Asylum has been in the headlines in the last several years. While it is a popular topic in the media, it often is discussed without understanding the broader legal context or requirements.
For this reason, the Immigration Clinic strives to help the public better understand asylum through this series of blog posts about the basics of asylum law. These posts are not legal advice regarding any one asylum seeker’s claim, or the chances of any person or group of people winning asylum. Rather, these posts are meant to help explain just some of the complexities facing asylum seekers.
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What is Asylum?
As defined by the Immigration and Nationality Act, a noncitizen is eligible for asylum if they have suffered persecution or have a well-founded fear of future persecution on account of their race, religion, national origin, membership in a particular social group, or political opinion.1 In short, someone must have suffered harm that is so severe that it qualifies as persecution (or have a well-founded fear of this harm), and this harm must be on account of something about their identity. Future blog posts will discuss these requirements in more detail.
Asylum is a very specific form of protection in the United States that provides permanent protection for those fleeing their countries. Asylum does not apply to those fleeing generalized violence or natural disasters.2 Other forms of protection in the United States, such as Temporary Protected Status, may be available to those who have, in the past, fled to the United States for these or other reasons. Temporary Protected Status is not available for most people who have recently arrived in the United States. For example, Temporary Protected Status for citizens of El Salvador is available for people who can show that they have continuously resided in the United States since 2001.3
What’s the Difference Between Asylees and Refugees?
Those granted asylum, known as asylees, have met the same legal requirements as refugees. In definition, there is no difference between a refugee and asylee. The only difference is how the person acquired their status. Asylees must come to the United States, apply for asylum, and then be granted asylum. Refugees are people who have fled their country and generally gone to a third country and are processed by the United Nations High Commissioner for Refugees (UNHCR). When they are determined to be a refugee by UNHCR, they are then eligible for resettlement. The United States has historically accepted many resettled refugees, though the number of refugees resettled to the United States decreased under President Trump.4 President Biden recently increased the overall number of refugees admitted to the United States.5
How Does Someone Apply for Asylum?
There are two different procedures to apply for asylum: affirmative asylum or defensive asylum. In either procedure, the requirements to qualify are the same, but the procedures differ substantially. To see examples or more information about the asylum application process, review our Pro Se Asylum Resources.
Affirmative Asylum
In affirmative asylum, an asylum seeker is not in removal proceedings, and so comes forward to apply for asylum. Asylum seekers may not be in removal proceedings because they came to the United States on a valid visa, such as a tourist or student visa, or because they were granted parole at a US border. Additionally, children who have come to the United States alone (known as unaccompanied minors or UACs) have the opportunity to apply for asylum affirmatively, since it is generally considered a more child-friendly process.6
Through this process, an asylum seeker (with their attorney, if they have one) submits their asylum application, along with any supporting evidence and research to U.S. Citizenship and Immigration Services, a branch of the Department of Homeland Security. After submitting their application and evidence, the asylum seeker is scheduled for an interview.7 During the interview, a trained Asylum Officer asks the asylum seeker questions about their experiences in their home country, requiring the asylum seeker to recount the violence and harm that they have suffered.
After the asylum interview, the Asylum Officer issues their decision in the case. The Asylum Officer may choose to grant asylum or refer the case to immigration court. If the Asylum Officer grants asylum, the asylum seeker is now an asylee, and can live and work in the United States permanently. They are eligible to apply for lawful permanent residency (their “green card”) one year after the decision,8 and eligible for citizenship five years after being granted lawful permanent residency.
If, on the other hand, the Asylum Officer chooses to refer the case to immigration court, the asylum seeker will now be placed in removal proceedings before an immigration judge and must defend their case so that they are not removed from the United States. At that stage, the asylum seeker is now in the defensive asylum process, which we explain below.
Defensive Asylum
In defensive asylum, an asylum seeker is applying for asylum as a defense to being removed from the United States. There are many ways in which an asylum seeker could be in removal proceedings, such as being caught by Border Patrol when they crossed the border, overstaying a valid visa, or being referred from the Asylum Office (as described above). Whether an asylum seeker is in affirmative or defensive proceedings does not guarantee they will be approved or denied, and is not an indicator of the merits of an asylum seeker’s case.
An asylum seeker’s case in immigration court begins when Immigration and Customs Enforcement (ICE) files a Notice to Appear (NTA) with the Immigration Court. The Notice to Appear operates as the summons to immigration court. After the NTA is filed, the asylum seeker will have a series of scheduling hearings (called Master Calendar Hearings) before the court to give them time to find an attorney, take pleadings, and submit their asylum application to the court. Then, the Immigration Judge will schedule the asylum seeker for an Individual Hearing, the trial in immigration court.
Individual Hearings are difficult, stressful, and emotional trials. At the Individual Hearing, the asylum seeker must testify in consistent detail about the violence they have suffered and the reasons that they fled their home country. They are also expected to submit specific evidence related to their case, including research about the conditions in their country,9 as well as expert affidavits and medical evaluations.10 They will then have to answer questions from the Immigration Judge, as well as cross-examination questions from the ICE Trial Attorney (the prosecutor in immigration court).
It is important to remember that there is no right to an attorney in immigration court.11 This means that asylum seekers who are unable to afford an attorney and who cannot find a nonprofit or law school clinic to represent them must represent themselves. This is the case regardless of age, disability, English-language ability, or any other factor. Asylum seekers unable to find an attorney must navigate all of these procedures and requirements alone.
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The next blog posts in this series will go into more detail about the elements of asylum, including persecution, political opinion, and membership in a particular social group. Links will be available when these posts are published.
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The procedures of applying for asylum are complex and daunting for those without an attorney. If you would like to support our efforts to represent immigrants in Hampton Roads, please consider donating to the Shainwald Immigration Law Clinic Fund. For more ways that you can help asylum seekers in Hampton Roads, visit our How You Can Help page.
[1] INA § 101(a)(42)(A).
[2] This is an evolving discussion internationally, as the number of migrants leaving their countries because of natural disasters or other environmental changes due to climate change. See Climate change and disaster displacement, UNHCR, https://www.unhcr.org/en-us/climate-change-and-disasters.html; Bonnie Docherty and Tyler Giannini, Confronting the Rising Tide: A Proposal for a Convention on Climate Change Refugees, 33 Harvard Environmental L. Rev. 349 (2009), available at https://climate.law.columbia.edu/sites/default/files/content/5c3e836f23a774ba2e115c36a8f72fd3e218.pdf.
[3] Temporary Protected Status Designated Country: El Salvador, U.S. Citizenship and Immigration Services, https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-el-salvador.
[4] See U.S. Resettles Fewer Refugees, Even as Global Number of Displaced People Grows, Pew Research Ctr. (Oct. 12, 2017), https://www.pewresearch.org/global/2017/10/12/u-s-resettles-fewer-refugees-even-as-global-number-of-displaced-people-grows.
[5] Kathryn Watson, Biden increases refugee cap to 62,500 after backlash, CBS News (May 4, 2021, 7:18 AM), https://www.cbsnews.com/news/refugee-cap-increase-biden.
[6] Read more about the challenges in unaccompanied minors’ asylum petitions in our blog post “Unaccompanied Minors—The ‘Hot Potato’ of US Immigration Agencies.”
[7] Several years ago, PBS produced a documentary called Well-Founded Fear about the asylum process, including showing footage of actual asylum interviews. If you would like to learn more about the asylum process, see Well-Founded Fear, PBS, http://www.pbs.org/pov/watch/wellfoundedfear.
[8] Green Card for Asylees, U.S. Citizenship and Immigration Services, https://www.uscis.gov/green-card/green-card-eligibility/green-card-for-asylees.
[9] Country conditions evidence is a crucial component to any asylum case. To learn more about how the Clinic works to provide the best country conditions evidence in our cases, read about our partnership with William & Mary Libraries.
[10] Physical, psychological, and gynecological evaluations make a difference in asylum seeker’s cases. See PHR Asylum Program, Physicians for Human Rights, https://phr.org/issues/asylum-and-persecution/phrasylum-program.
[11] For one student’s reflection on this, see “Waiting for Gideon: A Future Public Defender’s Outrage Over the Absence of Court Appointed Counsel in Immigration Proceedings.”
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