Asylum U.S.

Broken Asylum System, Broken Border: An Overview of Asylum Policies in the United States

Fear. Fear for their lives. Fear for their children’s lives. This singular feeling travels through every nerve in the bodies of women who seek asylum in the United States. According to NPR, many of these women are the survivors of brutal domestic violence in their home countries. Fear follows them through the streets of their town, at their workplace, and in the ostensible safety of their homes.

These women endure unimaginable domestic violence and gang brutality – beatings, rapes, and death threats. According to NPR, female asylum seekers tell stories of their husbands hitting them with sizzling pans, electric cables, leather belts, and sharpened knives. The government turns a blind eye to their suffering.

The resilience and courage of many women, however, overpower their fear. They escape. They flee the dangers of their home country. They arrive at the United States’ southern border with the desperate hope of a better life, a safe life. They knock on the doors to the United States and beg for asylum. 

The doors, however, barely creak open. The women are thrown into cages. They are separated from their children. They wait for months or years to plead their cases before a judge. They are treated like criminals simply because they dared to ask for help. 

Although current U.S. laws allow women to seek asylum on the basis of gender-based persecution, the Trump administration has sought to revoke this right. It wants to callously send these women back to the extreme dangers of their home countries, which shows this administration’s utter disregard for the gender violence, machismo culture, and weak rule of law in these nations.   

This is the reality of the United States’ asylum system. This system, as it currently functions, embodies cruelty and inhumanity in its policies. It plays with the lives of hundreds of thousands of people. Change to this system, then, is not only necessary but also urgent.  

 

Esmeralda Castillo and her daughters, a migrant family from Honduras, rest on the street while they wait for a bus to take them to the Guatemala border. | Photo Courtesy: Vox

 

The asylum process concerns people who seek refugee status but are already on U.S. soil, rather than in their home country. In order to establish eligibility for asylum, therefore, the applicant must prove that he/she meets the definition of a refugee.

They must prove that they cannot return to their home country due to either past persecution or a credible fear of future persecution. This persecution must be based on race, religion, nationality, political opinion, or membership in a particular social group.

The U.S. Asylum Process: 

There are two main ways to obtain asylum in the United States, which are detailed below. 

In the Affirmative Asylum Process, individuals who are not in deportation proceedings proactively apply for asylum within one year of their arrival in the United States. These individuals may be living in the U.S. without documentation or on a valid visa.

They interview with an asylum officer from U.S. Citizenship and Immigration Services, who may grant them refugee status. The officer may also deny their asylum application and refer their case to immigration court for deportation proceedings, where the individuals may pursue their asylum claim before an immigration judge through the defensive asylum process. 

In the Defensive Asylum Process, individuals who are in deportation proceedings apply for asylum as a defense against deportation from the United States. They are sent to detention facilities, where they file an asylum application with an immigration judge.

They remain in detention until their hearing in immigration court, where the judge either denies or grants them refugee status. If their asylum claim is denied, they are deported from the United States. 

“Arriving” Asylum Seekers (i.e. those who request asylum at or near the border) generally apply for asylum through the defensive asylum process. Before their hearing in immigration court, however, they must first pass either a credible fear or reasonable fear interview with an asylum officer.

A credible fear of persecution means that the asylum seekers have a “significant possibility” of establishing their eligibility for asylum in immigration court, while a reasonable fear of persecution means that the asylum seekers have a “reasonable possibility” of persecution in their home countries.

The latter is a higher standard than the former, and it is used for asylum seekers who have committed an aggravated felony or have re-entered the U.S. without documentation after a prior deportation order. 

This graphic illustrates an overview of the U.S. asylum system. | Source: Human Rights First

 

The United States’ asylum system currently faces an enormous backlog of asylum cases, which means that the asylum process can take several years to conclude.

As of June 2020, asylum seekers with an immigration court case who were eventually granted asylum waited, on average, 906 days to receive that status. 

The lengthy nature of the asylum process undoubtedly creates many challenges for asylum seekers in the United States. Since these individuals generally wait in detention facilities while their asylum cases are processed through the bureaucratic drag of the immigration court system, they often endure prolonged family separation and suffer mental/physical health issues. 

They also experience difficulty in securing legal counsel for their asylum cases. Since immigration law does not guarantee a right to counsel, many asylum seekers are unable to afford legal fees or to find pro bono counsel who can provide legal services for such a long period of time.

Without legal representation, only about two to four percent of immigrants who are forced to represent themselves in immigration court win their cases. The United States’ broken asylum system, then, essentially forces asylum seekers to make a painful choice: live behind bars for years in the uncertain hope for asylum or return to the life-threatening dangers of one’s home country. 

 

Charlene D’Cruz, an immigration attorney, holds a workshop in Matamoros, Mexico to teach migrants how to file asylum applications before they go to civil court hearings in the U.S. | Photo Courtesy: The Dallas Morning News

 

Recent Changes to the Asylum System

The Trump administration has led an unprecedented attack against the United States’ asylum system over the past three years. It has implemented changes to drastically limit asylum in the U.S. without regard for the utter inhumanity of ignoring these individuals’ earnest pleas for protection. 

 

This graph represents the asylum decisions in immigration courts between the 2001 and 2018 fiscal years. Immigration judges rejected 65% of asylum cases in 2018, a record-high number of asylum denials. | Source: TRAC via Syracuse University

 

The Trump administration, for example, has barred individuals who do not present at a port of entry (i.e. those who cross the border between ports of entry) from applying for asylum.

This policy opposes fundamental domestic and international asylum laws, which state that any individual physically present in the U.S. can request asylum. 

At the same time, however, the Trump administration has also made it drastically more difficult for asylum seekers to apply for asylum at ports of entry. It has implemented an extensive policy of metering at the United States’ southern border, which is the process by which Customs and Border Protection (CBP) limits the number of individuals who may request asylum each day at a port of entry.

Asylum seekers who arrive at the border are turned away and forced to put their name on a waitlist in Mexico, where they must wait for several weeks or months before they even have the opportunity to request asylum. As of May 2020, there are approximately 14,580 asylum seekers on such waitlists in Mexican border cities. 

Even after these individuals are taken off the waitlist and their asylum process begins, they are generally subject to this administration’s Migrant Protection Protocols (MPP) program, more commonly referred to as the Remain in Mexico program.

Through MPP, individuals who request asylum at the southern border are sent back to Mexico until they must appear for their hearing in immigration court. More than 60,000 individuals have been affected by this cruel program, and they are forced to wait months or, more often, years until an immigration judge can hear their case. 

 

Asylum seekers sent back to Mexico under the Migrant Protection Protocols program occupy an encampment in Matamoros, Mexico. | Photo Courtesy: Reuters

 

During this time, these asylum seekers must navigate the dangerous and unstable conditions in Mexico without any support from the U.S. government. Many individuals and families are kidnapped, raped, robbed, or assaulted. Many do not have legal immigration status in Mexico and, therefore, cannot find employment to support themselves and their families.

Many even receive a court hearing in a location far from where they originally arrived at the southern border. Due to these difficult circumstances, then, thousands of asylum seekers have missed their scheduled court hearings and, by extension, their invaluable opportunity to receive asylum. 

The Trump administration has also carried out a policy that particularly targets Central American migrants, namely the Third Country Transit Ban. This policy barrs individuals who traveled through another country to reach the United States’ southern border – and did not apply for asylum in the country through which they passed – from applying for asylum.

It deprives thousands of individuals and families from their right to seek protection and violates both national and international laws. The US Court of Appeals for the Ninth Circuit has recently ruled against this transit ban, which represents an enormous victory in the fight to protect asylum seekers.

This administration’s war against asylum seekers has also included the United States’ creation of Asylum Cooperative Agreements with the Northern Triangle nations, namely Honduras, Guatemala, and El Salvador. 

These agreements allow the U.S. government to send certain asylum seekers at the southern border – those who passed through the Northern Triangle and did not apply for asylum there – to one of these three countries to seek asylum and, by extension, bar them from applying for asylum in the United States.

These agreements oppose core U.S. law, as the Northern Triangle countries do not meet the standard to qualify as “safe third countries.” These countries, after all, cannot guarantee the protection of asylum seekers from persecution, lack adequate infrastructure and resources to ensure a full and fair asylum process, and struggle to integrate these vulnerable populations.

The Asylum Cooperative Agreements, then, represent yet another blatant attack on the inherent humanity of asylum seekers.

 

This graph emphasizes that the Northern Triangle countries do not qualify as “safe third countries.” The implementation of the Asylum Cooperative Agreements with El Salvador, Honduras, and Guatemala would undoubtedly place asylum seekers in immense danger. | Source: Center for American Progress

 

The Trump administration has most recently used the coronavirus pandemic as a weapon in its endless efforts to dismantle the U.S. asylum system. Since late March, it has authorized CBP to deport migrants who arrive at the border without documentation as quickly as possible.

This order allows CBP to bar migrants who are seeking protection in the United States from access to the asylum system. Since the implementation of this rapid expulsion policy, the Trump administration has turned away more than 41,000 individuals at the southern border in an average of less than two hours.

It has violated fundamental due process protections for asylum seekers and, by extension, national and international laws. This administration, then, has capitalized on the uncertainty of this unprecedented public health crisis to effectively shut down the U.S.-Mexico border.

Recent Proposed Changes to the Asylum System

In June, the Trump administration proposed a series of changes to the U.S asylum system that would render most asylum seekers ineligible for protection in the United States. These changes include, but are not limited to, the following. 

The new regulations would allow immigration judges to evaluate asylum cases solely on the basis of written applications – without a court hearing – and deprive asylum seekers of their basic due process rights.

This rule would detrimentally impact asylum seekers who are illiterate, cannot speak English, or had to file their application without legal counsel, as these individuals could be denied asylum without the opportunity to defend their case in immigration court. 

The proposed changes would invalidate gender-based persecution claims, even though many female asylum seekers flee from countries with a prevalence of gender-based violence. In Honduras, for example, a woman reports an incident of sexual violence about every three hours.

Guatemala had 670 reported cases of femicides in 2017, and, in El Salvador, a woman is the victim of a femicides every 24 hours. Under the new regulations, however, the tens of thousands of women who arrive at the southern border after suffering domestic abuse, sexual violence, and/or enslavement on the basis of their gender would most likely be denied asylum. 

 

Ana María flees the violence of El Salvador with her one-year-old son, Mateo, to seek asylum in the United States. | Photo Courtesy: Reuters. Published by CNBC.

 

The new regulations would also dramatically narrow the definition of ‘persecution.’ The current law defines persecution as ‘a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.’

The new law would require persecution to indicate an ‘extreme level of harm’ and an ‘exigent threat’ to the individual. This proposed rule, then, would disqualify individuals who have suffered multiple brief detentions or multiple non-severe beatings from asylum. 

The most drastic proposed change to the asylum system would expand the factors for the discretionary denial of asylum claims. Asylum is a form of discretionary relief, which means that asylum officers and immigration judges consider the totality of circumstances in their decisions to grant or deny asylum.

The current laws encourage past persecution or a strong likelihood of future persecution to generally outweigh any adverse factors in an individual’s asylum case. 

Under the proposed changes, however, asylum seekers who 1) entered the U.S. without documentation, 2) failed to request asylum in a country through with they passed prior to their arrival in the U.S., 3) used fraudulent documents to enter the U.S., 4) were present in the U.S. without documentation for more than a year prior to filing an asylum application, and/or 5) were present in the U.S. and failed to file taxes would most likely be denied asylum even if they are otherwise eligible for refugee status.

This law, if implemented, would render nearly every single asylum seeker at the southern border with an automatic stamp of denial on their asylum application. 

 

Customs and Border Protection agents check the documents of a large group of migrants near the U.S.-Mexico border. | Photo Courtesy: The Economist

 

Comparison to Other Countries’ Asylum Systems: 

Under the Trump administration, the United States’ asylum system has undoubtedly become rife with cruelty and abuse. It has wholly ignored the true purpose of the asylum system: to provide individuals with protection from persecution.

In our struggle to save U.S. asylum, however, we can look towards other nations as meaningful models for the improvement of our own system. 

Canada, for example, enjoys an enviable reputation as a world leader in the protection of refugees and asylum seekers. It has provided a safe haven for thousands of asylum seekers each year.

The most notable aspect of Canada’s asylum system includes its humane treatment of migrants. Unlike the United States, Canada does not bar asylum seekers who entered the country between ports of entry from applying for asylum. Instead, these individuals cross the border into the arms of Canada’s border officers.

These officers promptly transport the migrants to the nearest port of entry, where they may request asylum.

 

Royal Canadian Mounted Police officers help an asylum-seeking family cross the U.S.-Canada border through the snow. | Photo Courtesy: The Canadian Press. Published by CTV News.

 

While eligible asylum seekers wait for the adjudication of their cases, they are not locked in cages but rather are provided access to emergency housing, legal aid, social assistance, healthcare, and public education. They also receive temporary work permits in order to provide for themselves and their families while their asylum cases are processed. 

Canada also offers resettlement programs to migrants who have been granted asylum. These integration services help individuals and families who have been forced to leave the familiarity of their old homes adjust to and understand their new lives in Canada.

These programs provide refugees and asylees with income support, community networks, assistance in job searches, support services (e.g. access to childcare, transportation, translation/interpretation services, counseling), language training in English and French, etc. They emphasize Canada’s commitment to protect and uphold the inherent humanity of migrants. 

Argentina also has a progressive view towards refugees and asylum seekers, as a significant part of its national identity includes its large population of European immigrants.

Its tradition of providing humanitarian spaces for a diverse array of refugees and asylum seekers stems, in part, from the establishment of migration as an inalienable human right in Argentina through Law 25.871, which was enacted in 2004.

This law emphasizes that all migrants, especially refugees, will be accepted into Argentina – regardless of their migratory status. It also mandates that migrants may only be placed in detention facilities as a last resort in exceptional circumstances.

Argentina has taken in many refugees and asylum seekers from Africa, the Middle East, and other South American countries. These individuals and families receive access to free health services and education upon their arrival to Argentina. They may take Spanish lessons offered by Catholic charities across the country.

They may also obtain temporary work visas, which can be renewed every three months while their cases are processed. The Argentine government helps to relocate these asylum seekers to different parts of the nation in order to match them with jobs. 

 

Bayan Mahmud snuck onto a ship in Cape Coast, Ghana to escape the ethnic conflict in his home country. He survived the trans-Atlantic journey and arrived in Argentina, where he was granted refugee status. While playing soccer in a Buenos Aires park, Mahmud was recruited to play for Boca Juniors – one of Argentina’s professional sports clubs. He continues to pursue his dreams to play professional soccer.. | Photo Courtesy: Boca Juniors. Published by The Africa Renewal.

 

Despite the incredible work that Argentina has done to bolster respect for migrants’ human rights, we must note that the nation’s refugee and asylum system includes its fair share of issues.

Asylum seekers, after all, must navigate the rampant corruption in the country. For example, while they wait for their asylum cases to be processed, some asylum seekers earn their living as vendors on the streets of Argentina. PRI’s The World records reports of police officers demanding bribes from African street vendors who await the adjudication of their asylum cases. 

As the skin color of immigrants in Argentina has gradually changed from white to black, a subtle racism has appeared in the nation. In 2017, the Argentine government issued a decree – Decree No. 70/2017 – that would modify Law 25.871 to restrict migration to Argentina and facilitate the detention and deportation of migrants.

This decree undoubtedly represented an alarming step backwards in the protection of migrant rights. Nevertheless, through the advocacy of numerous civil society organizations in the country, Decree No. 70/2017 was eventually declared to be unconstitutional by the Argentine judicial system. 

Argentina and Canada admittedly do not receive nearly as many refugee and asylum claims as the United States and, therefore, enjoy a certain degree of flexibility in their policies.

Nevertheless, they offer a valuable vision in terms of the respect for humanity that the United States can bring to its own asylum system in the near future.  

Every country faces a conflict between the pro-immigrant and anti-immigrant elements of its society. Argentina and Canada, however, have refused to succumb to the pressures of the latter.

They have implemented humanitarian policies and legislation that prioritize the protection of refugee and asylum seekers’ fundamental human rights. It is time for the United States to follow their lead and protect the hundreds of thousands of asylum seekers at its doors. 





Aditi Mittal | Georgetown University
Aditi is a rising junior at Georgetown University. As an Economics major with minors in Government and Justice & Peace Studies, she has always been interested in the economic and political determinants of global migration. Aditi has participated in and led a university-sponsored immersion program to Tucson, Arizona and Nogales, Mexico that has allowed her to directly explore the complexities of Latinx migration and understand the realities of immigrant life at the United States’ southern border. This experience has driven her passion to advocate for the migrant justice movement and support efforts that provide humanitarian assistance to migrants. Aditi hopes that her work as an Immigration Writer will amplify the voices of immigrants who are often neglected in national conversations and, ultimately, create actionable change.