Malcolm Rivera
The right to asylum is a form of protection for individuals who are unable or unwilling to return to their home country due to a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion. While asylum is not explicitly mentioned in the US Constitution, it is recognized in international law, including the 1951 UN Convention Relating to the Status of Refugees and the 1967 Protocol. In the US, asylum is a discretionary status, with applicants needing to meet eligibility requirements and navigate a complex process involving multiple government agencies. Other countries, like France, have constitutional provisions guaranteeing the right of asylum, and China's constitution allows the government to grant asylum to foreigners for political reasons.
| Characteristics | Values |
|---|---|
| Right of asylum | Supported by the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees |
| Conserved in France amid various anti-immigration laws | |
| Secured by the Preamble of the Constitution of 1958 | |
| Enshrined on a legal and regulatory basis in the Code of Entry and Residence of Foreigners and of the Right to Asylum | |
| Part of the US immigration law in the Refugee Act of 1980 | |
| Defined as a protection grantable to foreign nationals in the United States or at the border | |
| Requires applicants to demonstrate that they are unable or unwilling to return to their country due to persecution or a well-founded fear of persecution | |
| Requires applicants to apply within one year of entering the United States | |
| Requires applicants to prove that they are refugees | |
| Allows the Attorney General to establish additional limitations and conditions under which an alien is ineligible for asylum | |
| Asylum seekers | Face a difficult and complex process involving multiple government agencies |
| Face barriers such as language and racism, especially for Black asylum seekers | |
| May be granted "withholding of removal" to protect them from harm if they are denied asylum | |
| May be granted asylum if they have a lawyer | |
| Come from various countries, including Haiti, Latin America, Cuba, Nicaragua, Brazil, India, Eritrea, Ghana, Ethiopia, Cameroon, Afghanistan, Ukraine, and Honduras |
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What You'll Learn
Asylum seekers' rights
The right to asylum is supported by the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. The United Nations 1951 Convention and 1967 Protocol define a refugee as a person who is unable or unwilling to return to their 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”. The right to asylum is also referenced in the Universal Declaration of Human Rights, although this is generally seen as non-binding.
In the United States, asylum seekers must navigate a difficult and complex process that can involve multiple government agencies. Asylum seekers are subject to a criminal background and security check and must prove that they have a well-founded fear of persecution. Those who lose their cases and any appeals are deported. An individual must generally apply for asylum within one year of their most recent arrival in the United States. Certain factors bar individuals from asylum, including if they are found to pose a danger to the United States, have committed a serious crime, or have persecuted others themselves.
In France, the right of asylum is secured by the Preamble of the Constitution of 1958, via a reference to the Preamble of the 1946 Constitution. France also adheres to international agreements that provide for application modalities for the right of asylum, such as the 1951 United Nations (UN) Convention Relating to the Status of Refugees, the additional 1967 protocol, and the 1985 Schengen Agreement, which defined EU immigration policy. Despite various anti-immigration laws, France has granted asylum to tens of thousands of refugees, including exiles from South American dictatorships in the 1970s and 1980s, and Afghan refugees in the 2000s.
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The application process
The process of applying for asylum in the United States is complex and involves multiple government agencies. The application process is as follows:
Affirmative Asylum Process
An individual who is not in removal proceedings may apply for asylum through the U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS). This is known as the affirmative asylum process. To be eligible, the applicant must be physically present in the United States or at a port of entry. They must also meet the international law definition of a "refugee", as defined by the United Nations 1951 Convention and 1967 Protocol. This definition is incorporated into U.S. immigration law and states that a refugee is a person who is unable or unwilling to return to their home country due to past persecution or a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion.
Defensive Asylum Process
If an individual's affirmative asylum application is denied by USCIS, and they do not have a lawful immigration status, they may renew their request through the defensive asylum process. This involves appearing before an immigration judge in removal proceedings. The individual will be issued a Notice to Appear (NTA) and their case will be referred to the Department of Justice's Executive Office for Immigration Review (EOIR).
Application Form and Deadline
To apply for asylum, individuals must submit Form I-589, Application for Asylum and for Withholding of Removal, within one year of their arrival in the United States. There is no fee to apply for asylum, and applicants may include their spouse and children who are physically present in the country as dependents on their application.
Interviews and Screening
As part of the asylum application process, individuals may undergo a credible fear interview or screening to determine if they meet the standard for asylum. If they are found to have a credible fear of persecution or torture, they will be referred to proceedings where they can submit their asylum application. During the Asylum Merits Interview with USCIS, an asylum officer will decide whether the individual is eligible for asylum and determine if they require withholding of removal or protection under the Convention Against Torture (CAT).
Employment Authorization
Asylum seekers are not authorized to work unless they meet certain requirements. If granted asylum, individuals are immediately authorized to work and may obtain an Employment Authorization Document (EAD). They may be eligible for an EAD when their asylum application has been pending for 180 days or after 150 days of filing their asylum application under the (c)(8) category.
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Eligibility requirements
To be eligible for asylum in the US, individuals must be physically present in the country or at a port of entry and must apply within one year of their arrival. They must demonstrate either past persecution or a well-founded fear of future persecution in their home country based on one of the protected grounds mentioned above. An individual's testimony is often critical to their asylum determination.
Certain factors can bar individuals from asylum eligibility. These include failing to apply within the one-year deadline, posing a danger to the US, committing a serious crime, or having persecuted others. Additionally, asylum seekers must navigate a complex process involving multiple government agencies, and their applications may be referred to an immigration judge for further consideration.
While asylum is a discretionary status, meaning that individuals may be denied even if they meet the definition of a refugee, there is a backstop form of protection known as "withholding of removal" to protect them from harm if necessary. This process also involves assessing eligibility under the Convention Against Torture, which forbids deporting asylum seekers to countries where their life or freedom would be threatened.
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Barriers to asylum
The right to asylum is supported by the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. The United Nations 1951 Convention and 1967 Protocol define a refugee as a person who is unable or unwilling to return to their 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."
Despite the existence of these international laws, there are several barriers to asylum that make it difficult for individuals to obtain protection. Here are some of the key barriers faced by asylum seekers:
Complex and Lengthy Process
Asylum seekers must navigate a complex and lengthy legal process that involves multiple government agencies and strict deadlines. This complexity can be overwhelming, especially for individuals who may be traumatized or lack access to necessary resources and legal representation. The process may include interviews, screenings, and court appearances, which can be challenging and time-consuming.
Strict Deadlines and Backlogs
In the United States, asylum seekers generally must apply for asylum within one year of their arrival in the country. This deadline can be challenging to meet, especially for those who are unaware of the requirement or are facing traumatic repercussions from their detention or journey. Additionally, systemic issues such as lengthy backlogs in the immigration system can make it difficult for individuals to file their applications on time. Missing the one-year deadline is often the sole reason for the government to deny an asylum application.
Limited Access and Restrictions
Since 2017, the US government has severely restricted access to asylum at the border. Policies such as the Migrant Protection Protocols (MPP) or "Remain in Mexico" have forced certain asylum seekers to wait in Mexico while their claims are processed. Executive orders and amendments have also curbed the legal right to seek asylum, making it more difficult for individuals to even initiate the process.
Individual Circumstances and Eligibility
Certain factors can bar individuals from asylum eligibility. For example, those who fail to apply within the one-year deadline, pose a danger to the US, have committed serious crimes, or have engaged in persecution themselves may be ineligible. Additionally, individuals who enter the US through specific border areas may be presumed ineligible for asylum unless they can demonstrate an exception or rebut the presumption.
Discrimination and Racism
Language barriers and racism have been documented, especially at the US-Mexico border, making the situation particularly dangerous for Black asylum seekers. Discrimination and violence against asylum seekers based on their race or ethnicity further compound the challenges they face in accessing protection and navigating the asylum process.
These barriers to asylum reflect the complex reality faced by individuals seeking protection. While international laws and conventions provide a framework for asylum rights, the implementation and interpretation of these rights vary across countries, resulting in varying levels of access to asylum and protection for refugees.
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International law and asylum
Seeking asylum is a human right. This means that everyone should be allowed to enter another country to seek asylum. The right to seek asylum is guaranteed by international human rights law, including the 1951 Refugee Convention and its 1967 Protocol. This principle, known as non-refoulement, prohibits returning asylum seekers to countries where their lives or freedoms would be endangered due to their "race, religion, nationality, membership of a particular social group, or political opinion." It is also part of customary international law and must be respected by all nations.
The United Nations 1951 Convention and its 1967 Protocol define a refugee as someone who is unwilling or unable to return to their home country and cannot obtain protection there due to past persecution or a well-founded fear of future persecution based on specific grounds. This definition has been incorporated into the laws of countries like the United States, which recognizes the right of asylum under international and federal law.
International organizations like Amnesty International and the United Nations High Commissioner for Refugees (UNHCR) work to protect the rights of asylum seekers and refugees. They advocate for fair and efficient processing of asylum claims, ensure access to minimum standards of treatment and support, and collaborate with governments to strengthen national asylum laws and systems.
While seeking asylum is a universal right, the process of obtaining asylum varies across countries. In the United States, for example, there are two primary ways to apply for asylum: affirmatively and defensively. Affirmative asylum applications are for those physically present in the country, regardless of their immigration status, while defensive asylum is sought by those facing removal or deportation. The US has faced criticism for its restrictive asylum policies, such as the Migrant Protection Protocols (MPP) or "Remain in Mexico" policy, which forced asylum seekers to wait in Mexico during their immigration court cases, often with limited access to legal counsel.
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Frequently asked questions
Asylum is not explicitly mentioned in the US Constitution. However, it is a form of protection granted to individuals seeking refuge in the US who can demonstrate a well-founded fear of persecution in their home country based on race, religion, nationality, membership in a particular social group, or political opinion. The US has incorporated international refugee protections into its immigration law, including the 1951 Convention and 1967 Protocol, which define the term "refugee."
To be eligible for asylum in the US, individuals must be physically present in the country or arrive at a US border and meet the international law definition of a "refugee." They must also apply for asylum within one year of their arrival in the US, unless there are exceptional circumstances. The burden of proof is on the applicant to demonstrate that they meet the definition of a refugee and that persecution was or will be a central reason for their situation. An individual's testimony is typically critical to their asylum determination.
The asylum process in the US can be complex and involve multiple government agencies. Individuals seeking asylum may be placed in removal proceedings and required to submit an application to an immigration court. Those who express a fear of returning to their home country or request asylum may undergo a screening process to assess their fear of persecution or torture. The outcome of asylum cases can depend significantly on access to legal representation, as asylum seekers are not guaranteed a government-funded lawyer.
