Asylum and Detention

Asylum

An asylum seeker is a person who has left his/her country of origin and applied for recognition as a refugee in another country, but is still awaiting a decision on his/her application.  In the U.S. context, asylum status is a form of protection that is available to people who meet the definition of a refugee, (that is, an individual has experienced past persecution or has a well-founded fear of future persecution based on one of the five protected grounds – race, religion, nationality, political opinion, or membership in a particular social group), are already in the United States, or are seeking admission at a port of entry.  A person can apply for asylum in the United States regardless of their country of origin or current immigration status.

The two ways of obtaining asylum in the United States are through the affirmative process and defensive process.  To obtain asylum through the affirmative asylum process one must be physically present in the United States.  Affirmative asylum applicants are often detained by U.S. Immigration and Customs Enforcement (ICE).  If an asylum seeker is found ineligible, s/he can remain in the United States while his/her application is pending with the Immigration Judge.  Most asylum applicants are not authorized to work.  A defensive application for asylum occurs when an individual request asylum as a defense against removal from the U.S. For asylum processing to be defensive, one must be in removal proceedings in immigration court with the Executive Office for Immigration Review (EOIR). Individuals are generally placed into defensive asylum processing in one of two ways: they are referred to an Immigration Judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or they are placed in removal proceedings.

To learn more about the U.S. asylum system, see the USCIS website on asylum. HIAS also has an asylum FAQ.

See here (and to the right) for a visual designed by Ryan Dunsmuir & Human Rights First (February 2010), based on an original design by Will Coley & Jesuit Refugee Service/USA, that illustrates the asylum proces, as well as the refugee resettlement process.

For information on benefits and services asylees are eligible for, see the Office of Refugee Resettlement website.

Detention

In the past decade, the U.S. detention of immigrants has skyrocketed.  Asylum seekers, families and other individuals who pose no threat to safety are unnecessarily detained in jail-like facilities. Additionally, the bar to asylum for applicants who do not file within one year of arrival in the United States, which was enacted in 1996, has created inapropriate hurdles for legitimate asylum seekers.  Congress instituted the deadline because it believed that some immigrants not in need of protection were applying for asylum as a tactic to delay removal. This arbitrary procedural hurdle has led not only to grave injustices in particular cases, but also to gross inefficiencies in the overall asylum process.  Cases that would have been granted by Asylum Officers at an initial interview but-for filing deadline issues are needlessly referred to Immigration Judges for further proceedings, adding to the staggering backlogs in Immigration Courts. Individuals who are denied asylum on the basis of the one year filing deadline who can establish their life or freedom would be threatened because of his/her race, religion, nationality, membership in a particular social group, or political opinion, are eligible for withholding of removal, a lesser form of protection that guarantees that the individual will not be returned to the country where they face persecution and provides work authorization.

To see where all immigration detention centers are in the United States, see the Detention Watch Network map.

See the following documents outling RCUSA's recommendations for changes in the U.S. asylum and detention system:

Asylum Seekers

Detention of Refugees, Asylum Seekers, and Other Vulnerable Persons in the United States

To learn more about the U.S. asylum and detention system, see these recent studies:

Assessing the U.S. Government's Detention of Asylum Seekers: Further Action Needed to Fully Implement Reforms, The U.S. Commission on International Religious Freedom

Asylum and ‘Credible Fear’ Issues in U.S. Immigration Policy, Congressional Research Service

Refugee Roulette: Disparities in Asylum Adjudication, Jaya Ramji-Nogales, Andrew Schoenholtz, Andrew, and Philip G. Schrag

There are Alternatives, International Detention Coalition

U.S. Detention of Asylum Seekers: Seeking Protection, Finding Prison, Human Rights First

Voice From Detention: A Report on Human Rights Violations at the Northwest Detention Center, Seattle University School of Law