Huddled Masses Yearning to Be Free
In 1948 the Universal Declaration of Human Rights proclaimed the right of individuals “to seek and to enjoy in other countries asylum from persecution” [ref]. Asylum is a form of protection offered to people fleeing from persecution based on the following personal characteristics:
- membership in a social group
According to the Refugee Act of 1980, anyone may apply for asylum, no matter his or her alien status.
Unlike other forms of immigration, asylum has no quotas or limits on number of visas -- the person requesting asylum, the asylee, simply has to demonstrate a “well-founded fear” of persecution in his or her home country. However, an asylum seeker must apply within one year of arriving in the U.S. or at a U.S. border or point-of-entry, and he or she cannot reapply for asylum if a previous application was denied by a judge. Changed circumstances can also affect asylum status -- for example, if there has been a regime change in the asylee’s country of origin that would make returning to the country more or less safe.
In some cases, an asylum seeker can be removed to a safe country with which the United States has an asylum agreement. If a person who is seeking asylum is in transit from Canada or seeks asylum at a border between the U.S. and Canada, he or she may be forced to seek asylum in Canada [ref].
Affirmative Asylum refers to someone who has arrived in the U.S. or at a port-of-entry and submitted an application for asylum to the USCIS “without delay” (within a year of arrival). After the application is filed, the asylee will have a non-adversarial interview with an asylum officer, usually within 45 days. In most cases, the asylum seeker isn’t detained and is free to live in the U.S. but not to work while his or her case is being considered.
If the request for asylum is not approved, the asylee is referred to an immigration judge at the Executive Office for Immigration Review. If the initial application is approved, the entire process can be completed within 60 days. If the application is referred to a judge, it can take up to six months to resolve the asylee’s case.
If someone requests asylum to defend against being deported from the U.S., then he or she is said to be pursuing defensive asylum. Someone can end up in the defensive asylum process if he or she was referred to an immigration judge by an asylum officer who didn’t grant asylum. A person may also be placed in the defensive asylum process if put in removal proceedings because he or she was living undocumented in the U.S., violated his or her immigration status or was caught trying to enter the country without correct documentation but has a “credible fear of persecution or torture” [ref].
With defensive asylum, immigration judges hear cases in an adversarial manner (meaning in a courtroom), and the U.S. government is represented by a lawyer. The immigration judge determines if the applicant is eligible for asylum. If the judge rules against asylum, he or she decides if the applicant can avoid removal through any other process or if the applicant must be removed from the U.S.
Anyone caught trying to enter the U.S. at a port-of-entry with improper or no documentation may be subject to expedited removal. Immigration officials are required to ask anyone who may be subject to expedited removal the following questions [ref]:
- Why did you leave your home country or country of last residence?
- Do you have any fear or concern about being returned to your home country or being removed from the United States?
- Would you be harmed if you were returned to your home country or country of last residence?
- Do you have any questions, or is there anything else you would like to add?
Anyone who asks for asylum is given the chance to speak to an asylum officer and will end up in the defensive asylum process if found to have a credible fear of persecution or torture in his or her home country. “Credible fear” is determined through an interview with an asylum officer. If the officer decides the asylum-seeker satisfies the credible fear standard, then the defensive asylum process begins. If the officer finds that the asylum-seeker doesn’t have a credible fear of persecution or torture, he or she can request a hearing before an immigration judge. If the judge determines that the asylum-seeker has a credible fear, then he or she enters the defensive asylum process (the judge’s decision can’t be appealed). Otherwise, the asylum-seeker will enter removal proceedings. Most people placed in defensive asylum are released. Some fend for themselves; others are taken care of by relatives or charitable organizations.
For more information about the asylum process, check out the USCIS Web site.