Recently heard (CNN 7/5/18: interview of Rep. Tom Cole (R-Oklahoma)) that foreign nationals should go to the US consulate in their country to apply for asylum, as this is the correct method (and avoids having to make a dangerous journey). However, I had also recently read US customs and Immigration Service website

To obtain asylum through the affirmative asylum process you must be physically present in the United States. You may apply for asylum status regardless of how you arrived in the United States or your current immigration status.

That seems to contradict the notion that a foreign national might apply in their country of origin.

(I've posted this on Politics rather than Law SE, because it appears to be USCIS policy)

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    Is being in the consulate (for example in Guatemala City), equivalent to "physically present in the United States" ?
    – BobE
    Jul 5, 2018 at 12:42
  • While I don't know what the current status is for IS consulates, it's generally the case that a country's consulate or embassy is treated as an isolated part of their soverign territory, at least by the country it is located in. Note however that this is not nescecarrily the the case for all purposes that would require physical prescence in the country. Jul 5, 2018 at 17:28
  • Just on first reading that, is "affirmative asylum process" necessarily a term that encompasses all granting of asylum?
    – Wildcard
    Jul 6, 2018 at 1:28
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    @Wildcard Asylum applications can be either "affirmative" or "defensive". A defensive application for asylum occurs when you request asylum as a defense against removal from the U.S. For asylum processing to be defensive, you must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR). Generally you must have been captured improperly entering the US. OTOH, affirmative asylum applicants are those who present themselves at a point of entry or who are otherwise present "in country" legally. Both groups are applying, nothing granted
    – BobE
    Jul 6, 2018 at 2:32
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    @Ben Voigt: see [ uscis.gov/humanitarian/refugees-asylum] - particularily "Refugees are generally people outside of their country who are unable or unwilling to return home because they fear serious harm." The Rep said: go to the consulate in their country
    – BobE
    Jul 6, 2018 at 3:12

1 Answer 1


I'm sorry, but you heard a rumor.

Unfortunately, U.S. embassies and consulates cannot process requests for this form of protection because, under U.S. law, asylum seekers can apply only if they are physically present in the United States (or at least at a U.S. border or other point of entry).

There is a common misconception that U.S. embassies and consulates are basically the same as U.S. soil. It is true that international law protects national embassies and consulates from being destroyed, entered, or searched (without permission) by the government of the country where they are located (the host country). However, this does not give those embassies or consulates the full status of being part of their home nation’s territory. Therefore, U.S. law does not consider asylum seekers at U.S. embassies and consulates to be “physically present in the United States” (or at a U.S. border or point of entry).

Although it is a plenary power of the President to state where asylum seekers could go for processing, and applying at the US Consulate or Embassy in Mexico for example has been discussed, mostly on the right, as an alternative to illegal immigrants being coached to ask for asylum when they get caught crossing the border.

One can apply for Affirmative Asylum Processing through the mail, in effect, requesting a review before an immigration judge, or at a port of entry.

There might be another related process that does allow the requester to do so in the host country of the US embassy or Consulate, the US refugee admission program. Same source as above:

How to Obtain a Referral to the U.S. Refugees Admissions Program from a U.S. Embassy or Consulate

You might be eligible for an embassy or consulate referral to the U.S. Refugees Admissions Program, which is basically a request by the embassy or consulate that another U.S. government agency (the U.S. Department of Homeland Security or DHS) examine you to decide whether you should be allowed to enter the United States as a refugee (a form of long-term protection very similar to asylum status).

This option may be available to high-profile figures or other people personally known by U.S. diplomats. However, even if you meet this condition, you might still need a personal referral not just from any diplomat but from the ambassador him- or herself, simply because you are still in your home country.

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    @BobE Don't make this too much of an issue, the purpose of the house of representative is to permit lay person to serve in the legislature, i.e. non professional politicians. The senate is for the professional. The moral of the story is never believe what I rep says because they may only know a little bit more than the average person. This is by design Jul 5, 2018 at 14:23
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    @FrankCedeno There has been no distinction in the character of the people who serve in the House and the character of the people who serve in the Senate since at least the 17th Amendment and realistically before then. Senators are no more professional or skilled than Representatives. The evidence that there was ever a professional politician-lay person distinction in the U.S. Congress is very thin.
    – ohwilleke
    Jul 5, 2018 at 19:51
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    In the House you have a current member that thinks Guam could tip over if too many people were on one side of the island. So yes, there is a distinction in the quality of intelligence between the House and Senate. But both are populated by careerists. Career politicians doesn't correlate to quality.
    – user9790
    Jul 5, 2018 at 20:47
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    @ Frank Cedeno Tom Cole has been in politics since 1988, has been US rep. since 2003. Graduate Yale with Phd at U. OK. That sounds like a smart, skillfull, professional politician. Are you suggesting that he should be termed out so that he could be replaced by non-politician who has no understanding (skill or knowledge) of the workings of the Appropriations Committee?
    – BobE
    Jul 6, 2018 at 2:48
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    @ Frank Cedeno - OK, you are an advocate for term limits - what does that have to do with this question/answer ?
    – BobE
    Jul 7, 2018 at 14:59

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