October 29,1998

U.S. Asylum and Refugee Policy

The United States offers asylum and refugee protection based on an inherent belief in human rights and in ending or preventing the persecution of individuals. Asylum is a precious and important protection granted by federal law to qualified applicants who are unable or unwilling to return to their country of nationality because of persecution or a well-founded fear of persecution. Claims of persecution must be based on at least one of five internationally recognized grounds: race, religion, nationality, membership in a particular social group, or political opinion. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 provided that some actions taken under coercive population control programs constitute persecution on account of political opinion. A maximum of 1,000 aliens per fiscal year may be granted asylum or admitted as a refugee under this provision.

In addition to asylum and refugee protection, withholding of removal is available to refugees in the United States who can show a likelihood their lives or freedom would be threatened if they were returned to the country in question. Withholding of removal is in some ways similar to asylum, but is governed by a higher standard, requiring applicants to establish that it is more likely than not that they would be persecuted. Unlike asylum, however, once this standard is met, there is no discretion to deny withholding and the applicant may not be returned to the country.

Asylum /Refugee Application Process

Asylum and refugee applicants are both adjudicated under the same legal standard, but differ in terms of where they are located. The potential asylee is in the United States or applying for admission at a port of entry, and the potential refugee is outside the United States. Aliens in the United States or at a port of entry can apply for asylum by filing an Application for Asylum, Form I-589, with either the Immigration and Naturalization Service (INS) or the Executive Office for Immigration Review (EOIR), the Department of Justice agency that comprises the immigration courts and Board of Immigration Appeals (BIA). Applicants can obtain a Form I-589 and filing instructions from an asylum office, an INS district office or by calling the INS toll-free request line at 1-800-870-3676. A Form I-589 must be filed within one year after the alien's arrival in the United States, unless there exist changed circumstances affecting the applicant's eligibility for asylum, or extraordinary circumstances relating to the delay in filing. People overseas who are eligible for consideration by the U.S. refugee program apply by filing a Registration for Classification as a Refugee, Form I-590.

"Affirmative" Asylum Applications With INS

An alien who is in the United States and who is not in immigration proceedings may apply for asylum by filing a Form I-589 with the appropriate INS regional Service

Center by mail. The Service Center sends the applicant a receipt notice and refers the applicant to one of eight asylum offices around the country. The offices are staffed by approximately 300 specially trained members of the Asylum Officer Corps (AOC), which has been adjudicating asylum applications filed with INS since 1991. Asylum claims brought before the AOC are "affirmative" applications filed voluntarily by the alien. If an asylum officer denies the asylum application of an alien in lawful status, the applicant can reapply for asylum if he/she is later placed in removal proceedings before an immigration judge. Aliens who are in unlawful status and cannot be granted asylum by the AOC are referred to an immigration judge, before whom they can again raise their asylum claim. Affirmative asylum applicants are not placed in detention while their application is considered.

Although the Form I-589 is an application for both asylum and withholding of removal, generally it is immigration judges, and not asylum officers, who adjudicate applications for withholding of removal during removal proceedings in which it has been determined that an alien is removable.

"Defensive" Asylum Applications With EOIR

The Executive Office for Immigration Review has exclusive jurisdiction over the cases of aliens who are placed in removal proceedings and then seek asylum. Asylum claims filed before EOIR are "defensive" applications raised in removal proceedings before immigration judges as a defense against removal. Aliens who seek asylum as a defense against removal may be detained for being in the United States illegally until an immigration judge rules on their asylum claim. Their detention, however, is not due to their asylum claim.

Asylum Process for Certain Arriving Aliens

The 1996 law mandates that aliens who arrive at a U.S. port of entry without travel documents or who engage in fraud or material misrepresentation be detained and placed in expedited removal. Aliens who express or indicate a fear of persecution during the expedited removal process receive a "credible fear" interview with an INS asylum officer. Aliens found to have a credible fear are referred for ordinary removal proceedings in which they may apply for asylum before an immigration judge. Aliens determined to have a credible fear are detained because they remain in removal proceedings until an immigration judge rules on their asylum claim. Their detention also is not due to their asylum claim.

Parole

INS district directors have discretionary authority to parole, or release, an alien in proceedings from detention. In determining whether release is appropriate on a case-by-case basis, district directors must decide whether the alien’s release would serve an urgent humanitarian need or significant public benefit and whether the alien has established his/her identity, poses a threat to the community, demonstrates family ties in the community, presents evidence of a credible asylum claim, or poses a risk of flight. Different, more restrictive criteria govern the custody of certain criminal aliens.

Overseas Refugee Processing

Each year the President, in consultation with Congress, determines the number of refugees who may be admitted to the United States during the coming fiscal year. This annual ceiling is divided among five regional sub-ceilings -- Africa, East Asia, Europe, Latin America/Caribbean and the Near East/South Asia. For fiscal 1999, the President and Congress have determined that up to 78,000 refugees may be admitted to the United States, with those admissions allocated among the five regions as follows:

• Africa – 12,000
• East Asia – 9,000
• Europe (includes 3,000 unfunded) – 48,000
• Latin America/Caribbean – 3,000
• Near East/South Asia – 4,000
• Unallocated – 2,000

The Europe, Bosnia and former Soviet Union ceiling includes 3,000 unfunded numbers allocated to the former Soviet Union for use as needed, provided that resources within existing appropriations are available to fund the cost of their admission. The 2,000 unallocated numbers will be allocated as needed to meet regional shortfalls. Unused admissions numbers from one region may be transferred to another region where the need for admissions numbers exceeds the sub-ceiling.

Access to the U.S. refugee program is not open-ended. To file a Form I-590, a refugee applicant must first be found to be eligible for a refugee interview. The question of whether applicants are eligible for a refugee interview is governed by their nationality and whether they come under one of the processing priorities used to manage the U.S. refugee program. Like the setting of the admissions’ ceiling, the designation of eligible nationalities and processing priorities is decided annually as part of the consultations process.

Traditionally, refugee applicants are interviewed in third countries after having fled their country of persecution. Individuals who have fled their country and believe themselves to be at risk if returned should contact the nearest office of the United Nations High Commissioner for Refugees (UNHCR). That office will make a decision as to whether the individuals require protection and where that protection may be provided. The U.S. legal definition of refugee also allows for in-country refugee processing in countries so designated by the President. For fiscal 1999, the U.S. refugee program will operate in-country programs in Havana, Ho Chi Minh City and Moscow. Those eligible for Moscow processing are nationals or habitual residents of the former Soviet Union as it existed on September 2, 1991.

--INS--