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While lamenting family separations at the border and the perilous journey many immigrants take to come to the United States, Republican U.S. Rep. Raul Labrador said immigrants didn’t need to come to U.S. borders to make their asylum requests.
They could do so at a U.S. embassy or consulate abroad, Labrador, of Idaho, claimed.
In a June 27 opinion piece for the Idaho Statesman, Labrador criticized "catch-and-release" — the release of immigrants apprehended at the border, under the expectation that they will later show up to immigration court — saying it increased illegal immigration. Some immigrants coming to the United States illegally faced abuse, rape and even death in their journey, Labrador wrote.
"What makes these tragedies so unnecessary is there’s already a process in place for those who are legitimately seeking asylum," Labrador wrote. "They can show up at any embassy or consulate abroad or any U.S. port of entry to make their asylum claims."
Individuals can make asylum claims at U.S. ports of entry, but can they also make those claims at "any embassy or consulate abroad"?
No. Asylum claims must be made within the United States.
Asylum may be granted to individuals 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, according to U.S. Citizenship and Immigration Services.
U.S. law says that in general, "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."
Asylum seekers must generally apply for the protection within one year of their arrival to the United States.
"A U.S. consulate or embassy is clearly outside the U.S., so you can’t apply for asylum at a U.S. consulate or embassy," said Stephen H. Legomsky, an emeritus professor at the Washington University School of Law in St. Louis who served as chief counsel of U.S. Citizenship and Immigration Services from 2011 to 2013.
Going to a U.S. embassy or consulate does not count as being physically present in the United States for purposes of the asylum statute, said Deborah Anker, a clinical professor of law, founder and director of the Harvard Immigration and Refugee Clinical Program at Harvard Law School.
U.S. embassies serve as the headquarters for U.S. government representatives in foreign countries and are normally located in the country’s capital. Embassy branches (consulates) are in other cities. An embassy’s primary purpose is to assist American citizens who live or are traveling in the foreign country, though they may also provide visa services for people who want to come to the United States temporarily or permanently.
Scholars have noted that while there are special diplomatic provisions among countries when it comes to embassies and consulates, embassy grounds are not the territory of the sending country; rather, they remain territory of the host country.
Todd Winer, a spokesman for Labrador, said there’s already a legal process in place for those seeking asylum, "so there is no excuse for anyone trying to cross the border illegally." (According to U.S. law, immigrants can apply for asylum even if they enter the country illegally).
"True victims of persecution can show up at any U.S. port of entry to make their asylum claims. They can also submit their application online when in the U.S.," Winer said. "The Democrats’ charge that people need to illegally cross the border to gain asylum is what really needs to be fact-checked."
Some people may be confusing provisions for asylees and for refugees, said Karen Musalo, a professor and director of the Center for Gender & Refugee Studies at U.C. Hastings College of the Law.
While individuals applying for asylum must be in the United States, some individuals outside the United States can seek refugee protection there and enter the country as refugees, Musalo said.
Still, Musalo said, there are many conditions for the refugee program, including an annual cap on refugee entry.
The Trump administration plans to admit no more than 45,000 refugees from around the world in fiscal year 2018, which ends Sept. 30. The Obama administration set a cap of 110,000 for fiscal year 2017.
Labrador said immigrants "can show up at any embassy or consulate abroad" to make their asylum claims.
This assurance is completely wrong. Asylum seekers must be within the United States to apply for the protection, according to U.S. law. Immigration law experts affirmed that individuals cannot apply for asylum at a U.S. embassy or consulate abroad.
Labrador’s claim is inaccurate. We rate it False.
PolitiFact, Limit legal immigration, last updated Sept. 28, 2017
Idaho Statesman, Labrador: Change 'Catch and release' policy; don't encourage migrants to bring children, June 27, 2018
Twitter, @charliekirk11 tweet, June 21, 2018
NJ.com, Who says asylum seekers arrive here legally? U.S. laws do | Opinion, July 1, 2018
Vagazette.com, Work together for immigration solution, June 26, 2018
Email exchange, Todd Winer, July 9-10, 2018
U.S. Citizenship and Immigration Services, Refugees & Asylum, Last Reviewed/Updated: Nov. 12, 2015
U.S. Citizenship and Immigration Services, INA: ACT 208 - ASYLUM
U.S. Citizenship and Immigration Services, Asylum, Last Reviewed/Updated: Jan. 31, 2018
Foreignpolicy.com, State Department: The U.S. does not recognize the concept of ‘diplomatic asylum’, Aug. 17, 2012
U.S. State Department, Conventions on Diplomatic Asylum and OAS Permanent Council Meeting, Aug. 17, 2012
U.S. State Department, What is a U.S. embassy?
Email interview, Stephen H. Legomsky, an emeritus professor at the Washington University School of Law in St. Louis, July 6, 2018
Email interview, Deborah Anker, a clinical professor of law, founder and director of the Harvard Immigration and Refugee Clinical Program at Harvard Law School, July 8, 2018
Email interview, Jordan J. Paust, a law professor at the University of Houston, July 10, 2018
Email interview, Karen Musalo, a professor and director of the Center for Gender & Refugee Studies at U.C. Hastings College of the Law, July 6, 2018
New York Times, ; U.S. EMBASSIES ARE NOT U.S. TERRITORY, 1984
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