Must I apply for asylum in the country my plane first lands in, or can I wait and apply in the U.S.?

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Question:

I’ve got a visa to study in the U.S. for a year, and am about to buy my plane reservations. But if conditions don’t improve for my family in my home country before it’s time for me to go back, I may have to apply for asylum in the United States. A friend, however, told me that asylum seekers must apply at the first country where they stop. Is this true? Do I need to worry about where my plane stops en route?

Answer:

Your friend is overstating the law, at least in the United States. Section 208 of the Immigration and Nationality Act (I.N.A.) does say that the U.S. government can send an asylum applicant to another country that offers a “full and fair procedure for determining a claim to asylum or equivalent temporary protection” where the U.S. has signed an agreement with that country. But the U.S. has signed such an agreement only with Canada. What’s more, it applies only to applicants who first land in Canada and then arrive at a U.S. land border.

(By the way, the reverse is also true – if someone travels first to the U.S., then heads to the land border with Canada and requests asylum there, the Canadian government will refuse to hear the request.)

So as long as someone flies all the way to the U.S., rather than entering at the border, this “safe third country” portion of the law would not block his or her eligibility for asylum in the United States. It sounds like that is not your plan – and like you plan to wait until you are in the U.S., rather than at the port of entry, to apply for asylum, which happens to be a good idea, to avoid the possibility of expedited removal.

For more information on how to apply, see the “Asylum & Refugee Status” section of Nolo’s website.

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