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Comment by openasocket | Hacker News Reader

Title 8 Section 1158, in the first sentence: "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 or, where applicable, section 1225(b) of this title."

Asylum seekers may be excused for illegal entry into the US. An asylum seeker can even use a fake passport to get through customs to apply for asylum: see Akinmade v. INS as an example.

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> Asylum seekers may be excused for illegal entry into the US. An asylum seeker can even use a fake passport to get through customs to apply for asylum: see Akinmade v. INS as an example.

This doesn't make the border crossing "explicitly legal," as you claimed, it just means that if you are granted asylum (which, I venture, most applicants are not, since the scope of asylum law is quite narrow), then your illegal entry will be disregarded.

>Asylum seekers may be excused for illegal entry into the US

Does that happen automatically when someone just asks for asylum? Or does asylum have to actually be granted first?

It has to be granted.

Yes. If you use a fake passport to get past customs and request asylum, and your request is denied, you are simply deported and you do not serve jail time and are not barred from future entry into the united states.

Jail time doesn't determine whether or not an act is legal (consider running a red light or underage drinking). In particular, the law you cited above is pretty clear that entering the US to seek asylum is illegal but may be forgiven if asylum is granted. To be clear, these detainees are held under the pretense that they are going to be deported (however they must first be processed). The valid criticism of ICE is that they are apparently detaining US citizens and the detention conditions are unsatisfactory, but it's not a question that it's illegal to enter the US to seek asylum.

I mean, there's a particular act that the government can't prosecute you for, can't punish you for, and can't take into consideration when making decisions about you, in what sense is that act illegal? That's getting into "if a tree falls in the forest..." territory.

"Illegal" is a well defined term. Punishment or lackthereof are irrelevant.

What about if you also can't be prosecuted or convicted for it?

Illegal immigration is a prosecutable offense replete with fines and prison sentences. As I understand it, a judge hears the cases and can sentence an individual to deportation, fines, or prison time depending on the defendant's circumstances. IANAL.

https://en.wikipedia.org/wiki/Immigration_and_Nationality_Ac...

I recommend reading up on Turcios v. INS and Akinmade v. INS. Both cases of refugees who lied to Customs and used false documents, and the court determined that is valid if fleeing persecution to seek asylum.

It would indeed be really interesting to understand how the court was able to rationalize that; INA is pretty explicit. In any case, I doubt typical "illegal immigration" can be meaningfully described as "fleeing persecution", and I say that with an abundance of sympathy for those garden variety illegal immigrants.

They didn't rationalize that because that's not what those cases were about. See my other reply to OP.

This is completely wrong. The court determined no such thing in either one of those cases. Both of these are cases in which the Ninth Circuit disagreed with findings made by the Board of Immigration Appeals in denying asylum relief and reversed said decisions. Insofar as passports/documents are referenced, it is in relation to testimonial credibility. Those decisions do not endorse or in any way legalize the use of false documents or the commission of illegal entry.

(Also, ninth circuit court holdings are only applicable in the ninth circuit.)

This is simply not true.

Okay, if they're asylum seekers and have valid reasons for claiming asylum, why are they trying to "hide" after crossing such that we're here discussing ICE, border camps, etc?

Most of the crossers aren't "technically" asylum seekers and more like economic migrants trying to look for a better life. They probably know this and so hide from border officials.

So one side of this debate wants to "include" economic migrants, and the other doesn't. If we can resolve this particular point, we can cut through all the hyperbole and emotion regarding the topic.

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