Asylum Seekers: Breaking Laws To Find Safety?

Seeking asylum is a human right protected under US law. However, misconceptions and confusion about the right to asylum in the US are widespread. Asylum seekers are often accused of breaking the law or failing to seek protection the right way. This is not true. Asylum seekers are people who have fled their homes and endured grueling journeys in pursuit of safety. They are protected under international law and have the right to seek asylum in the US, regardless of how they arrive at the border.

Seeking asylum is a human right

The right to seek asylum was incorporated into international law following World War II. The 1951 United Nations Convention and 1967 Protocol define a refugee as a person who is unable or unwilling to return to their home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future "on account of race, religion, nationality, membership in a particular social group, or political opinion."

Congress adopted key provisions of the Refugee Convention (including the international definition of a "refugee") into U.S. immigration law when it passed the Refugee Act of 1980. As a signatory to the 1967 Protocol, and through U.S. immigration law, the United States has legal obligations to provide protection to those who qualify as refugees. The Refugee Act established two paths to obtain refugee status—either from abroad as a resettled refugee or in the United States as an asylum seeker.

An asylee, or a person granted asylum, is protected from being returned to their home country, is authorized to work in the United States, may apply for a Social Security card, may request permission to travel overseas, and can petition to bring family members to the United States. Asylees may also be eligible for certain government programs, such as Medicaid or Refugee Medical Assistance. After one year, an asylee may apply for lawful permanent resident status (i.e., a green card). Once the individual becomes a permanent resident, they must wait four years to apply for citizenship.

However, it is important to note that asylum is technically a "discretionary" status, meaning that some individuals can be denied asylum even if they meet the definition of a refugee. For those individuals, a backstop form of protection known as "withholding of removal" may be available to protect them from harm if necessary.

Requirements for asylum in the US

Asylum is a form of protection granted to individuals who can demonstrate that they are unable or unwilling to return to their country of origin due to past persecution or a well-founded fear of future persecution based on one of five grounds: race, religion, nationality, membership of a particular social group, or political opinion.

To be granted asylum in the US, an individual must meet the following requirements:

• They must be physically present in the US or at a US port of entry.
• They must apply for asylum within one year of their arrival in the US, with some exceptions for changed or extraordinary circumstances.
• They must demonstrate that they have suffered past persecution or have a well-founded fear of future persecution in their home country based on one of the five protected grounds.
• They must provide evidence to support their claim, such as their own testimony, witness statements, medical records, police reports, academic records, and country condition reports.
• They must file a Form I-589, Application for Asylum and Withholding of Removal, with the US Citizenship and Immigration Services (USCIS).
• They must undergo a credible fear interview and an asylum interview with an asylum officer, who will determine their eligibility for asylum.
• They must not be barred from asylum due to certain factors, such as posing a danger to the security of the US or having a criminal record.

The asylum process in the US can be complex and challenging, and it is recommended that individuals seeking asylum consult with an experienced immigration attorney to guide them through the process and improve their chances of success.

The application process

To apply for asylum in the United States, an individual must be physically present in the country or at a designated port of arrival. They must also demonstrate that they have suffered past persecution or have a well-founded fear of future persecution in their home country on account of at least one of five protected grounds: race, religion, nationality, political opinion, or membership in a particular social group.

There are two primary ways in which a person may apply for asylum: affirmatively and defensively.

Affirmative Asylum: An individual who is not in removal proceedings may affirmatively apply for asylum through U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). If the USCIS asylum officer does not grant the asylum application and the applicant does not have lawful immigration status, they are referred to immigration court for removal proceedings, where they may renew their request for asylum through the defensive process and appear before an immigration judge.

Defensive Asylum: An individual who is in removal proceedings may apply for asylum defensively by filing the application with an immigration judge at the Executive Office for Immigration Review (EOIR). In other words, asylum is applied for as a defence against removal from the U.S.

All asylum seekers must navigate a difficult, complex, and lengthy process that can involve multiple government agencies. They have the burden of proving that they meet the definition of a refugee, and their own testimony is usually critical to their asylum determination.

Certain factors bar individuals from asylum. For example, individuals who fail to apply for asylum within one year of entering the United States will be barred from receiving asylum, unless certain exceptions apply. Similarly, applicants who are found to pose a danger to the United States, who have committed a "particularly serious crime", or who have persecuted others themselves, are also barred from asylum.

Additional Information

It is important to note that asylum is technically a "discretionary" status, meaning that some individuals who meet the definition of a refugee may still be denied asylum. For those individuals, a backstop form of protection known as "withholding of removal" may be available to protect them from harm.

The asylum process can take years to conclude, with backlogs in U.S. immigration courts contributing to delays. Asylum seekers, and any family members waiting to join them, are left in limbo while their case is pending.

Although asylum seekers may apply for work authorization after their case has been pending for 150 days (or longer in some circumstances), the uncertainty of their future impedes employment, education, and trauma recovery opportunities.

Barriers to asylum

Seeking asylum in the US is legal. However, there are several barriers to asylum that make it difficult for asylum seekers to gain protection in the US.

Firstly, asylum seekers must be physically present in the US or at a port of entry to apply for asylum. This means that they must undertake a dangerous journey to the US, often fleeing from humanitarian crises, violence, and persecution in their home countries.

Secondly, there are strict requirements for asylum eligibility. Asylum seekers must demonstrate that they have suffered past persecution or have a well-founded fear of future persecution in their home country on the basis of race, religion, nationality, political opinion, or membership in a particular social group. They must provide evidence and testimony to support their claims, and their own testimony is usually critical to their asylum determination. This can be challenging, especially for those who have experienced trauma or have limited access to legal representation.

Thirdly, there are limitations on the ability to apply for and be granted asylum. Asylum seekers must apply within one year of entering the US, and certain exceptions apply. Those who fail to meet this deadline are often barred from receiving asylum, and other factors such as posing a danger to the US or having committed a serious crime can also disqualify applicants.

Additionally, there is a backlog in the US immigration courts, resulting in long wait times for asylum applications to be processed. This leaves asylum seekers and their families in limbo, causing prolonged separation and difficulties in retaining legal counsel.

Furthermore, asylum seekers may be detained during the application process, which can negatively impact their mental health and their ability to secure legal representation.

Lastly, policies such as the Migrant Protection Protocols (MPP) or "Remain in Mexico" have forced asylum seekers to wait in Mexico while their US immigration court cases are pending, exposing them to dangerous conditions and making it challenging to gather evidence and prepare for their court hearings.

These barriers pose significant challenges for asylum seekers, and the US government has been criticized for not doing enough to protect the rights of those seeking asylum.

The impact of asylum seekers on the US

Firstly, they face lengthy case processing delays, with a backlog of over two million pending asylum cases as of 2024. These delays can result in extended waiting periods of up to seven years for their applications to be adjudicated. Such delays have severe consequences, including prolonged separation from family members, interference with integration opportunities, and damage to the credibility of the US asylum system.

Secondly, asylum seekers in the US often encounter barriers to employment and restrictions on their right to work. They must wait at least 180 days for a work permit, which makes it challenging for them to support themselves and their families financially. This delay increases their risk of exploitation, abusive situations, and human trafficking.

Thirdly, asylum seekers generally face limited access to assistance programs and public benefits. They are typically ineligible for services provided by the Office of Refugee Resettlement and federal benefits such as cash assistance, food stamps, and social security. However, there are exceptions for unaccompanied minors seeking asylum and survivors of torture, who may access some services. A few states provide access to health insurance and other limited support through local and state-led programs.

Additionally, the presence of asylum seekers in the US highlights the country's commitment to providing safety and protection to those fleeing dangerous situations. It showcases the US's adherence to international laws and refugee protection standards, such as the 1951 United Nations Convention and the 1967 Protocol, which define a refugee's rights and obligations of signatory countries like the US.

Overall, the impact of asylum seekers on the US is far-reaching. While they face challenges in case processing delays, employment restrictions, and limited access to assistance, they also enrich the country socially and economically. Addressing these challenges through policy reforms and increased support for asylum seekers can help improve their integration and contribute to a more positive impact on US society.

Frequently asked questions