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If someone comes to America seeking asylum, the first step is for them to have a Credible Fear interview with a USCIS Asylum Officer to find out if they have a credible fear of persecution if they return to their home country, and thus are likely to be granted asylum. If they pass their interview, then as per the ICE Parole Directive they’re considered for parole pending their asylum hearing. But under the Trump Administration, nearly all asylum seekers are being detained rather than released on parole, regardless of whether they passed their Credible Fear interview.

In response to a lawsuit regarding this, US District Judge Boasberg just ruled that the Trump administration has to return to following the ICE Parole Directive. My question is, how does this ruling affect asylum seekers caught crossing the border illegally?

The Trump administration has instituted a “zero tolerance policy” under which DOJ criminally prosecutes everyone caught crossing the border illegally, and President Trump just issued an executive order detaining people in DHS custody as they await criminal prosecution for illegal entry. So how does this order change things? If an asylum seeker is in DHS custody awaiting criminal prosecution and they pass a Credible Fear interview, would they be eligible for parole?

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My question is, how does this ruling affect asylum seekers caught crossing the border illegally?

If they are entitled to asylum, their border crossing wasn't illegal.

So how does this order change things? If an asylum seeker is in DHS custody awaiting criminal prosecution and they pass a Credible Fear interview, would they be eligible for parole?

Yes. They would be entitled to pre-hearing release if they pass a credible fear interview and they are not deemed a flight risk or a threat to the public. This would be quite extended because there is a huge backlog of hearings set many, many months and even years out.

  • “If they are entitled to asylum, their border crossing wasn't illegal.” If asylum seekers present themselves at a port of entry, then it’s not illegal. But if asylum seekers cross at a random point on the border, that is illegal. The Trump administration has been criminally prosecuting such people and putting them in federal jail while they await criminal prosecution. But now the new executive order has them detained in DHS custody while they await criminal prosecution. – Keshav Srinivasan Jul 3 '18 at 16:31
  • In any case, can you provide some evidence that this order affects asylum seekers facing criminal prosecution, as opposed to just waiting for asylum hearings? – Keshav Srinivasan Jul 3 '18 at 16:33
  • "But if asylum seekers cross at a random point on the border, that is illegal." What is your basis for this claim? "can you provide some evidence that this order affects asylum seekers facing criminal prosecution, as opposed to just waiting for asylum hearings?" The opinion says so. – ohwilleke Jul 3 '18 at 16:39
  • At least, the opinion taken together with the "zero tolerance policy" which has led to the parole change which charges everyone who crosses the border without a visa with a crime. The opinion says it affects all post-policy asylum seekers and under zero tolerance all of them have been criminally charged. – ohwilleke Jul 3 '18 at 16:48
  • @KeshavSrinivasan: While it may (or may not; I would not be surprised if there was an exception in the law for those who are granted asylum) be illegal for an alien to enter the US without passing through a port of entry, per 8 U.S. Code § 1225, a non-admitted alien need not pass through a port of entry to claim asylum (and the protections of doing so). – sharur Jan 24 at 0:16

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