Overview of the asylum process
Asylum seekers who reach U.S. shores are generally forced to flee and pushed out of their home countries because of dangers to themselves and their families due to political opinions, race, religion, nationality or social group. Those who flee because of civil war in their home countries, generalized violence, criminal prosecution, and environmental or economic reasons are generally not entitled to asylum. Asylum is protection that the US offers individuals who have fled their home countries and enter the US either legally or illegally. It is protection against deportation. Although asylum decisions are discretionary, meaning the decision maker can weigh all the evidence and make a decision purely on the basis of his or her judgment, the following legal requirements have to be established by the asylum seeker in order to prevail:
- Physical presence in the United States.
- Fear of persecution. Torture and imprisonment are persecution, while harassment or discrimination is not.
- Harm or fear of harm by the government or others that the government is “unable or unwilling to control.”
- Fear of persecution based on: political opinion, race, religion, nationality, and social group. The last category social group, usually refers to people with certain characteristics that they cannot change or should not have to change, and that a particular society might have generally unfavorable attitudes about, such as homosexuals.
- May not commit a serious crime, pose threats to national security, or commit war crimes or “crimes against humanity”.
There are two routes to gaining asylum, affirmatively through a US Citizenship and Immigration Services (USCIS) asylum officer or defensively with an immigration judge as part of a removal hearing. Applicants can file an affirmative application with the USCIS, as long as they not been arrested by DHS and put into removal proceedings before an immigration judge. There is a one-year filing deadline that must be met for an asylum case to be approved. However there are a few exceptions, including a change in the applicant’s country conditions or personal circumstances that would cause applicant to fear persecution upon return to their home country based on the enumerated factors. The interview before the asylum officer is supposed to be non-adversarial, unlike a court hearing. Nonetheless, a small percentage of cases are approved at the asylum office, other cases are generally referred to Immigration Court.
The Immigration Judge will generally disregard the decision of the Immigration Officer and hear the asylum case anew. In immigration court about 60% to 63% of the applications are denied on the merits and about 80% are denied in total if all dispositions are considered, including applications that have been withdrawn or abandoned.
The asylum process is very complex and many asylum seekers face difficulty in meeting the requirements for asylum. Sometimes, asylum seekers cannot obtain documents and witnesses to prove their cases because of the circumstances under which they left their home country. In those instances, an asylum seeker has to prove his or her case by testimony alone. It is then up to the decision maker to make the determination about whether the asylum seekers’ testimony is sufficiently detailed and believable.
Even if the asylum seeker meets the requirements for asylum, in order to prevail in an asylum case, it is imperative that they obtain legal representation and prepare extensively for their asylum interviews and court hearings.