Can I apply for asylum if I was removed from the U.S. but came back illegally?

Although the law doesn't explicitly bar your application, this area of law is unclear, and you'll need a lawyer's help.

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Question

I am from Venezuela. Three years ago, I was deported from the U.S. because I was caught after overstaying my visa. When I returned to my country, I became involved in politics. But because of that, I became a target. So I had to flee. I came back to the U.S. last year (by crossing the Mexico border without being seen). Now I want to apply for asylum but I am afraid I won’t even get the chance because I was deported. Can I still apply?

Answer

You could certainly try applying for asylum. However, whether your application will be accepted (let alone approved) is a very difficult question, because this is not a very clear area of U.S. law.

On one hand, the part of the law that defines how people can become eligible for asylum does not explicitly bar applications by people who illegally reentered the country after having been ordered removed.

On the other hand, another part of the law explicitly says that noncitizens who reenter the U.S. after having been removed may not apply for any form of relief — which would presumably include asylum. At the same time, the U.S. government currently interprets this bar narrowly enough to comply with international laws that prohibit returning people to countries where their life or freedom might be in danger, or where they might be tortured.

This is why you should at the very least be able to obtain a “reasonable fear” interview with the Department of Homeland Security (DHS) to find out whether you might qualify for withholding of removal or protection under the United Nations Convention Against Torture. (Be aware, however, that doing so would probably entail exposing yourself to immediate detention and, perhaps, to summary removal — without a chance to defend yourself in immigration court.)

Perhaps you (or preferably your attorney) could argue that the law on asylum should similarly be interpreted in a way that would allow you to apply for protection in spite of your previous removal order and illegal reentry.

A close alternative would be to try to undo that removal order by reopening your previous immigration court proceedings. Since the events that led you to flee Venezuela took place after you were removed, you could in theory argue that your prior removal proceedings should be reopened based on changed country conditions. Be aware, however, that immigration judges would have considerable discretion to grant or deny your request (motion to reopen).

In sum, it is unclear whether or not you would be able to apply for asylum. But, at least, the arguments at your disposal do not seem “frivolous.”

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