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.

About Author

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Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats. He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.

4 Comments

  1. avatar

    Violence, corruption, gangs, marital abuse, poverty, lack of jobs, etc, are found in every country on earth to one extent or another. So, it is the height of stupidity to allow any of these, ever prevalent, excuses to grant refuge or asylum to anyone. Furthermore, it is beyond insane for our authorities to jyst accept the foreign person’s word of credible fear. The USA has embassies including agents of our FBI and CIA almost everywhere around the world. So, these employees of the USA should most certainly have current knowledge of the operations of any specific country, so why aren’t we using their knowledge to base our decisions on granting or denying refuge or asylum?? To just accept the person’s word is being intentially stupid. We all know these people have been coached and will tell any lies to get inside the USA.

  2. avatar
    John Lammi PhD on

    “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.” THERE IS ABSOLUTELY NO EVIDENCE OF “escalating impacts of climate change that are making parts of Central America and Southern Mexico practically uninhabitable.” NONE AT ALL. Not even the official organizations that warn of disasters form warming claim that there is.

  3. avatar

    Ejesus said to render to Caesar what is his. That means follow the cuvil laws these squatters are not seeking sanctuary but to c9me here to take advantage of oour generous social programs

  4. avatar
    Deborah Neitz on

    No. Churches first should obey the laws. In fact the laws of our land should be obeyed by illegals. Churches need to read the Bible. It’s the truth. Don’t they claim to be truth seekers? Since Jesus is the way, the truth, and the light, the churches should follow the example of our Lord.

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