In May of 2021, President Biden announced a raise in the annual refugee admissions cap to 62,500 for the fiscal year. This announcement erases the historically low cap set by the previous administration of 15,000. In a statement issued by the White House, President Biden announced, “The United States Refugee Admissions Program embodies America’s commitment to protect the most vulnerable, and to stand as a beacon of liberty and refuge to the world. It’s a statement about who we are, and who we want to be.”
This revision is a pivot from President Biden’s previous statement made in April 2021 regarding his slow action to increase the 15,000 refugee admissions gap, stating the decision “remains justified by humanitarian concerns and is otherwise in the national interest.” Reports stated that the administration was hesitant to increase the number of refugees amid a record influx at the US-Mexico border but subsequently decided to increase the admissions cap due to backlash from supporters.
With pressure to undo the Trump Administration’s strict immigration policies while balancing the strained shelters and resources during a pandemic, we expect to see many more changes within the current refugee and asylum protection program.
The difference between asylum and refugee status
While all refugees seek asylum, not all asylum seekers are officially recognized as refugees. Refugee status applies to those who seek protection while still in their own country or outside of the United States, while asylum seekers request protection from a port of entry or from within the United States. To be granted asylum, you must meet the definition of a refugee. The United Nations 1951 Convention and 1967 Protocol define a refugee as someone who is “unable or unwilling to return to his or her country of nationality because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
People outside of the United States typically apply for refugee status through the U.N. High Commission for Refugees. Those who have already made it to the U.S. border can apply for asylum by filing Form I-589, Application for Asylum and for Withholding of Removal. Refugees and asylees also differ in the admissions process used and the agencies responsible for reviewing their applications.
What is asylum?
The United States Congress incorporated the 1967 Protocol’s definition of a refugee into U.S. immigration law in the Refugee Act of 1980. As a result of this Act, the United States has legal obligations to protect those who qualify as refugees. An individual can obtain refugee status through two paths – either from abroad as a resettled refugee or in the United States as an asylum seeker.
Asylum is a form of protection granted to individuals who can demonstrate that they are unable or unwilling to return to their home country because of persecution or a well-rounded fear of persecution on account of:
- Race,
- Religion,
- Nationality,
- Gender,
- Membership in a particular social group,
- Or political opinion
In the United States, asylum seekers can be of any age, gender, socio-economic status, or nationality. However, most come from parts of the world experiencing war, natural disasters, or a weak and corrupt political system. Once granted asylum, the individual is legally allowed to remain in the United States without fear of deportation. The protection provides the ability to work, travel abroad, and apply for their family to join them.
Defining Persecution
To be granted asylum, a person must prove persecution or a well-founded fear of persecution because of their race, religion, nationality, social group status, or political opinion. U.S immigration law does not define the type of persecution outside of one exception – people who have undergone or fear a “coercive population control program,” which may include forced abortion or sterilization.
While gender is not specified in the five grounds of persecution, women have been granted asylum based on having been subjected to cultural practices of female genital cutting, forced marriage, domestic violence, and other cases where the government has failed to protect them or prosecute the perpetrators.
Persecution is generally defined as suffering harm or a serious threat to an individual’s life or freedom that cannot be resolved by simply moving to another part of the country. Examples that have qualified as proof of persecution include death threats, torture, imprisonment, constant surveillance, pressure to join a group engaging in illegal activity, or discrimination in matters like housing, education, or passport issuance.
Applying for asylum in the United States
Applying for asylum in the United States must take place no later than one year after arrival. Many applications are denied simply because of the failure to meet this deadline. There are two ways in which a person can apply for asylum:
- Affirmative asylum: If you are not in removal proceedings, you may apply for asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal to the U.S. Citizenship and Immigration Services (USCIS). In this scenario, USCIS will determine your asylum eligibility.
- Defensive asylum: You must currently be in removal proceedings either because your affirmative asylum application was denied or you were in violation of legal immigrant status. In this scenario, an immigration judge will determine your asylum eligibility.
Asylum seekers who enter the United States without going through a U.S. port of entry are typically placed in immigration court removal proceedings resulting in a defensive asylum, where they will have an opportunity to make their case before an immigration judge. However, in some cases of unlawful immigration status, individuals may face expedited removal proceedings and are deported from the United States without ever receiving a hearing before a judge.
If a person in the process of expedited removal states their fear of returning to their home country or intention to apply for asylum, they will be granted a credible fear interview by a trained USCIS asylum officer. In this situation, the asylum seeker must prove a “significant possibility” for asylum eligibility and undergo a credibility assessment. The officer will then determine if the asylum seeker should be referred to immigration court to apply for asylum or be deported.
While their asylum case is pending, applicants cannot apply for employment authorization. The waiting period to request permission to work is 365 days after the completed asylum application is filed. However, pending asylum applicants may be eligible for employment authorization if they:
- Lawfully entered into the United States on or after August 25, 2020, with limited exceptions and applied within one year from the date of the last arrival,
- Appeared for any scheduled biometric services appointments and appeared for interviews with a USCIS asylum officer, or the hearing before an immigration judge
- Are not described in 8 CFR 208.7(a)(1)(iii);
- Have no outstanding applicant-caused delays related to the asylum application when the initial application for employment authorization was filed; and
- No final decision has been made on the asylum application.
What happens after a grant of asylum
If eligibility for asylum has been granted, Form I-94 and a confirmation letter will be issued stating the updated asylum status. A grant of asylum allows you to apply for:
- An Employment Authorization Document (EAD)
- A Social Security card
- A Green Card (permanent residence)
- Immigration benefits for your spouse and unmarried children under the age of 21
With a grant of asylum, you are also eligible to receive assistance and services through The Office of Refugee Resettlement (ORR) to restart your life in the United States. Programs offered by the ORR include cash and medical assistance, employment preparation and job placement, and English language training.
Your asylum status does not expire but can be terminated if:
- There is no longer have a well-founded fear of persecution because of a fundamental change in circumstances
- You obtained protection from another country
- You received the original asylum grant through fraud
- You committed certain crimes or engaged in other activities that make you ineligible to retain asylum in the United States
Asylum denials and alternative options
If an applicant cannot prove credible fear during an interview with a USCIS asylum officer, an order of removal is issued. However, before removal proceedings, the individual may appeal the asylum denial decision by pursuing a review process before an immigration judge. If the immigration judge upholds the USCIS officer’s decision, the removal proceedings will continue, and the applicant will be deported.
If it is found that you do not qualify for asylum, you may still be eligible for withholding of removal or the Convention Against Torture (CAT). To be granted withholding of removal, you must be able to prove that there is more than a 50 percent chance that you will receive future persecution if you returned to your home country. If you receive a withholding of removal decision, it means that you have been ordered to be deported, but the removal proceedings have been suspended.
According to the American Immigration Council, “A person who is granted withholding of removal may never leave the United States without executing a removal order, cannot petition to bring family members to the United States and does not gain a path to citizenship. If conditions improve in a person’s home country, the government can revoke withholding of removal and again seek deportation. This can occur even years after a person is granted protection.” However, this grant does protect the individual from immediately returning to a country that may bring harm and also grants the ability to apply for employment authorization.
If you do not qualify for asylum but fear torture in your home country upon returning, you may be eligible for protection under the Convention Against Torture (CAT). You must be able to prove that you will more likely than not be tortured either by the government or that the government is aware you may be tortured and will not try to stop it. You can apply for CAT protection simultaneously when applying for asylum, or you can request CAT protection later as there is no application deadline.
The main advantage of CAT protection is that none of the bases for asylum denial apply to CAT, and the torture you may face in your home country does not have to be as a result of one of the five grounds for asylum. However, CAT protection does not prevent the United States from relocating you to an alternative safe country. The protection can also be terminated if it is determined that you are no longer at risk of returning to your home country. CAT protection also does not offer a path to citizenship or any rights for your family members.
An attorney’s role in applying for asylum
Proving persecution or a credible fear of persecution requires extensive evidence and research. Asylum seekers must prepare an application and present definitive proof of the severe threat of returning to their home country. Evidence can include personal testimony, witness statements, news articles about the country’s human rights violations or people in similar situations, expert witness statements, and more. To provide a solid case of evidence, asylum seekers must understand the judicial process and access to resources and information, all while navigating a recent arrival within a new country and the possibility of limited access to obtain the information needed.
Studies prove that legal representation can significantly increase the likelihood of success in asylum cases. According to Wikipedia, “one-third of asylum seekers applying for asylum go into court unrepresented although asylum seekers with legal representation have a three times higher chance of winning their case.” An attorney can help prepare the application forms, draft comprehensive written testimony, and collect various documents to prove the legitimacy of credible fear. An attorney can also represent the individual seeking asylum at the USCIS office or in front of an immigration judge.
Attorneys also play a pivotal role if the asylum seeker applies for defensive asylum and faces removal proceedings. A reputable immigration lawyer understands the laws surrounding refugee protections and can navigate the complex aspects of providing substantial proof of persecution. They can also offer guidance to seeking employment authorization while the asylum application is pending and offer alternative options if ineligibility for asylum is determined.
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