ASYLUM
Protection granted to ALIENS who cannot return
to their homeland.
Asylum is not to be confused with refuge,
although the terms are sometimes used interchangeably.
An alien who wishes to emigrate to
another country is granted refugee status before
leaving his or her native country. An asylum
seeker (or asylee) seeks that status after arriving
in the new country.
People who live in fear of being tortured or
killed by their government often seek asylum, as
do people who are persecuted for their religious
or political beliefs. The United States has long
been a haven for asylum seekers; in colonial days
people came to America to escape religions persecution,
and in later years people in danger of
political torture have seen the United States as a
place of hope and safety. In times of crisis, the
United States has sometimes placed restrictions
on who can enter the country. Immigration
restrictions were enacted immediately after
World Wars I and II. The SEPTEMBER 11TH TERRORIST
ATTACKS on New York City and Washington,
D.C., likewise changed the picture for
immigration. Nonetheless, the United States
remains committed to providing a safe haven for
people whose governments intend to do them
harm.
Asylum in the United States is regulated
under Section 208 of the Immigration and
Nationality Act (INA), which was passed in 1952
and amended periodically afterward. Previously,
asylum matters were handled by the Immigration
and Naturalization Service (INS). The
Homeland Security Act of 2002 created three
new agencies to handle all matters formerly handled
by the INS. These new agencies, the Bureau
of Citizenship and Immigration Services
(BCIS); the Bureau of Customs and Border Protection;
and the Bureau of Immigration and
Customs Enforcement were made part of the
HOMELAND SECURITY DEPARTMENT that became
operational in March 2003. Information
about the new organizations and its structure
was available online at
December 5, 2003). Although the BCIS was
technically a new agency, it was to continue to
conduct all business, including processing applications
and requests, as the INS had.
Eligibility for Asylum
People who can prove that they will be persecuted
if they are returned to their home country
can apply for asylum in the United States.
Much persecution is based on race, religion, and
politics, but there are other reasons as well. Students
are frequently targeted for persecution,
particularly if they choose to engage in social or
political activism. Women in some countries
may be subject to severe punishment (including
execution) simply for having a baby out of wedlock.
Homosexuals are persecuted in a number
of countries, especially those in which religion is
an integral part of the government.
People with a criminal record including
aggravated felonies (serious crimes such as rape
and murder) are generally not eligible for asylum,
nor are those who have been found guilty
of subversive activity against government agencies.
Waivers are difficult to obtain; a person
would need to provide substantive and
irrefutable proof that he or she had been wrongfully
or falsely charged by his or her government.
Those who have communicable diseases
or who have physical or mental disorders are
ineligible for asylum unless they can provide
proof that their condition is either cured or
under control. Some people come to the United
States to seek better job opportunities. Those
people are not candidates for asylum; they are
required to follow standard immigration procedures.
A person can seek asylum in the United
States either through affirmative asylum or
defensive asylum. In affirmative asylum, the person
applying submits the proper paperwork
(known as Form I-589) to the BCIS and is called
to appear before an asylum officer for an interview.
In defensive asylum, the person in question
has been placed in removal proceedings by
the Immigration Court and has to appear before
an immigration judge from the Executive Office
for Immigration Review (EOIR). Those who
seek defensive asylum include undocumented
aliens who have been caught entering the country
illegally, but who also may be genuinely
afraid of being persecuted if they are sent home.
(Asylum officers often refer undocumented
aliens to EOIR for a defensive hearing if they feel
that the fear of persecution is credible.)
Article 3 of the United Nations Convention
Against Torture (1999) states that no asylum
seeker can be returned home if the threat of torture
is strong enough. The BCIS does have the
option, however, of sending an unsuccessful asylum
seeker to a third country in which there is
no danger of torture or persecution.
Derivative Asylum
Often asylum seekers want protection not
just for themselves but for their families.Anyone
seeking asylum may include a spouse and children
under the age of 21 on the I-589 form.
Derivative asylum is designed to give that same
option to people who have already been granted
asylum. Stepchildren are eligible if the applicant
and spouse married before the child’s eighteenth
birthday; adopted children must have been
adopted before their sixteenth birthday and the
applicant must have been a legal parent for at
least two years. Asylum seekers have two years
from the date they are granted asylum to apply
for derivative asylum.
Temporary Protected Status
In some cases, an alien in the United States
may choose to obtain “Temporary Protected
Status” (TPS). Typically, TPS is granted by the
JUSTICE DEPARTMENT to aliens whose home
country is unsafe due to such causes as armed
conflict or natural disaster. TPS generally lasts
from six to 18 months; when TPS status terminates,
the aliens generally return to the same
immigration status they held before the status
was granted.
The R-A Rule
In 1999, the Bureau of Immigration Affairs
(BIA) ruled against an asylum seeker in In re
R-A-, RESPONDENT, 22 I. & N. Dec. 906,
Interim Decision (BIA) 3403, 2001 WL 1744475
(BIA, Jan 19, 2001), ruled against granting asylum
in part because it saw DOMESTIC VIOLENCE
as a private matter within her own family.When
the woman countered that she was in fact a
member of a persecuted group (she belonged to
a support group for abused women), the BIA
was still not convinced. The woman appealed
the case to the Ninth Circuit Court of Appeals,
where as of early 2003 it was under review by the
Justice Department. The Justice Department
consulted with experts in domestic violence and
noted that it feels certain forms of domestic violence
may indeed constitute persecution. For
example, if a country’s domestic violence laws
are weak or ineffective against protecting abused
spouses, that could be construed as a public
issue, not merely a private one within individual
families.
FURTHER READINGS
Kimmel, Barbara Brooks, and Alan M. Lubiner. 2000. Immigration
Made Simple: An Easy-to-Read Guide to the U.S.
Immigration Process. Chester, N.J.: Next Decade.
Nicholson, Frances, and Patrick Twomey, eds. 1999. Refugee
Rights and Realities: Evolving International Concepts and
Regimes. Cambridge, U.K.: Cambridge Univ. Press.
CROSS-REFERENCES
Aggravation; Aliens; Homeland Security Department;
Felony; Refugees.
