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How the asylum process works for those caught crossing the border illegally

Customs and Border Protection records show more people have been arrested at the southern border this year than any of the last three years.

AUSTIN, Texas — Border Patrol arrested more than 1.5 million people since Oct. 1, the start of the fiscal year. The people were caught crossing the border, not at a designated port of entry.

Customs officers detained 266,825 people. Of the 1.7 million, nearly 1.5 million were sent back under Title 42

“To help prevent the introduction of COVID-19 into border facilities and into the U.S., persons subject to the order will not be held in congregate areas for processing and instead will immediately be expelled to their country of last transit,” the Customs and Border Protection website shows.

On Thursday, a federal judge ordered the program to stop. People seeking asylum through immigration court hearings are allowed to stay in the country while their case is being decided.

The Immigration and Nationality Act shows anyone can apply for asylum. They need to be “physically present in the U.S.,” the Act shows.

Most unauthorized immigrants did not cross the southern border illegally. Pew Research Center shows most of the people unauthorized to be in the U.S. are here on an expired visa, called "overstay" visas.

Migrants enter the asylum process through one of two ways: affirmative or defensive. Affirmative process is for someone who is already living in the U.S., like people who overstayed their visas. Defensive process is for someone already in removal proceedings.

“You may apply for asylum regardless of how you arrived in the U.S. or your current immigration status,” the U.S. Citizen and Immigration Services website shows.

For the affirmative process, the individual is not in immigration court proceedings. They must file a Form I-589. All forms must be filled out in English.

A USCIS asylum officer will determine affirmative cases. Affirmative cases do not go through immigration court unless appealed. 

The defensive asylum process may include someone placed in removal proceedings by an asylum officer, for immigration violations, or was caught crossing the border without proper documents.

If the person crossed without documents, through a port of entry or entered illegally, they will be given a credible/reasonable fear interview. If found to have a credible/reasonable fear, the person may begin the asylum process through immigration court using the Form I-589.

An immigration judge will determine if the person gets asylum, and defensive cases may take longer. Immigration court is backlogged by nearly 1.4 million cases, TRAC Immigration statistics show. 

“I have clients who have been and will see things now for going on 10 years since 2012,” Kate Lincoln-Goldfinch, Austin immigration attorney, said.

Lincoln-Goldfinch is owner of Lincoln-Goldfinch Law and co-founder of VECINA, a nonprofit that mentors attorneys on how to take a pro-bono immigration case, even if they practice law outside the immigration field.

“Asylum seekers who come and ask for help or who are caught crossing in place in deportation proceedings go into the same court system as immigrants who are caught in a work raid or who are pulled over for driving without a license and placed into deportation proceedings,” Lincoln-Goldfinch said.

“Since DHS continues to file new cases at a higher pace than the courts can complete them, the Immigration Court backlog has increased by almost 100,000 cases since September 2020 at the end of the fiscal year 2020,” a July 28 TRAC report shows.

“If we want to speed up that process, we need to remove the people from the court system who don't belong there and give more recent resources to the immigration court, more judges, more efficient processes and online systems. It's a very arcane system,” Lincoln-Goldfinch said.

If qualified, a person may be able to work while they await their asylum determination.


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