Seeking Asylum: Breaking Laws To Find Safety

Seeking asylum is a human right. The right to seek asylum was enshrined in the 1948 Universal Declaration of Human Rights, the 1951 Refugee Convention, and its 1967 Protocol. The US incorporated the right to asylum into its immigration law when it passed the Refugee Act of 1980. However, seeking asylum can be a complex and lengthy process, and asylum seekers may face many challenges and obstacles. This raises the question: how does someone seek asylum without breaking the law?

Asylum seekers must be physically present in the US or at a port of entry

There is no way to request a visa in advance for the purpose of seeking asylum. Asylum seekers must simply show up at the border. However, since June 4, 2024, an executive order on the border and its amendment on September 30, 2024, have curbed the legal right to seek asylum.

There are two primary ways in which a person may apply for asylum in the US: affirmatively and defensively. Affirmative asylum is for those who are not in removal proceedings. Defensive asylum is for those who are in removal proceedings.

To obtain asylum through the affirmative asylum process, the person must be physically present in the US or at a port of entry. People can apply for asylum regardless of how they arrived in the US and regardless of their current immigration status. A person can apply for affirmative asylum by submitting a Form I-589, Application for Asylum and for Withholding of Removal, to US Citizenship and Immigration Services (USCIS). To meet the requirements of the affirmative process, they must apply for asylum within one year of when they last arrived in the US, unless they can show changed circumstances that materially affect their eligibility for asylum or extraordinary circumstances relating to the delay in filing. Once their application has been accepted, they will receive a notice of receipt and a biometrics services appointment, begin security vetting, and receive the date of their interview where they will demonstrate they have credible fear for their safety if removed from the US. The whole process, from application to approval, can typically take about six months. If their case is not approved by USCIS, they can still re-apply using the defensive process.

The defensive process is available to asylum seekers who were denied through the affirmative process, or have been detained for removal by Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP). The defensive process works within immigration courts. The judge will hear from the asylum seeker (and their attorney, if they have been able to access representation), and the US government (as represented by an ICE attorney). If the judge deems them eligible, the applicant will be granted asylum. If found ineligible, the judge can determine whether they meet the criteria for any other forms of relief from removal. Both the applicant and the US government have the ability to appeal the decisions made. Because the defensive process is housed within immigration courts, it can take considerably longer than the affirmative process. In 2019, the process averaged nearly two years.

The right to asylum is enshrined in US and international law

The right to seek asylum is enshrined in US and international law. The legal concept of asylum, or the right of asylum, has a long history, dating back to ancient civilisations such as the Egyptians, Greeks and Hebrews. In medieval times, sovereign authorities, such as a second country, could offer sanctuary to those persecuted by their rulers. The right of asylum was also recognised in England as early as the 600s AD.

The contemporary right of asylum is founded on the non-binding Universal Declaration of Human Rights, which states that:

> "Everyone has the right to seek and to enjoy in other countries asylum from persecution."

The right to asylum is also supported by the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. The US adopted key provisions of the Refugee Convention into its immigration law with the Refugee Act of 1980.

According to US and international law, asylum seekers must be physically present in the US or at a port of entry to apply for asylum. They must also meet the international law definition of a "refugee", which is someone 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.''"

In the US, asylum seekers can apply for asylum either affirmatively or defensively. Affirmative asylum is for those who are not in removal proceedings, while defensive asylum is for those who are in removal proceedings and are applying as a defence against deportation.

Despite the right to asylum being enshrined in law, seeking asylum is a complex and challenging process, and many asylum seekers face long waits and uncertainty.

Asylum seekers must prove their case and navigate a complex, lengthy process

The asylum process is complex and involves multiple federal agencies, including the Department of Homeland Security (DHS), the Department of State, and the Department of Health and Human Services (HHS). Asylum seekers may also have to navigate the U.S. justice system if their cases are sent to immigration court.

Asylum seekers must be physically present within the United States or at an official port of entry. From there, they have three pathways to obtaining asylum: the affirmative process, the defensive process, and the expedited process.

The affirmative process involves immigrants with temporary legal status, such as short-term visa holders, filing an asylum application with U.S. Citizenship and Immigration Services (USCIS), a division of the DHS. This must generally be done within one year of arriving in the country, though exceptions can be made for extraordinary circumstances. If an asylum seeker's application is denied, they are referred for deportation but can turn to the defensive asylum process.

The defensive process involves migrants requesting asylum as a defense against deportation if their asylum application is denied or if they are apprehended for lacking valid documentation. Immigration and Customs Enforcement (ICE) handles arrests in the interior of the U.S., while Customs and Border Protection (CBP) operates at ports of entry. An immigration judge within the Executive Office for Immigration Review at the Department of Justice (DOJ) then hears each asylum seeker's case. If denied, they can petition the Board of Immigration Appeals, and if that fails, they can escalate their appeal to the federal court, and in rare cases, the Supreme Court.

The expedited process was introduced in 2022, and involves USCIS asylum officers reviewing and adjudicating the asylum claims of certain migrants facing expedited removal. These migrants are given a credible fear interview, and if they pass, they are referred to an asylum officer for a non-adversarial Asylum Merits Interview between 21-45 days later. If asylum is then denied, the case is referred to an immigration judge.

Regardless of the pathway, asylum seekers have the burden of proof to demonstrate that they meet the definition of a refugee. They must provide evidence that they have suffered past persecution on account of a protected ground and/or that they have a well-founded fear of future persecution in their home country. Their own testimony is usually critical to their asylum determination.

The asylum process can take years to conclude, with backlogs in U.S. immigration courts reaching all-time highs. Asylum seekers, and their family members, are left in limbo while their case is pending, facing prolonged separation and difficulties in accessing legal representation.

Asylum seekers can be denied for reasons such as failing to apply within one year, or being deemed a danger to the US

Asylum seekers can be denied for reasons such as failing to apply within one year or being deemed a danger to the US

Asylum seekers can be denied asylum in the US for a variety of reasons. One of the primary reasons is failing to apply within one year of entering the country. This is a strict deadline that must be adhered to, and while there are some exceptions, such as changed circumstances or extraordinary circumstances, the application must still be filed within a reasonable time frame.

Another reason for denial is if the asylum seeker is deemed to pose a danger to the US. This includes individuals who have ordered, incited, assisted, or participated in the persecution of any person based on race, religion, nationality, membership in a particular social group, or political opinion. Those who have committed serious crimes or pose a security threat to the US will also be denied asylum.

Other grounds for denial of asylum include:

• Having previously applied for and been denied asylum by an immigration judge or the Board of Immigration Appeals, unless changed circumstances affecting eligibility can be demonstrated.
• Being able to be removed to a safe third country, such as Canada, with which the US has a safe third country agreement.
• Failing to disclose any criminal history on Form I-589 or during the asylum interview, which can result in fines or imprisonment for perjury.

Asylum seekers can be detained by ICE and face many challenges

Asylum seekers can be detained by Immigration and Customs Enforcement (ICE) and face many challenges. Firstly, they must prove their case for asylum, demonstrating that they have a well-founded fear of persecution in their home country. This involves navigating a complex and lengthy process that involves multiple government agencies. Those who are unable to prove their case are deported.

During this process, asylum seekers can be detained by ICE, which can negatively impact their application. Detention centres have been criticised for their abusive conditions, with reports of medical abuse and neglect, failure to facilitate physical distancing, and lack of soap and hand sanitiser during the COVID-19 pandemic. Detained individuals are also nearly five times less likely to secure legal counsel, which can significantly affect their case.

Asylum seekers also face challenges in accessing legal services and communicating with their attorneys due to limited access to technology in detention centres. The COVID-19 pandemic has further exacerbated these issues, with in-person visitation paused and limited phones available for detainees to connect with the outside world.

Additionally, asylum seekers often endure gruelling journeys to reach the United States, leaving their homes and families behind. They may also face traumatic repercussions from their time in detention or during their journey, which can impact their mental health and well-being. Despite these challenges, asylum seekers are eager to contribute to their new communities and provide for their families.

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