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International Relations, PUBLICATIONS

Asylum policy in the USA

Written by Ionel Zamfir

To date, the United States has been a world leader in admitting people fleeing conflicts and persecution to settle on its territory. However, the nation wants to choose who it admits as a refugee. While refugees resettled by the US government enjoy generous support, asylum-seekers coming to the country on their own initiative risk facing tougher treatment.

Background

Asylum policy in the USA

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Since its earliest days, the US has provided a safe haven for people fleeing danger and persecution. The first refugee legislation was enacted in 1948, to regulate the admission of Europeans displaced by war. Later laws allowed the admission of persons fleeing communism in Europe, Asia and Cuba. After the fall of Saigon in 1975, the USA resettled hundreds of thousands of Indochinese refugees who feared persecution from the victorious communists. Based on this experience, the Refugee Act was adopted in 1980; and is the legal basis of refugee admission to the USA to this day. This legislation incorporates the definition of a refugee from the Geneva Convention, it introduces a systematic yearly process for adjusting refugee admissions ceilings, authorises the granting of political asylum to refugees already present on US soil and provides assistance for those resettled. Since its enactment in 1980, it has provided protection to over 3 million refugees; annual admissions have ranged from a high of 207 116 in 1980, to a low of 27 100 the year following the 11 September 2001 attacks. Although hailed a success, US refugee policy is sometimes seen with mistrust by public opinion. In the US context, it is important to distinguish between ‘refugees’ and ‘asylum-seekers’ (usually called ‘asylees‘). The two categories are closely related and the main distinction refers to the location where a person requests protection: outside the USA in the case of ‘refugees’, at the US border or in the USA for asylum-seekers. To be granted protection, both must fulfil Geneva Convention criteria.

‘Asylees’

According to Act 208 of the Immigration and Nationality Act (INA), any foreigner physically present in the USA or arriving at the border can apply for asylum (in this case asylum is called affirmative), unless the person can be removed to a safe third country (currently the USA has a safe third country agreement with Canada). Individuals present in the USA can apply during their first year of stay or when new circumstances arise in their home country causing them to fear persecution. US legislation also allows irregular migrants apprehended for illegal presence in the country to apply for asylum while in detention (in this case the asylum is termed defensive). The decision to grant asylum can be taken either by the United States Citizenship and Immigration Services (USCIS) or an immigration judge, depending on the case type. In the case of affirmative asylum lodged in the country, asylum may be granted by USCIS on the basis of an interview, but also by an immigration judge if refused by USCIS. In the other cases, a judicial decision is necessary, but for asylum-seekers at, or apprehended close to, the border, it has become increasingly difficult to have their case heard by a judge. In such cases, immigration officers can decide on a summary removal if an interview with the asylum-seeker proves that their fear of persecution is not credible. Since February 2014, the guidelines for assessing the admissibility of asylum claims based on credible fear of persecution have been toughened, departing from the US Supreme Court position on the issue. Even when the asylum claim arrives before a judge, there has been criticism that the judicial asylum-adjudication process in the USA is arbitrary (likened to ‘roulette‘), as there are big disparities among states, courts and even individual judges in the number of asylum claims accepted. Asylum-seekers also face other hurdles: the most important of which is detention.

Asylum-seekers requesting asylum at the border may be detained according to US law, but may be released on parole in cases of humanitarian urgency or when they do not pose security risks or risk of absconding. Asylum-seekers may spend months or even years in detention, waiting for their claim to be decided. This policy has attracted much criticism from human rights organisations, which contend that it violates US international obligations and causes mental harm to those exposed, especially to the women with children thus incarcerated (Amnesty USA, Human Rights First). Asylum-seekers who are not in detention face another tough challenge: they do not receive any financial assistance and are not allowed to work until their application is decided favourably, or until at least 180 days have passed since their application was made. However, judges and immigration officers can ‘stop the clock’, extending this period. According to Human Rights Watch, the USA stands alone among developed nations in this respect, and the policy creates enormous economic hardships for the individuals concerned.

Refugees

Each year a ceiling for the admission of refugees from third countries is decided by the President in consultation with Congress. The ceiling (85 000 persons for fiscal year (FY) 2016) is distributed by world region and includes an additional emergency quota. The vast majority of refugees are referred to the USA for resettlement by the UNHCR; however some refugees present their case themselves. The approval process is long and complex, involving several US government bodies, five international and non-governmental organisations operating processing centres around the world, and nine domestic non-governmental organisations, which together with many private citizens help refugees to settle in the USA. The process includes enhanced security screening. For a refugee to be admitted to the USA, one of the US-based non-governmental resettlement agencies, which rely on financial donations and the personal involvement of US citizens, must provide ‘sponsorship assurance’. Refugees receive assistance through a cooperative public-private programme, managed by the US Department of State. Local communities play an essential role in helping refugees to integrate. The US receives over half of all refugees resettled through the UNHCR, who nevertheless represent only around 1% of all refugees in the world. The USA has donated US$4.5 billion to UNHCR since the beginning of the Syrian crisis in 2011. This makes it the most generous donor for refugees in absolute, but not per capita, terms. Burmese refugees top the list of those admitted to the USA in recent years. A group resettlement programme initiated in 2005 has targeted Burmese refugees living in camps in Thailand, mostly Christian Karen. Over 13 000 Rohingya Muslims have also been resettled to the USA.

Rights and benefits

Refugees and successful ‘asylees’ are entitled to work, and may receive other forms of assistance: financial, medical, vocational training, job placement, or language training. Successful ‘asylees’ can apply for permanent residency, but are not obliged to do so, whereas refugees must. Five years after being granted protection, both categories may apply for US citizenship.

Refugees from the Middle East

The US has been generous in granting admission to Iraqis facing threats in their country, especially to those who worked with Iraqi armed forces. Since 2007, more than 120 000 Iraqis have been resettled in the USA via the refugee programme, including at least 38 000 affiliated with the USA through family ties or employment. The admission of Syrian refugees to the USA is proving more difficult to accomplish, as public opinion is divided, especially after the November 2015 Paris attacks and the attack in San Bernardino. The USA aims to admit at least 10 000 Syrians in FY 2016. Following the Paris attacks half of US state governors (all Republicans), declared their wish to bar Syrian refugees from resettlement in their state. However, the federal government has the last word on this issue. An attempt by Texas to sue the federal government was unsuccessful.

Read the complete ‘At a Glance’ on ‘Asylum policy in the USA‘ in PDF.

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