Every year, thousands of people come to the United States seeking asylum. Asylum is given to those individuals fleeing persecution on account of their race, religion, national origin, political opinion, or membership in a particular social group. A person seeking asylum must do so within a year of his or her arrival in the United States. Those granted asylum must stay in that status for 1 year before they are allowed to file for lawful permanent residency status. Although the standard asylum seekers must meet is governed by the law defining refugee, asylum status differs from refugee status in that people seeking asylum file applications from within the United States or at the border, while refugees are identified and file for refugee status while outside of the United States. However, in both categories applicants must prove that they qualify under one of the previously listed categories of persecution.
There are two pathways to asylum: affirmative and defensive. The affirmative process is when an applicant seeks asylum by filing his or her own application with the United States Citizenship and Immigration Services (USCIS). The asylum seeker affirmatively initiates contact with the Department of Homeland Security (DHS). The asylum seeker has not been picked up by DHS and placed in immigration removal (formerly deportation) proceedings before an immigration judge. The defensive process involves applicants who are in removal proceedings. These applicants must request asylum before an immigration judge during these proceedings.
Applicants fill out a USCIS application form, attach relevant supporting material/documents, and send it to the USCIS Service Center that has jurisdiction over their place of residence. Asylum applicants may also include applications for their spouse and/or children in their applications. Once the Service Center has received the forms, it will send the applicant a notice acknowledging receipt of the application. Applicants then go through a security check. After the applicant passes the background check, interviews are scheduled with an asylum officer. If an applicant is applying for others as well (e.g., his or her spouse and/or children), then the others must also attend the interview. In this interview, the applicant must prove that he or she meets the definition of refugee. To do so the applicant must prove that he or she was persecuted on account of race, religion, nationality, political opinion, or membership in a particular social group. After the asylum officer has a chance to review and discuss the interview with supervisory officers, the applicant returns to the asylum office to receive a decision. If asylum is approved, the applicant receives a final approval letter. If asylum is denied, the applicant will either be referred to an immigration court for removal or receive a notice of intent to deny asylum. The decision on whether to send an applicant to immigration court depends on what his or her immigration status is at the time asylum is denied.
Immigration judges hear asylum applications in the context of “defensive” asylum proceedings where applicants request asylum as a defense against removal from the United States. Immigration judges hear such cases in courtroom-like proceedings. The immigration judge hears both the applicant’s side and the government’s side of the case, and then makes a determination of eligibility for asylum. If the applicant is not found eligible for asylum, the immigration judge determines whether the applicant is eligible for any other forms of relief from removal. If the immigration judge determines that there is no other relief available, the individual is ordered removed from the United States.
If applicants are denied asylum after having filed either an affirmative or defensive asylum application, they are entitled to have their denial reviewed by the Board of Immigration Appeals (BIA), the immigration appeals court. If their claim is denied by the BIA, the asylum applicant can appeal the case to a United States Circuit Court of Appeals for what is usually a final decision. The appeals process can be lengthy and very costly, so most asylum seekers do not pursue this path. Additionally, people seeking asylum have no legal right to an attorney. Many of those denied often cannot afford the expensive legal representation it can take to have an asylum application granted. Furthermore, asylum offices do not provide interpreters for applicants. Many applicants speak little to no English, may not be able to understand American accents, may have difficulty getting their thoughts across in English, and may not be able to afford or find proper interpreters. Worthy asylum seekers, who genuinely fear returning to their countries of origin, may be unable to access asylum because they lack access to interpreters and/or legal representation.
Asylum seekers can also come to the United States across borders or through various other ports-of-entry. If they are undocumented, many stopped by immigration officials may be subject to expedited removal—a method of removing people without allowing them the opportunity to plead their case in court. However, some people subject to expedited removal are genuine asylum seekers fleeing persecution. Because of the circumstances of their flight from their homes, they may have arrived in the United States with no documents or with fraudulent documents.
Any person subject to expedited removal who raises a claim for asylum—or expresses fear of removal— will be given the opportunity to explain his or her fears. Immigration officers are required to ask people about their fears. This requirement was created based on an understanding that unless asked, many asylum seekers may be afraid to reveal details about the persecution they have suffered.
- Department of Homeland Security: https://www.dhs.gov/
- S. Citizenship and Immigration Service: https://www.uscis.gov/
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