Asylum in the United States: Times are Different, But Don't Give Up
Many people come to the United States every year to escape dangers from their home country. They are known as asylees or refugees— the difference is that asylees apply for status within the US while refugees apply for status outside the US.
The Trump administration has expanded their “fast-track” immigration policy and in their April 11th memo, allows judges to “pretermit legally deficient asylum applications without a hearing”— this grants more power to the judges, meaning it is up to them to decide whether or not a person’s application gives strong enough evidence to even be allowed to present their case to the court.
Issued earlier this year, Trump’s Executive Order 14159 requires all undocumented people, ages 14 and older, who have been in the US for over 30 days to register with the government and makes it a crime if you do not. The administration has highlighted that registration does not qualify as an immigrant status, and it can not be used to show that a person is allowed to work in the US. The executive order also
prioritizes the removal of people who have been in the US for less than 2 years.
There have also been multiple reports of ICE agents waiting outside of immigration court hearings to arrest people. For many, these are just supposed to be regular check-ins but when they arrive, their cases are dismissed and their opportunity for due process is taken away because they are immediately taken by ICE. The American Immigration Lawyers Association has reported this behavior in over 13 states, including Texas, New York, and California, even affecting people with no criminal background or seeking asylum. The Supreme Court has also recently ruled to allow the deportation of people to countries other than their homeland, if, for one reason or another, they can not be quickly returned. Many of these people refuse to go back to their home countries because of the harm that may come from their return, leaving them stuck in a foreign nation.
The US guarantees protection from “persecution” and a pathway to residency if the applicant meets the eligibility requirements. It is important that clearly prove you meet them. The requirements are:
1. To be within the US at the time of application
2. Apply for asylum, Form I-589, within 1 year of your arrival in the US
3. Provide evidence of well-founded fear of persecution
4. Persecution must be based upon a protected ground, which are:
- Race
- Religion
- Nationality
- Political opinion
- Membership in a particular social group
What qualifies as “persecution”?
The United States Citizenship and Immigration Services (USCIS) gives its definition of persecution based on multiple factors including— how severe the harm is, why they are being harmed, who they are harmed by, and where they are being harmed. All of these elements are looked at on a case-by-case basis to see if they support the applicant’s claim of asylum.
Though persecution is a kind of harm, not all kinds of harm are considered persecution. To show that you experienced “persecution”, you must show that the harm or fear that you experienced was a serious amount. Who was responsible for your harm may help prove its seriousness.
For example, if the party responsible for your harm is the government or uncontrolled by the government, then this may help your argument for the severity of harm because it is unavoidable. It also has certain restrictions that you should take into consideration during your application, such as, the harm found has to be from your home country or a country where you have stayed long-term.
“Persecution on a protected ground”
This is section covers why you are experiencing harm from your home country, the commonly recognized reasons above are generally accepted, but because they do not cover all the reasons a person may be experiencing harm, it gives the opportunity to prove that you are instead a member of a “particular social group”, and that group is being targeted.
Similar to the other categories, membership in the group is usually something that they can not change about themselves. Particular social groups share a common trait that makes it obvious to the rest of the community that their group is different from the rest. It is important that you prove that the trait is specific and you can define it clearly.
An example of this would be disabled people, if they are being targeted for attacks or harm because they are disabled, this would be a good reason to apply for asylum. Although traits that you can see make your membership more obvious, invisible traits can also be defined and accepted. An example of membership in a particular social group where the shared trait is invisible would be the LGBTQIA+ community.
You can include letters from friends and family to confirm your identity and use news articles describing the danger to your community in your home country as evidence in your application.
Defensive vs. Affirmative Asylum Process
If you qualify for asylum, there are 2 kinds, and you might not be able to apply for both. Defensive Aslyum is available for people who are already in the process of being deported from the country, and you must file your application to the immigration judge at the Executive Office for Immigration Review (EOIR). Affirmative Asylum is available for people by their own choice and is not allowed for people who are already in immigration court, you must file your application with the United States Citizenship and Immigration Services (USCIS). If your application is denied by USCIS, you will be put into removal proceedings which starts your deportation process.
At that time, you will still be able to file another asylum application, but it will be a defensive application. The main differences between the 2 kinds of asylum are when you file the application, and who reviews it. Even if USCIS denies your affirmative application, that does not mean that the immigration judge who reviews your defensive application will as well.
Even if you meet all the requirements for asylum, there are some reasons you may be automatically denied. You will not be given asylum if you participated in the persecution of others, even if you were a part of the military and just following orders.
A clear example of this would be a former solider of the Nazi party, even if they were applying for asylum on different protected ground like race, they will not be given asylum because of their antisemetic actions. Similarly, if you are/were a member of a terrorist group or are a threat to US security, you will not be given asylum.
There are other case-by-case factors that play into the review of your application; if you committed a crime, depending what your crime was, it may disqualify you from asylum. In both application processes, you are allowed to get legal representation; however, even though you have the right to an attorney, one will not be given to you if you can not afford one. Navigating the U.S. immigration system can be difficult, so consider getting legal advice or help from an immigration attorney to make sure your application is as strong as possible.
Since the start of his presidency, Trump has taken away the status of hundreds of thousands of people. Recent policy changes may complicate the asylum process, but hope is not lost. Each case is different, and legal guidance can make a major difference, so reach out to an immigration attorney or nonprofit
legal aid organization to gain a better understanding of your rights and options. With the right support and a strong case, protection, or even a new start, is still possible. Don't give up on asylum, your story matters, and so does your right to be safe.
