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Immigration 101: What is Asylum?

 

Originally published April 4, 2018; last updated February 10, 2020

For the last several decades, our asylum laws have helped America remain a beacon for refugees and peoples in need from all over the world. However, the Trump Administration has worked tirelessly to close all options for obtaining asylum in the U.S., leaving refugees mired in a process marked by cruelty and chaos.

Below we will discuss what asylum is, the process for obtaining it, and the changes the Trump Administration has made to the asylum process.  

What is Asylum?

Asylum is a legal process that allows someone who feels their life is in danger to seek refuge in safer countries. Under U.S. and international law, someone who reaches any U.S. border “with well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group, who has been forced to flee his or her country because of persecution, war or violence,” may apply for asylum. 

A refugee and an asylum seeker differ in that an asylum seeker makes their claim after they have stepped foot onto the country where they are seeking refuge, whereas a refugee is granted status while still outside that country .  

Once a migrant applies for asylum, they begin a process to prove they have a “credible fear” of returning to their country of origin.    

A Brief History of Asylum in the U.S.

U.S. and international asylum laws are a reaction to the Holocaust, when the lack of asylum laws led to those fleeing Nazis to be turned back, many to their tragic deaths. In the decades prior to WWII, a nativist movement had gained power in the U.S., resulting in the deeply racist and exclusionary Immigration Act of 1924, which lowered per-country immigration quotas and barred almost all immigration from Asia and Africa.  Pointing to these exclusionary quotas, the U.S. turned back the MS St. Louis in 1939, telling the more than 900 Jewish refugees from Nazi Germany to ‘wait their turns.’ The decision was a death sentence for over half the passengers.

Following the war, in 1951, the United Nations High Commissioner for Refugees (UNHCR) was formed. Signed by over 140 countries, the UNHCR was the first international body designed to help resettled refugees around the world. The U.S. did not sign on until 1967.  

Then in 1980, bipartisan legislation (U.S. Refugee Act of 1980) was signed into law by President Jimmy Carter, mandating a legal asylum process in the U.S. The asylum process outlined by this law was followed for the next several decades, through many different Administrations, until the Trump Administration made radical changes that all but completely gutted the program. 

The U.S. Asylum Process 

Once a migrant fleeing persecution reaches the U.S., they can apply for asylum and begin the sometimes years-long process.  The Trump Administration has repeatedly announced changes making this process longer, crueler, and more confusing.  

Before the Trump Administration, the asylum process generally began with the applicant filing a detailed and lengthy application and submitting it with their photo and fingerprints. If the asylum seeker entered the U.S. with a valid visa, they then interview with an asylum officer from U.S. Citizenship and Immigration Services (USCIS), and the asylum seeker provides evidence to establish that they have been or will be persecuted if they return to their country of origin.  The asylum seeker is either granted asylum or denied. If denied, the asylum seeker can appeal through immigration court.

If a migrant seeks asylum after entering the U.S. without prior documentation, they are detained, and they file the asylum application with their photo and fingerprints. They then undergo an initial “credible fear” interview, where the asylum seeker establishes that they have a legitimate fear of returning to their country of origin. If they are deemed to have a “credible fear” of returning, the asylum seeker either remains detained or is paroled to wait for their hearing in immigration court, which will grant or deny them asylum.

Asylum seekers are not entitled to legal representation, so those who are unable to find or afford an attorney must navigate the long and confusing process on their own.  In FY 2017, 20 percent of asylum seekers did not have representation, even though those with representation were five times more likely to win their asylum cases.  Under Trump’s “Remain in Mexico” policy (more about that below), obtaining an attorney is even harder. Less than two percent of asylum seekers under the program have had legal representation.    

Human Rights First also has a helpful infographic of the asylum process here.  

The Trump Administration’s Assault on the Asylum System

The Trump Administration has waged an all-out assault on asylum seekers, dismantling the legal asylum process in all but name. The Trump Administration’s goals, in changing the asylum system, seem to not be orientated toward security or fairness, but by cruelty and exclusion.  

Led by the white nationalist White House senior advisor Stephen Miller, the Administration has dramatically reduced the U.S. refugee admissions cap, setting record lows each year they have been in office.  For FY 2018, the Administration lowered the refugee admissions cap to 45,000 — but only admitted half that number, 22,491, the lowest admissions number in 40 years. In FY 2019, they lowered the cap to 30,000 refugees, the lowest limit since the caps were first established in the 1980s. The Administration reduced the admissions cap to just 18,000 for FY 2020.  Meanwhile, Miller has pushed to zero-out refugee admissions altogether.  

While refugee admissions have dramatically decreased, denial rates for asylum seekers have steadily increased each year. In FY 2017, 60 percent of all asylum seekers to the U.S. were denied. In FY 2018, 65 percent were denied. And in FY 2019, 69 percent of applications (some 46,735 asylum seekers) were denied. After acting director of USCIS Ken Cuccinelli took office in 2019, he encouraged agents conducting initial asylum screenings to deny more applicants, writing in an email that USCIS needed to do its “part to help stem the crisis and better secure the homeland.”    

The Trump Administration has implemented a variety of different changes in an effort to block migrants making asylum claims:

  • The Administration has turned away some asylum seekers at the border without allowing them to claim asylum — a violation of U.S. obligations under domestic and international law.  
  • In April 2018, the Administration officially implemented a process of “metering” — intentionally slowing the processing of asylum seekers at the border, turning their wait times into weeks or months and putting many asylum seekers in a dangerous limbo.  
  • The Administration implemented an expedited deportations process. In March 2018, then-Attorney General Jeff Sessions eliminated a requirement that asylum seekers get a full hearing before an immigration judge. Now, asylum petitions can be rejected without a full hearing if immigration judges believe they appear to be fraudulent or unlikely to succeed.  
  • In November 2019, the Administration proposed raising a $50 fee for asylum applications — an absurd concept for asylum seekers who are fleeing to the U.S. to seek safety. This move followed an earlier proposal to levy fees on asylum seekers and remove their ability to work in order to support themselves, even though it often takes years for asylum cases to be resolved.
  • And the Administration tried to categorically deny asylum to migrants fleeing domestic violence and gang warfare. Fortunately, the courts blocked this effort, saying their effort was “arbitrary and capricious and contrary to law.” 

Over and over again, the Administration has employed a strategy of extreme cruelty towards asylum seekers in a deeply questionable attempt at deterrence. Of all their changes, the Administration’s “zero-tolerance” family separation policy, their “Remain in Mexico policy, and their so-called “safe third country” agreements stand out for their shocking cruelty and their devastating effects on our asylum system  

Family Separation and the “Zero-Tolerance” Policy  

In April 2018, the Administration announced their “zero-tolerance” policy, which resulted in the separation of thousands of children from their families. Two months later, a court mandated the immediate reunification of the 2,737 children the Administration had identified as separated. However, an OIG report released in January 2019 said that “thousands” more children than previously recognized had been taken away from their parents. In May, a court-ordered review found at least 1,712 more children who had been separated. In October, the number of separated children was again revised, bringing the total to more than 5,400. Shockingly, a DHS Inspector General report this year revealed the Administration had initially expected to separate even more families — as many as 26,000 children from their parents.

The Trump Administration completely failed at reuniting families even after the 2018 court order to do so. Reports revealed that the Administration had failed at keeping track of which children belonged to which parents, and in multiple cases deported parents while keeping their children. Due to their incompetence, it took months longer than necessary to reunite families, and at one point the Administration claimed that it was the ACLU’s responsibility (as the lawsuit plaintiff) to bring children to their parents.

More reporting over the following year revealed that the Administration’s family separation policy was made worse by its willful ignorance of the long-term harms suffered by families and children. Buzzfeed reported on internal emails which showed that then-DHS Secretary Kirstjen Nielsen did not even give agents guidelines on how the policy should be implemented until a full month after it was in effect and well after thousands of children had been separated. Under questioning from Rep. Lauren Underwood (D-IL) in March, 2019, Nielsen said she was unfamiliar with the research of how traumatizing family separation can be.  And in June 2019, NBC News reported that at least one botched reunification resulted in children being held for two nights in a van last July in Texas before being reunited with their families.  

In September 2019, the Office of the Inspector General (OIG) at the Department of Health and Human Services (HHS) issued two reports on the treatment of immigrant children in federal custody in 2018. One report concluded that over half the facilities allowed employees to work without completed background checks, including employees working with children in custody. The other report noted that the thousands of family separations had created anxiety, fear, and PTSD in the children. The report said “children expressed feelings of fear and guilt and became concerned for their parents’ welfare,” and “children who believed their parents had abandoned them were angry and confused.” Mental health clinicians noted that “some separated children isolated themselves and took longer to adjust to the facility and its routines, for example, refusing to eat or participate in activities.”

Nevertheless, the Administration continues to separate families. A report in March 2019 by the New York Times found that more than 200 migrant children have been separated since the Administration supposedly rescinded the “zero-tolerance” policy. In one example, a woman named Alexa crossed the border with her six-year-old niece, fleeing Guatemala after gang members killed most of their family. Even though Alexa raised her niece like she was her own daughter, the Administration separated them at the border, sending her niece to New York while detaining Alexa in Arizona, according to a report from the Guardian.   

Trump has even pushed to formally reinstate the family separation policy despite the fact that it has been a deterrence failure that has prompted outrage from across the country and the world. The Administration has even considered implementing a new version of the policy, which would force migrants to choose between child separation and indefinite family detention.  

Read more about the family separation policy here

“Remain in Mexico”, also known as the Migrant Protection Protocol (MPP) Policy

At the end of 2018, the Administration announced new “Migrant Protection Protocols” (MPP) that forced migrants seeking asylum in the U.S. to wait in Mexico during the process. In April 2019, the courts allowed the Administration to continue the program as lawsuits wound through the courts. By May, the Administration had sent some 6,000 asylum seekers to Mexico to wait, initially telling them they would be in Mexico for 45 days before revising the estimate to a year-long wait. By the beginning of 2020, the Administration had forced more than 60,000 asylum seekers from the U.S. to wait in MPP camps. 

In August 31, 2019, well over eight months into the new policy, only two migrants under MPP had been granted asylum. And only a dozen asylum claims were granted by October 2019, according to one estimate. Astonishingly, even the rare few who had been granted asylum have often not been able to obtain relief, because in several reported cases, they were sent back to Mexico anyway. 

In other cases, migrants have been sent back to Mexico after Customs and Border Protection (CBP) agents falsified documents. Part of the MPP agreement states that only migrants with future court dates can be sent back to Mexico; if a migrant has completed the legal process, they are supposed to be paroled into the U.S. or kept in federal custody. But the Los Angeles Times reported that on at least 14 occasions, CBP wrote down fake court dates so they could send the migrants back, again, to Mexico.

Tens of thousands of asylum seekers — many of whom are families with children — sent back under the MPP have faced horrific conditions during their months-long wait. Sending desperate asylum seekers into dangerous cities, without any resources, has led to tragic outcomes. Migrants face widespread rape, kidnapping, and violent assault. A report from Human Rights First found “over 340 public reports of rape, kidnapping, torture, and other violent attacks against asylum seekers returned to Mexico under MPP.”  Vice News published a story about an asylum seeker who feared being returned to Mexico under MPP but was sent back anyway; he and his young child were kidnapped by a cartel just five hours later. 

In a 600-person study conducted by the University of California San Diego’s U.S. Immigration Policy Center, almost 9 out of 10 of all respondents expressed fear about being returned to Mexico. Their study found “63.9% reported that their persecutor(s) can find and have access to them in Mexico but [they] were returned to Mexico anyway.” Their study also found that 23.1% have been threatened with physical violence, and over half of those threats turned into actual experiences of physical violence. 

There is also little in the way of shelter, food, or sanitary conditions under MPP. The US Immigration Policy Center study found that 34.5% of migrants under MPP have experienced homelessness. Many are living on the street under tents and blankets and relying on donated food. Finding clean water for drinking and bathing has also been a challenge. There have been reports of pregnant women lacking running water, access to showers, and medical resources unless they are actively in labor. Many migrants have turned to the dangerous and polluted Rio Grande as a last resort. But there have been reports of adults and children developing rashes after bathing in the river.

The same river has also led to many tragic deaths. The desperation condition of migrants being forced to wait is leading some of them to try and cross the Rio Grande without seeking asylum. This has led to tragic deaths like the father and child who drowned in the river in June 2019, and the mother and child who died trying to cross in September.

The situation remains so terrible that U.S. asylum officers have filed suit against the policy, saying that MPP is “fundamentally contrary to the moral fabric of our nation.” 

Read more about the Remain in Mexico policy here

So-Called “Safe Third Country” Agreements

In July 2019, the Trump Administration announced a new rule change that would require every asylum seeker to seek asylum in any country they cross before reaching the U.S. southern border.  This rule would effectively bar all future asylum seekers by requiring them to make their asylum claims in countries that cannot offer them protection and may be scarcely safer than their own home countries. However, an unsigned ruling from the U.S. Supreme Court allowed the Administration to begin implementing the rule while the court case continues. 

Supplementary to the rule change, the Administration bullied Guatemala, El Salvador, and Honduras into signing ‘safe third-country’ agreements. These agreements claim that each of these nations are safe places for asylum seekers to settle and migrants must try to claim asylum there if they pass through these countries. However, El Salvador has the highest homicide rate in the world, while Honduras ranks fifth and Guatemala 16th, according to reporting by Vox. “Guatemala is in no way safe for refugees and asylum seekers, and all the strong-arming in the world won’t make it so,” said Eric Schwartz, president of Refugees International.  In fact, these same countries are producing some of the asylum seekers coming to the U.S. seeking safety in the first place.

Reportedly, the Administration is flying Honduran and Salvadoran asylum seekers who had reached the U.S. southern border to Guatemala without even telling them where they were going. The Administration even proposed sending asylum seekers to areas including the remote jungle region of Petén, which is in one of the poorest states in Guatemala. The Guatemalan bishops’ migrant ministry warned against the Administration’s plan to send asylum seekers to the Guatemalan jungle, warning: “We remind people that we are the most violent region which is not at war,” they said, “Petén does not have the ability nor the infrastructure at this time to welcome, protect and integrate asylum-seekers and refugees.” 

And while the Administration first claimed they would only send single adults back to Guatemala under the new program, they have reversed course and begun sending families, including young children, to Guatemala. 

Read more about the so-called safe third country agreements here

Resources

  • The United Nations High Commissioner for Refugees (UNHCR) provides important information for filing for different asylum claims and access to legal aid resources: “If you are a refugee or asylum-seeker in need of assistance in the United States, you can call +1 202-461-2356 to leave a message at any time for UNHCR Regional Office Washington. You will receive a call back during normal business hours. Inquiries can also be made by email at usawainq@unhcr.org. For refugees and asylum-seekers detained in the United States, we operate a toll-free protection hotline Mondays, Wednesdays and Fridays from 2pm – 5pm EST with telephonic interpretation available. The protection hotline is accessible by dialing #566 from within detention facilities.”
  • HIAS provides a range of support for refugees and asylum seekers including legal aid, psychosocial care, and livelihood support.  
  • The National Immigrant Justice Center – Unaccompanied children: Call 773-672-6550 LGBTQ immigrants: Call 773-672-6551 on Wednesdays and Fridays between 10:00 a.m. – 12:00 p.m. All others seeking asylum: Call 773-672-6555 For a general consultation regarding immigration options, please call 312-660-1370 or email immigrantlegaldefense@heartlandalliance.org. 
  • Human Rights First provides legal aid to “people living in the greater Washington, D.C., New York City, and Houston metropolitan areas who do not already have legal representation, cannot afford an attorney, and need help with a claim for asylum or other protection-based form of immigration status.”
  • The Immigration Advocates Network runs a state by state directory for legal aid for low-income immigrants. 

Learn More About Other Important Immigration Topics