What does it mean to seek asylum in the US? Your questions, answered
The U.S. asylum process can seem dense and complicated to understand.
The Title 42 health policy allowed border officials to rapidly turn back migrants arriving at the country's borders for more than three years. Following the restriction's end on May 11, President Joe Biden implemented a number of policies that heavily restrict migrants' access to asylum, advocates say.
People hoping to seek protections in the U.S. must confront a convoluted and lengthy asylum process that spans numerous government agencies and several years.
Here are some answers to your questions about asylum.
What is asylum?
Asylum is a protection that’s given to people who can show that they’re unable or unwilling to return to their home country because of a past persecution or a well-founded fear of persecution stemming from:
- Race.
- Religion.
- Nationality.
- Membership in a particular social group.
- Political opinion.
After a mass displacement of people after World War ll, asylum and refugee protections were enshrined in international law in the 1951 United Nations Convention. The U.S. didn’t ratify the 1951 convention but did sign onto the 1967 Protocol, which legally bound them to provide protection to people who qualify as refugees.
A refugee is someone who applies for protection from outside the U.S. and goes through a complex yearslong process to receive refugee status and travel to the U.S.
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An asylum seeker is someone who meets the definition of refugee but seeks protection from within the U.S. or at a port of entry.
Congress adopted the UN’s definition of refugee into its immigration law in the Refugee Act of 1980. Still, asylum is classified with “discretionary” status, meaning that some people can be denied protections even if they meet the definition of a refugee.
Why are people seeking asylum?
People leave their countries for a variety of reasons. People flee their homes due to violence, war, hunger, poverty, the pandemic or because of conditions stemming from climate change and natural disasters.
Persecution because of someone’s sexual orientation is another driving force behind people’s decision to leave their countries.
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How can people apply for asylum?
There are a few different ways to apply for asylum in the U.S.
- Affirmative Asylum
A person who isn’t in removal proceedings may apply for affirmative asylum through the U.S. Citizenship and Immigration Services. Applicants have one year from when they entered the U.S. to apply for asylum.
Through the affirmative asylum process, a USCIS officer decides if a person will be granted asylum.
If the officer doesn’t grant the asylum application, the person will be referred to an immigration court for removal proceedings. The person may then renew their request for asylum through the defensive asylum process and appear before an immigration judge.
- Defensive Asylum
People in removal proceedings may file an asylum application defensively with an immigration judge at the Executive Office for Immigration Review within the U.S. Department of Justice. Similar to court proceedings, asylum is used as a defense from being deported.
While asylum seekers have a right to a lawyer, they are not provided one in this process, even if they cannot retain one themselves.
- Expedited Asylum
People crossing the border without authorization are often placed in expedited removal proceedings. Under expedited removal, people aren’t given an immigration court hearing and can be deported in a matter of days or weeks.
If a person expresses fear of returning to their home country while in the proceedings, they must be given a credible fear interview with an asylum officer.
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If people fail their credible fear interview or don’t request asylum protections, they could be rapidly deported. People who are deported under expedited removal are banned from re-entering the U.S. for five years and could face criminal charges if they try to cross again.
If migrants pass their interview, they’re allowed to continue the yearslong process of seeking asylum in the U.S.
What are the requirements to seek asylum?
People must be physically present in the U.S. or at a port of entry to request asylum. It’s legal for people to request asylum even if they cross between ports of entry without authorization.
Under U.S. law, a person may seek asylum by arriving at a port of entry or by entering the country without inspection and declaring their fear of persecution.
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Biden’s new border policies seek to incentivize people to seek asylum through ports of entry with the CBP One mobile government application. The app is meant to deter people from seeking asylum in between ports of entry through more dangerous routes.
People in any of the asylum processes must prove that they meet the definition of refugee. People must often provide evidence showing that they suffered persecution and/or that they have a fear of persecution from one of the protected reasons (race, religion, etc.) in their home country.
Who is disqualified from asylum protections?
There are certain factors that can disqualify people from asylum, such as people who don’t apply for asylum within one year of entering the U.S. People who are found to pose a danger to the U.S., have committed serious crimes or who persecuted others are also barred from asylum protections.
Under the Biden administration’s new rule, people will be considered ineligible for asylum if they arrive in between ports of entry without having applied and been denied asylum in a country they already passed through.
If people don’t use the lawful pathways or apply for prior protections, they will be considered ineligible for asylum, barring a few exceptions.
What does the asylum process look like?
After filing their asylum application or passing a fear screening, migrants can be placed in long-term detention centers or released into the country with notices to check in with Immigration and Customs Enforcement when they arrive at their final destination.
If migrants are released into the community, they may receive a notice to appear in court in front of an immigration judge at a later date.
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The asylum process can take years to complete. There’s a backlog of over 2 million pending cases in U.S. immigration courts, according to the Transactional Records Access Clearinghouse at Syracuse University.
It takes an average of four years to conclude an immigration case, per TRAC data.
In fiscal year 2022, immigration judges approved 22,424 asylum requests and denied 26,483 others, per DOJ statistics.
During the first three months of fiscal year 2023, judges approved 7,547 requests and denied 9,292 others.
Have a news tip or story idea about the border and its communities? Contact the reporter at josecastaneda@arizonarepublic.com or connect with him on Twitter @joseicastaneda.