Cecily Zamora
Asylum laws can be changed, and the US government has been making changes to its immigration laws. Asylum seekers must navigate a difficult and complex process that involves multiple government agencies and strict requirements. Changes to asylum laws can include new eligibility criteria, application processes, and deportation policies. For example, the US government has ended the extension of Temporary Protected Status (TPS) for Venezuelan immigrants, and has proposed expanding expedited removal, which allows for rapid deportation without a court hearing or legal counsel. On the other hand, some changes to asylum laws can be blocked, such as President Trump's attempt to restrict birthright citizenship through an Executive Order, which was successfully challenged in court.
| Characteristics | Values |
|---|---|
| Asylum laws changing for asylum seekers | Ending the extension of TPS for immigrants from Venezuela |
| Using a faster deportation process called "expedited removal" | |
| Restricting birthright citizenship | |
| Changing many immigration laws | |
| Asylum seekers | Must navigate a difficult and complex process |
| Must provide documents to corroborate their claims | |
| Must demonstrate that their protected characteristic was "at least one central reason" behind the persecutor's actions | |
| Asylum | A protection grantable to foreign nationals already in the United States or arriving at the border |
| A "discretionary" status | |
| A form of protection known as "withholding of removal" | |
| An exception permits the Executive Branch to enter into "safe third country" agreements with other nations | |
| Asylum eligibility | Must be filed within 1 year after the date of arrival in the United States |
| Must have a valid immigrant or nonimmigrant status or be in an unexpired period of parole or temporary protected status |
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What You'll Learn
Asylum eligibility and exceptions
Asylum eligibility in the United States is a complex process that involves multiple government agencies. To be eligible for asylum or refugee protection, one must have fled their home country due to a fear of persecution or torture and be unwilling or unable to return. This fear must be based on objective sources of evidence or persuasive, credible testimony, and it must be connected to one of five grounds: race, religion, nationality, membership in a particular social group, or political opinion. An asylum seeker must also file a Form I-589 application within 1 year of arriving in the US or demonstrate that they fall within an exception to this rule.
An individual's own testimony is usually critical to their asylum determination. If they have suffered severe persecution in the past, they are presumed to face future persecution as well. However, the US government may argue that their country is now safe to return to. In such cases, asylum seekers may still be able to receive "humanitarian asylum" if they can demonstrate compelling reasons for not returning related to the severity of past persecution or the possibility of serious harm upon removal.
Certain factors can bar individuals from asylum eligibility. For example, those who entered the US unlawfully on or after January 20, 2025, per a second Trump administration executive order, are ineligible. Additionally, individuals who fail to apply within one year of entering the US may be barred, although there are exceptions for changed circumstances. Other exceptions include cases where individuals are placed in expedited removal proceedings but receive a positive credible fear determination, allowing their cases to be retained for further consideration.
While asylum eligibility is generally determined on a case-by-case basis, there are specific requirements and procedures outlined in Section 208 of the INA and 8 CFR 208. Asylum seekers have the right to legal representation during their asylum interview and immigration proceedings. They may also be eligible for an Employment Authorization Document (EAD) once their asylum application has been pending for 180 days.
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Expedited removal
In 2020, the Department of Homeland Security (DHS) announced a significant expansion of expedited removal. Under the expanded policy, individuals who are undocumented, who entered the US without inspection, and who cannot prove they have resided in the country for more than two years may be subject to expedited removal. This expansion was challenged in court by immigration advocates.
The Biden administration has also increased its reliance on expedited removal, with the White House and Senate negotiators considering a dramatic expansion of the process by expanding the Family Expedited Removal Management (FERM) program. This program has been criticised for its mandatory use of surveillance and the difficulty for individuals to obtain legal representation.
On May 31, 2022, the DHS and the Department of Justice (DOJ) began implementing a rule to ensure that those subject to expedited removal who are eligible for asylum are granted relief quickly, while those who are not eligible are promptly removed. This rule aims to reduce existing immigration court backlogs and shorten the process to several months. The rule authorises US Citizenship and Immigration Services (USCIS) to consider the asylum applications of individuals subject to expedited removal who establish a fear of persecution or torture during their credible fear screening.
If you are facing expedited removal, it is important to exercise your existing rights and follow steps to protect yourself. This includes carrying evidence of lawful entry or current lawful status in the United States, as well as any pending asylum applications or other immigration court cases or appeals. If you have a fear of returning to your country of origin, it is crucial to state that fear clearly and ask to speak to a lawyer.
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Asylum application process
The asylum application process in the United States involves multiple government agencies and can be navigated through two paths: the affirmative asylum process and the defensive asylum process.
Affirmative Asylum Process
The first step in the affirmative asylum process is to arrive in the U.S. and be physically present in the country. The next step is to file Form I-589, Application for Asylum and for Withholding of Removal, with USCIS within 1 year of arrival in the U.S. (unless an exception applies). After filing the application, the applicant will receive a notice of receipt and a biometrics services appointment, and security vetting will begin. The applicant will then attend an Asylum Merits Interview with USCIS, where they will need to demonstrate a credible fear for their safety if removed from the U.S.
Defensive Asylum Process
The defensive asylum process takes place within immigration courts. The applicant will appear before an immigration judge, who will hear from both the applicant (and their attorney, if they have one) and the U.S. government (represented by an ICE attorney). The judge will determine the applicant's eligibility for asylum, and if found ineligible, the judge can consider other forms of relief from removal. The defensive process can take considerably longer than the affirmative process, with an average processing time of nearly two years in 2019.
Additional Considerations
It is important to note that asylum is a discretionary status, and even individuals who meet the definition of a refugee may be denied asylum. There have been recent changes and proposed changes to U.S. immigration laws, including the use of expedited removal for certain immigrants and restrictions on birthright citizenship. Asylum seekers should stay updated on legal changes and consult official sources and legal professionals for the most accurate and up-to-date information.
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Asylum interviews
The asylum interview is a critical part of the asylum application process. It is a complex and challenging procedure that asylum seekers must navigate, often involving multiple government agencies. The interview is conducted by USCIS asylum officers, and applicants are expected to provide detailed responses to questions about their circumstances and experiences.
To prepare for an affirmative asylum interview, applicants should bring relevant documentation, including Form I-589 and any additional materials previously submitted. They should also bring any family members, such as spouses or children under 21, included in the application as derivatives. It is essential to provide certified translations of any non-English documents. From September 13, 2023, applicants who are not fluent in English must bring their interpreters to the interview, ensuring they are at least 18 years old and fluent in English and a language spoken by the applicant.
The wait times for asylum interviews can be lengthy, and during this period, applicants can continue to renew their work permits. Applicants should be aware of their asylum clock, which can be "stopped" or "restarted" by USCIS for various reasons, such as missing interviews or changing addresses. It is crucial to update USCIS with any address changes to ensure the timely receipt of interview notices.
USCIS schedules affirmative asylum interviews using a "last in, first out" (LIFO) approach, prioritizing newer filings to deter individuals from exploiting the asylum backlog for employment authorization. However, asylum office directors can consider urgent requests for interviews outside of the standard priority order.
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Asylum vs refugee status
The terms "refugee" and "asylum seeker" are often used interchangeably, but there is a legal distinction between the two. A refugee is someone who has fled their country because they are at risk of serious human rights violations and persecution. They are unable or unwilling to return to their home country and seek protection outside their country of origin. Refugees have a right to international protection and fall under the internationally recognized definition of "refugees", which gives them access to assistance from states, the UNHCR, and other organizations.
An asylum seeker, on the other hand, is someone who has left their country and is seeking protection from persecution and human rights violations in another country but has not yet been legally recognized as a refugee. The asylum process can be complex and involve multiple government agencies, and individuals may be denied asylum even if they meet the definition of a refugee. Asylum seekers can apply for asylum or other types of immigration status, such as SIJS, at the same time. They may also be eligible for certain government programs, such as Medicaid or Refugee Medical Assistance.
The United States, as a signatory to the 1967 Protocol, has legal obligations to provide protection to those who qualify as refugees. The Refugee Act established two paths to obtain refugee status: from abroad as a resettled refugee or in the US as an asylum seeker. An asylee is protected from being returned to their home country and can work, apply for a Social Security card, and petition to bring family members to the US. After one year, they can apply for lawful permanent resident status, and after five years, they can apply for citizenship.
The US government has made recent changes to immigration laws, such as attempting to restrict birthright citizenship and ending Temporary Protected Status for immigrants from Venezuela. They are also implementing a faster deportation process for immigrants who have lived in the US for less than two years without a visa, even if they have a pending asylum application. However, people with pending or approved asylum applications are still valid and can continue to seek asylum or apply for lawful permanent residence.
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Frequently asked questions
Asylum is a protection grantable to foreign nationals in the United States or at the border who meet the international law definition of a "refugee". Refugees are those who are unable or unwilling to return to their home country due to past persecution or a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion.
Asylum seekers must navigate a complex process that can involve multiple government agencies. They must provide documents to corroborate their claims or explain why they cannot obtain them. They must also demonstrate that their protected characteristic was "at least one central reason" for the persecutor's actions.
Yes, asylum laws can be changed. The U.S. government has made and proposed changes to immigration laws, including those related to asylum. For example, in 2005, Congress passed the Real ID Act, which imposed additional limitations on the asylum process.
The U.S. government has ended the Temporary Protected Status (TPS) for immigrants from Venezuela and proposed expanding expedited removal nationwide. They have also sought to restrict birthright citizenship and weaken protections for asylum seekers.
Changing asylum laws can have significant implications for those seeking protection. It may make it harder for individuals to access asylum, place long-time residents at risk of rapid deportation, and result in refugees being returned to harmful situations. It can also impact the U.S. government's compliance with international obligations under the Refugee Convention.
