U.S. Immigration Policy on Asylum Seekers
Released: 2007-01-25T00:00:00

Introduction

Background

The United States has long held to the principle that it will not return a foreign national to a country where his life or freedom would be threatened. This principle is embodied in several provisions of the Immigration and Nationality Act (INA), most notably in provisions defining refugees and asylees. Aliens seeking asylum must demonstrate a well-founded fear that if returned home, they will be persecuted based upon one of five characteristics: race, religion, nationality, membership in a particular social group, or political opinion.

Aliens present in the United States may apply for asylum with the United States Citizenship and Immigration Services Bureau (USCIS) in the Department of Homeland Security after arrival into the country, or may seek asylum before a Department of Justice's Executive Office for Immigration Review (EOIR) immigration judge during removal proceedings. Aliens arriving at a U.S. port who lack proper immigration documents or who engage in fraud or misrepresentation are placed in expedited removal; however, if they express a fear of persecution, they receive a "credible fear" hearing with an USCIS asylum officer and—if found credible—are referred to an EOIR immigration judge for a hearing.

The INA makes clear that the Attorney General can exercise discretion in the granting of asylum. Aliens who participated in the persecution of other people are excluded from receiving asylum. The law states other conditions for mandatory denials of asylum claims, including when: the alien has been convicted of a serious crime and is a danger to the community; the alien has been firmly resettled in another country; or there are reasonable grounds for regarding the alien as a danger to national security. The INA, moreover, has specific grounds for exclusion of all aliens that include criminal and terrorist grounds.

Current Concerns

The core concern is the extent an asylum policy forged during the Cold War can adapt to a changing world. Most people who have traditionally received refugee or asylum status were fleeing communist or socialist countries. From 1946 through 2000, the United States gave legal permanent resident (LPR) status to 3.5 million refugees, asylees, and other humanitarian entrants. Over half (53%) of all of these refugees and asylees were from three countries: Vietnam (19%), Cuba (18%), and the former Soviet Union (16%). During FY2001-FY2004, nationals from four countries comprised more than half (55%) of all the 350,747 refugees, asylees and humanitarian entrants who became LPRs: Cuba (20.0%), Bosnia-Herzegovina (18.3%), Ukraine (8.6%), and Vietnam (6.2%).

Although there are many who would revise U.S. asylum law and policy, those advocating change have divergent perspectives. Some express concern that potential terrorists could use asylum as an avenue for entry into the United States, especially aliens from trouble spots in the Mideast, northern Africa and south Asia. Others argue that—given the religious, ethnic, and political violence in various countries around the world—it is becoming more difficult to differentiate the persecuted from the persecutors . Some assert that asylum has become an alternative pathway for immigration rather than humanitarian protection provided in extraordinary cases. Others maintain that current law does not offer adequate protections for people fleeing human rights violations or gender-based abuses that occur around the world.

This report is organized into four substantive sections. The first section summarizes the legislative history of U.S. asylum policy, highlighting the key provisions of the major immigration laws that established this policy. The second section presents an overview of current policy, discussing the concepts of "credible fear" and "well-founded fear," explaining affirmative and defensive avenues to seek asylum, and describing key procedures such as background checks and expedited removal. The third section analyzes asylum data, exploring trends over time as well as source countries and regions of the world. The fourth section highlights major bills with asylum provisions that received action in one or both chambers during the 108 th and 109 th Congresses. The final section synthesizes the issues of current debate, offering a range of alternative views.

Legislative History

Refugee Act of 1980

In 1968, the United States became party to the 1967 United Nations Protocol Relating to the Status of Refugees (hereafter, U.N. Refugee Protocol). The U.N. Refugee Protocol does not require that a signatory accept refugees, but it does ensure that signatory nations afford certain rights and protections to aliens who meet the definition of refugee. At the time the United States signed the U.N. Refugee Protocol, Congress and the Administration assumed that there was no need to amend the INA and that the withholding of deportation provisions—then §243(h) of INA—would be adequate. In 1974, the INS issued its first asylum regulations as part of 8 C.F.R. §108. Prior to the passage of the Refugee Act of 1980, there was no direct mechanism in the INA for aliens granted asylum to become legal permanent residents (LPRs).

The Refugee Act of 1980 codified the U.N. Refugee Protocol's definition of a refugee in the INA, included provisions for asylum (§208 of INA), and instructed the Attorney General to establish uniform procedures for the treatment of asylum claims of aliens within the United States. Under the INA, a refugee is defined as an alien "displaced abroad who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." The law defined asylees as aliens in the United States or at a port of entry who meet the definition of a refugee. For the first time, the Refugee Act added statutory provisions to INA that enabled those granted refugee and asylee status to become LPRs after certain general requirements were met.

The 1980 law specified that up to 5,000 of the refugee admissions numbers, which are set annually by Presidential Determination in consultation with Congress, could be used by the Attorney General to give LPR status to aliens who had received asylum (and their spouses and children), and who have been physically present in the United States for one year after receiving asylum, continue to meet the definition of a refugee, are not firmly resettled in another country, and are otherwise admissible as immigrants. At that time, it appears that Congress and the Administration assumed that the 5,000 ceiling would be more than adequate.

Immigration Act of 1990

By 1986, the number of aliens receiving asylum annually was growing, and a backlog in obtaining LPR status developed due to the 5,000 ceiling. Compounding the frustration with the backlog was the worry of many of those asylees from Eastern Europe that—as a result of the improved political and human rights conditions in their native countries—they no longer would qualify as refugees under the law. Meanwhile, the number of aliens filing asylum claims surpassed 100,000 in 1989.

The Immigration Act of 1990 sought, among other major immigration reforms, to address the backlogs in asylee adjustments to LPR status. Foremost, it doubled the annual limit from 5,000 to 10,000 LPR adjustments. It also allowed those asylees who had filed for LPR adjustments before June 1, 1990, to do so outside of the numerical limits, effectively clearing out the existing backlog. The Immigration Act of 1990 further granted LPR status to those asylees who had qualified for LPR status as of November 29, 1990, but were unable to obtain it because of the prior numerical limits and improved country conditions. The crumbling of communism in Eastern Europe and the Arias Peace talks in Central America gave optimism to many that the number of asylum seekers would lessen in the future.

1996 Revisions to Asylum Policy

Prior to 1996, aliens arriving at a port of entry to the United States without proper immigration documents were eligible for a hearing before an immigration judge to determine whether the aliens were admissible. Aliens lacking proper documents could request asylum in the United States at that time. If the alien received an unfavorable decision from the immigration judge, he or she also could seek administrative and judicial review of the case.

Critics of this policy argued that illegal aliens were arriving without proper documents, filing frivolous asylum claims, and obtaining work authorizations while their asylum cases stalled in lengthy backlogs. In the late 1980s and early 1990s, the mass exodus of thousands of asylum seekers from Central America, Cuba, and Haiti prompted further concerns that the then-current policy was unwieldy and prone to abuses because it provided for multiple levels of hearings, reviews, and appeals. The 1993 bombing of the World Trade Center heightened fears that international terrorists might enter the United States with false documents, file bogus asylum claims, and disappear into the population.

Supporters of the then-current system asserted that the regulatory reforms begun by the first Bush Administration and expanded by the Clinton Administration had already corrected the bureaucratic problems that had plagued the asylum process. They emphasized that the United States was a signatory to the UN Refugee Protocol and that INA codified the internationally-held legal principle of nonrefoulement (i.e., that an alien would not be forced to return to a country where his life or freedom would be threatened). They also pointed out that aliens considered to be terrorists were already excluded by law from entering the United States. Proponents argued that aliens fleeing the most dangerous situations were likely to escape with fraudulent documents to hide their identity, and maintained therefore that even aliens lacking proper documents should be entitled to a full hearing and judicial review to determine if they might be admissible.

The Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (IIRIRA, P.L. 104-208 ) made substantial changes to the asylum process: establishing expedited removal proceedings; codifying many regulatory changes; adding time limits on filing claims; and limiting judicial review in certain circumstances, but it did not alter the numerical limits on asylee adjustments.

Expedited Removal

Among the significant modifications of the INA made by the IIRIRA are the provisions that created the expedited removal policy. The goal of these provisions was to target the perceived abuses of the asylum process by restricting the hearing, review, and appeal process for aliens at the port of entry. As a result, if an immigration officer determines that an alien arriving without proper documentation does not intend to apply for asylum or does not fear persecution, the immigration officer can deny admission and order the alien summarily removed from the United States. The amendments to INA made by IIRIRA provide very limited circumstances for administrative and judicial review of those aliens who are summarily excluded (including those who are deemed not to have a "credible fear" as discussed below).

Mandatory Detention

Foreign nationals arriving without proper documents who express to the immigration officer a fear of being returned home must be kept in detention while their "credible fear" cases are pending. If an asylum officer determines that an alien does not have a "credible fear" of persecution, the alien is removed. If the asylum seeker meets the "credible fear" threshold, they may be released on their own recognizance while an immigration judge considers the case.

Deadlines

Another important change IIRIRA made to the asylum process is the requirement that all applicants must file their asylum applications within one year of their arrival to the U. S. Aliens may be exempted from this time requirement if they can show that changed conditions materially affect their eligibility for asylum, or they can present extraordinary circumstances concerning the delay in their application filing.

Safe Third Country

IIRIRA amended INA to bar asylum to those aliens who can be returned to a "safe-third country." This provision was aimed at aliens who travel through countries that are signatories to the U.N. Refugee Protocol (or otherwise provide relief from deportation for refugees) to request asylum in the United States. In order to return a potential applicant to a safe-third country, the United States must have an existing agreement with that country.

Other Limitations

An additional restriction on the filing of asylum applications includes a bar against those who have been denied asylum in the past, unless changed circumstances materially affect their eligibility. The reforms also established serious consequences for aliens who file frivolous asylum applications. For example, the Attorney General now has the authority to permanently bar an alien from receiving any benefits under the INA if he determines that they have knowingly filed a frivolous asylum application.

Employment Authorization

IIRIRA codified many regulatory revisions of the asylum process that the former Bush and Clinton Administrations made. Most notably, aliens are statutorily prohibited from immediately receiving work authorization at the same time as the filing of their asylum application. Now the asylum applicant is required to wait 150 days after the USCIS receives his/her complete asylum application before applying for work authorization. The USCIS then has 30 days to grant or deny the request.

Coercive Family Planning

IIRIRA also added a provision that enabled refugees or asylees to request asylum on the basis of persecution resulting from resistance to coercive population control policies, but the number of aliens eligible to receive asylum under this provision was limited to 1,000 each year.

Overview of Current Policy

Standards for Asylum

Because "fear" is a subjective state-of-mind, assessing the merits of an asylum case rests in large part on the credibility of the claim and the likelihood that persecution would occur if the alien is returned home. Two concepts—"credible fear" and "well-founded fear"—are fundamental to establishing the standards for asylum. The matter of "mixed motives" for persecuting the alien is also an important concept.

Credible Fear

The INA states that "the term credible fear of persecution means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under §208." Integral to expedited removal, the credible fear concept also functions as a pre-screening standard that is broader—and the burden of proof easier to meet—than the well-founded fear of persecution standard required to obtain asylum.

Well-Founded Fear

The standards for "well-founded fear" have evolved over the years and been guided significantly by judicial decisions, included a notable U.S. Supreme Court case. The regulations specify that an asylum seeker has a well-founded fear of persecution if:

(A) The applicant has a fear of persecution in his or her country of nationality or, if stateless, in his or her country of last habitual residence, on account of race, religion, nationality, membership in a particular social group, or political opinion;

(B) There is a reasonable possibility of suffering such persecution if he or she were to return to that country; and

(C) He or she is unable or unwilling to return to, or avail himself or herself of the protection of, that country because of such fear.

The regulations also state that an asylum seeker "does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant's country.... "

In evaluating whether the asylum seeker has sustained the burden of proving that he or she has a well-founded fear of persecution, the regulations state that the asylum officer or immigration judge shall not require the alien to provide evidence that there is a reasonable possibility he or she would be singled out individually for persecution if:

(A) The applicant establishes that there is a pattern or practice in his or her country of nationality or, if stateless, in his or her country of last habitual residence, of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and

(B) The applicant establishes his or her own inclusion in, and identification with, such group of persons such that his or her fear of persecution upon return is reasonable.

Mixed Motives

The intent of the persecutor is also subjective and may stem from multiple motives. The courts have ruled that the persecution may have more than one motive, and so long as one motive is one of the statutorily enumerated grounds, the requirements have been satisfied. A 1997 BIA decision concluded "an applicant for asylum need not show conclusively why persecution occurred in the past or is likely to occur in the future, [but must] produce evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or imputed protected ground." Generally, the asylum seeker must demonstrate in mixed motive cases that—even though his/her persecutors were motivated for a non-cognizable reason (e.g., the police's desire to obtain information regarding terrorist activities in the Sikh cases)—the persecutors were also motivated by the asylum seeker's race, religion, nationality, social group, or political opinion.

Process of Requesting Asylum

An applicant for asylum begins the process either already in the United States or at a port of entry seeking admission. This process differs from a potential refugee who begins a separate process wholly outside of the United States. Depending on whether or not the applicant is currently in removal proceedings, two avenues exist to seek asylum: "affirmative applications" and "defensive applications." The affirmative and defensive applications follow different procedural paths, but draw on the same legal standards. In both processes, the burden of proof is on the asylum seeker to establish that he or she meets the refugee definition specified in the INA.

Affirmative Applications

An asylum seeker who is in the United States and not involved in any removal proceedings files an I-589, the asylum application form, with the USCIS-Regional Service Center. The USCIS schedules a non-adversarial interview with a member of the Asylum Officer Corps. There are eight asylum offices located throughout the country. The asylum officers either grant asylum to successful applicants or refer to the immigration judges those applicants who fail to meet the definition. The asylum officers make their determinations regarding the affirmative applications based upon the application form, the information received during the interview, and other potential information related to the specific case (e.g., information about country conditions). If the asylum officer approves the application and the alien passes the identification and background checks, then the alien is granted asylum status.

The asylum officer does not technically deny asylum claims; rather, the asylum applications of aliens who are not granted asylum by the asylum officer are referred to EOIR immigration judges for formal proceedings. In some respects, these applicants/aliens are allowed a "second bite at the apple." Asylum applicants in the affirmative process are not subject to the mandatory detention requirements while their applications are being adjudicated, though there is broader authority under the INA to detain aliens for other grounds.

Defensive Applications

Defensive applications for asylum are raised when an alien is in removal proceedings and asserts claim for asylum as a defense to his/her removal. EOIR's immigration judges and the Board of Immigration Appeals (BIA), entities in DOJ separate from the USCIS, have exclusive control over such claims and are under the authority of the Attorney General. Generally, the alien raises the issue of asylum during the beginning of the removal process. The matter is then litigated in immigration court, using formal procedures such as the presentation of evidence and direct and cross examination. If the alien fails to raise the issue at the beginning of the process, the claim for asylum may be raised only after a successful motion to reopen is filed with the court. The immigration judge's ultimate decision regarding both the applicant/alien's removal and asylum application is appealable to the BIA. Applicant/aliens seeking asylum via the defensive application method may be detained until an immigration judge rules on their application. The applicant/alien is not detained due to their asylum claim, but rather, because of their unlawful status in the United States.

Expedited Removal

An immigration officer must summarily exclude an alien arriving without proper documentation, unless the alien expresses a fear of persecution. When expedited removal initially went into effect in April 1997, the INS applied the provisions only to "arriving aliens," although the law provides the option of applying it to aliens illegaly present in the United States for less than two years. According to DHS immigration policy and procedures, Customs and Border Protection (CBP) inspectors, as well as other DHS immigration officers, are required to ask each individual who may be subject to expedited removal the following series of "protection questions" to identify anyone who is afraid of return:

Why did you leave your home country or country of last residence? Do you have any fear or concern about being returned to your home country or being removed from the United States? Would you be harmed if you were returned to your home country or country of last residence? Do you have any questions or is there anything else you would like to add?

If the alien expresses a fear of return, the alien is supposed to be detained by the Immigration and Customs Enforcement (ICE) Bureau and interviewed by an USCIS asylum officer. The asylum officer then makes the "credible fear" determination of the alien's claim. Those found to have a "credible fear" are referred to an EOIR immigration judge, which places the asylum seeker on the defensive path to asylum. EOIR reports that it completed 91% of the 50,017 expedited removal asylum cases in 180 days or less in FY2003.

Aliens Arriving by Sea

On November 13, 2002, the former INS published a notice clarifying that certain aliens arriving by sea who are not admitted or paroled are to be placed in expedited removal proceedings and detained (subject to humanitarian parole). This notice concluded that illegal mass migration by sea threatened national security because it diverts the Coast Guard and other resources from their homeland security duties. The Attorney General expanded on this rationale in his April 17, 2003, ruling that instructs EOIR immigration judges to consider "national security interests implicated by the encouragement of further unlawful mass migrations ..." in making bond determinations regarding release from detention of unauthorized migrants who arrive in "the United States by sea seeking to evade inspection." The case involved a Haitian who had come ashore in Biscayne Bay, Florida, on October 29, 2002, and had been released on bond by an immigration judge. The BIA had upheld his release, but the Attorney General vacated the BIA decision.

Background Checks

All aliens seeking asylum are subject to multiple background checks in the terrorist, immigration, and law enforcement databases, notably the Interagency Border Inspection System (IBIS). Those who enter the country legally on nonimmigrant visas are screened by the consular officers at the Department of State when they apply for a visa, and all foreign nationals are inspected by CBP officers at ports of entry. Those who enter the country illegally are screened by the U.S. Border Patrol or the ICE agents when they are apprehended. When aliens formally request asylum, they are sent to the nearest USCIS authorized fingerprint site. They have all 10 fingers scanned and are subject to a full background check by the Federal Bureau of Investigation (FBI).

Safe Third Country Agreement with Canada

On August 30, 2002, Canada and the United States signed the final draft text for the "safe third country" agreement regarding asylum claims made at land border ports of entry. The agreement states that any person being removed from Canada in transit through the United States, who makes an asylum claim in the United States, will be returned to Canada to have the claim re-examined by Canada. Further, any person being removed from the United States in transit through Canada, who makes an asylum claim in Canada, and whose asylum claim has been rejected by the United States, will be returned to the country from which the person is being removed. If the person has not had a refugee status or asylum claim determined by the United States, he or she will be returned to the United States to have the claim examined by the United States. Responsibility for determining the asylum claim will rest with the receiving country. On March 8, 2004, DHS published the proposed rule to implement the safe third country agreement with Canada, but has not yet issued the final rule.

Victims of Torture

Distinct from asylum law and policy, aliens claiming relief from removal due to torture may be treated separately under regulations implementing the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter, Torture Convention). Article 3 of the Torture Convention prohibits the return of any person to a country where there are "substantial grounds" for believing that he or she would be in danger of being tortured. The alien must meet the three elements necessary to establish torture: (1) the torture must involve the infliction of severe pain or suffering, either physical or mental; (2) the torture must be intentionally inflicted; and (3) the torture must be committed by or at the acquiescence of a public official or person acting in an official capacity. Generally, an applicant for non-removal under Article 3 has the burden of proving that it is more likely than not that he would be tortured if removed to the proposed country. If credible, the applicant's testimony may be sufficient to sustain this burden without additional corroboration. In assessing whether it is "more likely than not" that an applicant would be tortured if removed to the proposed country, all evidence relevant to the possibility of future torture is required to be considered. However, if a diplomatic assurance (deemed sufficiently reliable by the Attorney General or Secretary of State) that the alien will not be tortured is obtained from the government of the country to which the alien would be repatriated, the alien's claim for protection will not be considered further, and the alien may be removed.

Statistical Trends

Asylum Requests and Approvals

Asylum Officers

As Figure 1 illustrates, the number of affirmative asylum claims has varied greatly over the past 30 years, shaped by the prevalence of repression, civil unrest and violence around the world, as well as by changes in asylum policy. There was a drop in affirmative asylum claims being filed in the late 1990s followed by an upturn in FY2001 and FY2002. In FY2004, the affirmative claims dropped back to 27,551—a level below the previous low point of 38,013 in FY1999. This decline in affirmative asylum claims has enabled USCIS to work through some of the backlog of pending cases. By the close of FY2005, there were 98,499 affirmative asylum cases pending at USCIS, down from a recent high of 393,699 at the close of FY1997.

The number of affirmative asylum claims being approved also has fluctuated in recent years. Approvals by the INS asylum corps first surpassed 10,000 in FY1995 when 12,454 cases were approved. In FY2000, INS approved 16,693 asylum cases, and 31,202 cases were approved in FY2002. The number of cases USCIS asylum officers approved dropped to 10,101 cases in FY2004. The percentage of affirmative cases approved dropped from 44% of cases in FY2000 to 32% in FY2004. The approval rate has ranged historically from a high of 55% in FY1980 to a low 15% in FY1990.

Immigration Judges

Recent trends in asylum statistics from EOIR exhibit a similar pattern of an overall decline in cases received in the late 1990s followed by a reversal of the trend in FY2001 and FY2002, as Figure 2 illustrates. The number of cases dropped from 74,127 in FY2002 to 55,067 in FY2004, making the number of cases filed comparable to the low point of 54,916 in FY2000. Generally, over two-thirds of all asylum cases that EOIR receives are affirmative cases referred to the immigration judges by the asylum officers.

The number of EOIR asylum approvals has risen gradually, as Figure 2 depicts. (The Y axis is scaled to be comparable to Figure 1 , and as a result the change over time is less apparent). Asylum cases granted by EOIR judges rose from 5,131 in FY1996 to 9,170 in FY2000. EOIR reached a high of 13,365 approvals in FY2003 and granted 10,796 cases in FY2004. The percentage of EOIR asylum cases approved (of the cases decided) in the past five years ranged from 32% in FY1991 to 40% in FY2001, and now has leveled at 34% in FY2004.

Source Countries

In FY2004, just over half (55%) of all affirmative asylum claims filed with USCIS were from the top 10 source countries. This percent is down from FY2003, when the top 10 source countries of aliens who made affirmative asylum claims comprised 62% of the 42,114 asylum cases. As Table 1 indicates, the percentage of cases approved among the top 10 countries ranges from a high of 60% for asylum seekers from Ethiopia to a low of 10% for asylum seekers from Haiti.

Haiti became the top source country in FY2004 with numbers comparable to FY2003 when it ranked fourth (i.e., 3,543 and 3.276 respectively). The People's Republic of China dropped from 4,750 in FY2003 to 2,839 in FY2004. Asylum seekers from the top five source countries in FY2003—People's Republic of China, Colombia, Mexico, Haiti, and Indonesia—made up 45.7% of all claims filed that year. It is important to acknowledge that Mexico went from being a source country of 3,846 asylum claimants in FY2003, to a number so small that disclosure standards were not met in FY2004.

In addition to the top source countries overall, there were five source countries that had (1) more than 50% of their cases approved, and (2) more than 100 cases approved by USCIS in FY2004. These countries were Burma (Myanmar), Ethiopia, Eritrea, Iran, and Pakistan. In FY2003, there were six countries meeting these criteria: Ethiopia, Eritrea, Liberia, Burma (Myanmar), Togo, and Iraq.

The EOIR country data on asylum cases are similar to USCIS's affirmative asylum case data. In FY2004, the top 10 source countries of aliens who made defensive asylum claims comprised 62% of the 55,067 asylum cases filed with EOIR. Likewise, the top 10 source countries of aliens who made defensive asylum claims comprised 62% of the 65,153 asylum cases filed with EOIR in FY2003.

In FY2004, asylum claimants from the top five source countries—People's Republic of China, Colombia, Haiti, Guatemala, and Mexico—made up 43% of all defensive claims filed with EOIR. Asylum claimants from the top five source countries—People's Republic of China, Mexico, Colombia, Haiti, and Indonesia—made up 49% of all claims filed with EOIR in FY2003.

The percentage of asylum cases approved (of those decided) by EOIR, however, exhibits a somewhat different pattern, as Table 2 presents. While EOIR generally has a higher approval rate than USCIS asylum officers (37% compared to 29% in FY2003), the percentage are fairly close in FY2004—34% to 32% respectively. The percentage of EOIR cases approved among the top 10 countries ranges from a high of 54% for asylum seekers from Albania to a low of 6% for asylum seekers from El Salvador. In FY2003, there were six source countries that had (1) more than 50% of their cases approved and (2) more than 100 cases approved by EOIR. These six source countries were: Bangladesh, Burma (Myanmar), Egypt, Iran, Liberia, and Russia. In FY2004, there were ten source countries that met this criteria: Albania, Russia, Egypt, Ethiopia, Guinea, Mauritania, Iran, Yugoslavia, Burma (Myanmar), and the Congo.

Asylum seekers come from all over the world, as Figure 3 illustrates, and the regional distribution of the USCIS claims differs from that of the EOIR claims, as do the sheer numbers. In FY2004, the top source regions for USCIS asylum claimants were Africa (26.4%) followed by Asia (19.1%) and South America (19.1%). In terms of EOIR asylum claims, the top source regions were Central America and the Caribbean first at 29.1%, Asia second at 24.7% and South America third at 16.3%. African asylum claimants comprised 14.8% of EOIR claims.

Individuals Granted Asylum

It appears that the number of individuals granted asylum has declined for FY2005 ( Figure 4 ) for both affirmative (USCIS) and defensive (EOIR) cases. Although comprehensive FY2005 asylum data are not available, the DHS Office of Immigration Statistics has published the number of individuals who gained asylum in FY2005. The total number of individuals who received asylum in FY2005 was 25,257, down from a high of 38,641 in FY2001.

Coercive Population Control Cases

Since 1998, the second year the provision was available, the number of aliens eligible to receive asylum based on persecution resulting from coercive population control policies has exceeded the initial numerical limits of 1,000 annually, as Figure 5 illustrates. As a result, USCIS and EOIR issued conditional asylum status to asylum seekers who demonstrate a well-founded fear that if returned home, they will be persecuted based on coercive population control policies.

In FY2003, USCIS and EOIR granted conditional asylum status to 2,353 aliens based on resistance to coercive population control policies. USCIS issued 194 conditional grants of asylum, and EOIR issued 2,159 conditional grants of asylum. The country of origin for all conditional coercive population control grantees as of FY2003 has been the People's Republic of China. USCIS issued all 1,000 final grants of asylum for FY2003. At the end of FY2003, there were at least 7,665 principal conditional grantees on the waiting list for final approval authorization numbers, comprising 6,401 EOIR cases and 1,264 USCIS cases.

LPR Adjustment Cases Pending

As evident in Figure 3 above, the number of people granted asylum each year exceeds the number who had been permitted to adjust to LPR status—10,000 annually prior to 2005. When assessing the potential number of LPR adjustments and the pressure on the 10,000 limit, the spouses and minor children of the asylees also must be factored in, even though they are not enumerated in the asylum caseload data depicted in the figures, because they count toward the cap when adjusting as LPRs.

At the end of FY2004, there were 182,015 cases pending for asylees to adjust to LPR status. As Figure 5 illustrates, the growth of the backlog accelerated in the late 1990s. Prior to the enactment of the REAL ID Act (discussed below), which changed the law on numerical limits, a person who received asylum at the end of FY2004 would have had to wait about 18 years to become an LPR. According to the most recent (unpublished) data, the number of pending asylum adjustments went to 185,890 at the end of FY2005 and then down to 101,193 at the end of FY2006.

Some maintained that the 10,000 annual limit on asylee adjustments to LPR status was an arbitrary provision and unfair, particularly because refugees coming from abroad do not have statutory limits on adjustment of status after a year of conditional residence. They argued that it served no policy function and only created unnecessary bureaucratic delays, reaching a 18-year wait for asylees to obtain the LPR "green card" by the end of FY2004. Some also criticized the 1,000 cap on asylees who flee coercive population control policies, arguing that it too was arbitrary and unfair, singling out one group of asylees for differential treatment.

Supporters of numerical limits expressed a concern that unlimited asylum adjustments would have a "magnet effect" that would encourage unauthorized migration, and they maintained that the numerical limits dampen this flow of migrants. They pointed out that those who obtain asylum are permitted to stay in the United States and thus have the necessary humanitarian relief from forced return.

Legislation in the 108th and 109th Congresses

The Legislative Information System (LIS) listed 83 bills or resolutions with "asylum' in the title or summary that were introduced in the 108 th and 109 th Congresses. This section of the report highlights major bills with asylum provisions that received action in one or both chambers.

108th Congress

Among over three dozen bills that included provisions on asylum introduced in the 108 th Congress, H.R. 4011 , S. 710 , and House-passed S. 2845 (substituting language from H.R. 10 ) received action. The asylum-related provisions of these three bills are summarized below.

House-passed S. 2845

The Speaker of the House of Representatives Dennis Hastert introduced H.R. 10 , to provide for reform of the intelligence community, terrorism prevention and prosecution, border security, and international cooperation and coordination. The House passed H.R. 10 as amended on October 16, 2004 as the substitute language for S. 2845 , National Intelligence Reform Act of 2004, which the Senate had passed October 6, 2004. Among its provisions, House-passed S. 2845 would have expanded authority for expedited removal and revise asylum law. More specifically, House-passed S. 2845 would have expanded the class of aliens subject to expedited removal without further hearing or review, by increasing the prior continuous U.S. physical presence required for exemption from such removal from two years to five years. It also would have restricted the ability of those aliens in expedited removal who are seeking asylum to be given an interview with an asylum officer to those aliens who have been physically present in the United States for less than a year.

House-passed S. 2845 would have established expressed standards of proof for asylum seekers, including that the applicant's race, religion, nationality, social group, or political opinion was or will be the central motive for his or her persecution. In addition, H.R. 10 would have codified that the burden of proof is on the asylum seeker to establish that he or she meets the refugee definition specified in the INA. As would have been required by §3007 of House-passed S. 2845 : the testimony of the asylum seeker may be sufficient to sustain such burden without corroboration, but only if it is credible, is persuasive, and refers to specific facts that demonstrate that the applicant is a refugee. Where it is reasonable to expect corroborating evidence for certain alleged facts pertaining to the specifics of the claim, §3007 would have required that such evidence be provided unless a reasonable explanation is given as to why such information is not provided. House-passed S. 2845 would have limited judicial review by barring a court from reversing the decision of the asylum adjudicator about the availability of corroborating evidence, unless it finds that a reasonable adjudicator is compelled to conclude that such evidence is unavailable.

H.R. 4011

The North Korean Human Rights Act of 2004 ( P.L. 108-333 , H.R. 4011 ) also included a provision pertaining to asylum. It requires that a national of the Democratic People's Republic of Korea (i.e., North Korea) not be considered a national of the Republic of Korea for purposes of eligibility for refugee or asylum status.

S. 710

The Senate Judiciary Committee reported S. 710 , Anti-Atrocity Alien Deportation Act, which included a provision that would bar any alien who commits of acts of torture or extrajudicial killings from obtaining asylum. Language similar to S. 710 was added to House-passed S. 2845 and was included in the National Intelligence Reform Act of 2004 ( P.L. 108-458 ).

109th Congress

Of the four dozen bills that included provisions on asylum introduced in the 109 th Congress, several saw action. One bill with substantive revisions to asylum law was enacted: the REAL ID Act of 2005 ( P.L. 109-13 , Division B).

The Real ID Act

Many (but not necessarily all) of the immigration provisions that the conferees dropped from the National Intelligence Reform Act of 2004 ( P.L. 108-458 ) were included in H.R. 418 introduced by House Committee on the Judiciary Chairman James Sensenbrenner. Some of the asylum provisions in H.R. 418 were comparable to provisions in the 108 th Congress's H.R. 10 as introduced or H.R. 10 as passed by the House. The asylum provisions in H.R. 418 's original language (§101) had several key features.

It would have established expressed standards of proof for asylum seekers, including that the applicant's race, religion, nationality, social group, or political opinion was or will be the central motive for his or her persecution. It would have codified that the burden of proof is on the asylum seeker to establish that he or she meets the refugee definition specified in the INA and would have required that, where the trier of fact determines that the asylum seeker should provide evidence which corroborates otherwise credible testimony, such evidence must be provided (unless the applicant does not have the evidence or cannot obtain the evidence without leaving the United States); It would have required an alien applying for withholding of removal to be subject to the same credibility determinations and burdens as an alien applying for asylum. It would have provided that no court shall reverse a determination (as made by a trier of fact with respect to the availability of corroborating evidence) in either asylum or withholding of removal cases, unless the court finds that a reasonable trier of fact would be compelled to conclude that such corroborating evidence is unavailable.

H.R. 418 would also have repealed §5403 of the Intelligence Reform and Terrorism Prevention Act of 2004, which requires the Comptroller General of the United States to evaluate the extent to which weaknesses in the United States asylum system and withholding of removal system have been or could be exploited by aliens "connected to, charged in connection with, or tied to terrorist activity."

Among other things, the Manager's Amendment to H.R. 418 added a provision to the bill to eliminate the annual cap of 10,000 on asylee adjustments to LPR status. H.R. 418 as amended passed the House of Representatives on February 10, 2005, by a vote of 261 to 161.

The Real ID Act also passed the House on March 12, 2005 as part of the FY2005 supplemental appropriations for military operations in Iraq and Afghanistan, reconstruction in Afghanistan and other foreign aid ( H.R. 1268 ). The conferees for H.R. 1268 modified the asylum provisions, the most significant revisions from the original language being:

established expressed standards of proof for asylum seekers, including that the applicant's race, religion, nationality, social group, or political opinion was or will be one of the central motives for his or her persecution; required that the asylum seeker provide evidence which corroborates otherwise credible testimony, such evidence must be provided, unless the applicant cannot reasonably obtain the evidence ; and eliminated the 10,000 numerical limit on asylee adjustments and the 1,000 cap on asylum based on persecution resulting from coercive population control policies.

Because H.R. 1268 was an emergency supplemental appropriation, it was considered "must pass" legislation. It passed the House on May 5, 2005 and the Senate on May 10, 2005. The President signed H.R. 1268 as P.L. 109-13 on May 11, 2005.

Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005

As passed by the House, the Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 ( H.R. 4437 ) had several provisions on which advocates for asylum seekers expressed concern. Foremost, §407 of H.R. 4437 would have mandated that expedited removal be applied to all aliens (except those from Canada and Mexico) encountered within 100 miles of an international land border who have not been in the United States more than 14 days. In addition, Title II of H.R. 4437 would have upgraded the consequences of illegal presence from a civil offense to a criminal offense. Since many asylum seekers arrive without proper documents or are in the United States illegally when they claim asylum, some argued the bill would have subjected them to mandatory detention and generally barred them forever from obtaining asylum, and subjected them to arrest by state and local law enforcement who encounter them. Others pointed out that H.R. 4437 retained the protections in current law for aliens who express a fear of persecution or an intention to seek asylum the opportunity for a credible fear determination. When the 109 th Congress closed, the major immigration reform proposals remained pending.

Current Issues of Debate

Terrorist Infiltration and Screening60

Some have long been concerned that terrorists would seek asylum in the United States, hoping to remain hidden among the hundreds of thousands of pending asylum cases. Critics point to asylum seekers from countries of "special concern" (i.e., Saudi Arabia, Syria, Iran, North Korea, China, Pakistan, Egypt, Lebanon, Jordan, Afghanistan, Yemen and Somalia) as potential national security risks. Some argue further that—since asylum is a discretionary form of immigration relief—national security risks should outweigh humanitarian concerns, and thus asylum relief should be restricted and judicial review of asylum cases more limited.

Others point out that asylum seekers are subject to multiple national security screenings and that—if an asylum seeker is a suspected or known terrorist—the law already bars alien terrorists. They argue that the extent to which security risks exist, the risks result more from the limited intelligence data on terrorism, rather than an expansive asylum policy. Some assert further that asylees from countries of "special concern" may be beneficial to U.S. national security because they may have useful information that assists in the war on terrorism, much like assistance provided by communist defectors during the Cold War. Opponents of limiting the judicial review of asylum cases contend that it would erode two traditional values of U.S. polity—the right to due process and freedom from repression and persecution.

Coordination with Customs and Border Protection and Immigration and Customs Enforcement

Although USCIS and EOIR are clearly the lead agencies in asylum policy, the first contacts many asylum seekers have with the U.S. government are with Customs and Border Protection (CBP) inspectors, border patrol officers, and Immigration and Customs Enforcement (ICE) agents, whom some maintain are not adequately trained in asylum policy and other humanitarian forms of immigration relief. They maintain that these CBP officers and ICE agents are front line law enforcement who are so geared up to protect against potential terrorists, criminals and other threats that the they may not be flexible enough to recognize bona fide asylum seekers. They also question whether there is sufficient communication among the key immigration agencies: CBP, EOIR, ICE and USCIS.

Others point out that the CBP inspectors, border patrol officers, and ICE agents follow the policy and procedural guidelines to ensure that aliens who express a fear of returning home are given the opportunity to have their fears considered by an asylum officer and/or an immigration judge. They maintain the training is more than adequate and that ample protections are afforded to those who express fears of persecution.

Expanding Expedited Removal61

Proponents of expanding expedited removal refer to the provisions giving aliens who express a fear of persecution or an intention to seek asylum the opportunity for a credible fear determination. They usually cite statistics indicating that more than 90% of aliens who express a fear are deemed to be credible (pass their credible fear hearing) and are able to bring their cases to an immigration judge. They also note that the U.S. Commission on International Religious Freedom (USCIRF) study found that DHS has mandatory procedures in place to ensure that asylum seekers are protected under expedited removal. Testifying on the issue of expedited removal, C. Stewart Verdery, Jr., formerly Assistant Secretary for Border and Transportation Security Policy and Planning in DHS, concluded, "I am heartened to see that internal and external reviews of the asylum process largely have concluded that DHS has handled this subset of cases appropriately."

Critics of expedited removal maintain that a low-level immigration officer's authority to order removal is virtually unchecked. The officer's decision to place the person in expedited rather than regular removal proceedings, they argue, can result in the person losing substantive rights. Indeed, they assert that there have been reports of abuse of the procedure since it was first implemented at the ports of entry and many individuals with valid claims have been erroneously removed. Critics refer to one investigation that found cases where aliens had requested the opportunity to apply for asylum but were refused and "pushed back" at primary inspection.

Mandatory Detention

Opponents to the mandatory detention of asylum seekers in expedited removal usually cite the U.N. High Commissioner on Refugees, who maintains that detention of asylum seekers is "inherently undesirable." Detention is psychologically damaging, some further argue, to an already fragile population that includes aliens who are escaping from imprisonment and torture in their countries. Asylum seekers are often detained with criminal aliens, a practice that many consider inappropriate and unwarranted. Some contend that Congress should provide for alternatives to detention (e.g., electronic monitoring) for asylum seekers in expedited removal. Others argue that the mandatory detention of asylum seekers provision should be deleted, maintaining that there is adequate authority in the INA to detain any alien who poses a criminal or national security risk.

Proponents for current law warn that releasing asylum seekers in expedited removal undermines the purpose of expedited removal and creates an avenue for bogus asylum seekers to enter the United States. They argue that mandatory detention of asylum seekers is an essential tool in maintaining immigration control and homeland security. Any loosening of these policies, they allege, would divert the CBP and ICE officers from their homeland security duties to track down wayward asylum seekers. Supporters of current law also contend that it sends a clear signal of deterrence to aliens who consider using asylum claims as a mechanism to enter illegally.

Cuban and Haitian Policies

U.S. policy toward asylum seekers from Cuba and Haiti are often discussed in tandem because there are several key points of comparison. Both nations have a history of repressive governments with documented human rights violations. Both countries have a history of sending asylum seekers to the United States by boats. Finally, although U.S. immigration law is generally applied neutrally without regard to country of origin, there are special laws and agreements pertaining to Cubans and Haitians. Despite these points of similarity, the treatment of Cubans fleeing to the United States differs from that of Haitians.

Many observe that Cuban migrants receive more generous treatment under U.S. law than Haitians or foreign nationals from any other country. As a consequence of special migration agreements with Cuba, a "wet foot/dry foot" practice toward Cuban migrants has evolved. Put simply, Cubans who do not reach the shore (i.e., dry land), are interdicted and returned to Cuba unless they cite fears of persecution. Those Cubans who successfully reach the shore are inspected for entry by DHS and generally permitted to stay and adjust under the Cuban Adjustment Act (CAA) the following year. Despite what some consider generous treatment of Cubans, there are others who charge that the forced return of Cubans interdicted at sea violates the spirit, if not the letter, of U.S. asylum and refugee law.

Critics maintain that the Haitians are being singled out for more restrictive treatment than any other group of asylum seekers. Haitians interdicted at sea are repatriated, as are Cubans; however, critics charge that Haitians who reach the United States are more likely to be detained and less likely to be paroled after the credible fear determination. The Administration maintains that paroling Haitians (as is typically done for aliens who meet the credible fear threshold) may encourage other Haitians to embark on the risky sea travel and potentially trigger a mass migration from Haiti to the United States. The Administration further argues that all migrants who arrive by sea pose a risk to national security and warns that terrorists may pose as Haitian asylum seekers.

Gender-Based Persecution

Some advocate amending the INA's definition of refugee and asylee to expressly mention gender-based persecution, as was done for resistance to coercive population control policies. Proponents argue that those aliens fleeing such acts as female genital mutilation (FMG), rape by military or police forces, "honor killings," or domestic violence are not adequately protected by the INA because the alien must demonstrate that the abuse was based on race, religion, nationality, membership in a particular social group, or political opinion. They contend that the judicial decisions thus far have been contradictory and often cite Attorney General John Ashcroft's announcement that he is reconsidering the decision of his predecessor Attorney General Janet Reno to vacate the BIA ruling denying asylum to a Guatemalan woman who sought asylum based on repeated domestic violence by her husband. They assert that amending the INA to add gender as a basis would strengthen the policy, clarify the ambiguities resulting from varied judicial decisions, and speed up the lengthy asylum adjudication process.

Others maintain that current law affords sufficient protections for aliens fleeing gender-based violence and persecution. They cite the legal guidance for Asylum Officers issued in 1995 that stated: "severe sexual abuse does not differ analytically from beatings, torture, or other forms of physical violence that are commonly held to amount to persecution." Supporters of current law point out that the BIA held In Matter of Kasinga , that a subjective 'punitive' or 'malignant' intent is not required for harm to constitute persecution and set the precedent for asylum on the basis of FMG in1996. They assert that adding gender as basis for asylum would impose western cultural norms as well as create a migration magnet for women living in male-dominated cultures and countries.