter, watching her make a bracelet.

Maria* and her two children had been in Juárez, Mexico for five months after death threats from local gangs forced them to flee their home in Honduras. When she arrived at the U.S. border to claim asylum, she was turned away under Title 42.

Photo: Paul Ratje for the IRC

People living in northern Central American countries are enduring violence akin to a war zone. 

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.

“More than anything in Honduras, I felt fear,” explains Maria*, a 37-year-old mother of two who was forced to flee with her family after receiving death threats from organized criminal groups. “When you don’t give them money, they threaten to kill you.”

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?

President Biden has expanded pathways for the resettlement of people from Latin America and 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. 

However, the Biden Administration must rescind the proposed asylum ban and protect the rights of people in danger to seek safety in the United States. 

The U.S. should recommit to long-held values of providing access to refuge for those fleeing violence and persecution. Here are the changes the administration needs to make an asylum system that treats people with dignity a reality. 

  • Rescind the proposed “Asylum Ban”. The Biden administration is considering further restrictions on asylum that would bar thousands of asylum seekers and return them to danger. This proposed policy runs counter to domestic and international laws which establish the right to seek asylum and campaign promises to overhaul inhumane asylum policies.
  • Address the asylum backlog. The current backlog has forced asylum seekers to endure five to seven-year-long waits. Improving the speed at which asylum claims are decided fairly and with due process is needed to create a more humane and orderly asylum system.
  • Invest in smart and humane asylum measures. The U.S. must take a holistic approach to create a smarter, cost-effective and humane asylum system. This includes supporting border shelters that keep asylum seekers off the streets by providing humanitarian support, supporting long-term case management, and improving access to information on legal rights and community resources. 
  • Support civil society groups in border communities. Civil society groups — including the IRC — have come together to form coalitions and increase collaboration with local governments to welcome asylum-seekers and provide sanctuary on both sides of the border. Civil society has the expertise and the infrastructure to help the administration achieve safe, regular and humane migration processes that respect the right to seek asylum.
  • Create a comprehensive humanitarian response in Latin America. The U.S. should work with non-US donors to support humanitarian response plans and work with Latin American countries to harmonize policies that uphold the rights and safety of asylum seekers across the region.

“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 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 in 2022 alone. 

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

In Latin America, the IRC supports vulnerable people in northern Central America 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 communities: 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.

How can I help asylum seekers?

Take action: Tell Congress to reject any attempts to maintain Title 42 and other harmful anti-asylum policies. 

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

Learn about more ways you can help support refugees and asylum seekers at the US-Mexico border.