Physical presence in the US for asylum seekers?



Recently heard (CNN 7/5/18: interview of Rep. Tom Cole (R-Oklahoma)) that foreign nationals should go to the US consulate in their country to apply for asylum, as this is the correct method (and avoids having to make a dangerous journey). However, I had also recently read US customs and Immigration Service website

To obtain asylum through the affirmative asylum process you must be physically present in the United States. You may apply for asylum status regardless of how you arrived in the United States or your current immigration status.

That seems to contradict the notion that a foreign national might apply in their country of origin.

(I've posted this on Politics rather than Law SE, because it appears to be USCIS policy)


Posted 2018-07-05T12:37:48.777

Reputation: 9 618

2Is being in the consulate (for example in Guatemala City), equivalent to "physically present in the United States" ? – BobE – 2018-07-05T12:42:03.700

While I don't know what the current status is for IS consulates, it's generally the case that a country's consulate or embassy is treated as an isolated part of their soverign territory, at least by the country it is located in. Note however that this is not nescecarrily the the case for all purposes that would require physical prescence in the country. – Austin Hemmelgarn – 2018-07-05T17:28:22.457

Just on first reading that, is "affirmative asylum process" necessarily a term that encompasses all granting of asylum? – Wildcard – 2018-07-06T01:28:14.523

2@Wildcard Asylum applications can be either "affirmative" or "defensive". A defensive application for asylum occurs when you request asylum as a defense against removal from the U.S. For asylum processing to be defensive, you must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR). Generally you must have been captured improperly entering the US. OTOH, affirmative asylum applicants are those who present themselves at a point of entry or who are otherwise present "in country" legally. Both groups are applying, nothing granted – BobE – 2018-07-06T02:32:18.783

The representative is not wrong, he is recommending that people obtain asylum through the refugee process, not the affirmative asylum process.. Foreign nationals can apply for asylum as refugees from outside the US, or for asylum as asylees from inside. There's a difference in how the paperwork is handled, but asylees have to meet refugee eligibility requirements, and both groups are eligible for the same benefits in the end. (Quote from the same website: "Asylum status is a form of protection available to people who: ... Meet the definition of refugee ...") – Ben Voigt – 2018-07-06T02:56:01.103

1@Ben Voigt: see [] - particularily "Refugees are generally people outside of their country who are unable or unwilling to return home because they fear serious harm." The Rep said: go to the consulate in their country – BobE – 2018-07-06T03:12:34.233

@AustinHemmelgam embassies and consulates are inviolable. That is, authorities of the receiving country may not enter them without permission of the sending country. But they are not "an isolated part of [the sending country's] soverign territory." That is a common misconception for which there is no basis in law. – phoog – 2018-07-07T04:15:22.260

@BobE you can (in theory at least) apply in your country to become a refugee; if you're accepted, you become a refugee once you leave your country. With regard to affirmative vs. defensive, it's entirely possible to be in deportation proceedings without having been caught entering illegally, indeed without having entered illegally, for example by overstaying a period of admission. And an affirmative asylum applicant needn't be in the country legally; he or she might just have applied before the government got around to starting deportation proceedings. – phoog – 2018-07-07T04:31:01.707

@phoog - are you referring to: "How to Obtain a Referral to the U.S. Refugees Admissions Program from a U.S. Embassy or Consulate" if so see [] - specially the suggestion that "This option may be available to high-profile figures or other people personally known by U.S. diplomats. However, even if you meet this condition, you might still need a personal referral not just from any diplomat but from the ambassador himself". So yes, technically possible but not generally available to commoners. – BobE – 2018-07-07T20:32:10.383

@BobE no, I was not referring to that. Most refugees are referred by UNHCR or a similar international agency, not by a US embassy or consulate. – phoog – 2018-07-08T02:20:26.770

@ phoog - asking for clarification - are the folks at the southern border (asking for asylum) refugees and included your "most refugees are..." . Or is there a distinction between asylum seekers who just appear at the POE and refugees? Thnx – BobE – 2018-07-08T15:35:13.857

Yes, "most refugees are" refers to people who enter the US in refugee status by prearrangement. Such people are referred to USRAP by UNHCR. They are normally in a third country, though, not their country of citizenship. People who move within their own country to escape persecution are called "internally displaced persons" or IDPs; they have fewer legal rights. What I don't know is whether UNHCR would serve someone who wants to escape persecution but hasn't yet left home, or who would serve such a person if not UNHCR. – phoog – 2018-07-09T17:14:45.783

@Phoog - I guess what I'm asking is this: Is the UNHCR (or other internationals) working with Guatemalans who are temporarily in Mexico and seeking asylum in US? The context of the discussion with Rep. Cole was relative to those who have fled from Guatemala (and H. & El S.) . Thnx – BobE – 2018-07-10T00:25:39.883



I'm sorry, but you heard a rumor.

Unfortunately, U.S. embassies and consulates cannot process requests for this form of protection because, under U.S. law, asylum seekers can apply only if they are physically present in the United States (or at least at a U.S. border or other point of entry).

There is a common misconception that U.S. embassies and consulates are basically the same as U.S. soil. It is true that international law protects national embassies and consulates from being destroyed, entered, or searched (without permission) by the government of the country where they are located (the host country). However, this does not give those embassies or consulates the full status of being part of their home nation’s territory. Therefore, U.S. law does not consider asylum seekers at U.S. embassies and consulates to be “physically present in the United States” (or at a U.S. border or point of entry).

Although it is a plenary power of the President to state where asylum seekers could go for processing, and applying at the US Consulate or Embassy in Mexico for example has been discussed, mostly on the right, as an alternative to illegal immigrants being coached to ask for asylum when they get caught crossing the border.

One can apply for Affirmative Asylum Processing through the mail, in effect, requesting a review before an immigration judge, or at a port of entry.

There might be another related process that does allow the requester to do so in the host country of the US embassy or Consulate, the US refugee admission program. Same source as above:

How to Obtain a Referral to the U.S. Refugees Admissions Program from a U.S. Embassy or Consulate

You might be eligible for an embassy or consulate referral to the U.S. Refugees Admissions Program, which is basically a request by the embassy or consulate that another U.S. government agency (the U.S. Department of Homeland Security or DHS) examine you to decide whether you should be allowed to enter the United States as a refugee (a form of long-term protection very similar to asylum status).

This option may be available to high-profile figures or other people personally known by U.S. diplomats. However, even if you meet this condition, you might still need a personal referral not just from any diplomat but from the ambassador him- or herself, simply because you are still in your home country.

K Dog

Posted 2018-07-05T12:37:48.777

Reputation: 1

1@K Dog, I've edited my question to reflect where I heard the information. I'll look for a transcript, but it is worrisome that legislators may not know the "facts". – BobE – 2018-07-05T13:51:26.087

5@BobE Don't make this too much of an issue, the purpose of the house of representative is to permit lay person to serve in the legislature, i.e. non professional politicians. The senate is for the professional. The moral of the story is never believe what I rep says because they may only know a little bit more than the average person. This is by design – Frank Cedeno – 2018-07-05T14:23:04.590

12@FrankCedeno There has been no distinction in the character of the people who serve in the House and the character of the people who serve in the Senate since at least the 17th Amendment and realistically before then. Senators are no more professional or skilled than Representatives. The evidence that there was ever a professional politician-lay person distinction in the U.S. Congress is very thin. – ohwilleke – 2018-07-05T19:51:07.680

2In the House you have a current member that thinks Guam could tip over if too many people were on one side of the island. So yes, there is a distinction in the quality of intelligence between the House and Senate. But both are populated by careerists. Career politicians doesn't correlate to quality. – K Dog – 2018-07-05T20:47:05.753

@ohwilleke I did not mean to be argumentative, What I'm saying is that there are farmers, doctors, news casters, sports legends and other non-politicians in the House. I am not putting anyone down. For example, I am really good at writing code, but I cannot design a house. It's not about smarts but skills. If I built a house I would die when the roof collapse on me. That being said, the House is important to stay out of the hands of career Politicians. Term Limits!! – Frank Cedeno – 2018-07-06T02:28:27.223

3@ Frank Cedeno Tom Cole has been in politics since 1988, has been US rep. since 2003. Graduate Yale with Phd at U. OK. That sounds like a smart, skillfull, professional politician. Are you suggesting that he should be termed out so that he could be replaced by non-politician who has no understanding (skill or knowledge) of the workings of the Appropriations Committee? – BobE – 2018-07-06T02:48:51.343

1@FrankCedeno there have also been farmers and doctors and the like in the senate. – phoog – 2018-07-07T04:22:49.303

@BobE I'm not suggesting that membership is restrictive nor is it exclusive. There is a tendency in the house to be a novice politician hence the 2 year term. Further this was the intention of the founding fathers. To put it simply, prof. politician in the house = bad, prof. politicians should move up to the senate. in the end, it's up to he voters who reps them. once they are in congress, no one can do anything about it, so complaining is all I have – Frank Cedeno – 2018-07-07T13:09:19.810

2@ Frank Cedeno - OK, you are an advocate for term limits - what does that have to do with this question/answer ? – BobE – 2018-07-07T14:59:34.977

1@FrankCedeno what relationship does the 2-year term have with any purported tendency for representatives to be "novice" politicians? The debate in the constitutional convention was not about professional vs. novice politicians, but about the balance between the accountability to the people inherent in frequent elections, on one hand, against the stability inherent in infrequent elections, on the other. If a representative keeps his or her constituents happy for 15 terms, there's nothing contradicting the spirit of the founders. – phoog – 2018-07-09T17:32:27.240

@phoog I do agree that the convention was based on the 3 questions of representations: bicameralism, mode of election and proportion of representation. However, from the debates on mode of election it can be inferred that the reps should be of the people. In Col. Mason's words, "[Reps should...] this as the think & feel as they feel; and that for these purposes should even reside among them". The possible interpretation including the short term also allows the butcher, the baker and the candle stick maker to serve his country and be able to return to his business – Frank Cedeno – 2018-07-10T17:14:49.897