A Brief Guide to Asylum

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SURVIVORS is located near the busiest border crossing in the Western Hemisphere, therefore, asylum seekers and refugees are a significant part of our community. Many asylum seekers that flee their home country have suffered severe physical, psychological, and sexual torture. There are approximately 35,000 torture survivors in San Diego County alone, many of whom turn to SURVIVORS for the support they need to help them heal and become productive members of our community. SURVIVORS provides free-of-charge forensic evaluations, intensive case management, psychiatry, school-based programs, and counseling services to torture survivors regardless of their immigration status. However, each year nearly 80% of our clients are asylum seekers.

Asylum seekers are often a hidden population. We would like to explain the definition of asylum; the process of seeking asylum at the border; and the system that is put in place for asylum seekers in the United States in this blog.

What is asylum in the United States?

Asylum is a protection offered to people who flee to the United States and are unable to return to their home countries because of persecution or a well-founded fear of persecution. Asylum seekers are targeted because of their race, religion, nationality, membership in particular social group or political affiliations.

Which laws and policies address the issue of asylum?

Asylum seekers have a right to seek asylum. U.S. law and international accords grants foreign nationals certain rights to claim refugee status and to seek asylum.

Article 14 of The Universal Declaration of Human Rights, published in 1948, states that “Everyone has the right to seek and to enjoy in other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.”

Article 33(1) of The 1951 Refugee Convention protects any “refugee” against refoulement (return) if his or her “life or freedom would be threatened because of race, religion, nationality, membership of a particular social group or political opinion.” The U.S. Senate ratified the 1967 Protocol to the convention in 1968.

The Refugee Act of 1980 amended the two earlier laws – Immigration and Nationality Act and the Migration and Refugee Assistance Act – and raised the annual ceiling for refugees. It created a process for reviewing and adjusting the ceiling to meet emergencies and required annual consultation between Congress and the President. “The act also changed the definition of “refugee” to a person with a “well-founded fear of persecution,” a standard established by U.N. conventions and protocols.

The 1980 Act covers a person who requests protection before journeying to the United States (refugees) as well as a person who requests asylum at a U.S. border point or inside the U.S. (asylum-seeker). There are no numerical limits on the number of asylum seekers who can enter our country.

Under this law, except for national security or criminal conduct, asylum seekers who make it to a U.S. port of entry or inside the United States have a right to a hearing with a claims officer and certain other protections*. At this hearing, asylum seekers typically are asked a series of questions, including whether they have a fear of returning to their country. If they say that they do, then they are required to undergo what’s called a credible fear interview conducted by an asylum officer. If the officer finds that the applicant does not have a credible fear, the asylum seeker can request to have that determination reviewed by an immigration judge in an expedited fashion.

*However there is a difference between foreign nationals seeking asylum who have reached the border and those who are stopped short of the U.S. border, even by U.S. authorities. A 1991 Justice Department memorandum concluded that Article 33 of the 1951 U.N. Convention Relating to the Status of Refugees does not impose any domestic legal obligations on the U.S. for individuals interdicted outside its territory, or stopped short of the U.S. border, even if they intend to claim asylum.

What is the process of seeking asylum?

Asylum Seekers apply for asylum by filling out an application and submitting it to the U.S. Citizenship and Immigration Services (USCIS). Since this is a federal immigration court case, not a criminal case, asylum seekers do not have the right to an attorney. Asylum seekers can seek pro-bono or low-bono legal counsel from independent immigration attorneys and public interest law firms. However, not every asylum seeker is able to procure counsel. Asylum seekers have the right to live in the United States as they await their court date. If asylum is denied then the decision can be appealed to the Board of Immigration Appeals and the Appropriate U.S. Circuit Court of Appeal.

What is the day to day Life of an Asylum Seeker?

Asylum seekers often live in a limbo. The determination of an asylum case can take anywhere between several months to several years. They often suffer due to limited finances and  access to public resources. During this time asylum seekers are unsure and fearful of their future.

Once granted asylum, the “asylees” have the same advantages as refugees. They live and work in the United States and can file for their spouses and minor children to join them. Asylees can apply for permanent residence and eventually citizenship, and can also travel outside the country. They can plan for a safe and productive future in the United States.

Sources:

U.S. Citizenship and Immigration Services: https://www.uscis.gov/humanitarian/refugees-asylum/asylum/obtaining-asylum-united-states

The Advocates For Human Rights: https://www.theadvocatesforhumanrights.org/what_is_asylum_2

American Bar Association: https://www.americanbar.org/news/abanews/publications/youraba/2019/may-2019/aba-legal-fact-check–an-exploration-of-asylum-legalities-amid-c/