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U.S. laws and treaties allow people who fear harm in their home countries to seek asylum. They are lawfully present while they wait for their immigration hearings, though they have no permanent legal status.
A Biden administration rule limits the situations in which people can seek asylum.
Immigration courts are backlogged, and people who are seeking asylum may not have their cases decided for years.
During a recent appearance at the University at Buffalo, Gov. Kathy Hochul was asked about migrants arriving in upstate counties reportedly with little warning and whether they would soon arrive in other communities.
She said they had a legal right to be in America and seek asylum.
"A lot of people are saying the sky is falling before anything has even happened," Hochul told reporters. "The vast, vast majority of these people (are) simply seeking legal humanitarian relief. They’re here legally. They’re absolutely here legally. They have a right to seek asylum in this country based on what they’ve had to endure in their home countries."
Fox News took notice, seizing on the "legally" part.
"Hochul defends NYC controversial migrant bussing program as lawsuits mount: 'They're absolutely here legally,’" read a headline on the cable news site.
Upstate officials have criticized how the Biden and Hochul administrations have handled migrant arrivals in New York, and some have tried to block them from heading from New York City to their communities. New York City has sued more than 30 local governments, mostly upstate counties, that have fought plans to locate migrants within their borders, calling the moves unconstitutional.
Because her comment made national news, and because this issue is so contentious, we asked experts whether the governor is correct that migrants who have come over the U.S. southern border and have arrived in New York state are "absolutely here legally."
We spoke with six experts in immigration law, and they all told us that although it’s impossible to know the status of every migrant, U.S. laws and treaties state that people who have a credible fear of returning to their home countries have the right to cross the border and seek asylum. They also pointed to a Biden administration rule that took effect May 11 and limits the circumstances in which people seek asylum. That rule is being challenged in court by parties who take opposite views: Some think it is too strict; others think it is too lenient.
People seeking asylum must prove in court that they have suffered persecution or have a reasonable fear of future persecution, and that the government in their home country cannot protect them, said Jaclyn Kelley-Widmer, an immigration lawyer and associate clinical professor of law at Cornell Law School. The persecution definition comes from international agreements from 1951 and 1980, and states that it must be because of their race, religion, nationality, political opinion or their social group. The U.S. is also a party to the Convention Against Torture, which means that people who come here seeking asylum cannot be returned to their home country if they have at least a 50% chance of being tortured there, Kelley-Widmer said.
"People who cross the border and express their fear of what is happening in their home countries are absolutely here legally," she said.
Migrants who come to the United States to seek asylum are legally present here until their cases are heard and their asylum status is granted or denied. They do not have a permanent legal status while they wait, and criminal activity during their stay could lead to removal. If immigration authorities ultimately grant their asylum claims, the asylees can apply for a green card one year later.
People who present themselves to immigration authorities when they cross the U.S. border can be subject to expedited removal from the country during an initial interview, if they are determined not to have a credible fear of returning to their home countries. The new Biden rule states that people must have a "reasonable" possibility of persecution or torture, which is a higher bar.
If they pass an initial interview, they can be paroled into the country as they await their day in immigration court, though there is a yearslong backlog for asylum hearings.
Since we don’t know the status of every migrant in New York, we can’t rule on the veracity of Hochul’s statement. The Hochul administration did not respond to a request for evidence of her claim.
A new Biden administration rule introduced May 11, "Circumvention of Lawful Pathways," could prevent more people from obtaining asylum once they reach the United States. In general, the rule presumes that people who have crossed the U.S. southwest border at an unauthorized crossing are ineligible for asylum if they have not applied for asylum in one of the countries they traveled in or haven’t secured an asylum appointment on a government phone app, though there are some exceptions. Texas is suing to block the government phone app, which it says will make it easier for people to begin the process of seeking asylum who have no legal basis to do so, and also throw out the entire rule. The American Civil Liberties Union is also suing to block the rule, claiming that it unlawfully restricts asylum.
Meanwhile, more than 70,000 migrants have come to New York City in recent months, and more than 42,000 are being cared for by the city, Mayor Eric Adams said.
Since March 2020, border officials had used Title 42, a public health policy, to quickly expel people arriving at the southern border, essentially blocking their ability to apply for asylum.
Migrant crossings increased before Title 42 expired May 11, but have since fallen because of increased deportations, tighter asylum rules and enforcement in Central American countries, CBS News reported.
WBEN audio, "New York Gov. Kathy Hochul with an update on the potential for migrants to be housed in Erie County," posted May 31, 2023.
Email interview, Michelle Mittelstadt, director of communications, Migration Policy Institute, June 5, 2023.
CBS News, "Migrant border crossings drop from 10,000 to 4,400 per day after end of Title 42," May 17, 2023.
PolitiFact, "Title 42 expiration: What's next for migrants applying for asylum at US’ southern border?," May 8, 2023.
PolitiFact, "Ask PolitiFact: How does Joe Biden’s proposed asylum rule differ from Donald Trump’s ‘transit ban’?" March 2, 2023.
U.S. Department of Homeland Security, "Fact Sheet: Circumvention of Lawful Pathways Final Rule," May 11, 2023.
U.S. Department of Homeland Security, news release, "Border Encounters Remain Low as Biden-Harris Administration’s Comprehensive Plan to Manage the Border After Title 42 in Effect," June 6, 2023.
ABC News, "Texas, 19 other states sue Biden admin over migrant parole program," Jan. 25, 2023.
Associated Press, "Texas sues Biden administration over new app for migrants," May 24, 2023.
Los Angeles Times, "ACLU sues to block Biden policy limiting asylum at the southern border," May 11, 2023.
Email interview, Kevin Appleby, interim director, Center for Migration Studies, June 5, 2023.
Phone interview, Jaclyn Kelley-Widmer, associate clinical professor of law, Cornell Law School, June 6, 2023.
Email interview, Theresa Cardinal Brown, senior advisor, immigration and border policy, Bipartisan Policy Center, June 5, 2023.
Phone interview, David Bier, associate director of immigration studies, Cato Institute, June 6, 2023.
Phone interview, Claire R. Thomas, director, asylum clinic, assistant professor of law, New York Law School, June 6, 2023.
Code of Federal Regulations, Title 8, 1.3 "Lawfully present aliens for purposes of applying for Social Security benefits," as of June 6, 2023.
Congressional Research Service, "Immigration Consequences of Criminal Activity", May 28, 2021.