Issue Brief
Published on December 4, 2015
In the aftermath of World War II, the United States was a leader in building an international system for the protection of refugees, to ensure that the nations of the world would never again turn away people fleeing persecution. The United States passed the Refugee Act of 1980, which codified our country’s obligations under the 1951 Refugee Convention and its 1967 Protocol into domestic law and created a mechanism for refugees at risk of persecution to seek asylum in the United States. The U.S. asylum system is rigorous, requiring detailed interviews with DHS-USCIS officers or immigration court hearings, as well as extensive security and intelligence vetting. As detailed below, biometric and biographical vetting is conducted with the FBI, the Department of Defense, the National Counterterrorism Center, and other databases that include intelligence agency and terrorist watchlist information. No individual may be granted asylum until this interagency security process is complete.
DHS Interviews and Immigration Court Hearings
Before an individual can be granted asylum in the United States, the asylum seeker must submit a detailed application to U.S. authorities, along with available documentation and supporting information. Individuals who file an “affirmative” application for asylum are interviewed by a highly trained DHS-USCIS asylum officer; if their applications are not granted, they are referred into immigration court removal proceedings where an immigration judge will rule on their asylum application after a hearing, which includes cross-examination by a DHS-ICE attorney. Other individuals who are referred into immigration court removal proceedings also have their asylum applications assessed through the immigration court process. The DHS officer or the immigration judge will assess the asylum seeker’s credibility, determine whether the standards for asylum eligibility are met, and assess whether U.S. laws bar the individual from asylum. Various categories of individuals are barred from asylum including individuals who pose a threat to the security of the United States.
Individuals Posing Security Threats are Barred from Receiving Asylum
The Refugee Convention’s requirements of protection are subject to exceptions that exclude from protection any persons who have committed heinous acts or grave crimes that make them undeserving of international refugee protection. The United States has codified extensive bars to asylum and withholding of removal into its immigration laws. U.S. immigration laws prohibit granting asylum to:
In addition, non-citizens, including those lawfully admitted to the United States or previously granted asylum, can be deported from the United States for a broad range of violations of law both civil and criminal. The full lists of grounds that can make a non-citizen deportable from, or inadmissible to, the United States are found at sections 237 and 212 of the Immigration and Nationality Act (INA). They are extensive, ranging from failing to register a change of address to a very broad range of criminal offenses, including an extremely broad array of terrorism-related activities, including:
Mandatory Biographical Vetting by Federal Law Enforcement and Intelligence Agencies:
Mandatory Biometric Vetting by Federal Law Enforcement and Intelligence Agencies:
Fraud Detection and National Security Teams:
The measures outlined above, including the intensive biographic and biometric security and identity vetting, are employed to identify national security threats and potential fraud and imposters. In addition, DHS has an office of Fraud Detection and National Security (FDNS) that works to identify fraudulent asylum claims by training asylum officers and providing technical support. Asylum officers may refer particular applications to FDNS and/or ICE for criminal investigation and prosecution. The FDNS officers conduct in-depth vetting on cases with national security concerns. This includes liaising with local Joint Terrorism Task Forces regarding cases. FDNS officers are located in every USCIS Center, District, Field, and Asylum office. These officers engage in fraud assessments, compliance reviews, and conduct targeted site visits.
With respect to cases pending before the immigration courts, upon the filing of any application before the court, the individual must submit a copy of that application to DHS so that the various vetting processes outlined above can be conducted. ICE attorneys monitor the background check results and report the results to the immigration court. ICE is also permitted to conduct any identity, background, and security checks it deems necessary to ensure the applicant is not a threat to national security. ICE also has specialized investigative staff charged with identifying fraud and national security risks, and can refer cases for criminal prosecution. No immigration benefit may be granted until ICE informs the court that all background and security checks have been completed.
With respect to addressing risks of fraud, a December 2015 GAO report recommended that, in addition to existing measures in place, DHS-USCIS and DOJ-EOIR conduct regular fraud risk assessments across asylum claims. The GAO concluded that while both agencies “have mechanisms to investigate fraud in individual applications, neither agency has assessed fraud risks across the asylum process, in accordance with leading practices of managing fraud risks.” The report also recommended that USCIS take additional steps, including to develop and implement additional trainings, mechanisms to collect reliable data on FDNS’s efforts to combat fraud, asylum-specific guidance for FDNS officers, methods to collect data on asylum officer attrition, prescreening of all asylum applications for indicators of fraud if cost-effective and feasible, and mechanisms to incorporate training feedback.
CBP Security Examinations:
As detailed above, security and background vetting measures must be completed before an individual can be granted asylum. For asylum seekers who enter the process after presenting themselves to CBP at a port of entry, or after apprehension by the Border Patrol, they will initially undergo vetting by CBP – which includes national security, terrorist and intelligence vetting via the TECS database (as outlined above). In addition, DHS-USCIS Asylum Officers conduct a mandatory check of both TECS and the DHS IDENT databases (both described above). These databases contain extensive intelligence and terrorist related data. In addition, asylum officers – at the credible fear stage – also ensure that the Federal Bureau of Investigation (FBI) name check and fingerprint checks have been initiated. All of this information is, as a result, available to ICE, so any derogatory information from this vetting will be available to ICE in connection with release assessments, and release criteria prohibit the release of individuals who present a danger to the community.
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