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entry and reentry prosecutions can be at cross purposes with another goal of US
immigration law—the recognition and protection of genuine refugees.
Second, charging such individuals with illegal entry or reentry contravenes a fundamental
principle of international refugee law: asylum seekers should not be penalized for using
improper means to enter the country where they are seeking asylum. Article 31(1) of the
1951 Refugee Convention states, “The Contracting States shall not impose penalties, on
account of their illegal entry or presence, on refugees who, coming directly from a territory
where their life or freedom was threatened in the sense of Article 1, enter or are present in
their territory without authorization, provided they present themselves without delay to the
authorities and show good cause for their illegal entry or presence.” 169 The protections of
article 31 have been interpreted to include asylum seekers (those whose claims have not
yet been adjudicated) because it cannot be determined at the point of entry whether the
person qualifies as a refugee or not. 170
Ordinarily, when a US Border Patrol agent apprehends a non-citizen who expresses a fear
of returning to his or her native country, CBP is supposed to refer the individual to a US
Citizenship and Immigration Services asylum officer, who will provide a “credible fear
interview,” in which the non-citizen is given a chance to explain his or her fear. If the
person passes the credible fear interview, the case will be referred to an immigration judge
for proceedings to determine whether he or she should be granted asylum or another form
of relief under international law. 171 If an asylum seeker has been previously removed,
however, CBP would refer the person to a “reasonable fear interview,” which has a higher
standard of proof, but also allows the asylum seeker to eventually have his or her claim
reviewed by an immigration judge. 172
169 1951 Refugee Convention, art. 31(1) (emphasis added).
170 See United Nations High Commissioner for Refugees, “Guidelines on Applicable Criteria and Standards relating to the
Detention of Asylum Seekers,” February 26, 1999, http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=3c2b3f844
(accessed May 10, 2013).
171 US Citizenship and Immigration Services, “Obtaining Asylum in the United States,” last updated March 10, 2011,
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=dab9f067e3183210Vg
nVCM100000082ca60aRCRD&vgnextchannel=f39d3e4d77d73210VgnVCM100000082ca60aRCRD (accessed April 10, 2013).
172 US Citizenship and Immigration Services, “Questions & Answers: Reasonable Fear Screenings,” last updated September 4, 2009,
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b1b2549bf0683210Vg
nVCM100000082ca60aRCRD&vgnextchannel=f39d3e4d77d73210VgnVCM100000082ca60aRCRD (accessed April 10, 2013).
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