Political asylum, or more simply, “asylum,” refers to when an individual seeks refuge in another country because they justifiably fear persecution by their government if they return to their home country. This also includes fearing persecution or harm at the hands of any entities or organizations within the home country that the government cannot or will not control, such as an organized criminal gang.
However, the fear of persecution must be on the basis of either:
- Membership in a particular social group
- Political opinion
The United States Congress enshrined this definition in the Refugee Act of 1980. Fleeing a nation due to widespread chaos, violence, or war is not sufficient grounds to seek asylum. The individual must specifically be targeted due to one of the above categories. For example, a Muslim might depart a country where new leaders have outlawed that belief system, or a human rights activist might seek refuge if their country begins targeting protestors.
In the United States, you must prove credible or reasonable fear of persecution, depending on the circumstances. If an individual qualifies, they are granted asylee status, permitting to live and work in the country and apply for numerous other benefits and programs. After a certain period of time, asylees can also apply for lawful permanent residency and eventually U.S. citizenship.
What Are the Types of Asylum?
There are two means of applying for asylum in the United States.
- Affirmative asylum – Covers any immigrant not presently in removal proceedings who proactively applies through the United States Citizenship and Immigration Services (USCIS). If USCIS denies an affirmative asylum application, the immigrant will likely face removal proceedings, at which point they can file a defensive asylum application.
- Defensive asylum – Intended for anyone currently in removal proceedings as a tool to argue that they should remain in the country with asylee privileges. Defensive asylum applications are filed with the Executive Office for Immigration Review (EOIR). This type encompasses most immigrants who arrive at the United States border unannounced.
In both types, the immigrant will have to prove they meet the refugee requirements and are therefore entitled to asylee status. This can be done through personal testimony, evidence of past persecution on the basis of one of the protected categories, or evidence demonstrating a justified fear of further persecution should the immigrant return to their home country.
There are also some limitations that can bar one from asylum. Any immigrant who is found to be dangerous to the country’s populace or national security will be denied. Applicants must also file within 1 year of their arrival to the United States or risk a rejection of their petition.
Credible Fear and Reasonable Fear
If an immigrant attempts to claim they will face persecution or violence if they are sent to their home country during expedited removal proceedings, an asylum officer is obligated to conduct a “credible fear” screening.
In this interview, the officer will determine whether the immigrant has a justified fear, and, if so, halt removal proceedings and refer them instead to immigration court. At this point, the immigrant will have the opportunity to seek defensive asylum.
To establish reasonable fear and halt removal proceedings, an immigrant must prove to an asylum officer there is a “reasonable possibility” they will be persecuted due to their race, religion, nationality, political opinion, or membership of a particular social group. This is fundamentally similar to proving credible fear, but the threshold for proving reasonable fear is higher.
Appealing a Credible Fear Decision
Even if the officer determines an immigrant does not have credible fear, the individual still has the opportunity to appeal the decision. They can request a compressed review process from an immigration judge. The judge has the discretion to reverse the decision and instead give the individual the opportunity to pursue defensive asylum or any other defensive means of avoiding removal.
Credible fear does not apply to immigrants who illegally reenter the country after already being subject to a previous removal proceeding or if an immigrant or noncitizen is convicted of certain types of crimes. They instead have the opportunity to demonstrate reasonable fear during their reinstatement of removal.
Successfully Arguing Reasonable Fear
If the immigrant successfully argues they have reasonable fear of persecution, the judge will grant a deferral of removal on the grounds that it protects the individual from that persecution. However, while it keeps the immigrant from being deported, this does not grant them full asylum status. The immigrant will not be able to pursue lawful permanent residency or benefit from certain government programs.
How Asylum Has Changed Under the Trump Administration
Asylum rules and processes have always tended to metastasize with changing government priorities, especially under administrations that prioritize reducing immigration. The Trump administration has pursued a number of seismic changes impacting asylum, some with questionable legality.
Metering Asylum Seekers
President Trump formalized the practice of “metering” asylum seekers at the Mexico-United States border in April of 2018. Metering orders asylum seekers to remain in Mexico after putting their names on a Customs and Border Protection (CBP) list.
In theory, CBP will process those on the list as soon as port of entry capacity becomes available. However, the practice has been used to effectively throttle or outright prevent immigrants from beginning the asylum-seeking process.
Migrant Protection Protocols (MPP)
In January of 2019, the Trump administration introduced the Migrant Protection Protocols (MPP), which further institutionalized metering. Asylum seekers attempting to enter via the United States-Mexico border must now wait in Mexico until an appointed court date at one of 4 ports of entry locations. Those processed through the MPP do not have an opportunity to claim credible fear or reasonable fear and are instead brought directly before immigration judges, who, in practice, collectively send asylum seekers back to Mexico in advance of any subsequent court hearings.
The Ninth Circuit decided MPP was illegal, but the Supreme Court forced a stay in the decision, which is, as of this writing, still undergoing appeals. In the meantime, tens of thousands of asylum seekers have been processed through MPP.
Prohibition of Asylum for Immigrants Passing Through Mexico
In July 2019, the Department of Homeland Security (DHS) introduced another rule prohibiting asylum from any immigrant who traveled through a third country en route to the United States border without having first applied for asylum in the country passed through. This rule targeted those traveling from Central America through Mexico to the southern U.S. border and effectively barred them from seeking asylum unless they first sought asylum in Mexico.
The rule is not retroactive, so any immigrant who has already sought asylum at the border prior to its announcement on July 16, 2019 can still pursue it, unless they have already been subjected to metering. Anyone who does manage to successfully seek asylum under the new rule will be evaluated on the higher thresholds of reasonable fear.
The Ninth Circuit also declared this rule illegal, but again, the Supreme Court stayed its reversal, and the matter is still being appealed as of this writing.
Asylum Cooperative Agreement
DHS introduced yet another new procedure in November 2019 called the “Asylum Cooperative Agreement” as part of an agreement with Guatemala and, in May 2020, Honduras. Under these “Safe Third Country” agreements, immigrants seeking asylum at the United States will instead be sent to Guatemala or Honduras. They will then be required to seek asylum there and are prohibited from seeking asylum in the United States.
Immigration advocates have fiercely opposed the move, as there appears to be little to no evaluation on whether immigrants sent to these “third countries” would actually be safe there, and the agreements are currently being combatted in court.
How Asylum Has Changed with COVID-19
Asylum has become even more challenging in light of the COVID-19 pandemic. The Centers for Disease Control and Prevention (CDC) ordered a halt on immigrants from coronavirus-impacted areas. This has emboldened the CBP to remove any immigrants at the United States border, regardless of whether they seek to claim asylum.
MPP court hearings have also been suspended as a result of the pandemic, meaning practically all asylum procedures at the U.S.-Mexico border have been halted. As COVID-19 continues to spread, it is unclear when asylum procedures might resume.
Getting Help with Asylum
Despite efforts to deemphasize or restrict it, seeking asylum is a fundamental part of our country, a nation built on immigrants fleeing persecution from abroad. The stakes of an asylum case are both deeply personal and sky high. If you are contemplating seeking either affirmative or defensive asylum, you deserve the most experienced, passionate legal advocate available.
Our immigration attorney at The Law Office of Yifei He, PLLC is committed to protecting asylum seekers and helping them establish safe, prosperous lives in the United States. Attorney Yifei He is an immigrant himself and understands the importance of every single case. We are up to date on evolving regulations and will give you the compassionate legal care you deserve.