On June 16, the Justice Department reversed several rulings from the Trump administration in regard to the process of seeking asylum in the U.S. The rulings had made it almost impossible for people with credible fears of domestic abuse or violence from gangs to seek asylum in the U.S. The new reversal is encouraging to note, as it represents the restoration of relative fairness to the asylum process—especially for asylum seekers who seek to escape domestic abuse and gang violence.
What is Asylum?
Asylum is a protection granted to those who meet the definition of a refugee stated in international law, whether it be foreign nationals already in the United States or those arriving at the border. Asylum seekers are defined as individuals who have left their country to seek protection in a country other than their own and are waiting for a decision to be made on their application for refugee status.
Refugee status is given to asylum seekers that adequately (in the court/judge’s opinion) prove they cannot obtain protection in their home countries due to past persecution or reasonable fear of future persecution “on account of race, religion, nationality, membership in a particular social group or political opinion.”
What is the Process to Seek Asylum?
While it may seem relatively straightforward to obtain refugee status (as aforementioned), defining membership in a specific social group has been the cause of significant controversy in rulings by both the Trump administration and the Justice Department under Biden.
The exact meaning of “membership in a particular social group” has caused heated debate in America. Arguments surrounding it have allowed for rulings that make it more difficult for immigrants facing domestic violence, gang violence, or threats from a family member to receive asylum in the United States. This is mainly a result of the statement made by former Attorney General Jeff Sessions that “victims of personal crimes [domestic, familial and/or gang violence] do not fit this definition—no matter how vile and reprehensible the crime perpetrated against them.”
Sessions suggests that acts of domestic or gang violence are examples of “private violence” as they are perpetrated by non-governmental factors. This raises the bar for asylum qualifications as the applicant must prove that their home country’s government is unable/unwilling to help and protect them and that their government condones the private acts of violence. Thus limiting the viability of asylum-seeking to cases of political, ethnic or religious persecution and certain defined social group membership only. Many regarded the Trump administration’s actions against asylum-seekers as efforts to curb all forms of immigration.
The recent overturning of these rulings will make it easier for immigrants to win their cases for asylum, and immigrant advocates have widely celebrated it. Many see it as a return to the immigration policy and protection from before President Trump came into office. Along with this, we see hope for further action with orders put out by President Biden to his office and Homeland Security to draft rules acknowledging and fixing complex issues in immigration law and asylum qualifications.
Historical and International Relevance of Asylum Laws
The right to establish asylum has been long since internationally established, beginning with the United Nations’ 1951 Convention Relating to the Status of Refugees. This made the idea of non-refoulement—assertment that a refugee should not be returned to a country where they face serious threats to life or freedom—a rule of customary international law. The UN’s 1967 Protocol followed soon thereafter to be ratified by the U.S. government and later codified into U.S. policy in the form of the Refugee Act of 1980.
The Refugee Act of 1980 was created and passed in response to the large wave of refugees flooding into America in the aftermath of the Vietnam War. This new law took the place of the Immigration and Naturalization Act of 1965, raising the annual ceiling for refugees from 17,400 to 50,000, creating a process to review and monitor the refugee ceiling and requiring annual refugee admission consultation of Congress and the President.
Read more on the policies and processes of asylum in this article by Shareen.
Current Difficulty of Asylum-Seeking
There are two primary ways of applying for asylum in the U.S.—the affirmative and defensive processes. Both of these processes require that the asylum seeker be physically present in the United States and, with or without counsel, bears the burden of proving that they meet the definition of a refugee.
There are certain factors that bar individuals from asylum. For example, with few exceptions, individuals who do not apply for asylum within one year of entering America are barred from receiving asylum. Along with this, applicants who are found to pose a danger to the United States are barred from asylum.
Much of the asylum-seeking process is rooted in subjectivity and how well these individuals (who may not be fluent in English and/or are not given counsel in court to guide them) share their desperation and fear with officials. Not only this, these asylum-seekers do this all under the fear of immediate removal of them and anyone with them if they fail. Not to mention the fact that during this whole process, a large majority of these asylum-seekers are detained at U.S. facilities that have been known to separate families, foster trauma and adverse medical conditions, mistreat detainees and impede these individuals’ ability to successfully finish all complex steps involved in seeking asylum.
In the United States, the asylum process is known to be a complex and exceedingly long journey. There are many subtleties and nuances involved in each step that require assistance from legal counsel, however, many asylum seekers are not provided with any. Along with this, the asylum process can take years to conclude with no guaranteed time frame. The backlog is immense and only grows with each following year, reaching an all-time high in April 2020 with over 1.17 million open removal cases that, on average, had been pending for 734 days and were still unresolved. The USCIS found that as of Sept. 2019, 339,836 affirmative asylum applications were pending. The USCIS doesn’t estimate the time it will take to schedule the initial interview for asylum seekers but, historically, this step could take up to four years.
What Are the Next Steps for U.S. Asylum Law?
Policies and rulings that are incredibly harmful to those in the process of seeking asylum persist. Detainment camps remain hubs for trauma and hurt for these individuals who seek peace and hope for the future.
Providing legal counsel to all who apply for asylum, not just some, has yet to be properly addressed in the fight to uphold the rights of asylum-seeking individuals. We witnessed some of the worst developments in these immigration and asylum laws during COVID-19. The pandemic was used and manipulated to justify and encourage the discrimination and unfair removals of immigrants and asylum applicants.
Most of us at some point have heard of these problems when they come up on the news as a result of an upcoming trial or newsworthy scandal. However, many of us often forget the existence of these issues as soon as they are not trending in the news and on social media. These immigrants and asylum-seekers do not have the luxury of “forgetting” as we do. Many of them are suffering and trying to keep hope in this grueling process that the U.S. has created. That is why it is so important for us to become their voice.
We need to stay informed on developments in immigration and asylum policies, seek out more information on the conditions and treatment of these individuals, sign petitions, send emails and sustain dialogue. By doing this, we can help uplift these voices that have remained unheard for so long out of fear, hopelessness and exhaustion.
Feel free to contact me at cho.katie@outlook.com
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