Asylum

Applying for Asylum

The 1951 United Nations (UN) Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees form the foundation of international law governing the rights of refugees and asylum seekers. The United States signed the UN Convention and the Protocol in 1969, and in 1980, the U.S. Congress passed the Refugee Act, which adopted the human rights standards laid out by the UN and established a system for the admission of refugees and asylum seekers in the United States. The 1980 Refugee Act codified the UN definition of a refugee as someone who is fleeing persecution or who has a “well-founded fear” of persecution “on account” of race, religion, nationality, political opinion, or membership in a particular social group. The persecution must be committed by the government or by individuals or groups that the government refuses to or cannot control, and applicants must show a nexus between the persecution they experienced and the grounds on which they are applying for asylum. All asylees have to fit this definition of refugee but are subject to different bureaucratic procedures. To apply for asylum, an individual must enter the United States and then apply, unlike refugee applications, which are processed abroad.

There are two ways to apply for asylum in the United States: affirmatively and defensively. Affirmative applications are from individuals who are currently in the United States and decide to apply for asylum before they are put into removal proceedings by the government. These applicants submit an application and then receive a nonadversarial interview with an asylum officer. Defensive asylum applications are from individuals who have already been put into deportation proceedings and are arguing for an asylum claim as a defense. Noncitizens whose affirmative applications are denied and who are not in lawful status are also placed in removal proceedings. Once in removal proceedings, noncitizens are subject to mandatory detention while their asylum cases proceed, which may take months or years. Defensive applications [Page 54]go directly to immigration court, where the applicant must argue for their case in front of an immigration judge and in the presence of an attorney from U.S. Immigration and Customs Enforcement (ICE) who will argue for the deportation of the applicant. The main purpose of the asylum interview and immigration court hearing is to establish the applicant’s credibility and their eligibility for legal relief, which can take the form of a grant of asylum, withholding or removal, or protection under the Convention Against Torture (CAT). The latter two forms of relief can only be granted by an immigration judge, not an asylum officer.

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