May I apply for asylum if I entered the U.S. illegally?

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Question:

I am originally from Ethiopia, but my family got me a visa to Mexico, and a couple days later, paid someone to smuggle me across the border into the United States. Now they tell me I should apply for asylum, but I have read that you cannot get a green card if you entered the U.S. illegally. Is it really okay for me to apply, or will I just get deported as a result?

Answer:

Unlike many other categories of applicants for immigration benefits, people seeking asylum in the U.S. are not barred by having made an illegal entry. Huge numbers of past asylum applicants found that entering the U.S. without permission was their only or best way to get to safety. The language of the Immigration and Nationality Act says “any alien” can apply for asylum if he or she is “physically present in the United States . . . irrespective of such alien’s status.” (See I.N.A. Section 208(a).) And, just to be clear, when you apply for your green card one year after receiving asylum, your illegal entry will not pose a problem at that time, either.

A related question, however, is whether you used false documents or made false statements to a U.S. government official in order to gain entry into the United States. If this was necessary as a way to flee persecution, it should not be held against you when applying for asylum. (See, for example, a court case called Mamouzian v. Ashcroft, 390 F.3d 1129, 1138 (9th Cir. 2004).)

But you will want to be up front and honest about what you did and stop using the false documents for any purpose. If you have acted in a way that makes the judge deciding your asylum case believe you are not “credible” or trustworthy, then he or she might disbelieve everything else you claim regarding your need for asylum, or find that you don’t deserve asylum as a matter of discretion. In such a situation, the judge is unlikely to grant your asylum case (which leads to deportation).

What’s more, after your asylum has been approved and when it comes to apply for your green card, you may be found “inadmissible” based on past fraud or misrepresentations. This can be overcome by applying for a “waiver” (legal forgiveness), but you’ll definitely want to get a lawyer’s help with this.

Instances have even occurred where a person was granted asylum and a green card despite the use of false documents but later prosecuted by the U.S. government for this very act. Again, consult a lawyer for the latest on this issue.

We should also mention that, if your fact pattern were a little different and you had actually settled in Mexico or applied for asylum there, you might be barred from applying for asylum in the United States. See “Bars to Receiving Asylum or Refugee Status” for more on this.

Speak to an experienced immigration attorney for a full analysis of your situation and for help in preparing the asylum application. If you cannot afford help, you may be able to get free or reduced-cost services from a nonprofit immigrant services organization or an attorney providing pro bono (volunteer) services.

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