Legal Information

Asylum in the United States

Who Can Apply for Asylum in the United States?

Any legal or illegal alien who enters the United States may request asylum (1-4). The following aliens, however, are permanently barred from asylum: criminals, terrorists, perpetrators of human rights crimes, individuals who have firmly resettled in a third country, and individuals who were previously denied asylum (5).

The Asylum Application Process

Immigration law in the USA is created by Congress and shaped by the courts. Immigration law is always administered by a federal agency, though the agency fulfilling this supervisory role changes. The Immigration and Naturalization Service (INS) was replaced by the Bureau of Citizenship and Immigration Services (BCIS). On March 1, 2003, BCIS transitioned into the Department of Homeland Security (DHS). The deputy secretary of DHS now directs the United States Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) in administering immigration law.

An alien may claim asylum with an asylum officer. To submit an affirmative application for asylum, the individual has to submit the application to the USCIS within one year from the date of arrival. Otherwise, the process defaults into removal or deportation proceedings. If the process reaches this stage, the individual may file a defensive asylum claim to avoid removal/deportation.  The alien, however, has to show extraordinary circumstances that prevented him or her from filing a timely asylum claim at a merits hearing (1-4).

Aliens making an affirmative asylum application are seldom detained by the USCIS, except those who file an asylum claim at a port of entry without proper documents (i.e. entering the country with a false visa or passport). On the contrary, aliens filing defensive asylum claims are more likely to be detained until an immigration judge rules on the case (1-3).

If an alien has made his or her asylum application affirmatively, the case is referred first to an asylum officer who has the discretionary power to grant or deny the asylum claim. Usually, the asylum applicant has a single interview with the asylum officer who looks for evidence of past persecution or well-founded fear of persecution. If a case is denied by an asylum officer or is filed as a defensive asylum application, an USCIS judge hears the case (1, 4-6).  An alien may appeal first an USCIS judge's decision to the USCIS Board of Appeals and then to a federal court of appeals (1,4). Congress, however, has recently limited the role of the federal court system when immigration matters are at hand.  For further information, please view the USCIS's Affirmative Asylum Procedures Manual (9). 

The process of applying for asylum is a complex one that requires filling out different forms, gathering documents and evidence, and the assistance of an immigration attorney. The first two forms that asylum applicants need to complete are the USCIS form I-589 (Request for Asylum) and the EOIR-28 (Authorization to have an attorney representing the asylum applicant during the asylum process) (4-7). Asylum applicants are encouraged to submit a sworn affidavit detailing their past persecution or explaining their fear of future persecution (5).

Other important documents are country condition reports issued by the US Department of State or a well-known non-governmental organization, such as Amnesty International or Human Rights Watch.  Experts in international politics may write affidavits and/or testify before an immigration court to supplement the country condition reports. Health professionals may also write medico-psychological affidavits and/or testify in front of an immigration court to provide an objective assessment of physical and mental marks of torture and persecution (4,6).

Standard for Asylum
To obtain asylum, any alien has two prove "past persecution or a well-founded fear of persecution on account of race, religion, nationality, political opinion or membership in a particular social group (5)." Although the USCIS courts are administrative courts, they function similar to the judicial courts with two exceptions. First, the asylum applicant carries the burden of proof, and second, the federal rules of evidence do not apply for these cases (8).

By persecution, the USCIS means "a threat to the life or freedom of, or the infliction of suffering or harm upon those who differ in a way regarded as offensive (5)." By fear of future persecution, the USCIS means "(1) the alien possesses a belief or characteristic that a persecutor seeks to overcome by means of punishment of some sort; (2) the persecutor is already aware, or could become aware, that the alien possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and (4) the persecutor has the inclination to punish the alien (5)."

Compared to the standard of proof necessary to obtain asylum, withholding of deportation has a higher standard of proof. The alien has to demonstrate that the chances of being persecuted if he or she were to return to his or her country of origin are more likely than not. In other words, that the risk of persecution is greater than 50% (4).

References:
1. United States Department of Justice. Immigration and Naturalization Service. Annual Report: Asylees, Fiscal Year 1997.

2. United States Department of Justice. Immigration and Naturalization Service. How do I Apply for Asylum?

3. United States Department of Justice. Immigration and Naturalization Service. US Asylum and Refugee Policy. Available at: http://www.uscis.gov/graphics/publicaffairs/factsheets/asylum.htm

4. Physicians for Human Rights. Medical Testimony on Victims of Torture: A Physician’s Guide to Political Asylum Cases. Boston, 1991.

5. O’Sullivan M. The Substance of an Asylum Claim: The Theory of the Case. In: Political Asylum Immigration Representation Project. Representing Asylum Seekers. Boston, 1999. p I-1 – I-24.

6. Ignatius S. Asylum and Withholding of Removal. In: Political Asylum Immigration Representation Project. Representing Asylum Seekers. Boston, 1999. p I-25 – I-58.

7. McHaffey DK. Navigating the INS and EOIR: Practice Tips, Descriptions and Definitions. In: Political Asylum Immigration Representation Project. Representing Asylum Seekers. Boston, 1999. p V-1 – V-40.

8. MacPherson S. Documenting Asylum Claims. In: Political Asylum Immigration Representation Project. Representing Asylum Seekers. Boston, 1999. p IV-1 – IV-21.

9. USCIS Affirmative Asylum Procedures Manual. Available at: http://uscis.gov/graphics/lawsregs/handbook/hnmanual.htm

Links:
To keep up to date with the USA's asylum law, see: http://uscis.gov/graphics/lawsregs/index.htm

To view the USCIS application forms for asylum and withholding of removal and their instructions: http://www.ins.usdoj.gov/graphics/formsfee/forms/i-589.htm

To view country conditions reports:

• US Department of State: http://www.state.gov
• USCIS: http://uscis.gov/graphics/index.htm
• UN High Commissioner for Refugees: http://www.unhcr.org
• Human Rights Watch: http://www.hrw.org
• Amnesty International: http://www.amnesty.org
• Asylum Law: http://www.asylumlaw.com