What is Happening to Asylum?

Save Asylum: A Call to Action

By Brittney Bringuez

What is Asylum?

Article 14 of the Universal Declaration of Human Rights states, “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” Asylum is a protection granted to foreign nationals who are considered “refugees” under international law. The United Nations 1951 Refugee Convention and 1967 Protocol identifies a “refugee” as a person who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion.” Asylum will only be given if the claim satisfies one of the five aforementioned protection grounds. The United States incorporated this definition into U.S. Immigration Law in the 1980 Refugee Act.

Through international law, the United States has a legal obligation to provide protection (asylum) to those who qualify as refugees. However, the asylum process in the United States is largely discretionary. An asylum seeker must apply for asylum within one year of entering the country (very few exceptions) and can apply for asylum irregardless of their mode of entry, either through a legal port of entry or in between.

A person seeking asylum is NOT entitled to legal counsel. However, they are entitled to present their case in front of an asylum officer or immigration judge. In these cases, an asylum seeker

may present personal affidavits, documentary evidence or persecution, witness testimonies, country condition research, or anything else that may help their case, all of which must be presented in English. Upon listening to an asylum case, asylum officers and immigration judges can choose to grant or deny asylum. If granted asylum, the individual would be allowed to remain in the United States and pursue a legal pathway to citizenship. If denied asylum, the individual is given the option to voluntarily depart (in some circumstances) or is forcibly deported from the country.

What are the Proposed Regulations?

The proposed regulations are vast and have extensive consequences that will span many years. The proposed regulations will result in virtually all asylum applications being denied and legal standards, bars, and precedents being heightened. Additionally the regulations impose strict discretionary requirements for denials onto judges and eliminates due process. This presentation and document only highlight some of the biggest and most catastrophic changes. Please refer to the actual draft of the proposed regulations in the Information Sources section of this document for more information about every single proposed regulation.

1. Changing the very definition of “persecution” and heavily restricting eligibility. Perhaps the most controversial regulation of the entire series, this regulation challenges the definition upon which Asylum is granted in U.S. Immigration Law. As it stands now, “persecution” is not clearly defined in U.S. Immigration as each case is taken into consideration individually, irrespective of any rigid guidelines as to what constitutes “persecution.” For example, if a person is harassed, injured, or threatened over a 5-year period for their political opinion, they might qualify for asylum. The proposed regulation would create an “extreme and exigent” standard of persecution that eliminates countless forms of persecution that qualify a person to receive protection. The proposed regulation would implement blanket denials for cases of “interpersonal animus”; victims of any form “criminal activity” (ie. beatings, rape, extortion, murder, etc.) would no longer be eligible for asylum.

2. Denying asylum seekers due process. Immigration judges would be allowed to deny asylum to an applicant without a court hearing and base their final decision based on the applicant’s written application. This is unfair for MANY reasons. Many asylum applicants do not speak English or speak English as their second, third, or fourth language and are expected to complete an intricate, multi-page application on their own (unless they can afford a lawyer) entirely in English. Many asylum seekers are unaware that their claim MUST clearly satisfy one of the five grounds for protection (ie. race, nationality, religion, political opinion, or membership in a particular social group). Many asylum seekers do not know they will need to provide extensive (and often unobtainable) documentary evidence to support their claim. Many asylum seekers, for myriad reasons, are not equipped with the necessary knowledge and resources to fairly present their claim but are afforded the opportunity to present their case to an asylum officer or judge. This new regulation would entirely eliminate that option and will undoubtedly result in the continued suffering and persecution of thousands of people.

3. Undoing decades of legal precedent and eliminating Gender and LGBTQ-based asylum eligibility. Current U.S. Immigration Law maintains “Membership of a Particular Social Group (PSG)” to be an eligible ground for asylum. PSG is perhaps the most ambitious and widely contended asylum category. It has largely served as the go-to asylum ground for victims of gender and LGBTQ-based violence. The proposed regulations would essentially end “Particular Social Group” as a category. Thousands of individuals across the world, especially in places like Central America where gender and LGBTQ-based violence is rampant, will no longer be eligible for protection. One particular component of the regulation that is entirely arbitrary and capricious is that if you make the argument that you qualify for asylum under the PSG protection ground, you would have to clearly define the PSG and you would not be able to change it once the application is submitted, like you are allowed to now.

4. Denying asylum to individuals who do not enter the United States through a legal port of entry. Many immigration experts consider this particular regulation to be illegal because it is currently written into U.S. Immigration Law that asylum seekers cannot be penalized for entering surreptitiously. Thousands of migrants enter the United States between ports of entry and this regulation would automatically disbar them from being eligible for asylum even if they have a meritorious claim.

5. Imposing mandatory discretionary factors that MUST be weighed and considered by Immigration Judges. Asylum is entirely discretionary. Research shows that there are ample disparities in grant and denial rates among asylum officers and immigration judges within the same offices and ample disparities between offices around the country. The proposed regulations would require immigration judges to take into consideration discretionary factors that either are not currently required or will guarantee that most applicants not be granted asylum. This regulation in particular was designed to be an overarching and ambiguous regulation to curtail asylum. Judges would be required to take into consideration how, when, and why the applicant entered the country and weigh those circumstances to the level of persecution they have or are at risk of experiencing. It is through this regulation that the government is trying to impose it’s illegal Third-Country transit ban.

RETROACTIVITY

The current draft of proposed regulations does not specify whether or not said regulations would be implemented retroactively or if they would only apply to those seeking asylum after the final regulations are published and enacted. If the government decides to enact the regulations retroactively, several thousand more refugees would be negatively impacted. It is important to implore the government to not implement any of the changes retroactively.

Learning Tools

Refugee Roulette: Disparities in Asylum Adjudication

Andrew I. Schoenholtz Georgetown University Law Center, schoenha@law.georgetown.edu Jaya Ramji-Nogales Temple University, jayarn@temple.edu Philip G. Schrag Georgetown University Law Center, schrag@law.georgetown.edu

Lives in the Balance

Asylum Adjudication by the Department of Homeland Security

Although Americans generally think that the U.S. Department of Homeland Security is focused only on preventing terrorism, one office within that agency has a humanitarian mission. Its Asylum Office adjudicates applications from people fleeing persecution in their homelands. Lives in the Balance is a careful empirical analysis of how Homeland Security decided these asylum cases over a recent fourteen-year period.

Asylum Denied

This book, told by Kenney and his lawyer Philip G. Schrag from Kenney's own perspective, tells of his near-murder, imprisonment, and torture in Kenya; his remarkable escape to the United States; and the obstacle course of ordeals and proceedings he faced as U.S. government agencies sought to deport him to Kenya. A story of courage, love, perseverance, and legal strategy, Asylum Denied brings to life the human costs associated with our immigration laws and suggests reforms that are desperately needed to help other victims of human rights violations.