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Comment by cycrutchfield | Hacker News Reader

Applying for asylum is a crime?

Not trying to get into a political flame fest here, but honest question: Is asylum seekers the new term for illegal immigrants? Before it was undocumented immigrants. I'll admit it seems like it may be a more effective terminology for garnering sympathy, but it also carries more expectations, some legal.

According to USCIS "asylum may be granted to people who have been persecuted or fear they will be persecuted on account of race, religion, nationality, and/or membership in a particular social group or political opinion". The "fear" part is tricky of course but it cannot be denied that many of these people are crossing the border for economic reasons.

"Asylum seekers" is the term for people who show up at a port of entry and ask for asylum. We don't have to admit all of them to the country, but are obligated by treaty to give their applications for asylum due consideration.

It is also not reasonable to forcibly separate them from their families when their only crime is to ask to be allowed into the country.

To my understanding, the people who actually showed up at an official port of entry are not the ones facing criminal prosecution and family separation. In fact, most of them are simply turned away or told "we're full for the day" or some such. Of course this often prompts them to just attempt crossing in an illegal way.

Regardless, at that point it's no longer a matter of "asking to be allowed into the country".

Point is I've seen the term "asylum seeker" a lot recently in reference to the current immigration crisis and the issue of families being separated. Certainly some of the families who crossed illegally are seeking asylum, but I suspect most are, just as always, people looking to immigrate because of the economic advantages of living and working in the US. Whatever you think of that, asylum it does not make.

Edit: I have read of a few cases where apparently families that showed up at an official port of entry were detained and separated. If this is done without serious reason to believe the children are not actually related to the parents, or are otherwise in danger, of course it is wrong. Still most of the cases of family separation people are complaining about are from illegal crossings. Whether you believe that is right or wrong is another issue.

An asylum seeker under US law is anyone who requests asylum within a year of entry. There is no question that these people are legitimate asylum seekers. Many of them will not meet the criteria to be granted asylum, but that does mean that their requests are not legitimate.

So at what point do they become an illegal immigrant? That is an official term used by the US government. I suspect it would be very difficult to determine how long an "undocumented" has been in the country before asking asylum. Is it if they don't show up for their hearings? Is there any reason an alien immigrant would not claim asylum when caught? Please forgive my ignorance on the nuances of immigration law, I've just seen the term "asylum seeker" pop up an awful lot lately, and not very much at all before.

I don't know if "illegal immigrant" is well-defined enough to come up with a clear rule.

Someone who is not eligible to request asylum could definitively be called an illegal immigrant. Treaties signed and ratified by the US (which have the force of law in the US) require that refugees not be punished for unauthorized entry or presence if they present themselves to the authorities and request asylum, so they would definitively not be illegal immigrants. Someone who is eligible to request asylum but hasn't yet done so would be in a bit of a grey area.

You probably haven't heard of this before because asylum seekers are a fairly small portion of immigrants. The number of asylum seekers per year only crossed 100k/year in the past year or so and prior to about 2015 was less than half of that. The total number of illegal immigrants has been close to 1 million/year at some points. This has only made it into the media because of the recent policy change to take punitive actions towards asylum seekers in direct violation of the US's treaty obligations.

And a considerable portion of people in the US illegally did so by overstaying a legitimate visa.

https://www.nytimes.com/interactive/2017/03/06/us/politics/u...

Applying for asylum at a port of entry is not a crime, and none of those people are being detained or separated from their kids. But crossing into the country illegally is a crime, even if you subsequently request asylum.

Edit: Someone1234, I would reply directly but I’m rate limited. The incident you’re pointing out is more nuanced than that. To combat human trafficking, we separate children from adults we suspect may not be their parents, pending further investigation like interviews of the children and interrogation of the supposed parents. That has nothing to do with the recent headlines and is longstanding practice.

Edit: A further reply to Someone1234: you are citing these accounts by advocates on one side of the issue as truth. The official government statements are very clear on the situations in which children will be separated from the adults they are traveling with when claiming asylum at a port of entry. All of them concern either fears of human trafficking or other concern that child is not safe with the adult. Do government employees lie? Yes. But a systematic lie like that, involving the repeated illegal detention of children, would not last very long. If there’s one thing federal judges don’t tolerate, it’s being lied to.

That's inaccurate.

This person applied for asylum at a port of entry and was immediately separated from his child:

https://www.pbs.org/newshour/amp/show/migrant-seeking-asylum...

This article goes into detail about several other cases. Quote:

> But there is evidence that even families who seek asylum at ports of entry are being separated. One high-profile case involves a Congolese woman who sought asylum and still was separated from her 7-year-old daughter. In February, NPR's Burnett reported on the legal battle of Ms. L v. ICE.

https://www.npr.org/2018/06/19/621065383/what-we-know-family...

Since the grandparent is rate-limited, I'll point out for them that the incident you’re pointing out is more nuanced than you seem to think. To combat human trafficking, we separate children from adults we suspect may not be their parents, pending further investigation like interviews of the children and interrogation of the supposed parents. That has nothing to do with the recent headlines and is longstanding practice.

Per my second link, the separation was indefinite while the asylum claim was evaluated, and asylum eligibility appears to be the main criteria rather than establishing parental relationship (which could take as long as DNA tests to come back).

Plus this claim:

> Applying for asylum at a port of entry is not a crime, and none of those people are being detained or separated from their kids.

Was wrong no matter how it is justified.

Are asylum seekers necessarily aware of that distinction?

They are not treated like drug dealers, thrown to the ground and hand-cuffed and tossed into the back of a truck/cruiser. The asylum process is long and drawn out and involves constant communication where personnel resources permit (and like all government agencies they are understaffed and underfunded.)

https://www.law.cornell.edu/uscode/text/8/1158

> 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 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...

https://theintercept.com/2018/06/16/immigration-border-asylu...

> U.S. Customs and Border Protection agents are systematically violating U.S. and international law by blocking immigrants at international ports of entry on the southern border from entering the country so they can claim asylum.

> The blocking works this way: In the precise middle of the international bridges, CBP agents stand, sentry-like, near the imaginary line dividing the two countries — a line often marked with a ceremonial metal plaque. The agents peer at everyone crossing, looking for people they think might be candidates for asylum. If the people say anything suggesting they might be requesting asylum — if they’re not Mexicans, and especially if they’re from Central America — the agents block their way and say to come back another time.

All the statute you are quoting says is that you may make a proper asylum claim despite already being in the US. The propriety of an asylum claim has nothing to do with the propriety of illegal entry prior to making it, nor does it wipe it away.

Which is not to say that illegal entry is never excusable. Necessity is a general criminal defense, so if you can show that you really had no choice but to cross into the country illegally or face imminent death or serious injury, then you’ll be off the hook for the illegal entry charge.

I believe you're simplifying that.

  1. Refugees with legitimate requests are coming from Central and South America. 
  2. Many of those countries in question were result of US interference in their governments, leading to pro-US dictatorships
  3. The refugees have come to the border crossings to petition for refugee status under international law
  4. The US is a signatory for said international law
  5. When refugees try to petition, CBP agents have actively blocked their entry to do the paperwork as required for claiming said status
  6. Some have crossed illegally, and then unlike in prior administrations, criminal charges are levied
  7. Families are intentionally being split up into different for-profit prisons
  8. Children are split up, and there is no time limit for processing when they can get back with their parents
  9. Deportations have been done where the parents are sent back, then the kids are. Nobody knows where they were sent

This whole thing is a clusterfuck, based upon recent executive order and presidential blackmail of 'children for the wall' ( https://mobile.twitter.com/realDonaldTrump/status/1007671131... ). I really don't know what else to say...

It's a bit more nuanced. There are massive loopholes in the current asylum process that create a favorable outcome from anyone who tries.

The current backlog is 600,000 cases. You have to wait until your case is heard to determine credible threat to life or whatever your claim is. Till then many disappear into society and are never seen again.

Also 83% of kids didn't arrive at the border with their parents to begin with. They are accompanied by adults who are not their parents. The separation of kids from the adults during the waiting period for asylum affects 17% of kids who are actually with their parents when crossing over.

Between october 2017 to now there has been a 315% increase of people pretending to be families in order to game the system, essentially using kids as a means of getting more humane treatment.

The current outcry is a politically motivated PR campaign against the administration, who is faced with the extremely difficult task of dealing with criminals who are using children to shield themselves from strict consequences, and it seems to be working, thanks to the President's political opponents, who have knowingly taken the bait.

If you wanted to "hack" your way into the USA the steps used to be

1) Sneak across border

2) If not caught, congrats

3) If caught, surrender and claim asylum

4) While waiting for your hearing, disappear

5) Bring kids along to maximize the chance of actually getting asylum, or getting more lenient treatment while being processed or waiting for your trial

Here[0]. Prior to FY 2017, there were 46 cases. Since then, there have been...191 cases. This is out of 31K or so. The 3x of fraudulent cases increase sounds like a rounding error to me and is probably not indicative of a trend. Instead, the admin highlighting it is playing with statistics.

[0] http://www.businessinsider.com/zero-tolerance-why-trump-sepa...

There is still the fact that 83% (10000 out of 12000) of kids are not with their parents to begin with.

The remaining 2000 are held for at most 20 days during which time an arrangement is made to have them stay with a family member or other caregiver.

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