I have been asked by VDARE.com editor Peter Brimelow to do an immigration explainer concerning an ongoing issue of controversy. It has become commonplace for supporters of the invasion of illegal aliens to make the false claim that illegal aliens who cross the border without inspection in violation of Title 8 United States Code Section 1324, Improper Entry By An Alien, are not illegal aliens because once they apply for asylum, the illegals become legal.

For example, Michael Hiltzik in the L.A. Times:

The right-wing press has called the passengers ”illegal immigrants,” but in many if not most cases they’re asylum-seekers who have completed the initial step in their processing by scheduling a hearing, getting fingerprinted, and undergoing background checks. While awaiting their hearings, they are in the U.S. legally.

[Immigrant transports’ dehumanizing history, September 25, 2022]

That is, as we call in the immigration law enforcement community, a lie. Let me explain. Aliens in the United States come in two statuses, legal and illegal. A legal alien is one who is inspected and admitted or paroled. An illegal alien is one who has entered the United States without inspection and admission or parole, or one who having been inspected and admitted or paroled fraudulently obtained admission, or one who violated the legal conditions upon admission or parole, such as unauthorized employment or overstaying the period of admission, the two most common violations of immigration law.

An alien who has entered the United States illegally is, if detained and arrested, either placed in removal proceedings before the Executive Office for Immigration Review (EOIR) or subject to Expedited Removal (ER). In the case of removal proceedings, an alien can raise a defense to deportation, including a claim of asylum, during his or her hearing before an Immigration Judge of the EOIR. In ER, an alien can make a claim of having a Credible Fear of persecution if returned to the nation of nationality and be referred to the Asylum Office of the U.S. Citizenship and Immigration Services (USCIS). In both cases, the alien in question remains an illegal alien until the legal process is completed.

The important fact that an alien who is in removal proceedings or has submitted a claim a Credible Fear to USCIS remains without any legal status in the United States. They are illegal aliens until an Immigration Judge enters a decision in their case. In the case of asylum claims by aliens arrested at the border or at a Port-of-Entry, the current practice is that if an Asylum Officer makes a Credible Fear finding, the alien is then still referred to the EOIR, though that current practice is changing to having the Asylum Office make a final decision on asylum claims.

In any event, the alien, who is required by law to remain in custody of the Department of Homeland Security (DHS), remains an illegal alien until a final decision by the EOIR that is not appealed by the government, or an administrative decision is entered granting asylum.

So, no, just applying for asylum does not make one a legal alien. The quickest way to silence anyone who claims that an asylum applicant is a legal alien, ask them this question: ”What is their status?” All aliens who are in the United States legally have a specific legal status commonly referred to as a Class of Admission (COA): Lawful Permanent Resident (green card holder) admitted on an Immigrant Visa, student admitted on an F-1 student Non-Immigrant Visa (NIV), business visitor admitted on a B-1 temporary business NIV, temporary skilled worker admitted on an H-1B employment based NIV, refugee admitted on an approved refugee application, etc.

All legal aliens have a COA. Illegal aliens do not. There is no COA for illegal alien, though in DHS records it is recoded as EWI, Entry Without Inspection, but that is not a legal status, but a mere record of how an alien entered the United States. EWI is not a legal status, but a descriptor only. It is not until a decision in the alien’s favor is made by DHS or by the EOIR concerning a claim for relief in removal proceeding or ER that an alien who enters illegally becomes a legal alien.

Until that decision, an alien arrested and placed in removal proceedings or ER remains an illegal alien. In fact, even under Biden Regime Administrative Amnesty, most asylum claims are rejected and the alien ordered deported. And that is the primary reason an illegal alien remains an illegal alien, even if making a claim of asylum for relief from removal, until the end of the process. While an alien may legally make a defensive claim of asylum in removal proceedings, there are other avenues of relief in removal proceedings, none of which make the alien legal, just that their legal remedies in removal proceedings remain open to them.

So, feel free to fact check any Open Borders advocates who claim illegal aliens become legal when making asylum claims. Open Borders advocates are either lying, just stupid, or are confusing a legal avenue of relief with legal status.

In any event, don’t let it pass. Give it to them good and hard.