December 31, 2012
The Basics of U.S. Asylum Law
Who are refugees?
- Refugees are often survivors of unimaginable atrocities. Many have had family members killed in conflict or been separated from their parents or children due to violence or chaos. They have been arrested, jailed, beaten, raped, tortured, threatened with death, or otherwise persecuted because of their political beliefs, religious beliefs, race, ethnicity, or other fundamental aspects of their identities. Many have fled war, ethnic or sectarian conflict, genocide, or other persecution.
- Refugees come from all walks of life. They are journalists, teachers, preachers, human rights advocates, farmers, parents, and political dissidents. Their list of home countries reflects the arc of recent world conflict—Laos, Afghanistan, the former Yugoslavia, the former Soviet Union, Ukraine, Vietnam, Cuba, Somalia, Sudan, Liberia, Russia, Burma, Bhutan, Iran, and Iraq—as well as the pernicious presence of persecution in many other places.
Why do some refugees seek asylum protection in the United States?
- The United States has a long and proud history of providing refuge to victims of religious, political, and ethnic persecution.,. Such tradition reflects a core component of this country’s identity as a nation committed to freedom and respect for human dignity.
- According to the United Nations High Commissioner for Refugees (UNHCR), of the estimated 15.4 million refugees worldwide, 81% are hosted by developing countries. In 2012, the top 25 countries with the largest numbers of refugees were all developing countries; 16 of those held “least developed country” status.
- In 2011, 876,100 individual applications for asylum or refugee status were submitted to governments or UNHCR offices in 171 countries or territories. 76,000 of those claims – the equivalent of about 8.7% – were filed in the United States. According to data from the U.S. Department of Homeland Security and the U.S. Department of Justice 29,484 individuals were granted asylum in Fiscal Year 2012.
How does an individual apply for asylum in the United States?
- An applicant must file for asylum either with the U.S. Citizenship and Immigration Service (USCIS) Asylum Division or – if facing deportation – before an Immigration Judge. The process requires the applicant to provide detailed information regarding his past activities, associations, experiences of persecution, and current fear of future persecution. He also must provide information on conditions in his home country to support the accuracy of his claim. This information must be consistent with the applicant’s account of events and objectively support his fear of return.
- An asylum applicant will be questioned carefully by either the USCIS Asylum Officer or – if before an Immigration Judge – challenged by the Judge and cross examined by a government attorney representing U.S. Immigration and Customs Enforcement (ICE).
- An asylum applicant does not enjoy any presumption of credibility. Under the law, an applicant will be denied asylum if the adjudicator does not find the applicant’s claim to be truthful. Any falsehoods or inconsistencies can lead to an adverse credibility finding.
- The burden of proof is on the applicant to establish that he meets the legal definition of “refugee” in the INA. Adjudicators often require evidence to corroborate the applicant’s testimony, if the applicant is reasonably able to obtain it. The adjudicator then assesses the credibility of the applicant’s testimony, weighing it against any evidence of record.
What is the legal definition of a “refugee?”
- A “refugee” as defined by INA §101(a)(42), personifies several traits, each of which has been defined in greater detail through regulations and case law: • Person located outside of his country of nationality or, for those without a nationality, outside the country in which he last habitually resided;
- Person unable or unwilling to return to that country and unable or unwilling to avail himself of protection of that country;
- Person fearful because of persecution or a well-founded fear of persecution;
- Person persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion.
Who is barred or excluded from asylum protection in the United States, even if he otherwise qualifies as a “refugee” under INA §101(a)(42)?
- Applicants who have engaged in the persecution of others;
- Applicants who have been convicted of a particularly serious crime and constitute a danger to the United States;
- Applicants whom U.S. asylum officers have considerable reason to believe committed a serious, nonpolitical crime outside the United States;
- Applicants whom U.S. asylum officers regard as a danger to the security of the United States;
- Applicants who have engaged in terrorist activity;
- Applicants who have been “firmly resettled” in another country prior to arriving in the United States; and,
- Applicants who failed to file their applications within one year of arrival, absent changed or extraordinary circumstances.
What mechanisms are in place to prevent abuse of the asylum system?
- Extensive, on-going training in fraud detection and credibility determinations for Immigration Judges, Immigration and Customs Enforcement (ICE) trial attorneys, and USCIS Asylum Officers;
- Perjury penalty for both the applicant signing an asylum application and the individual preparing an asylum application if either makes a false statement;
- A permanent bar on receiving any immigration benefits for fraudulent asylum applications, meaning that those applicants would never be able to work legally in the U.S. or receive permanent lawful resident status in the U.S.;
- Mandatory biographical and biometric checks of applicants in multiple federal databases, including those of the Department of Homeland Security and the FBI. Such checks help identify fraudulent cases as well as individuals who might present a security risk to the U.S.;
- Additional biographical screening by the National Counterterrorism Center (NCTC) of all asylum applications starting in August 2011;
- Obligatory analysis of applicants’ fingerprints in the FBI fingerprint database before asylum officers and immigration judges may grant asylum;
- Random case assignment, and mandatory supervisory review of all asylum decisions;
- Government-funded interpreter monitors;
- Immediate referral of suspected fraudulent applications to ICE by asylum officers for criminal investigation and prosecution of applicants, preparers, and attorneys; additional identification of fraudulent asylum claims by USCIS’ Fraud Detection and National Security Directorate.