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The U.S. asylum system, which includes the status of an asylee, withholding of removal, and protection under the Convention Against Torture, is based on international law governing the crossing of an international border by those seeking refuge.  It provides a legal way for people escaping persecution to find safety and start a new life.  To understand what it means to seek protection in the U.S., it is important to know how the asylum process works, its legal background, and the challenges people face.

Key Highlights

• Asylum helps people in the United States who face persecution in their home countries.
• U.S. asylum laws are guided by both international rules and domestic laws, including the Refugee Act of 1980.
• Asylum seekers need to meet certain criteria. They must show they have suffered or reasonably fear future persecution because of their race, religion, nationality, political opinion, or if they belong to a particular social group.
• A complicated legal process with USCIS and immigration courts decides if someone is eligible for asylum.
• Asylum seekers can face challenges, such as dealing with deadlines, legal issues, possible detention, and the need to prove that they have a “well-founded fear” of persecution.
• Recent changes in policy, such as the end of Title 42 and the initiation of the “circumvention of lawful pathways” bar, continue to affect asylum seekers who arrive at the U.S. border.

What is asylum?

Asylum is a form of protection provided by the U.S. to individuals who cannot return to their home countries due to persecution they have suffered in the past or a well-founded fear of future persecution. This persecution must be “on account of” race, religion, nationality, political opinion, or membership in a particular social group. Under international law, including the United Nations 1951 Convention, the U.S. has legal obligations to protect refugees. By granting asylum, individuals can live safely and build a new life in the United States.

Understanding asylum: Legal foundations and historical context

The right to seek asylum stems from international human rights agreements, where the basic human right to escape persecution is recognized. The U.S. has shown its commitment to protecting vulnerable individuals through treaties like the 1951 Refugee Convention and the 1967 Protocol. The Refugee Act of 1980 was a pivotal moment, solidifying U.S. obligations to protect people in danger and shaping modern asylum policies.

The role of asylum in international human rights law

Asylum plays a critical role in international law, representing a commitment to humanitarian principles. It ensures that those fleeing persecution have the right to seek safety and protection in another country. By offering asylum, nations uphold their international obligations and demonstrate solidarity in protecting basic human rights.

Key milestones in the U.S. Asylum Policy

The U.S. asylum system, initially influenced by global politics, became more structured with the Refugee Act of 1980. This law established a consistent framework for handling asylum claims, incorporating the international definition of a refugee. It reflected America’s commitment to protecting freedom of thought and expression, particularly for those persecuted for their political beliefs.

Definitions: What exactly is a refugee, an asylum seeker, and a migrant?

Understanding the differences between refugees, asylum seekers, and migrants is crucial. While these terms are often used interchangeably, each carries specific legal implications and rights. Recognizing these differences helps clarify the laws surrounding forced migration and enhances our ability to support and protect those seeking safety beyond their home countries.

Who is a refugee?

The 1951 Refugee Convention provides a clear legal definition of what constitutes a refugee. A refugee is a person who has left their country in search of safety because they have either suffered past persecution or have a well-founded fear of being persecuted in the future. This fear must be due to their race, religion, nationality, membership in a specific social group, or political opinion.

In simple terms, a refugee has escaped their home country because they genuinely fear persecution. Persecution is defined simply as “the infliction of harm or suffering upon an individual in order to punish the individual for a characteristic the persecutor seeks to overcome.”  Not all infliction of harm will be considered persecution, which does not include discrimination, harassment, poverty or general conditions of lawlessness affecting the general population.  It is about a real threat to their safety or freedom tied to one of the five protected reasons.

Here’s a quick look at the key points:

• Well-founded fear: This means the fear is reasonable and backed by proof.
• Persecution: This means facing serious harm like threats to life, torture, or serious unfair treatment.
• Outside their country of nationality: Those seeking protection cannot seek help from their government.

Who is an asylum seeker?

An asylum seeker is someone who has left their home country and requesting protection in another country. They have asked for protection as a refugee in another country. However, their request for asylum status has not been decided yet and they need international protection while waiting for a decision on their case.

Asylum seekers leave their countries mainly because of past persecution or a fear of persecution. They have taken the step to ask for asylum in a country where they believe they can be safe.

It is important to understand that not all asylum claims are accepted. Asylum seekers must go through a legal process. They need to provide evidence to show that they fit the definition of a refugee.

Who is a migrant?

A migrant is a term that includes anyone who leaves their country of origin. They may move for a short time or forever. People migrate for different reasons.

These reasons could include finding better jobs, uniting with family, or personal matters. Unlike refugees and asylum seekers, migrants usually do not face immediate threats of persecution.

Still, sometimes the situation can mix these groups together. For instance, a person might move to find work but later have to escape conflict or persecution after leaving their home country.

Eligibility criteria for asylum seekers

To be eligible for asylum in the U.S., you must meet specific and stringent legal criteria. You need to show either: (1) that you have suffered persecution in the past on account of one of the five protected grounds; OR (2) that you have a reasonable fear of persecution based on one of five protected grounds

This means you must prove your fear is real and you need to connect your fear of harm to at least one of these reasons: race, religion, nationality, political opinion, or being part of a particular social group.

The principle of non-refoulement and persecution criteria

Central to seeking asylum is the rule of non-refoulement. This important rule in international law stops countries from sending people back to places where they might face danger or persecution. This idea is vital for protecting refugees.

Persecution means serious harm. It can include threats to life, freedom, torture, or cruel treatment. It is more than just everyday problems or discrimination.

Asylum seekers have the responsibility to show that they fit the definition of a refugee. They must prove they have a “well-founded fear” supported by proof and tied to what is happening in their home country.

Protected grounds for asylum claims

Asylum claims need to show that the fear of persecution is clearly connected to one or more of the five protected reasons in the 1951 Refugee Convention. These reasons are race, religion, nationality, political opinion, or belonging to a specific social group.  Asylum seekers must demonstrate that any persecution they suffered was on account of one of these five protected grounds or that their fear of persecution is on account of the five grounds.

For example, “account of race” means persecution due to a person’s ethnicity or racial background. Religious persecution is when someone is targeted because of their beliefs or religious practices. Each of these protected reasons has its details. Asylum seekers must prove that their fear of harm comes directly from being seen as part of one of these groups.

The asylum application process explained

Navigating the U.S. asylum process can be tough and overwhelming. It is important to follow the rules and timelines carefully. In order to improve your chances of success, it is extremely critical to obtain experienced legal counsel; immigration attorneys at Benach & Collopy LLP are among the leading immigration attorneys who have a specific focus on asylum cases.

People can apply for asylum in two ways: affirmatively before the U.S. Citizenship and Immigration Services (USCIS) or defensively in the Immigration Court (EOIR). This choice depends on an applicant’s situation when they arrive in the U.S. Each option has its own steps and challenges.

Steps involved in the affirmative asylum process

The affirmative asylum process starts when a person in the U.S. submits their asylum application to USCIS. This application is made on a USCIS Form I-589. It must be filed within one year of entering the U.S.

During this process, the asylum seeker must prove they fit the refugee definition and deserve asylum. The final decision depends on the evidence they provide and how the immigration judge views their claim.

If USCIS denies the application, the applicant is usually sent to immigration court. Here, an applicant will have a chance to request asylum again. An immigration judge will review the case.  The immigration judge can either grant the asylum application or enter an order of deportation.

Navigating the defensive asylum process

The defensive asylum process happens when someone is already in removal proceedings. This means the government is trying to deport them. In this situation, the person can apply for asylum to prevent their deportation.

Instead of sending an application to USCIS, they file it with the immigration court during their removal proceedings. An immigration judge will listen to the case and decide if the person qualifies for asylum.

The defensive asylum process can be very tough. People sometimes face detention and must deal with a complicated legal system, often without help from a lawyer.

Credible and reasonable fear interviews

For people who arrive at U.S. borders or ports and fear going back to their home countries, credible and reasonable fear interviews are very important. These interviews help decide if a person can start their asylum claim in the United States.

In these interviews, asylum officers check if the person’s fear of persecution or torture is real and reasonable. This is a key step that can greatly affect their chance to stay in the U.S. and share their case with an immigration judge.

The role of fear interviews in the asylum process

“Credible fear” and “reasonable fear” interviews are the first steps for people who want asylum at U.S. borders or ports. These interviews check if someone can show a good chance of being eligible for asylum.

If you pass the credible fear interview, you can continue your asylum case in immigration court. Passing this interview is important, but it does not mean you automatically get asylum status. It just lets you fully share your story.

If you fail to demonstrate credible or reasonable fear, you may face swift removal from the U.S. While you can appeal a negative decision, the process is often difficult and uncertain.

Preparing for a credible fear interview

Preparing well for a credible fear interview is very important for asylum applicants. They need to collect and show proof that backs up their fear of persecution. This proof can be stories of what they faced, reports about their home country, or papers from human rights groups.

Getting legal help is a good idea, but not easy for everyone. An attorney can help applicants understand the process and build a strong case. They can also guide them through tough legal ideas.

Keep in mind that during these interviews, the applicant has the responsibility to prove their case. They should clearly explain their fear of persecution and give strong evidence to support their claim.

Challenges faced by asylum seekers

The journey of an asylum seeker brings hope, but it also has many challenges. They must deal with a complicated legal system. Often, they do not have a strong command of the language and few resources, which makes this hard.

On top of this, there is the emotional stress of telling painful stories. There is also the chance of being detained while waiting, and getting legal help can be difficult. These issues can greatly affect how well a person can share their case.

Detention and legal representation issues

Asylum seekers often worry about detention while waiting for their claims to be processed. Being in detention is very tough. It can make their past trauma even worse. It also makes it hard for them to get legal counsel, collect evidence, and prepare their cases.

Getting a lawyer is very important. However, many asylum seekers try to navigate the system without one. This lack of legal help can harm their cases. They need guidance to understand the system, present evidence well, and fight for their rights.

Additionally, the conditions in detention can sometimes lead to human rights violations. Issues like overcrowding, lack of medical care, and separating families make life harder for people escaping persecution.

Impact of policy changes on asylum claims

The rules for seeking asylum in the U.S. keep changing. These changes often happen because of politics and world events. They can greatly affect asylum seekers. This creates confusion about their legal status and future in the U.S.

When policies shift, it can be harder to seek asylum. It may change who is eligible or how cases are decided. For people escaping persecution, these changes can make a tough situation even more anxiety-filled.

It is important to work with immigration lawyers who are up to date on the latest policy shifts and can take those shifts into account in proceeding with your case.

Next Steps: Navigating the Asylum Process

Seeking asylum in the U.S. is a complex journey. Staying informed about the process and legal requirements is essential as you prepare your application or await a decision. Professional legal support can significantly improve your chances of success by guiding you through the intricate steps. Contact us today to get the help you need and navigate the asylum process with confidence.