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- Asylum-seekers may only apply if they are physically present in the country.
- A new Biden administration rule encourages asylum-seekers to apply in other countries before entering the U.S.
- Those who don’t apply elsewhere are less likely to be considered eligible for asylum, but they’re not breaking the law.
On Capitol Hill, a heated debate over immigration policy ended recently with a disagreement over how people should seek asylum in the United States.
U.S. Rep. Virginia Foxx, R-N.C., appeared before the House Rules committee July 17 to express support for H.R. 3941, known as the "Schools Not Shelters Act." The bill would prohibit schools that receive federal funds from sheltering immigrants who entered the country illegally.
When Rep. Jim McGovern, D-Mass., said that some migrants who need housing in the U.S. are asylum seekers, Foxx suggested that those asylum seekers hadn’t followed the proper legal process:
"No, no, no, no. They apply for asylum in the country where they are, and then they try to come into the United States. They don't come into the United States first, and then apply for asylum. No. We’re not going to support breaking the law," Foxx said.
Foxx’s claim was vague and could give people the wrong impression about how the U.S. asylum process works.
In the U.S., asylum is a legal protection that can be granted to people who have been persecuted — or who fear they will be persecuted — in their home nations because of their race, religion, nationality, political views or membership in a particular social group. Immigrants granted asylum in the U.S. are allowed to stay in the country.
During the hearing, McGovern understood Foxx to be saying that U.S.-bound migrants were required to complete their U.S. asylum application before arriving at the border. McGovern said that wasn’t correct.
"Under current law, you can apply for asylum if you present yourself at the border," he said.
The U.S. Citizenship and Immigration Services website states that asylum seekers may only apply if they are physically in the U.S.
When contacted by PolitiFact North Carolina, Foxx’s office cited a new asylum rule the Biden administration implemented in May.
"(Her) reference to breaking the law was regarding migrants who do not seek asylum in another country and instead enter the United States — thereby violating, and bypassing, the restrictions the Biden administration implemented," said Alex Ives, the representative’s communications director.
While PolitiFact was investigating this claim, a federal judge on July 25 blocked the asylum rule cited by Foxx. It had been challenged by immigrant rights groups that claimed the rule violated U.S. law protecting asylum seekers. The judge left the rule in place for two weeks to give the Biden administration time to appeal, the Associated Press reported.
Under the rule, noncitizens are generally presumed ineligible for asylum if they cross unauthorized into the U.S. through the country’s southwest border or adjacent coastal borders. But there are exceptions, including one for noncitizens who applied for and were denied asylum in a third country while en route to the United States.
Aaron Reichlin-Melnick, policy director at the American Immigration Council, said Foxx may have "misunderstood" the Biden administration’s new rule.
"The restrictions do not make it illegal to apply for asylum nor do they require someone to apply for asylum in a third country. ... Individuals can still enter and seek asylum, but the rule makes establishing eligibility more difficult," Reichlin-Melnick said.
People deemed ineligible for asylum are not automatically sent away, Reichlin-Melnick said, adding that they may still be able to request an alternate form of humanitarian protection known as "withholding of removal."
Immigrants seeking asylum are usually interviewed by officers who determine whether they have a "credible fear" of being persecuted in their home countries. Under the new rule, which PolitiFact reported on in March, immigrants presumed ineligible must prove they have a "reasonable fear" of persecution in their home country.
"It raises the bar by which you would argue for asylum, but it is still theoretically possible" to meet it, Rick Su, a University of North Carolina School of Law professor, previously told PolitiFact.
The new rule is meant to reduce overcrowding at the southern U.S. border, streamline the processing system and discourage migrant use of human smuggling networks, according to the rule published in the Federal Register. The Biden administration implemented it after the May expiration of Title 42, a separate rule that allowed immigration authorities to reject more migrants during the coronavirus pandemic.
In the four weeks after the new rule was implemented, immigration officers started the interview process with 46% of single adults who sought asylum because they had a "credible fear" of dangers back home, a Department of Homeland Security spokesman said. That’s down from 83% during the pre-pandemic period of 2014 to 2019.
The new Biden rule allows for other exceptions. Unaccompanied children are exempted and thus are not presumed ineligible for asylum. Adult migrants can also rebut the presumption of ineligibility if they faced an acute medical emergency or if someone has threatened their safety.
The new rule also encourages migrants to use "CBP One," a mobile phone app developed by the U.S. Customs and Border Protection agency, to schedule appointments with asylum officers before arriving in the country. Exceptions are made for asylum seekers who demonstrate that they can’t access the app or use it because of a language barrier, illiteracy, or technical failure. The Biden administration briefly paused CBP One use after learning that cartels were kidnapping asylum seekers and using the appointments as leverage for bribes, The Associated Press and Reuters reported.
It is not against the law to apply for asylum on U.S. soil, as Foxx suggested; That is what the law says must be done.
A separate immigration process allows people to come into the United States as refugees. People must apply for the U.S. refugee program from outside the United States, pass biometric and biographical background checks and be interviewed by U.S. Citizenship and Immigration Services officers overseas. This is different from the asylum process.
In his July 25 ruling, U.S. District Judge Jon S. Tigar said the rule runs "contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum."
Tigar referred to the rule as "arbitrary and capricious" because it "relies on the availability of other pathways for migration to the United States, which Congress did not intend the agencies to consider in promulgating additional conditions for asylum eligibility."
The rule is set to expire in May 2025, but it could end sooner if the Biden administration can’t successfully appeal the ruling. Critics have argued that the rule also violates international law.
"International law stipulates that asylum seekers should not be penalized for entering a country illegally for the purpose of claiming asylum and under U.S. law, a person may be granted asylum regardless of their manner of entry," said Kathleen Bush-Joseph, a policy analyst for the Migration Policy Institute, a nonpartisan think tank in Washington, D.C.
Foxx said immigrants "apply for asylum in the country where they are, and then they try to come into the United States. They don't come into the United States first, and then apply for asylum," and she suggested that the latter scenario would breach U.S. immigration law.
Foxx’s statement is based on a new, temporary Biden administration rule, but it ignores the requirements of federal law. Migrants must be physically present in the U.S. to apply for asylum, according to the Department of Homeland Security.
The new rule encourages migrants to seek asylum in another nation before seeking it in the U.S. — but that doesn’t mean they’re petitioning U.S. asylum in that country. The rule aims to have fewer people apply for asylum in the U.S. if they are granted asylum elsewhere.
The rule also encourages migrants to use a mobile phone app to make appointments with asylum officers based at a port of entry rather than showing up unannounced.
Migrants who don’t follow those steps aren’t always barred from entry. They can still have their asylum claims heard — and be released into the U.S. — even if they don’t follow the Biden administration’s guidance. Also, some immigration experts, believing the new rules still violate asylum seekers’ rights, are challenging the rules in court.
Foxx’s statement misrepresents how the new rule and the asylum process work, we rate it False.
Email exchange with Alex Ives, communications director for U.S. Rep. Virginia Foxx.
Email exchange with Naree Ketudat, spokesperson for the Department of Homeland Security.
Email exchange with Aaron Reichlin-Melnick, policy director at the American Immigration Council.
Email exchange with Kathleen Bush-Joseph, a policy analyst for the Migration Policy Institute.
PolitiFact, "Title 42 expiration: What's next for migrants applying for asylum at US’ southern border?" May 8, 2023; "How does Joe Biden’s proposed asylum rule differ from Donald Trump’s ‘transit ban’?" March 2, 2023; "No, immigrants cannot apply for asylum at U.S. embassies or consulates abroad," July 10, 2018.
U.S. Citizenship and Immigration Services, Asylum, last reviewed/updated May 11, 2023.
U.S. Citizenship and Immigration Services fact sheet, Circumvention of Lawful Pathways Final Rule, last updated May 11, 2023.
U.S. code 8 USC 1158: Asylum.
National Archives Federal Register, "Circumvention of Lawful Pathways," May 16, 2023.
Congressional Research Service, "The Biden Administration’s Final Rule on Arriving Aliens Seeking Asylum," May 15, 2023.
Congressional Research Service, "An Overview of the Statutory Bars to Asylum:
Limitations on Applying for Asylum (Part One)," Sept. 7, 2022.
NPR, "New U.S. immigration rules send asylum requests soaring in Mexico," June 6, 2023.
Blog by Jeffrey S. Chase, "Biden’s asylum bar," July 5, 2023.
Migration Policy Institute, "U.S. Border Asylum Policy Enters New Territory Post-Title 42," May 25, 2023.
Los Angeles Times, "U.S. is rejecting asylum seekers at much higher rates under new Biden policy," June 20, 2023.
Amnesty International report, "USA: mandatory use of CBP One application violates the right to seek asylum," May 2023.
Associated Press, "A judge blocks limits on asylum at US-Mexico border but gives Biden administration time to appeal," July 25, 2023; "US halts online asylum appointments at Texas crossing after extortion warnings," June 12, 2023.
Reuters, "U.S. restarts asylum appointments at Mexico border town despite extortion threat," June 28, 2023.
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