ASYLUM LAW: A BRIEF HISTORY
Asylum law in the United States began post-World War II and was based on international agreements aimed at providing protection to people escaping persecution. At that time, most asylum seekers were predominantly people in European countries. Today, many asylum seekers are attempting to escape violence, persecution, and natural disasters in countries such as Haiti, Mexico, Guatemala, El Salvador, Brazil, Honduras, Cuba, Ethiopia, Cameroon, and more. We now have more displaced people in the United States seeking asylum than we did during, and post-World War II, due to the complex intersection between politics, poverty, environmental changes, societal progression, and war.
This article seeks to discuss the basic principles surrounding asylum law in the United States, and the asylum application process. The process involved in becoming an asylee can be long and quite rigorous. This article, while discussing some aspects and requirements in the asylee process, is not comprehensive and does not replace the advice that an experienced immigration attorney can provide.
THE GOVERNING LAW
There are various laws and regulations governing immigration in the United States, including international laws and regulations, as well as regional laws and regulations. As it concerns international standards, In 1951, the United Nations met and developed an international standard explaining the term “refugee” with the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. The 1951 Convention sets out the guiding principles concerning refugee law. The 1967 Protocol, although integrated in the 1951 Convention, are separate documents. In addition, asylum law and asylum seekers, are covered and protected by international human rights laws, applying to all “states”, or countries, as covered in the 1948 Universal Declaration of Human Rights. Other international sources include the UN General Assembly Resolutions and Declarations, UNHCR Executive Committee Conclusions, and UNHCR Guidance. International laws can be persuasive when it comes to U.S. immigration law. For an additional, in-depth review over international laws and regulations governing asylum law, see Refugee Protection: A Guide to International Refugee Law, published by the UNHCR, The UN Refugee Agency.
As it concerns the United States, Section 208 in the Immigration and Nationality Act (“INA”) is the governing law, and agency regulations held in 8 CFR § 208 provide additional guidance regarding the asylum process. Various government entities and government branches are involved in the asylum process, including the United States Citizenship and Immigration agency, the Department of Homeland Security, Immigration and Customs Enforcement, Congress, and the President.
As it concerns how many asylum seekers are permitted in the United States each year, § 207(e) in the INA, the United States President sends a proposal to Congress setting an “asylee ceiling” or the maximum asylees to be admitted into the United States each year. Once the proposal is sent, the ceiling is generally not debated and does not have to be approved by Congress. It is important to note that asylum seekers applying to obtain asylum status are denied, not only due to the many people seeking asylum, but also due to the rigorous legal standard that must be met to obtain asylum.
As you can see, the law governing asylum law is vast and involves many government agencies. For this reason, it is essential that asylum seekers seek an attorney’s assistance throughout the asylum process to understand the governing law and regulations.
THE CRITERIA
“Asylee” is the term used to describe someone who has been granted asylum in the United States. Under United States Immigration laws, an individual granted asylum means that they can legally remain in the United States without the threat that they can, or will be, deported. Asylee can legally work in the United States, travel abroad, and can seek asylee status as to their spouse and/or children who are under 21. Importantly, the asylum seeker must also not have any criminal convictions in their home countries, or any other countries outside the U.S. In addition, the asylum-seeker must apply within one year once they arrive in the United States.
An asylum seeker can seek asylum states based on race, religion, nationality, political opinion, or membership in a particular social group (“PSG”). To obtain asylum in the United States, certain criteria must be established. In order to be granted asylum in the United States, the applicant must: (1) be located outside the United States; (2) have special humanitarian concern in the United States; (3) demonstrate persecution or demonstrate that they believe that they will be persecuted based on race, religion, nationality, political opinion, or membership in a particular social group; (4) not be established or settled in another country; and (5) would otherwise be admissible in the United States.
At all times, the individual seeking protection bears the burden in proving that said criteria has been established. To establish that this criterion has been met, the individual seeking protection will be required to provide their testimony under oath regarding the allegations contained in their application. While the Immigration Appeals Board (“BIA”) will consider an individual’s testimony, standing alone, corroborative and/or documentary evidence is required when it is available.
AFFIRMATIVE AND DEFENSIVE ASYLUM APPLICATIONS
An asylum seeker who is in the United States either legally or illegally can seek asylum when they are NOT already in deportation proceedings and can make an affirmative application with USCIS. When an asylum seeker is already involved in deportation proceedings with the immigration court, or when the asylum seeker has entered the United States without the required documentation to properly seek asylum, they must file a defensive application with USCIS, which serves as a defense to deportation proceedings. Both affirmative and defense applications contain the same elements, discussed below.
THE I-598 AND SUPPORTING DOCUMENTATION
THE I-598
In order to obtain asylum in the United States, the individual seeking asylum must submit an application. The application has several components: (1) the USCIS Application (also known as the “I-598”); (2) a written declaration detailing their basis in making the application; (3) documentation to corroborate the applicant’s claims; and (4) indexed country conditions document. Although the I-598 is the only required document, submitting the additional documentation helps to guarantee asylee status.
However, while the applicant should submit the additional declaration and documentation supporting their application, it does not be submitted with, or at the same time as, the I-598. Indeed, it is advisable that the applicant work on preparing the remaining documents while the interview is pending. This will give the applicant (and likely their attorney) time to work on developing a compelling story and accurate timeline to present during the interview, which will be discussed below.
THE WRITTEN DECLARATION
Many times, an applicant will need an experienced immigration attorney’s help in developing a written declaration, as it may be the most essential piece in an asylum-seeker’s application.
The written declaration needs to be incredibly detailed. Among other things, the declaration should include detailed accounts showing incidents where the applicant has experienced mistreatment, including detailed accounts where others know, or witnessed, the applicant experiencing mistreatment. In addition, the declaration should include dates and a detailed timeline outlining important events related to the applicant’s claim(s). Importantly, while the declaration should be compelling, and will inherently have a dramatic tone, every statement and account must be true. A sample declaration can be seen here.
COUNTRY CONDITIONS
The Country Conditions should be tailored to the applicant and the claims under which they are seeking asylum. For example, where the applicant is applying on the basis that they are homosexual and will be persecuted in their home country on this basis, the applicant should include reports on how homosexuality is viewed, and/or reports on how homosexuals are treated. The goal is to show that the applicant truly believes they will be persecuted on this basis and that, based on the evidence, it is reasonable to believe they have been or will be persecuted on this basis.
Citizenship and Immigrations Services (“USCIS”) Immigration and Customs (“ICE”) generally rely on the U.S. State Department reports on human rights in the applicant’s home country. Accordingly, it is recommended that this report be used as a guiding document. These reports can be seen here.
INDEXED COUNTRY CONDITIONS
The Indexed Country Conditions is essentially documentation organizing the applicant and/or their attorney’s research on the Country Conditions. The purpose of including an Indexed Country Conditions is to make the interviewer’s decision-making process as easy as possible.
The Index should include only the most recent articles, reports, or other evidence corroborating the applicant’s claims (within the last 5 years). There should be enough documentation to substantiate the applicant’s particular claims without overwhelming the interviewer with excessive content. The newest content should be placed at the beginning, in reverse chronological order. With each article or report cited, there should be one two sentences summarizing the contents. A sample Index can be seen here.
THE INTERVIEW
Once the applicant completes their I-598, two copies must be sent to the CIS Service Center. Once the I-598 has been received, an interview will be scheduled. An applicant may only receive three
weeks’ notice regarding their interview date. Interviewers have broad authority in how they wish to conduct the interview and the questions that will be asked. The applicant should expect to be asked to discuss sensitive topics, including the persecution or treatment they received in their home country.
The applicant should be prepared to bring a passport, other travel documents and/or personal documents that can establish the applicant’s identity, any documentation supporting the applicant’s claim that was not submitted with the applicant’s I-598, an interpreter, provided the applicant cannot communicate in English. It is also recommended that the applicant have an attorney attend and present them during the interview. An attorney will spend time preparing you prior to the interview on what you can expect.
Generally, asylum interviews take around one hour to complete. However, the interview can take longer depending on each case. While this article covers the asylum interview process generally, what is provided here is not a comprehensive review. You can learn more about the regulations and procedures regarding asylum interviews in 8 CFR 208.9.
THE DECISION
Once the interview has occurred, the applicant can generally expect to receive a decision within around two weeks. Although, it is not uncommon that an applicant can be waiting months to have a decision handed down due to a nation-wide backlog in processing applications due to an increase in applications and COVID-19. Accordingly, due to this substantial backlog, the time it takes to receive a decision can take much longer. However, the time it takes to have a decision rendered has no bearing on whether an application will be denied or accepted.
ASYLEE STATUS
When an applicant is granted asylum status, it means that they can legally live and work in the U.S. and can eventually apply to be a permanent resident or legal U.S. citizen. However, asylee status, and the automatic right to live and work in the U.S., should not be viewed as a permanent right. Homeland Security still maintains the right to reopen an asylee’s case and revoke asylee status under certain circumstances, such as when: (1) the asylee’s home country’s conditions have improved such that the asylee no longer believes they will persecuted; (2) the asylee commits a serious crime, either persecutory or non-political in nature outside the U.S.; (3) the asylee poses a threat to national security; (4) the asylee voluntarily returns to their home country; (5) the asylee has acquired a new nationality; (6) the asylee settled outside the U.S. prior to their arrival; or (7) there is a bi-lateral agreement with a third country willing to provide protection to the asylee.
Once asylee status is granted, the right to work is automatic, and there is no need to complete any additional documentation, such as an Employment Authorization Document. Accordingly, the asylee is also granted the ability to obtain a social security number in order to prove their right to work in the U.S.
PERMANENT RESIDENCE STATUS AND NATURALIZATION
Once an asylee has been in asylee status one year, the asylee can apply to be a legal, permanent resident. To be able to change their status, it must be shown that the asylee: (1) has remained physically present in the United States since being granted asylum; (2) remains a “refugee”; (3) has not established themselves in any other country; (4) is not otherwise “inadmissible”.
A permanent resident can apply to become a naturalized citizen once 5 years has elapsed since they were granted permanent residence status. Once naturalization occurs, the asylee will be granted status as a U.S. citizen.
ASYLEE BENEFITS AND OBLIGATIONS
Asylees can utilize certain government resources, such as Social Security Income, Medicaid, and Food Stamps. However, access to these resources is generally limited in time, and may only extend three months to one year depending on the particular program or resource at issue. However, along with the government resources provided to asylees, asylees are also required to pay taxes and report their income to the Internal Revenue Service (“IRS”). In addition, males between 18 and 26 must register with the Selective Service System (“SSS”).
It is essential that an asylum seeker does NOT travel to or return to their home country until they are a United States citizen and can travel with a U.S. passport, as this could give the appearance that the asylum seeker no longer believes that they will be persecuted.
IN CONCLUSION…
Before we conclude, it is worth mentioning some of the modern-day policy concerns regarding asylum law, and immigration, generally, and how they impact the asylum process. With the steep influx of asylum seekers, particularly as it relates to Mexican and South American people entering the country due to economic, socioeconomic, and political distress, U.S. attitudes towards immigration and the right to asylum are evolving, as are U.S. policies. Some current policy considerations as it concerns asylum law in the U.S. include frivolous and fraudulent asylum applications, variations in decisions of immigration judges, and the availability of safe third countries.
There likely has been, and always will be, at least some policy makers, who fear that the asylum-seeking process is susceptible to, and already a victim of, abuse by immigrants seeking entry into the U.S. without establishing credible fear of harm in their home countries. While some researchers believe that the substantial increase in asylum seekers is a clear indication of a substantial increase in frivolous and fraudulent applications, other researchers point to the various political and economic crises arising within the last several years, particularly in South American countries. Regardless of whether there is or isn't an increase in fraudulent applications, a finding of fraud can result in weighty consequences. Namely, a permanent denial of immigration benefits, and the risk of deportation proceedings.
With the influx in asylum applications and the increase in real or perceived frivolous asylum applications, there has also been a noted increase in the variations in immigration judges' decisions (i.e., a disproportionate number of judges are denying and/or granting asylum) due to the broad discretion they are granted to determine eligibility, and personal perspective. Unfortunately, there is much discretion inherently built into the legal system, because the application of a neutral set of laws to individualized facts often requires the court to make judgment calls based on the applicant's personal credibility, the weight of the evidence presented, and other similar factors.
As it concerns safe third countries, in 2018, the Trump Administration had sought to enter into a bi-lateral agreement and deem Mexico as a safe third country to address the influx of immigrants from South America, despite the surplus in Mexican asylum-seekers fleeing oppressive political and economic conditions in their home country. Various human rights advocacy organizations, such as Human Rights First, argued against a bi-lateral agreement with Mexico designating it as a safe third country due to their history of deporting immigrants. No bi-lateral agreement between the U.S. and Mexico ever came to fruition. Indeed, the 115th Congress proposed bills which sought to eliminate the bi-lateral agreement, safe-third country language from the INA. However, no such bill was passed.
Ultimately, their asylum process can be challenging to navigate and understand, especially given that applicants generally have no experience with the U.S. legal system. Provided you, or someone you know, is seeking asylum to be granted asylum in the United States, it is essential to speak with an experienced immigration attorney who can assist in navigating this complex, and sometimes drawn-out, legal process.
