Asylum Seekers: Criminalizing The Desperate

Asylum seekers are not breaking the law by seeking asylum. In fact, seeking asylum is a human right protected under international law and the laws of many countries, including the United States. Asylum seekers are individuals who have fled their home countries due to persecution or a well-founded fear of persecution based on their race, religion, nationality, membership in a particular social group, or political opinion. They have a legal right to seek protection in another country and to have their requests for asylum considered. However, the process of seeking asylum can be complex and challenging, and asylum seekers may face obstacles such as detention, lengthy wait times, and restrictive policies that limit their access to protection.

Asylum seekers are not breaking the law by arriving at the border to request screening by US officials

Under US law, a person seeking asylum may do so by arriving at the border and asking to be screened by US officials at a "port of entry", or by entering the US without prior inspection and then declaring their fear of persecution. Asylum seekers must be physically present in the US or at a port of entry to request the opportunity to apply for asylum.

However, it is important to note that asylum is a discretionary status, meaning that some individuals may be denied asylum even if they meet the definition of a refugee. In addition, there are certain factors that bar individuals from asylum, such as failing to apply within one year of entering the US, posing a danger to the country, committing a "particularly serious crime", or persecuting others.

The asylum process can be complex and lengthy, involving multiple government agencies. It typically involves a criminal background and security check, followed by the need to prove a well-founded fear of persecution. Despite these challenges, asylum seekers who are granted protection can apply to live in the US permanently and gain a path to citizenship. They can also apply for their spouse and children to join them.

Asylum seekers are subject to criminal background and security checks

The US Refugee Admissions Program (USRAP) involves biometric and biographic checks at multiple stages, including at the time of the preliminary Resettlement Support Center (RSC) interview, before a refugee applicant's departure to the US, and on arrival at a US port of entry. The RSC captures biographic data, including names, dates of birth, and other data points of all refugee applicants within designated age ranges. This information is then provided to the intelligence community and law enforcement partners through a centralized and coordinated process established at the National Vetting Center (NVC).

Before approving a refugee application, any information returned from an applicant's interagency checks must be addressed and cleared. Additionally, before or at the time of the USCIS interview, applicant fingerprints are submitted, and biometric checks are initiated. The biometric checks include FBI Fingerprint Checks, recurring biometric record checks of criminal history and previous immigration data, and the DHS Automated Biometric Identification System (IDENT), which checks travel and immigration history, immigration violations, and law enforcement and national security concerns.

The Department of Defense Biometric and Watchlist System is also used to conduct a biometric check against the Department of Defense (DOD) Automated Biometric Identification System (ABIS). This system is used to match, store, and share biometrics with the FBI, the National Ground Intelligence Center, DHS, and other US government agencies to identify biometric matches in support of US criminal cases, border control, and intelligence watch lists.

The US asylum system also includes detailed interviews with DHS-USCIS officers or immigration court hearings. Asylum seekers must submit a detailed application, along with available documentation and supporting information. If their application is not granted, they are referred to immigration court removal proceedings, where an immigration judge will rule on their asylum application after a hearing. The DHS officer or immigration judge will assess the asylum seeker's credibility, determine whether the standards for asylum eligibility are met, and evaluate whether US laws bar the individual from asylum.

Individuals posing security threats are barred from receiving asylum. US immigration laws prohibit granting asylum to people who have committed heinous acts or serious crimes, engaged in terrorist activity, or otherwise pose a threat to US security. This includes people who have been convicted of a "particularly serious crime" in the US or committed a serious non-political crime abroad.

Asylum seekers must prove their case, demonstrating a well-founded fear of persecution

Asylum seekers must be physically present in the US or at a port of entry to request asylum. They must then prove their case, demonstrating a well-founded fear of persecution. This involves navigating a complex and lengthy process that can involve multiple government agencies.

To be granted asylum, asylum seekers must provide evidence that they have suffered persecution or have a "well-founded fear" of future persecution in their home country on account of their "race, religion, nationality, membership in a particular social group, or political opinion". An individual's testimony is usually critical to their asylum determination.

The asylum process can take years to conclude and often involves lengthy backlogs. Asylum seekers, and any family members waiting to join them, are left in limbo while their case is pending. This can cause prolonged separation of refugee families and make it difficult to retain legal counsel.

While their application is processed, asylum seekers have the right to remain in the US, but the government has argued that it has the right to detain them. Some courts have rejected this interpretation and held that asylum seekers have a right to a bond hearing.

Those who are unable to prove their case and lose their appeals are deported.

Asylum seekers are not guaranteed a government-funded lawyer

The right to seek asylum is protected under US law. Asylum seekers are people who have fled their homes and are in search of safety and protection in another country. They are often escaping violence and persecution in their home countries.

In the US, asylum seekers must be physically present in the country or at a port of entry to request asylum. They are then subjected to a criminal background and security check and must navigate a complex and lengthy process involving multiple government agencies to prove their case for asylum. This process can take years to conclude.

While asylum seekers are legally allowed to remain in the US while their claim for protection is pending, they are not guaranteed a government-funded lawyer. Unlike in the US criminal legal system, asylum seekers are not provided with appointed counsel if they cannot afford an attorney. This means that many asylum seekers must navigate the complex legal process without legal representation.

Studies have shown that access to legal representation significantly impacts an individual's case. Asylum seekers with lawyers are more likely to apply for protection and successfully obtain asylum. For example, one study found that asylum seekers with legal representation were five times more likely to be granted asylum.

The lack of guaranteed legal representation for asylum seekers can create significant challenges and barriers for individuals seeking protection. It places a disproportionate burden on those who may already be facing trauma, language barriers, and financial difficulties.

Some asylum seekers may be able to access publicly funded attorneys or pro bono legal services. However, the lack of guaranteed government-funded lawyers for all asylum seekers can result in individuals being deported back to dangerous situations they were trying to escape.

Asylum seekers can be denied asylum if they fail to apply within one year of entering the US

Asylum seekers in the US can be denied asylum if they fail to apply within one year of entering the country. This is because, under US law, an asylum seeker must apply for asylum within one year of their arrival in the US. This is known as the one-year filing deadline.

There are some exceptions to this rule, however. Asylum seekers may be granted an exception if they can demonstrate "changed circumstances materially affecting [their] asylum eligibility" or "extraordinary circumstances relating to [their] delay in filing". Examples of changed circumstances include changes in the conditions of an individual's country of nationality or changes in US law that affect an individual's eligibility for asylum. Extraordinary circumstances may include serious illness or mental or physical disability, ineffective assistance of counsel, or the death or serious illness of a legal representative or immediate family member.

Even if an asylum seeker can demonstrate changed or extraordinary circumstances, they must still file their application within a "reasonable time" under the circumstances to be eligible for an exception. The one-year deadline is not an absolute bar to asylum, but rather a factor that may be considered in the context of an individual's specific circumstances.

The one-year filing deadline poses significant challenges for asylum seekers, who must navigate a complex and lengthy application process involving multiple government agencies. Many asylum seekers face traumatic repercussions from their time in detention or dangerous journeys to the US and may not be aware of the deadline. Even those who are aware may struggle to meet the deadline due to systemic barriers such as lengthy backlogs and delays in the immigration system. In some cases, missing the one-year deadline is the sole reason for the denial of an asylum application.

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