U.S. Asylum
An Overview of
“Someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion."
Asylum status is historically entwined and chronically confused with refugee status. The primary difference between a refugee and an asylee is that a refugee is granted refugee status while still outside the United States; an asylum seeker is granted asylee status after entering the country or while seeking admission at a port of entry.
Refugees, once admitted to the United States, already have status, whereas asylum-seekers could spend YEARS fighting for status in the United States. It is extremely difficult to obtain asylum in the United States. Refugees often spend years, even decades, waiting in refugee camps to be called up for resettlement in another country. Refugees are only considered refugees if they’ve been referred by the United Nations High Commission on Refugees (UNHCR), a U.S. Embassy or certain non-government organizations. There are other subgroups of refugee made up of populations with special humanitarian concern and family reunification cases.
Asylum-seekers must apply for asylum within one year of their arrival to the United States, whether they entered and surrendered themselves at a port of entry or entered with some type of nonimmigrant visa status.
Both refugees and asylees must demonstrate that they have been persecuted or have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. People who participated in acts of persecution, even while under duress or under instruction of another agency, are not eligible for refugee or asylee status in the United States.
Once status is granted, refugees and asylees have similar rights in the United States. The distinction is in applying for that status.
Refugee vs. Asylum Seeker
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9/11 and the Department of Homeland Security
The threat of terrorism altered U.S. asylum law and policy, turning immigration into a national security agency, rather than an immigration agency.
Following the September 11, 2001,attack on the World Trade Center, the United States refugee and asylum admissions program was put on hold for more than two months. Subsequently, INS split into three organizations: U.S. Citizenship and Immigration Services (USCIS), U.S. Immigrations and Customs Enforcement (ICE), and U.S. Customs and Border Protection (CBP), all of which are currently active and are housed under one umbrella agency called the Department of Homeland Security. Of the three, USCIS oversees the United States refugee admissions and affirmative asylum claims. The Department of Justice and Customs and Border Protection are responsible for defensive asylum claims.
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Government Agencies at Play
Our clients will have interactions with a number of different agencies that play a part in the larger immigration picture.
One Asylum Application may interact with many different agencies before reaching a verdict. These include, but are not limited to: the U.S. Immigration and Customs Enforcement, the U.S. Department of Homeland Security, the U.S. Citizenship and Immigration Services, the United States Department of Justice, and the Executive Office for Immigration Review. This elaborate web of agencies can make the application process uniquely challenging for applicants.
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Border Zones
9/11's impact didn't stop with an overhaul of the former-INS.
Agencies such as ICE and CBP enjoyed an sudden expansion of their powers following 9/11 beginning in 2003 when former President George W. Bush created policies that were so broad that they swept up even those undocumented immigrants who had been a part of our communities for decades with no criminal history, all in the name of anti-terrorism.
Part of this expansion of these powers resulted in extended Border Zones, otherwise known as "Constitution Lite Zones" which are areas where Customs and Border Protection (CBP) has jurisdiction. Their jurisdiction extends a "reasonable distance" into the United States from any international border. A federal court defined "reasonable distance" as 100 miles from any international border.
Within these zones, CBP has the authority to conduct warrantless searches. These searches only extend to vehicles and vessels to search for people without proper immigration documents.
The ACLU has a good Know Your Rights resource for those who wish to learn more about protecting themselves in these zones.
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Asylum Statistics
people forcibly displaced worldwide as of December 2021 as a result of persecution, conflict, violence, human rights violations or events seriously disturbing public order. Displaced person is a person who is forced to leave their home country because of war, persecution, or natural disaster.
89.3
million
53.2
million
people are internally displaced people within their own countries.
27.1
million
people are registered as refugees. Refugees must meet the definition provided above and must either register their status with the United Nations High Commission for Refugees or a consular office abroad.
4.6
million
people are seeking asylum in safe countries worldwide. Asylum requirements in other countries may differ from U.S. procedure. Asylum in the U.S., again, requires you satisfy the international definition of refugee.
In 2022…
125 K
refugees could potentially be admitted to the United States (outside of those admitted from Ukraine and Afghanistan).
The United States in 2022 will help only .0014% of the world’s displaced peoples and only .005% of the world’s refugees.
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Origins of Refugees
69% of the world's refugees are from just five countries.
38% of refugees are hosted in Turkey, Columbia, Uganda, Pakistan and Germany. The United States doesn't even make this list.
In order, the top countries receiving asylum are as follows: China, Venezuela, El Salvador, Guatemala, Turkey, Egypt, India, Honduras, Cuba, and Mexico.
Affirmative vs. Defensive Cases
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There are two forms of asylum in the United States: affirmative and defensive.
People seeking affirmative asylum are those who are not in removal proceedings, meaning the United States government is not actively seeking to deport them. Most affirmative asylum seekers entered the United States using some form of a temporary visa or were able to cross the border undetected and voluntarily availing themselves of the protection of the United States by way of the asylum program.
People seeking defensive asylum are doing so as a remedy to removal proceedings, meaning the United States government is actively seeking to deport them after they were detained at or near a port of entry and were determined to be in the United States without lawful status, necessitating the initiation of removal proceedings even where the people clearly indicated a well-founded fear of return to their country of origin. Both methods of seeking asylum are lawful with precedent in both international law and United States law.
In 2020…
USCIS affirmatively granted asylum to 16,864 people, down 38% from 2019.
Immigration courts granted defensive asylum to 14,565 people, a decrease of 23 percent from 2019.
Processing Defensive vs Affirmative Cases
I-589s must be filed within ONE YEAR of arrival to the United States.
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Alternative Remedies
What happens if asylum isn't approved? Are there other remedies?
TPS
The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country's nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. USCIS may grant TPS to eligible nationals of certain countries (or parts of countries), who are already in the United States.
Withholding of Removal
Withholding of removal is an alternative form of relief for an individual fearing persecution in their country of origin.
Generally, applicants file an application for both asylum and withholding of removal at the same time on Form I-589. In order to be granted withholding of removal, the applicant must meet a higher standard than for asylum. Additionally, withholding can only be granted by an Immigration Judge (IJ), not by an Asylum Officer—so only if their case is referred to court from an affirmative application (see Chapter 25), or begins in defensive proceedings (see Chapter 26), will withholding of removal be on the table.
CAT
Relief under the Convention Against Torture (CAT) is the third form of relief an individual fearing persecution can seek. Like withholding of removal, it can only be granted by an Immigration Judge (IJ), and not by an Asylum Officer.
An applicant bears the burden of demonstrating that it is more likely than not that they will be tortured if removed to their country of origin. The Board of Immigration Appeals (BIA) has found that torture “must be an extreme form of cruel and inhuman punishment” that “must cause severe pain or suffering.” There are no bars to eligibility for relief under CAT.
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What is LIA doing?
Meet our Asylum Team
LIA’s Asylum team is small but mighty. Nonetheless, our capacity is limited with just one attorney dedicated to this work. To create healthy work boundaries, we are limiting Sam and Grace's caseload to just 40 asylum cases per year.
Sam Filcik | Attorney
Grace McConaghie | Legal Assistant
How does our program work?
Triage
We calendar consultations based on an individual’s date of entry into the United States. Because of the one-year filing deadline, we cannot meet with people on a first-come, first-serve basis. We've developed a triage program to do a mini intake with everyone who calls, but they are not guaranteed an appointment with an attorney following the triage appointment
2. Consultation
if their case meets our program requirements, they will be scheduled for a consultation based on the urgency of their case.
3. Deliberation
Even after consultation, there's no guarantee the asylum team will accept the case. Because of our limited resources, we have to be judicious about the cases we take.
4. Sign Retainer Agreement
If it's a case we can take, we will invite the client to sign a Retainer Agreement, legally allowing us to begin work on their case and represent them in immigration court.
What does LIA need from our community?
To conduct an effective Aslyum program, we need our partners’ faith, trust, education, technical support, advocacy, and funding.
We wouldn't be where we are today if we weren't trusted experts in the field of immigration law. Trust that we know what we're doing. Have faith in our dedication to this work and trust us to develop our own procedures for making a program of this scale work. A nonprofit immigration law office has never offered this scale of FREE asylum legal services in West Michigan.
Help us to share good and reliable information. Knowing how LIA operates its program is crucial to ensuring we are not creating false expectations for potential clients.
Advocate for policies that support asylum seekers at the local, state and federal levels. Voting for good policy is important in state and federal elections, but also consider the way local politics impact the day-to-day lives of our clients. Housing is a critical issue controlled by City Council where we need a lot of advocacy.
Funding is critical to keeping this program alive. LIA has established a sustainable system that provides free, quality legal services to Asylum-Seekers in our community. We rely on community partners to maintain this system alongside us.