Migrants claiming asylum can be allowed into the U.S. Here's how it works

The heart of the debate over the U.S.-Mexico border is illegal immigration.

Yet that decades-old issue is complicated by hundreds of thousands of asylum-seekers claiming, under a process allowed by U.S. law, that they fear returning to their home countries.

Near the border this spring, NPR met a recent arrival who insisted that her entry was legal. She was at Casa Alitas, a cavernous shelter in Tucson, Ariz.

Yajaíra Peñaloza told us she arrived in the U.S. from Venezuela on Christmas Day last year.

"It was baby Jesus' gift," she said.

Neither she nor her travel companions had come with a visa, but Peñaloza had secured a court date in 2026 to request asylum. In the meantime, she said, she would try to find a job to support herself financially as soon as she received a federal work permit to do so.

"We are doing everything to be here legally, while we wait," Peñaloza said.

What describes the legal status of people such as Peñaloza?

NPR asked Muzaffar Chishti with the Migration Policy Institute. Our conversation follows.

This interview has been lightly edited for length and clarity.

Interview highlights

Steve Inskeep: This is someone that most Americans would think of as an "illegal immigrant" since she came here without a visa. She says, "I'm here legally. I'm following the legal process." So let's begin right there. Does someone in this situation have legal status?

Muzaffar Chishti: The quick answer is no. What she and most people who are arriving at the border are doing is that they are arriving without authorization to enter the United States. She's certainly showing up at a port of entry, which makes it different than between ports of entry. But she has an appointment. At the appointment, she is basically telling a Customs and Border Protection official, "I have fear of returning to my country." So she's being placed in what we call removal proceedings and given a date with a notice to appear at her removal proceeding.

During that time, she doesn't have any real status, but she can't be removed because she is showing up for an appointment to contest her removability. At that hearing — when she will be asked, "Do you have a remedy against removal?" — she'll say, "Yes, I'm seeking asylum," and that's when the asylum application kicks in.

Inskeep: Was the United States obliged to let her in at the port of entry when she showed up without a visa?

Chishti: Yes. Anyone on U.S. soil who expresses a fear of returning to their country on the basis of five protected classifications of U.N. protocol, we have the obligation to let them in to pursue their asylum applications.

[The five protected classes are race, religion, nationality, political opinion and membership in a particular social group.]

Inskeep: I understand that people from different countries may claim different kinds of status when they get to the United States. Does this person get anything special for being from Venezuela?

Chishti: Well, she would have had a much better status if she had applied from abroad. Four countries — which include Cuba, Haiti, Nicaragua and Venezuela — President Biden last year gave them an unusually special treatment that nationals of those countries can fly in directly to the U.S. under a provision called parole.

Parole is a status. Someone who arrives on parole has lawful status, and they're also authorized to work. She could have done that, [but] for that, you need a U.S. sponsor that will support you while you're here. She didn't do that, so she doesn't fall in that category. Therefore, she has no choice but to apply for asylum.

Inskeep: Does she have an opportunity to work legally during the couple of years she'll be waiting for a hearing in the United States?

Chishti: Under the law, once you put in an asylum application, within six months of that, you get the right to work.

Inskeep: Alejandro Mayorkas, the secretary of homeland security, was impeached by House Republicans earlier this year for allegedly overusing the power of parole — actively letting people into the United States. What is the power of parole?

Chishti: The power of parole is as old as at least World War II, when we let in most refugees fleeing from Europe to enter the United States — mostly Jewish and some Pentecostals. And [the] idea is that, in the absence of any other provision of the law which will allow someone to enter — like you don't have a student visa, you don't have an employment visa, you don't have a family visa — but the administration thinks it's in the U.S. interest to let that person in, parole authority is one important authority given to the administration. It's used for humanitarian purposes or for exigent circumstances.

It's true that this administration has used the parole authority more extensively than any administration, and that is under challenge. And we'll see how the courts rule on that.

Inskeep: Has it become very simple to get years in the United States simply by showing up in any fashion and saying, "I want asylum?"

Chishti: Well, that's true. That's sort of why many people think that the border crisis is actually an asylum crisis. That just invoking the word "asylum" then lets you enter the U.S. Then you are sent for a hearing, which may [not take place for] years. And then at the end of that hearing, even if you're not granted asylum, the chances of being removed are very low. All of those factors have become pull factors. So therefore, getting the asylum processing and adjudication under control, which means efficient and timely decisions, is critical to send a message that just because you want to invoke the word "asylum" doesn't mean you will stay in the U.S. for years on end.

Inskeep: You're saying there is a legal process. It can be followed. It plausibly even could work. But the number of people arriving has overwhelmed it.

Chishti: That's right. The only thing I would add is we have rules, regulations, resources and staffing for a border challenge of the 2008 era.

That was an era when the border challenge was single Mexican males trying to sneak their way into the United States. No element of the definition is true today. More people are non-Mexicans, more people are family units, and almost all are not sneaking in but asking for asylum. That fundamentally changes the nature of the challenge.

But we don't have the resources or the laws or regulations to meet that. And I think one of the ways to reduce the backlog is not to send new cases to immigration judges. It's an overwhelmed system. To send more cases to an already backlogged system is the definition of insanity. We believe that all new asylum cases should be sent to asylum officers who are civil servants trained in country conditions, and they can finish a case in months as against years. Only then can we make a real dent in the processing of asylum cases.

Inskeep: Muzaffar Chishti, thank you so much.

Chishti: Thanks so much for talking to me.

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