Dear Rep. Herrell

Here’s how seeking asylum works for everyone — including Canadian truckers

March 3, 2022 4:00 am

A sign at the U.S.-Canadian border (Getty Images)

I am not a person who normally peruses the headlines of Fox News. Yet last week, I clicked on a link: GOP lawmaker says U.S. should offer asylum to Canadian truckers after Trudeau’s ‘heavy-handed crackdown.’ I was lured in by the novelty of any GOP lawmaker suggesting the U.S. offer asylum to people and the fact that the lawmaker in question was New Mexico’s own Rep. Yvette Herrell. 

According to the report, Herrell intends to introduce legislation that would “temporarily grant asylum to innocent Canadian protesters who are being persecuted by their own government. After perusing Fox News and several other news articles for an explanation of this bill, beyond Herrell’s Twitter account I came up empty handed.

The first thing I want to explain to Herrell is that the truckers-turned-protesters already have an invitation to request asylum. It’s all laid out in U.S. law: 

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum …. 

It’s fairly straightforward. It means any person, including a Canadian protester, can come to the U.S. and ask for asylum. Any person on earth is allowed to show up and ask for it — although asking of course doesn’t mean that you qualify. 

But Herrell and the truckers face one problem: the U.S. borders are currently closed to asylum seekers due to a widely criticized public health order called Title 42. There is no way to line up at the ports of entry to request asylum. You have to cross between the ports and turn yourself into the nearest official from Customs and Border Protection. 

If Herrell wants to push to open up our borders and create laws that allow people to more easily assert their human right to claim protection from persecution, I am here for it.

Because of Title 42, the majority of people who now seek asylum end up being immediately turned back or even expelled directly to their countries of origin. So the chances that someone could even get into the country to seek their claim are slim.

But let’s imagine if a Canadian protester were allowed to stay and request asylum. 

The U.S. government has the discretion to separate him from his family, arrest them and put him into a vile for-profit immigration detention center for months on end.  There he would wait for a hearing with an immigration judge to defend the merits of his asylum claim. Free lawyers are hard to find and private ones charge upwards of $5,000 for a basic asylum case. If he manages to secure a bond out of detention — a judge can set it upwards of $10,000 —  he would have to pay in full to be released. 

This may sound harsh, but it is exactly how asylum-seekers are treated at our southern border. 

Perhaps he would be more lucky and would be allowed to enter the U.S. without being detained. 

He would then be enrolled in a surveillance program. It might require a GPS ankle monitor or house arrest. The government has to be certain that a person doesn’t abscond while their case is pending in immigration court. It’s a little unclear when that court hearing would be because there is a 1.6 million-case backlog in immigration court right now. I have multiple clients who have been waiting seven years for their hearings to complete.

It would be nice to say that the Canadian asylum-seeker could work as he sought refuge in our country. Under the law, he has a year to lodge his application for asylum. That can sometimes be tricky if a court hearing is delayed. 

Once that application is filed, he then has to wait 150 days before he  can apply for a work permit. Then it just depends on how quickly the government processes the  request. During all that time, the trucker  will have no way to work legally in the country and have to rely on friends and family for support, since there is no way to qualify for any kind of federal benefits. 

When he does finally make it to his hearing, if he wins, he has a year of asylee status, at which point the trucker can apply to be a legal permanent resident.

 I currently have a client who has been waiting for three years to have her residency application adjudicated. 

Once that is set though, in another five years, the Canadian trucker should be able to apply for citizenship and naturalize. In the 6-10 years while he waits to become a citizen, he will have limited access to benefits and no right to vote. 

Did I mention that during all of this, the protester wouldn’t be able to go back to Canada again, because he told our government that his life was in danger in Canada and they believed him?

Rep. Herrell likely knows we already have a process for seeking asylum that any Canadian is welcome to avail themselves of. 

It should come as no surprise that she is also on the record calling the surge of asylum-seekers to the south “Biden’s border crisis” and has called for the New Mexico National Guard to defend our state’s border from migrants carrying COVID-19. She depicts our asylum-seeking neighbors to the south as criminals who deserve to be met with military force and invites our neighbors to the north as political heroes who need the laws changed for their safety. The racism is staggering. 

Maybe she doesn’t know that U.S. asylum law doesn’t easily carve out exceptions for single nationalities with far-right political views. If Herrell wants to push to open up our borders and create laws that allow people to more easily assert their human right to claim protection from persecution, I am here for it. But it will have to include-asylum seekers from Haiti, Venezuela, Mexico, Ukraine, China, Turkey— well, every country on the Earth. 

But she doesn’t want more open borders. Herrell wants to send out a tweet about a nonsensical bill and bank on the fact that Fox News viewers don’t know the first thing about the substance and procedure of asylum law in spite of their constant attacks on migration at the southern border. 


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Allegra Love
Allegra Love

Allegra Love is an immigration attorney from Santa Fe. She is a graduate of Dartmouth College and the University of New Mexico School of Law. She is the founder of and former director of Santa Fe Dreamers Project, a legal services organization serving immigrants and refugees. She also worked at the El Paso Immigration Collaborative to represent detained asylum seekers in the Southwest.