Asylum Laws: Who's Breaking Them And How?

Seeking asylum is a human right protected under international law. However, the process of applying for asylum can be difficult and complex, and there are instances where asylum seekers have been penalised for their manner of entry. For example, in the US, seeking asylum is legal, but since June 2024, an executive order has curbed the legal right to seek asylum. This has resulted in asylum seekers being turned away at the border and being denied their legal right to claim asylum.

Seeking asylum is a human right, protected under international law

The United States, for example, passed its own federal law, the Refugee Act of 1980, which allows people fleeing persecution on the basis of "race, religion, nationality, membership in a particular social group, or political opinion" to seek asylum. This means that asylum seekers can request the opportunity to apply for asylum at the US border or within the US.

However, it is important to note that seeking asylum does not guarantee that it will be granted. Asylum seekers must navigate a complex and lengthy process, involving multiple government agencies, to prove their case for asylum. They must demonstrate a well-founded fear of persecution or provide evidence of past persecution on the basis of the protected grounds outlined above.

While seeking asylum is a human right, there are instances where this right has been curbed or restricted. For example, since 2017, the US government has severely restricted access to asylum at its borders. In March 2020, the Trump administration implemented Title 42, which used the COVID-19 pandemic as a pretext to expel asylum seekers without allowing them to present their cases. This policy was later ended by the Biden administration in May 2023, but it was replaced by the 'asylum ban', which similarly restricts the right to seek asylum.

Despite these challenges, seeking asylum remains a fundamental human right, recognized by international law and supported by organizations such as Amnesty International, which campaigns for the protection of the rights of refugees, asylum seekers, and migrants worldwide.

Asylum seekers must prove their case, navigating a complex process involving multiple government agencies

Asylum seekers in the US must navigate a complex and lengthy process involving multiple government agencies to prove their case. This process can take years to conclude, with backlogs in US immigration courts reaching all-time highs.

To be granted asylum, individuals must prove that they are unable or unwilling to return to their country due to past persecution or a well-founded fear of future persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion. They must provide evidence demonstrating either that they have suffered persecution on account of a protected ground in the past and/or that they have a "well-founded fear" of future persecution in their home country. An individual's own testimony is usually critical to their asylum determination.

There are two primary ways in which a person may apply for asylum in the US: affirmatively and defensively. Affirmative asylum refers to a person who is not currently in removal proceedings and applies through the US Citizenship and Immigration Services (USCIS). If their application is denied, they are referred to an immigration court where they may renew their request through the defensive process. Defensive asylum refers to a person who is already in removal proceedings and applies through an immigration judge at the Executive Office for Immigration Review (EOIR).

Since May 2022, there has been a third pathway for some individuals, known as the Asylum Processing Rule, which includes elements of both affirmative and defensive asylum processes and operates on an expedited timeline. Under this rule, individuals are first put in expedited removal and given a credible fear interview, which initiates a defensive asylum claim. They are then referred to an asylum officer for a non-adversarial Asylum Merits Interview. If asylum is 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. With or without legal counsel, they must provide evidence to support their claim and may be required to undergo a criminal background and security check.

Asylum seekers are often detained, despite the law providing them the right to remain in the US while their claim is pending

The right to seek asylum is a human right protected under US law. Asylum seekers are individuals who have fled their home countries in search of safety and protection elsewhere. They are often escaping violence, persecution, and humanitarian crises.

US immigration law allows asylum seekers to remain in the country while their claim is pending. However, in practice, asylum seekers are frequently detained by ICE. This is despite the fact that they often have family members or friends they could stay with while awaiting their court proceedings.

Detention negatively impacts asylum seekers' ability to seek legal counsel and prepare their cases. Studies have found that detained individuals in removal proceedings are nearly five times less likely to secure legal representation than those who are not detained. This disparity significantly affects their cases, as those with legal representation are more likely to apply for protection and successfully obtain it.

The practice of detaining asylum seekers also contradicts international standards, which state that asylum seekers should generally not be detained. The United Nations 1951 Convention and 1967 Protocol, which the US has signed, affirm the basic human right to seek and enjoy asylum. The UN guidelines also specify that detention should not be used as a punitive measure or to discourage refugees from applying for asylum.

Despite these guidelines, the US government has continued to detain asylum seekers, contributing to a broken immigration system that needlessly separates families and causes prolonged suffering for some of the world's most vulnerable people.

Asylum seekers are not guaranteed a government-funded lawyer

The asylum process can be complex and difficult to navigate, and asylum seekers are not guaranteed a government-funded lawyer. This means that many asylum seekers are expected to represent themselves in court. Without legal counsel, they face an uphill battle. Only one in ten claimants without representation ultimately win their asylum case. In contrast, those represented by a lawyer are at least three times more likely to have their claims approved.

This disparity is due to lawyers informing their clients about which experiences are pertinent for an asylum officer to hear and which are not. Without this context about the asylum process, several thousand asylum seekers are likely deported each year despite their circumstances warranting asylum protections.

Asylum seekers must prove their case before an Executive Office for Immigration Review judge and against a U.S. government attorney from Immigration and Customs Enforcement (ICE). The burden of proof lies with the immigrant rather than the government. While criminal defendants are presumed innocent until proven guilty, asylum seekers must rebut the presumption that they do not need protection.

The current system of representation relies on a sparse network of pro bono services provided by nonprofits and faith-based groups. However, these organizations are often stretched thin and lack the capacity to meet the demands of surging application numbers and a rising backlog.

The U.S. government could significantly increase access to legal representation by providing federal funding for counsel. This would enable legal organizations to take on more cases in a sustainable way and ensure that asylum seekers have equal and fair access to legal representation.

US asylum law states that individuals must apply for asylum within one year of arrival

The right to seek asylum in the US is protected under US law. However, there are specific criteria that must be met for an individual to be granted asylum. One of these criteria is that individuals must apply for asylum within one year of their arrival in the US. This is known as the one-year filing deadline.

The one-year deadline for asylum applications is a critical requirement that individuals must meet to be eligible for asylum in the US. This deadline is in place to ensure that asylum claims are processed in a timely and efficient manner. It also helps to prevent abuse of the asylum system by individuals who may not have a genuine need for protection.

There are, however, certain exceptions to the one-year rule. For example, if an individual can demonstrate changed circumstances that materially affect their eligibility for asylum or extraordinary circumstances related to the delay in filing, they may be exempt from the one-year deadline. Additionally, if an individual files their application within a reasonable amount of time given their circumstances, their case may be considered even if it is filed after the one-year mark.

The one-year filing deadline for asylum applications is an important component of US asylum law. It helps to ensure that those who are genuinely fleeing persecution and in need of protection can receive the assistance they need in a timely manner.

The process of applying for asylum in the US can be complex and challenging, and it is important for individuals to be aware of the requirements and deadlines involved. By understanding the requirements, asylum seekers can improve their chances of a successful application and gain access to the protection and benefits that come with being granted asylum in the US.

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