Asylum in the United States

Asylum in the United States

The United States honors the right of asylum of individuals as specified by international and federal law. A specified number of legally defined refugees, who apply for asylum either overseas or after arriving in the U.S., are admitted annually. Refugees compose about one-tenth of the total annual immigration to the United States, though some large refugee populations are very prominent. Since World War II, more refugees have found homes in the U.S. than any other nation and more than two million refugees have arrived in the U.S. since 1980. Of the top ten countries accepting resettled refugees in 2006, the United States accepted more than twice as many as the next nine countries combined.

Character of refugee inflows and resettlement

During the Cold War, and up until the mid-1990s, the majority of refugees resettled in the U.S. were people from the former-Soviet Union and Southeast Asia. The most conspicuous of the latter were the refugees from the Vietnam War, sometimes known as "boat people". Following the end of the Cold War, the largest resettled group were refugees from the Balkans who were fleeing the Yugoslav wars. In the 2000s, the proportion of Africans fleeing various ongoing conflicts in the annual resettled population rose.

Large metropolitan areas have been the destination of most resettlements, with 72% of all resettlements between 1983 and 2004 going to 30 locations. The historical gateways for resettled refugees have been California (specifically Los Angeles, Orange County, San Jose, and Sacramento), the Mid-Atlantic region (New York in particular), the Midwest (specifically Chicago and Minneapolis-St. Paul) and Providence, Rhode Island. In the last decades of the twentieth century, Washington, D.C.; Seattle, Washington; Portland, Oregon; and Atlanta, Georgia were recognized as new gateways for resettled refugees. Particular cities are also identified with some national groups: metropolitan Los Angeles received almost half of the resettled refugees from Iran, 20% of Iraqi refugees went to Detroit, and nearly one-third of refugees from the former Soviet Union were resettled in New York. These ethnic enclaves partially result from attempts by the agencies organizing resettlement to place newly arrived refugees with family members already in the U.S. and in locations where government agencies and charities are known to have staff that speak the pertinent language. Ethnic grouping also results as refugees and migrants seek out the comfort of familiar languages, food and customs.

Relevant law and procedures

The United States is obliged to recognize valid claims for asylum under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. As defined by these agreements, a refugee is a person who is outside his or her country of nationality (or place of habitual residence if stateless) who, owing to a fear of persecution on account of a protected ground, is unable or unwilling to avail himself of the protection of the state. Protected grounds include race, nationality, religion, political opinion and membership of a particular social group. The signatories to these agreements are further obliged not to return or "refoul" refugees to the place where they would face persecution.

This commitment was codified and expanded with the passing of the "Refugee Act of 1980" by the United States Congress. Besides reiterating the definitions of the 1951 Convention and its Protocol, the Refugee Act provided for the establishment of an Office of Refugee Resettlement (ORR) within the U.S. Department of Health and Human Services (HSS) to help refugees begin their lives in the U.S. The structure and procedures evolved and by 2004, federal handling of refugee affairs was led by the Bureau of Population, Refugees and Migration (PRM) of the U.S. Department of State, working with the ORR at HHS. Asylum claims are mainly the responsibility of the Bureau of Citizenship and Immigration Services (CIS) of the Department of Homeland Security (DHS).

Refugee quotas

Each year, the President of the United States sends a proposal to the Congress for the maximum number of refugees to admitted into the country for the upcoming fiscal year, as specified under section 207(e) (1)-(7) of the Immigration and Nationality Act. This number, known as the "refugee ceiling", is the target of annual lobbying by both refugee advocates seeking to raise it and anti-immigration groups seeking to lower it. However, once proposed, the ceiling is normally accepted without substantial Congressional debate. The September 11, 2001 attacks resulted in a substantial disruption to the processing of resettlement claims with actual admissions falling to about 26,000 in fiscal year 2002. Claims were doublechecked for any suspicious activity and procedures were put in place to detect any possible terrorist infiltration, though some advocates noted that, given the ease with which foreigners can otherwise legally enter the U.S., entry as a refugee is comparatively unlikely. The actual number of admitted refugees rose in subsequent years with refugee ceiling for 2006 at 70,000. Critics note these levels are still among the lowest in 30 years.

Application for resettlement by refugees abroad

The majority of applications for resettlement to the United States are made to U.S. embassies in foreign countries and are reviewed by employees of the State Department. In these cases, refugee status has normally already been reviewed by the United Nations High Commissioner for Refugees and recognized by the host country. For these refugees, the U.S. has stated its preferred order of solutions are: (1) repatriation of refugees to their country of origin, (2) integration of the refugees into their country of asylum and, last, (3) resettlement to a third country, such as the U.S., when the first two options are not viable.

The United States prioritizes valid applications for resettlement into three levels. Priority One consists of:

persons facing compelling security concerns in countries of first asylum; persons in need of legal protection because of the danger of refoulement; those in danger due to threats of armed attack in an area where they are located; or persons who have experienced recent persecution because of their political, religious, or human rights activities (prisoners of conscience); women-at-risk; victims of torture or violence, physically or mentally disabled persons; persons in urgent need of medical treatment not available in the first asylum country; and persons for whom other durable solutions are not feasible and whose status in the place of asylum does not present a satisfactory long-term solution. "-UNHCR Resettlement Handbook"

Priority Two is composed of groups designated by the U.S. government as being of special concern. These are often identified by an act proposed by a Congressional representative. Priority Two groups in proposed for 2008 included: [ Report to the Congress] Submitted on Behalf of The President of The United States to the Committees on the Judiciary United States Senate and United States House of Representatives in Fulfillment of the Requirements of Section 207(E) (1)-(7) of the Immigration and Nationality Act, Released by the Bureau of Population, Refugees, and Migration of the United States Department of State, p. 8]
* "Jews, Evangelical Christians, and Ukrainian Catholic and Orthodox religious activists in the former Soviet Union, with close family in the United States" (sponsored by Frank Lautenberg (D-N.J.))
* from Cuba: "human rights activists, members of persecuted religious minorities, former political prisoners, forced-labor conscripts (1965-68), persons deprived of their professional credentials or subjected to other disproportionately harsh or discriminatory treatment resulting from their perceived or actual political or religious beliefs or activities, and persons who have experienced or fear harm because of their relationship – family or social – to someone who falls under one of the preceding categories"
* from Vietnam: "the remaining active cases eligible under the former Orderly Departure Program (ODP) and Resettlement Opportunity for Vietnamese Returnees (ROVR) programs"; individuals who, through no fault of their own, were unable to access the ODP program before its cutoff date; and Amerasian citizens, who are counted as refugee admissions
* individuals who have fled Burma and who are registered in nine refugee camps along the Thai/Burma border and who are identified by UNHCR as in need of resettlement
* UNHCR-identified Burundian refugees who originally fled Burundi in 1972 and who have no possibility either to settle permanently in Tanzania or return to Burundi
* Bhutanese refugees in Nepal registered by UNHCR in the recent census and identified as in need of resettlement
* Iranian members of certain religious minorities
* Sudanese Darfurians living in a refugee camp in Anbar Governorate in Iraq would be eligible for processing if a suitable location can be identified

Priority Three is reserved for cases of family reunification, in which a refugee abroad is brought to the United States to be reunited with a close family member who also has refugee status. A list of nationalities eligible for Priority Three consideration is developed annually. The proposed countries for FY2008 were Afghanistan, Burma, Burundi, Colombia, Congo (Brazzaville), Cuba, Democratic People’s Republic of Korea (DPRK), Democratic Republic of the Congo (DRC), Eritrea, Ethiopia, Haiti, Iran, Iraq, Rwanda, Somalia, Sudan and Uzbekistan.

Application for asylum by individuals in the United States

The minority of applications that are made by individuals who have already entered the U.S. are judged solely on if they have a valid claim for asylum. There are two ways to apply for asylum while in the United States. If an asylum seeker has been placed in removal proceedings before an Immigration Judge with the Executive Office for Immigration Review, which is a part of the Department of Justice, the individual may apply for asylum with the Immigration Judge. If an asylum seeker has not been placed in removal proceedings, he or she may file an application with U.S. Citizenship and Immigration Services, regardless of his or her legal status in the United States. However, if the asylum seekers is not in valid immigration status and USCIS does not grant the asylum application, USCIS will place the applicant in removal proceedings and the judge will consider the application anew. Since the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act passed in 1996, an applicant must apply for asylum within one year of entry or be barred from doing so unless the applicant can establish changed circumstances that are material to his or her eligibility for asylum or exceptional circumstances related to the delay.

There is no right to asylum in the United States; however, if an applicant is eligible, he has a procedural right to have the Attorney General exercise his discretion to admit him into the United States as an asylee. The dispute in asylum cases litigated before the Executive Office of Immigration Review and, subsequently, the federal courts centers on whether the immigration courts properly rejected the applicant's claim that he is eligible for asylum.

The applicant has the burden of proving that he is eligible for asylum. To satisfy this burden, the an applicant must show that he has a well-founded fear of persecution in his home country on account of either his race, religion, national origin, political opinion, or membership in a particular social group. The applicant can demonstrate his well-founded fear either by demonstrating that he has suffered persecution in the past or that he has an objective fear of future persecution if he should return to his home country. An applicant's claim for asylum is stronger if he can show past persecution, because then he will receive a presumption that he has a well-founded fear of persecution in his home country. The government can rebut this presumption by demonstrating either that the applicant can relocate to another location within his home country in order to avoid persecution, or that conditions in the applicant's home country have changed such that the applicant's fear of persecution there is no longer objectively reasonable.

The term "well-founded fear" has no precise definition in asylum law. In "INS v. Cardoza-Fonseca", ussc|480|421|1987, the Supreme Court avoided attaching a consistent definition to the term, preferring instead to allow the meaning to evolve through case-by-case determinations. However, in "Cardoza-Fonseca", the Court did emphasize that a "well-founded" fear is something less than a "clear probability" that the applicant will suffer persecution. Three years earlier, in "INS v. Stevic", ussc|467|407|1984, the Court held that the clear probability standard applies in proceedings seeking withholding of deportation, because in such cases the Attorney General must allow the applicant to remain in the United States. With respect to asylum, because the Attorney General retains discretion to admit the applicant, the Court in "Cardoza-Fonseca" reasoned that the standard for showing a well-founded fear of persecution must necessarily be lower.

An applicant initially presents his claim to an asylum officer, who may either grant asylum or refer the application to an Immigration Judge. If the asylum officer refers the application and the applicant is not legally authorized to remain in the United States, the applicant is placed in removal proceedings. After a hearing, an immigration judge determines whether the applicant is eligible for asylum. The immigration judge's decision is subject to review on two, and possibly three, levels. First, the immigration judge's decision can be appealed to the Board of Immigration Appeals. In 2002, in order to eliminate the backlog of appeals from immigration judges, the Attorney General streamlined review procedures at the BIA. One member of the Board can affirm a decision of an immigration judge without oral argument; traditional review by three-judge panels is restricted to limited categories for which "searching appellate review" is appropriate. If the BIA affirms the decision of the immigration court, then the next level of review is a petition for review in the United States court of appeals for the circuit in which the immigration judge sits. The court of appeals reviews the case to determine if "substantial evidence" supports the immigration judge's (or the BIA's) decision. As the Supreme Court held in "INS v. Ventura", ussc|537|12|2002, if the federal appeals court determines that substantial evidence does "not" support the immigration judge's decision, it must remand the case to the BIA for further proceedings instead of deciding the unresolved legal issue in the first instance. Finally, an applicant aggrieved by a decision of the federal appeals court can petition the U.S. Supreme Court to review the case by a discretionary writ of certiorari. But the Supreme Court has no duty to review an immigration case, and so many applicants for asylum forego this final step.

Notwithstanding his statutory eligibility, an applicant for asylum will be deemed ineligible if:

# the applicant participated in persecuting any other person on account of that other person's race, religion, national origin, membership in a particular social group, or political opinion;
# the applicant constitutes a danger to the community because he has been convicted in the United States of a particularly serious crime;
# the applicant has committed a serious non-political crime outside the United States prior to arrival;
# the applicant constitutes a danger to the security of the United States;
# the applicant is inadmissible on terrorism-related grounds;
# the applicant has been firmly resettled in another country prior to arriving in the United States; or
# the applicant has been convicted of an aggravated felony.

Conversely, even if an applicant is eligible for asylum, the Attorney General may decline to extend that protection to the applicant. (The Attorney General does not have this discretion if the applicant has also been granted withholding of deportation.) Frequently the Attorney General will decline to extend an applicant the protection of asylum if he has abused or circumvented the legal procedures for entering the United States and making an asylum claim.

Work permit and permanent residence status

An in-country applicant for asylum is eligible for a work permit (employment authorization) only if his or her application for asylum has been pending for more than 180 days without decision by the U.S. Citizenship and Immigration Services (USCIS) or the Executive Office for Immigration Review. If an asylum seeker is recognized as a refugee, he or she may apply for lawful permanent residence status (a green card) one year after being granted asylum.

Up until 2004, recipients of asylee status faced a wait of approximately fourteen years to receive permanent resident status after receiving their initial status, because of an annual cap of 10,000 green cards for this class of individuals. However, in May 2005, under the terms of a proposed settlement of a class-action lawsuit, "Ngwanyia v. Gonzales", brought on behalf of asylees against CIS, the government agreed to make available an additional 31,000 green cards for refugees during the period ending on September 30, 2007. This is in addition to the 10,000 green cards allocated for each year until then and was meant to speed up the green card waiting time considerably for refugees. However, the issue was rendered somewhat moot by the enactment of the REAL ID Act of 2005 (Division B of United States Public Law 109-13 (H.R. 1268)), which eliminated the cap on annual refugee green cards. Currently, a refugee who has continuously resided in the US for more than one year in that status has an immediately available visa number.


* David Weissbrodt and Laura Danielson, "Immigration Law and Procedure", 5th ed., West Group Publishing, 2005, ISBN 0314154167

Notes and references

External links

* [ Bureau of Population, Refugees, and Migration] , of the U.S. Department of State
* [ Country Chapter - United States of America] of the UNHCR Resettlement Handbook, United Nations High Commissioner for Refugees, June 2004
* [ Eligibility for Refugee Assistance and Services through the Office of Refugee Resettlement] , United States Department of Health and Human Services
* [ Refugee Act of 1980] , text hosted by the Office of Refugee Resettlement, United States Department of Health and Human Services
* Michael J. McBride, [ The evolution of US immigration and refugee policy: public opinion, domestic politics and UNHCR] , "New Issues in Refugee Research", May 1999
* [ Statement by Kenneth H. Bacon, President, Refugees International to the Senate Judiciary Committee Hearing on FY2005 Refugee Admissions] , hosted by Refugees International, 21 September 2004
* Audrey Singer and Jill Wilson, [ From 'There' to 'Here': Refugee Resettlement in Metropolitan America] , Brookings Institution, September 2006
* [ PARDS.ORG] Political Asylum Research and Documentation Service
* [ "Asylum in the United States"] by Seth J. Chandler and Anne Chandler, The Wolfram Demonstrations Project, 2007, based on data by the Transactional Records Access Clearinghouse at Syracuse University.

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