Asylum Seekers And Crime: Legal Consequences And Ramifications

Asylum seekers are people who have fled their home countries in search of safety and protection elsewhere. They are often escaping violence, persecution, natural disasters, or conflict. While seeking asylum is a human right, asylum seekers often face legal and procedural challenges, including criminal background checks and lengthy application processes. If an asylum seeker breaks the law, they may face legal consequences, including detention, deportation, or denial of their asylum application. It is important to note that asylum seekers are presumed innocent until proven guilty and are entitled to due process under the law.

What are the consequences of breaking the law as an asylum seeker in the US?

Asylum seekers in the US are subject to the same laws as US citizens and residents. Breaking the law can have serious consequences for asylum seekers, including denial or revocation of asylum, detention, and deportation.

Denial or Revocation of Asylum

If an asylum seeker is found to have broken the law, their application for asylum may be denied. Even if they have already been granted asylum, it can be revoked if they are found to pose a significant danger to the public.

Detention

Asylum seekers who break the law may be detained by immigration authorities, such as Immigration and Customs Enforcement (ICE). Detention can be lengthy and difficult, and it can negatively impact an asylum application. Studies have shown that detained individuals are less likely to secure legal counsel and successfully obtain asylum.

Deportation

If an asylum seeker is found to have committed a serious crime or to pose a danger to the United States, they may be deported. This is especially likely if the asylum seeker has a previous criminal record or has previously had an asylum application denied.

Other Consequences

Breaking the law can also result in the loss of certain benefits and privileges granted to asylum seekers, such as work permits and the ability to petition for family reunification. It can also lead to increased scrutiny and negative perceptions of asylum seekers, making it more difficult for them to find housing, employment, and other opportunities.

It is important to note that asylum seekers have the right to due process and legal representation when facing criminal charges. They are presumed innocent until proven guilty, and they have the right to a fair trial.

Can asylum seekers be detained?

The detention of asylum seekers has become a common practice in several countries, despite the fact that seeking asylum is a human right protected under international law. While the procedure for representing detained asylum seekers is essentially the same as for non-detained asylum seekers, the accelerated pace of proceedings for those in detention means that attorneys must be prepared to put in a significant amount of work right away.

In the United States, asylum seekers are often unnecessarily detained by U.S. Immigration and Customs Enforcement (ICE) in abusive conditions, even when they have family members or friends they could stay with while their cases are processed. According to U.S. law, a person seeking asylum may do so by arriving at the border and requesting to be screened by U.S. officials at a "port of entry," or by entering the country without prior inspection and then declaring their fear of persecution. In either case, they are subjected to a criminal background and security check before navigating a complex and lengthy process to prove their well-founded fear of persecution.

Detention facilities must comply with specific standards, such as the National Detention Standards (NDS) and Performance-Based National Detention Standards (PBNDS), which outline the responsibilities of the facility, the services they must provide, and the steps to ensure a safe and secure environment for both staff and detainees. Once an individual is transferred to ICE custody, the agency determines whether to detain them based on factors such as mandatory detention requirements, public safety, and flight risk. ICE also considers humanitarian factors, such as serious medical conditions or being the primary caregiver of minor children, when making custody decisions.

While seeking asylum is a legal right, various policies and executive orders have been implemented to restrict this right, particularly at the U.S.-Mexico border. For example, the Migrant Protection Protocols (MPP) or "Remain in Mexico" policy forced asylum seekers to wait in Mexico during their U.S. immigration court cases, facing challenges such as gathering evidence and preparing for trials conducted in English. Additionally, the Trump administration's Title 42 policy, implemented during the COVID-19 pandemic, allowed for the expulsion of asylum seekers without the opportunity to present their cases. Despite the end of Title 42 in May 2023, the Biden administration's subsequent "asylum ban" continues to restrict the rights of asylum seekers, barring those who passed through another country on their way to the southern U.S. border.

What are the rights of asylum seekers?

Asylum seekers are individuals who have fled their home countries in search of safety and protection in another country. They are often fleeing persecution, conflict, violence, or human rights violations. The right to seek asylum is a human right protected under international law, including the 1948 Universal Declaration of Human Rights, the 1951 Refugee Convention, and its 1967 Protocol. Seeking asylum is legal, and asylum seekers should receive certain protections while their claims are processed.

In the United States, asylum seekers must navigate a complex process involving multiple government agencies to prove their case for asylum. They may apply for asylum affirmatively through the U.S. Citizenship and Immigration Services (USCIS) or defensively through an immigration judge at the Executive Office for Immigration Review (EOIR). Asylum seekers have the burden of proving that they meet the definition of a refugee, which includes demonstrating past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

While their applications are processed, asylum seekers have the right to remain in the United States, but the government has argued for their detention. Some courts have held that asylum seekers meeting certain criteria have a right to a bond hearing. Asylum seekers may apply for work authorization after 150 days, but the uncertainty of their future often impedes employment, education, and trauma recovery opportunities.

If granted asylum, individuals can apply to live in the United States permanently and gain a path to citizenship. They are protected from being returned to their home country and can apply for work authorization, a Social Security card, and permission to travel overseas. They may also petition to bring their spouse and children to join them. Asylum seekers contribute significantly to their communities and the U.S. economy, with an average contribution of over $19,000 per year per asylum seeker.

However, it is important to note that asylum seekers' rights may be restricted in certain circumstances. For example, they may be subject to criminal background checks and security checks, and they must apply for asylum within one year of their arrival in the United States. Additionally, individuals who fail to meet specific criteria, such as those who pose a danger to the country or have committed serious crimes, may be barred from receiving asylum.

What are the US's obligations to asylum seekers?

The United States has legal obligations to provide protection to those who qualify as refugees. The US Refugee Act of 1980 established two paths to obtain refugee status: from abroad as a resettled refugee or in the US as an asylum seeker.

An asylum seeker is someone who has fled their home country in search of safety and protection in another country. Asylum seekers may be of any age, gender, socioeconomic status, or nationality. The majority come from regions of the world that are suffering from conflict, disaster, and weak rule of law.

To be granted asylum in the US, an individual must meet the international law definition of a "refugee." This definition, as outlined in the 1951 Refugee Convention and incorporated into US immigration law through the Refugee Act of 1980, describes a refugee as a person who is unable or unwilling to return to their home country and cannot obtain protection there 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.

The US is a signatory to the 1967 Protocol, which confirms the definition of refugees, establishes the principle of non-refoulement, and sets minimum standards for how refugees should be treated. This means that the US has committed to not forcibly returning refugees to a country where they would face persecution.

In addition to the legal obligations outlined above, the US has taken steps to support asylum seekers and refugees through various policies and programs. For example, asylum seekers in the US have the right to remain in the country while their claim for protection is pending. They are also eligible to apply for work authorization after 150 days of filing their asylum application. Once granted asylum, individuals are protected from deportation and can apply for their spouse and children under the age of 21 to join them. They are also authorized to work, may apply for a Social Security card, and may request permission to travel overseas. After one year, asylees may apply for lawful permanent resident status (a green card) and can apply for citizenship after an additional four years.

However, it is important to note that asylum is considered a "`discretionary` status, meaning that even individuals who meet the definition of a refugee may be denied asylum. In such cases, alternative forms of protection, such as "withholding of removal," may be available to protect them from harm.

What is the process for seeking asylum in the US?

The process for seeking asylum in the US 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 US justice system if their cases are sent to immigration court.

To be eligible for asylum, you must be physically present in the US or at an official port of entry. From there, there are three pathways to obtaining asylum: the affirmative process, the asylum merits interview, and the defensive process.

The Affirmative Process

The affirmative process is for immigrants with temporary legal status, such as short-term visa holders. They can file an asylum application (Form I-589) with US Citizenship and Immigration Services (USCIS), a DHS agency, within one year of arriving in the country. If their application is denied, they are referred for deportation but can turn to the defensive asylum process.

Asylum Merits Interview

If an asylum seeker is placed in expedited removal proceedings and indicates an intention to apply for asylum or expresses a fear of persecution or torture, they will be referred to USCIS for a credible fear screening interview. If an asylum officer finds that the asylum seeker has a credible fear of persecution or torture, USCIS may retain and consider their application or issue a Notice to Appear before an immigration judge.

The Defensive Process

The defensive process is for migrants who request asylum as a defence against deportation if their asylum application is denied or if they are apprehended without valid documentation. An immigration judge within the Executive Office for Immigration Review at the Department of Justice (DOJ) hears each asylum seeker's case. If denied, they can petition the Board of Immigration Appeals and, if necessary, escalate their appeal to the federal court and, in rare cases, the Supreme Court.

Additional Information

Regardless of the process, asylum seekers are authorised to remain in the country while their application is pending and can apply for work permits. The length of the asylum process can range from a few months to a few years, with current wait times averaging 1,424 days.

Asylees (those granted asylum) are eligible for various benefits and services, including job training, English language classes, and cash and medical assistance for up to twelve months. They can also apply for Social Security, obtain employment authorisation, and request permission to travel overseas. After one year, asylees can apply to become lawful permanent residents (green card holders) and, after that, begin the process of applying for citizenship.

Frequently asked questions