If you came to the U.S. without permission, and are interested in applying for asylum, you might naturally be concerned about discussions of how illegal entry to the U.S. makes some people inadmissible—that is, unable to be approved for any type of visa, green card, or similar benefit. Could this indeed be a problem for you? And what if you entered through a border post, with permission from Customs and Border Protection (CBP), but you lied or used fake papers to do so?
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; for example, sneaked across the U.S. border. Huge numbers of past asylum applicants found that entering the U.S. without permission was their only or best way to get to safety and flee the persecution they faced at home.
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).)
Before you have a chance to submit your asylum application, however, you are at risk of removal; be sure to read What if ICE Arrests Me for Being Illegal Before I've Submitted My Asylum Application (Form I-589)?.
If you used false documents (such as a fake green card or visa or U.S. passport) or made false statements to a U.S. government official in order to gain entry into the United States, it should not be held against you when applying for asylum if your reason was connected to your flight from persecution. (See, for example, a court case called Mamouzian v. Ashcroft, 390 F.3d 1129, 1138 (9th Cir. 2004).)
This will be true for many asylum applicants, unless something changed after arrival in the U.S. (such as a regime change, or the person realizing that he or she is homosexual and would be persecuted upon return to the home country).
But even if your motivation for lying or using false documents at U.S. entry was to escape persecution, you will need to act carefully going forward. Be up front and honest about what you did when it comes time to apply for asylum or interact with U.S. immigration authorities. You will also need to stop using the false cards or documents for any purpose, such as working in the United States. (See Used a Fake Passport to Enter U.S.: Can I Still Apply for Asylum? for more guidance.)
The issue here is that your asylum case will rest largely on your own word—your story of what happened to you in the country you fled, and why you are too afraid to go back.
If the judge can't trust your word—that is, if you have acted in a way that makes the judge deciding your asylum case believe you are not “credible,” then the judge 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 may lead to deportation).
One year after being granted asylum in the U.S., you can apply for permanent residence (often called a green card). You may also, however, have read things about how an illegal entry to the U.S. makes it so that people are not allowed to adjust status here (apply for a green card within the U.S.) but must instead travel to a U.S. consulate to finish the application. That creates a trap for many people, because the time they lived unlawfully in the U.S. makes them inadmissible after they leave. They might not be able to return for three or ten years, depending on the length of their unlawful U.S. stay.
Fortunately, when you apply for your green card, illegal entry will not pose a problem. The Immigration and Nationality Act (I.N.A.) contains no requirement that asylees entered the U.S. lawfully in order to adjust status.
The main requirements for asylees seeking to adjust are that they have been physically present in the U.S. for at least one year after the grant of asylum, continue to meet the definition of a refugee, haven’t resettled in another country, and aren’t inadmissible. (See the federal regulations at 8 C.F.R. Section 1209.2.)
What’s more, U.S. immigration law specifically says that asylees are NOT subject to certain grounds of inadmissibility, including the one found at I.N.A. Section 209(7)(a), which requires other people applying for green cards to be in possession of either a “valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document.” So, your lack of a valid visa does not make you, as an asylee, inadmissible (though we haven't solved the false document problem yet; more on that below).
A related concern arises, however, if you entered illegally and spent six months or more in the United States before applying for asylum, and then later traveled outside the United States (most likely on a Refugee Travel Document). There’s a chance your departure and return could trigger your becoming inadmissible under the so-called Three- and Ten-Year Time Bars. In that case, you would need to apply for a “waiver” (legal forgiveness) in order to successfully adjust status. Consult an experienced immigration attorney for more information on this.
Now, as to the issue of false documents when you apply for a green card. If you used a false document to enter the U.S., that, in fact, might subject you to inadmissibility at the green-card application stage. 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.