Illegal Aliens Who Apply for Asylum Are Still Illegal Aliens

One of the tropes making its way through the media is that aliens who have entered the United States illegally and who have been placed into removal proceedings are in some sort of “legal” status. Like many media factualizations associated with immigration, it’s a myth. Nonetheless, I will parse the latest nonsense associated with what the editorial board at Bloomberg Opinion has termed “Biden’s Border Fiasco”.

The Said, and the Unsaid. In a September 25 opinion piece in the Los Angeles Times, columnist Michael Hiltzik stated:

GOP governors Ron DeSantis of Florida, Greg Abbott of Texas, and Doug Ducey of Arizona have been sponsoring bus and plane transfers of migrants from their states to northern jurisdictions including New York, Washington, D.C., and the island of Martha’s Vineyard, Mass.

The right-wing press has called the passengers “illegal immigrants,” but in many if not most cases they’re asylum-seekers who have completed the initial step in their processing by scheduling a hearing, getting fingerprinted, and undergoing background checks. While awaiting their hearings, they are in the U.S. legally.

Perhaps not trusting his own bona fides, three paragraphs later Hiltzik quoted an immigration attorney who asserted: “They’re not illegal aliens. … They’ve been processed, they’re in the system, they have upcoming court dates.”

There is a lot in both passage that is said, but much more that is unsaid, reflecting both the somewhat complicated nature of immigration law and the level of modern discourse.

The biggest unsaid is that “illegal immigrants” and “illegal aliens” aren’t legally defined terms. They’re shorthand to describe aliens who are removable from the United States, generally but not exclusively because they entered the United States illegally. I could correctly describe a nonimmigrant who has overstayed an authorized period of admission as an “illegal alien”, but in legal parlance would describe that individual as a “nonimmigrant overstay”.

Every alien who has entered the United States illegally is removable from the United States, at least until the moment that the alien is granted some sort of status here. To understand that point requires some background on the removal process.

Removability Based on Illegal Entry. Unless an alien apprehended by Border Patrol is allowed to voluntarily return back across the border, the alien should be issued a Form I-862 Notice to Appear (NTA). An NTA is the charging document in removal proceedings, which is similar to an indictment in a criminal case.

Aliens in removal proceedings are known as “respondents”, and blank Forms I-862 contain three boxes, one of which an immigration officer must first check to denote the respondent’s current status in the United States:

You are an arriving alien.

You are an alien present in the United States who has not been admitted or paroled.

You have been admitted to the United States, but are deportable for the reasons stated below.

Aliens who have entered the United States illegally and who are apprehended at entry are both “arriving aliens” and “applicants for admission” under section 235 of the Immigration and Nationality Act (INA), and at the time they are apprehended at least they have not been admitted or paroled —“parole” in this context is a concept I will explain further below.

After the immigration officer checks one of those boxes, the officer will then set forth on the NTA the allegations supporting the charges of inadmissibility. In the case of an illegal entrant, they generally read as follows:

1. You are not a citizen or national of the United States.
2. You are a native and citizen of Country X.
3. You entered the United States at or near Location Y in the United States on or about Date Z.
4. You were not then inspected or admitted.

Unlike criminal proceedings, where the government bears the burden of proving the defendant’s guilt, section 240(c)(2) of the INAprovides that applicants for admission — not DHS — bear the burden in removal proceedings to prove “clearly and beyond doubt” that they are “entitled to be admitted” and are not inadmissible under any of the grounds of inadmissibility in section 212(a) of the INA.   Read the entire post here at CIS.