A major focus of the current debate in the United States over immigration policy has concerned those people who seek to enter this country without permission. In reality, however, the overall picture is much bigger and more complex than that, beginning with the fact that the U.S. is not the only magnet for immigrants from the developing world. People on the move who have left their homelands are a world-wide phenomenon. The United Nations reported that in 2005 there were more than 190 million international migrants, a total that made up about 3% of the world's population.
Lately, there have been calls for the U.S. Government to beef up its borders in efforts to keep out non-citizens without permission to be here and to deport those who are already here. In their effort to meet these demands, however, there is an important exception. Under U.S. laws and numerous international treaties which the U.S. has signed, immigration officials are required to to identify asylum seekers who are fleeing persecution or abuse in their homelands and allow them to remain in the country while they apply for the right to stay.
This report describes the laws that govern asylum in the U.S. and how the U.S. fits into the global picture. Other TRAC reports describe the complex asylum application process and how these cases are resolved by Immigration Judges.
A Global Perspective
Asylum seekers who reach U.S. shores do not travel in isolation but are, in reality, part of a vast overall global pattern of migration. Most migrants can be thought of as having been "pulled" to the U.S. and other parts of the developed world by the hope of employment or education – often called "economic migrants" -- or the dream of re-uniting with other family members.
But a significant portion of the world's migrants are "pushed" away from their homelands. One group of such displaced persons, referred to as "environmental migrants", have been pushed out by such natural disasters as earthquakes and tsunamis or such life-threatening situations as famine and drought.
Other immigrants have been pushed out -- forced to flee their countries -- because of dangers to themselves and their families due to their political opinions, race, religion, nationality or social group or due to civil war or generalized violence. Making these distinctions about why people are being pushed from their countries is important because those who move for environmental or economic reasons generally are not entitled to protection and assistance while those who have fled their countries because of various kinds of abuse are.
Individuals who are refugees and those who are asylum seekers can be thought of as two sides of the same coin. Both have been "pushed" from their homelands due to persecution or abuse. The difference between the two groups is where they are located when they seek protection. Refugees typically remain in the same region as their homeland, often in a neighboring country, while asylum seekers have come directly to the U.S.
Origins of Asylum and Refugee Law
The origins of this complex system of international protection stretch back nearly 60 years. In the late 1940s, soon after the end of World War II, the newly-created United Nations approved a convention spelling out specific rights and protections that nations should offer to refugees and asylum seekers. The United Nations High Commissioner for Refugees (UNHCR) was created to oversee the process. (See sidebar)
The UN's biggest concern at that time was the thousands of refugees in Europe who had been driven from their homes during and after the War and who had no country to protect them. Since then, the number of refugees – as well as the countries they are fleeing from – has increased many fold. The United States ratified a subsequent UN treaty in 1968 and put its primary provisions into law in 1980.
Legal Requirements for Asylum
Many Americans believe that the process of being granted asylum is easily abused by persons who seek this status in order to come to and stay in the United States, whether to work, to commit crimes or to endanger national security. In fact, asylum applications are subject to stringent review procedures by adjudicators in the Department of Homeland Security and the Department of Justice and to rigorous background and security checks. And in the end, most applications are denied. For example, the Department of Justice has denied over 80% of what are called "defensive asylum applications" in each of the past two years. (see TRAC's report on the Asylum Process)
Asylum decisions are discretionary, meaning the decision maker can weigh all the evidence and other factors and decide purely on the basis of his or her judgment. That said, however, each decision is handed down within a framework of law and judicial opinions interpreting the law. Below is an examination of the legal requirements that have been established in regard to deciding whether an individual is, or is not, eligible for asylum.
To win legal protection from being deported asylum seekers must:
1. Be outside their country of nationality. Asylees are by definition in the United States and thus necessarily outside their country of nationality.
2. Be afraid of persecution. Torture and imprisonment are persecution - recognized under the law, but harassment or discrimination usually are not. Where these lines are drawn is different in each case.
3. Be harmed or fear harm by the government or others. Harm by the police or the army counts. Harm by right-wing or left-wing political groups or religious zealots that the government is "unable or unwilling to control" also counts.
4. Be affected by at least one of several defined conditions. As suggested above, these conditions are: political opinion, race, religion, nationality, and social group. The last category, social group, usually refers to people with certain characteristics that a particular society might lump together and have generally unfavorable attitudes about, such as homosexuals. The law generally does not include people who fled their homes due to civil wars, generalized violence, and criminal prosecution. However, even these reasons may suffice if they can be connected to one of the five listed reasons.
5. Not be a dangerous person. Finally,international law recognizes that countries have the right to exclude asylum seekers who may be a danger to society. These include those who have committed serious crimes, pose threats to national security, or who have committed war crimes or "crimes against humanity".
Terrorism concerns can lead to automatic disqualification from asylum. Even before the events of 9/11, people with terrorist connections were ineligible for asylum and subject to deportation. However, laws passed by Congress after 9/11 in 2001 and again 2005 have broadened restrictions even further. Under current U.S. law, any person who provides "material support" to terrorists will be refused asylum. Since there is no exemption for cases of coercion, even acts such as providing drinking water at gunpoint to terrorists are to be considered material support.
Administrative Screening Before Requesting Asylum
By definition, asylum seekers who come to the immigration courts via defensive applications are not in legal immigration status in the U.S. For some of them, the hearings are their first contact with the federal government. But in other cases asylum seekers have been subject to various kinds of administrative screening before being allowed to formally request asylum status in court.
One such screening mechanism -- known as "expedited removal" -- was authorized in 1996. Under this law, low-level immigration inspectors now have authority to identify and immediately remove individuals who are not eligible to come into or remain in the U.S. as they are intercepted at or near the border or at an official port of entry. The exact number of individuals the inspectors remove through this process each year has not been made public.
Before removal, however, the inspectors are required to ask a series of questions aimed at identifying those who may be afraid to return home and who thus must be allowed to remain in the U.S. and apply for asylum. This key asylum decision had previously been reserved for immigration judges. The expedited removal process is not monitored by outside sources and U.S. law does not require that an interpreter be present during the interviews. A recent government study of the Expedited Removal system, based in part on observing some interviews, found instances in which some inspectors failed to identify asylum seekers which resulted in their deportations, in violation of the law. Other instances were discovered in which the officers improperly encouraged others to withdraw their requests to apply for asylum.
The Challenges to Winning Asylum
Many asylum seekers face substantial difficulties in meeting the five requirements for asylum that are outlined above. In the rush to leave their homeland, and because they are so far from their homes, they often lack documents or witnesses to prove who they are, why they left home, or what dangers await them upon return. Usually, their own oral testimony is the only "proof" they have. It thus is up to the decision-maker to determine whether this testimony is sufficiently detailed and believable to justify granting asylum.
The consequences of an incorrect decision can be severe — wrongfully sending someone back home to possible torture or death. And, while asylum seekers can have lawyers to prepare their cases and appear with them in court, legal representation is not provided by the government as it usually is in criminal matters. Most asylum seekers lack the money to hire lawyers and there are not enough non-profit organizations to meet the demand for free legal services. A TRAC report examining asylum decisions in recent years found that the assistance of an attorney substantially increases the chances that asylum will be granted.
The United Nations High Commissioner for Refugees (UNHCR) believes that in 2005 only about 8.4 million of the world's 191 million migrants could be classified as refugees. The agency also reports that two out of three of the refugees are now thought to reside in West Africa, Central Asia, South West Asia, North Africa and the Middle East.
Refugees must satisfy the same five requirements as asylum seekers. Because they have not come directly to the U.S., they are eligible for assistance from the UNHCR and other groups.
The primary responsibility of the UNHCR is to lead and coordinate international efforts to protect refugees and and to resolve refugees problems around the globe. An important aspect of this responsibility is to work with governments and other organizations in operating refugee camps and to determine if and when the refugees can safely return to their homelands.
The resettlement of refugees outside their region is an option for those who, often after many years of waiting, still cannot return to their homes. The United States is one of about 18 nations in the world – primarily in the West – that resettle refugees. Working with the UNHCR, the U.S. seeks to identify appropriate candidates for settlement here. In making these choices, factors considered by the U.S. include the chances that they will ever be able to safely return to their homes, family members already in the U.S., and the length of time spent as refugees.
The United States is by far the largest resettler of refugees in the world. Typically. In fact, the U.S. resettles more refugees each year than all other countries combined. In 2004, for example, according to the UNHCR, 52,868 refugees arrived in the U.S., 63% of the 83,700 individuals admitted by all the countries in the world. By comparison, in the U.S. asylum is granted to between 25,000 and 30,000 people a year.