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The state of Texas has implemented measures to discourage or prevent border crossings outside the legal ports of entry.

I have a number of related questions regarding the border situation, which is why I ask them in one post.

  1. Can a non-Mexican simply walk up to the U.S. side of a legal "port of entry"?
  2. Because the U.S. officer there is on U.S. soil: Could they claim asylum there and be processed in the U.S. without being sent back?
  3. If the answers to the above are "yes": Do illegal border crossings, e.g. across the Rio Grande, indicate that the migrants do not intend to claim asylum?
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  • I wouldn't count this as an answer, but The US-Mexico border in a post-Title 42 world - The Take (podcast) | Listen Notes, AlJazeera, dated May 18, 2023, talks, at fair length, about the US border agency trying to impose its smartphone app as the way to apply for asylum. As in, "don't bother if not thru app". Or maybe at least "try the app first". Worth a listen if that's of interest. Aug 24, 2023 at 22:49
  • Aren't the two first questions rather for law.stackexchange.com?
    – J-J-J
    Aug 27, 2023 at 9:08
  • @J-J-J I wondered that, too. But some or most of the border situation seems to be defined by the executive (governor/president) rather than law-making, and in it all comes down to the third question anyway: Why do people cross in dangerous and illegal ways?, which is not a law question. Aug 27, 2023 at 9:29

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Can a non-Mexican simply walk up to the American side of a legal "port of entry"?

I find the phrase "American side of a port of entry" confusing, but perhaps this will answer the question: anyone who is in Mexico, regardless of nationality, can approach a US port of entry as a pedestrian (provided that the port of entry permits pedestrian traffic; not all do).

Because the U.S. officer there is on U.S. soil: Could they claim asylum there and be processed in the U.S. without being sent back?

That is traditionally how it is supposed to work, but in the last few years US policy has been to make them wait in Mexico.

If the answers to the above are "yes": Do illegal border crossings, e.g. across the Rio Grande, indicate that the migrants do not intend to claim asylum?

Of course not. There are many reasons why someone who intends to claim asylum might cross the border outside of a port of entry. The asylum seeker might believe that claiming asylum is not possible at a port of entry, or that attempting to claim asylum at a port of entry could result in being forced to wait for several months in Mexico. These beliefs would influence the asylum seeker's choices whether they were correct or not.

Another point to be made is that the refugee convention explicitly contemplates irregular border crossing:

ARTICLE 31. REFUGEES UNLAWFULLY IN THE COUNTRY OF REFUGE

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.

It does not make sense to infer from an action that is consistent with this article that the person undertaking the action could not have intended to seek asylum.

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    Regarding article 31: Even though there is gang violence, Mexico is not a failed state and most people just go about their lives. I'd not consider Mexico a territory "where [the refugees'] life or freedom was threatened in the sense of Article 1", so the quoted Article 31 which demands "directly" does not apply. Aug 24, 2023 at 8:54
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    "That is traditionally how it is supposed to work..." Not true. 'Traditionally', and according to international treaty (Article 26 - Geneva conventions), only someone who is directly leaving a country in which they are facing persecution can claim asylum at a border of a 'safe' country. Otherwise they are expected to declare asylum in the first 'safe' country they reach. If they are not Mexican, then the moment they approach the Mexican border, then they should request asylum there. If Mexican, then they should prove that they are facing persecution from the government of Mexico.
    – ouflak
    Aug 24, 2023 at 11:10
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    @ouflak Article 26 of which Geneva convention? Anyway I did some research on the safe third country provision of US law, which was enacted in 1996. It is 8 USC 1158(a)(2)(A). It does not say "expected to declare asylum in the first 'safe' country they reach" but is rather conditioned on the ability to remove the person to (e.g.) Mexico, which requires (e.g.) Mexico's agreement. The 9th circuit's analysis: jurist.org/news/2020/07/…
    – phoog
    Aug 24, 2023 at 11:54
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    @ouflak If you google "asylum cases U.S. 2020" (or some other recent year, I tried 2019 and 2018), the first hit (for me) is a PDF from the DHS that appears to contain all the numbers. Given how bureaucratic data processing works (my guess: by manually entering numbers from faxes into Excel tables which are then communicated by phone, or the like) the most recent numbers are from 2021. Aug 24, 2023 at 12:51
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    @ouflak the data do not seem to indicate how the asylum applicants entered the US, however, whether by crossing the border illegally, applying at a port of entry, or entering legally with a visa, much less whether they entered through Mexico. So it won't be possible to be very precise. Regardless, we know the third-country principle did not apply before 1996 and the way it's presented in the current law requires an agreement with a third country to accept removed asylum applicants. E.g. tables 17 and 19 at dhs.gov/immigration-statistics/yearbook/2019
    – phoog
    Aug 25, 2023 at 14:56

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