Asylum in the USA: myths and truths about this process
The belief that anyone can go to the United States border and seek asylum is overly simplistic. The asylum process is perhaps the most rigorous and thorough way to obtain permission to enter the United States. All asylum seekers must undergo a thorough background check with the participation of several government agencies. An asylum application will not be accepted until every step of the screening process has been completed. More details about this process were told by the publication Citizen path.
The typical (non-asylum) immigrant may come to the United States for a variety of reasons. Sometimes you need to start a new family or reunite with the rest of the family. In other cases, people are looking for better personal and professional opportunities through work or school. And some lucky ones managed to get on special programs. For most, immigration is a positive experience.
But not everyone is so lucky. The Office of the United Nations High Commissioner for Refugees (UNHCR) estimates that the number of people forced to seek asylum outside their country of citizenship is around 80 million worldwide.
Simply put, asylum is the way civilized nations protect those who come from other countries who are unwilling or unable to protect them. The Immigration Act, in particular §101 (a) (42) of the Immigration and Nationality Act, defines a refugee or asylee as someone who is unable or unwilling to return to his country due to persecution based on :
- Membership in a particular social group
- Political opinion
Asylum applications are processed by the United States Citizenship and Immigration Services (USCIS) like all other immigration petitions and processes.
The United States recognizes these international definitions of asylum and sets them up as criteria that can allow people to remain in the United States. Thus, USCIS does not grant asylum solely on the basis of:
- Desires for better economic opportunities
- Because the family immigration process takes too long
- The applicants did not know the best way to immigrate
USCIS receives approximately 25 asylum seekers (asylee) annually. But there is no statutory limitation. However, for refugees, the situation is different. Thus, the statement by US President Joe Biden to increase refugee intake to about 000 is not related to the asylum process. Resources for adjudication of cases are among the most significant limiting factors for the number of asylum applications.
Examples of real reasons for asylum
Legitimate asylum seekers tend to avoid violence and harassment at a level where their government does not protect them. Common scenarios include religious and political persecution. However, families leave Guatemala, Honduras, El Salvador and other countries for the following reasons:
- Gang violence and drug cartels
- Forced smuggling
- Persecution of the LGBT community
These are very real and common situations for asylum seekers (asylee) who reach the southern border of the United States. However, these are usually very complex asylum cases. The reason is that the persecution by gangs and drug cartels does not fit into one of the protected groups. Again, persecution must be the result of the asylum seeker's belonging to a protected group: race, religion, nationality, membership in a particular social group or political opinion.
Can asylum seekers just come to the border
This is how the asylum process works. Asylum seekers (asylee) appear at ports of entry in the United States. Typically ports of entry include border crossings, airports and seaports. There is no procedure for applying for asylum from their home country.
As a civilized country with laws that facilitate the asylum process, the United States is legally obligated to assess the applications of asylum seekers. At the moment it is very difficult because a huge number of people are coming. This is why the current administration is focused on helping these countries solve the problem at home. After all, most of these immigrants would prefer to stay in their country of origin if only they felt safe there.
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Asylum seekers (asylee) can travel in large groups because they are extremely vulnerable individually. They travel with practically no belongings or resources.
Asylum types in the USA
Affirmative asylum process
Affirmative asylum is considered a “normal” asylum case. The applicant must be in the United States and can apply for asylum at any port of entry. This is a proactive approach to the asylum process as the applicant submits an application before any coercive or deportation measures are initiated.
Typically, the applicant must file Form I-589, Application for Asylum and Withholding of Removal, within one year of arrival in the United States. No fee will be charged. He or she must provide a qualified interpreter for the asylum interview.
Asylum defense process
If the asylum seeker is already in the process of being removed (deported) through an immigration court, this becomes a defensive asylum procedure. The applicant asks the government to reverse its deportation decision and allow him or her to remain in the United States through asylum. The Immigration Judge makes the decision independently of any previous USCIS decision.
The Immigration Court provides a qualified interpreter for the asylum hearing and all other legal proceedings.
As a rule, an asylum case becomes a defensive case if one of the following situations arises:
- a person asks for asylum at the border;
- the applicant first applied for asylum, but the application was not approved, after which the applicant was sent for deportation;
- immigration officers send a person to court for violation of immigration rules (usually illegal immigrants or for exceeding the period of stay);
- the person attempted to enter the United States without proper paperwork and the United States CBP officer determines that there is reason to believe he is in danger.
Individuals involved in the protective asylum process must appear at an expulsion (deportation) hearing at the Immigration Court. The Immigration and Customs Enforcement (ICE) is responsible for objection to an asylum seeker and for deportation. Individuals will have the opportunity to defend themselves on their own or through a lawyer.
Who is eligible to apply for asylum in the United States
Anyone who meets the criteria set out in the definitions of persecution or has a well-founded fear of persecution can apply for asylum while in the United States. They can include their spouses and unmarried children under the age of 21 in their applications.
Most of the I-589 application is straightforward, but proof of asylum goes far beyond filling out a form. Applicants need to understand the importance of providing evidence to support their claims of harassment. This can be a daunting task. For this reason, asylum seekers are more likely to succeed if they are assisted by a lawyer or other legal support organization.
Additional information may include: sworn statements from people who know firsthand about the conditions from which the applicant is fleeing; the applicant's own statement about the circumstances that led to the asylum process; Identity card for people applying under oath.
Asylum seekers may be eligible for a work permit based on an unfinished asylum application. However, determining eligibility can be difficult. Requirements have changed over time. It is therefore recommended that asylum seekers seek the assistance of an immigration attorney before applying for a work permit (EAD).
If USCIS grants asylum, the recipient immediately receives a work permit. Some asylum seekers choose to receive an EAD for convenience or identification purposes, but USCIS does not require asylum seekers to obtain an EAD.
Asylum seekers seeking an EAD must complete Form I-765, Application for Work Permit. There is no application fee.
Screening of asylum applicants
The US government spends significant resources on screening asylum seekers. Many argue that this is the strictest path for immigration to the United States due to the many background checks, interviews, and court decisions.
If the applicant has gone through the entire process, the asylum officer will usually interview the applicant and decide on the case. Asylum seekers find themselves in a more hostile situation. ICE officers will argue for the deportation of the asylum seeker. The immigration judge will decide whether to grant asylum or deport the person. If an immigration judge issues a denial of asylum, the applicant can appeal the case to other appellate courts, such as the Board of Immigration Appeals (BIA), federal district courts of appeal, and, in rare cases, the US Supreme Court.
Appointment with USCIS to collect biometric data
USCIS will schedule an appointment for applicants to collect fingerprints, photographs, and signatures. Technicians collect a complete set of fingerprints from applicants between the ages of 12 years 9 months to 79 years. USCIS will use this information to check the FBI's criminal record.
Verification of asylum data
In addition to biometrics, a thorough background check is carried out to ensure that the applicant has no criminal connections, suspicious activity or past violations. Some of the information verified during the background check includes:
- Crime story
- Links to organizations that could pose a threat to the United States
- Travel history
- Foreign activities
- Immigration records to record any previous expulsion cases
- Any intelligence records that may relate to the applicant personally, as well as terrorist watch lists
- Potential fraud, including identity theft
Some of the government agencies working with USCIS in the verification process include: Department of Defense, Department of State, National Counter-Terrorism Unit, Immigration and Customs Enforcement, Customs and Border Protection, and the Federal Bureau of Investigation.
US law prohibits the granting of asylum to anyone who has been convicted of a felony in the United States; has committed crimes abroad that are not of a political nature; those who participated in terrorist activities or were associated with terrorist organizations; war criminals; anyone who could pose a threat to the United States.
USCIS requires asylum seekers to show up for an interview with a specially trained asylum officer. Asylum officers are different from typical immigration interviewers. These officers received special training in asylum law, interview techniques, country of origin research and decision making.
The verification process also includes checking all documentation provided with the original asylum application, as well as verifying the identity of everyone you refer to in said documentation.
The officer reviews the employee's decision to make sure it complies with the law. Depending on the case, the asylum inspector may refer the decision to the asylum department at USCIS headquarters for further review. They may decide to approve, deny, or refer your application to an immigration court. USCIS will usually provide a solution within two weeks of completing the interview.
After USCIS Grants Asylum
After USCIS grants a person asylum, he or she can live and work in the United States for as long as they are eligible for asylum. They also have access to medical care. USCIS will provide a letter of approval and an I-94 arrival / departure record with asylum as evidence for benefits. USCIS will grant asylum to the main applicant's spouse and children if they are listed on the I-589 application.
Again, the US asylum period does not expire. However, USCIS can revoke asylum status if the recipient:
- No longer has a well-founded fear of persecution due to a major change in circumstances
- Received protection from another country
- Obtained the original asylum permit through fraud
- Has committed certain crimes or participated in other activities that deprive him or her of eligibility for asylum in the United States
Asylum seekers can apply for permanent residence (green card) after a year. After being in asylum for a year, he or she can change to a permanent resident. This is an important advantage as it allows them to remain permanently in the United States.
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