History of the United States Asylum Officer Corps

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History of the United States Asylum Officer Corps

UNITED STATES PROTECTION OF REFUGEES - HISTORICAL PERSPECTIVE
LIST OF ARTICLES FOR ADDITIONAL BACKGROUND ON THE HISTORY OF THE ASYLUM PROGRAM

UNITED STATES PROTECTION OF REFUGEES - HISTORICAL PERSPECTIVE
1. Pre-1980
  
  Ad Hoc Refugee Legislation
  
  The basic domestic immigration legislation in force in the United States is the "Immigration and Nationality Act" (INA) passed in 1952. The INA did not expressly contain provisions to handle the resettlement of refugees or displaced persons. In order to fulfill its international obligations in this arena, the United States developed ad hoc legislation for the immigration of refugees (e.g., Displaced Persons Act of 6/25/48; Refugee Relief Act of 8/7/53; Fair Share Refugee Act of 7/14/60).
  
  Attorney General's Parole Authority
  
  Beginning in 1956, the United States began large-scale use of the Attorney General's parole authority under Section 212(d)(5) of the INA to bring refugees to the United States. In order to allow the refugees paroled into the U.S. to adjust to lawful permanent resident status, Congress passed separate special legislation (e.g., Hungarian Refugee Act of 7/25/58; Cuban Refugee Act of 11/2/66; Indochinese Refugee Act of 10/28/77; Refugee Parolee Act of 10/5/78).
  
  INA Amendments of 1965
  
  In 1965, Congress amended the INA to provide for the resettlement of refugees as a category of immigrants - conditional entrants. This was the first time that the United States enacted permanent refugee legislation. The term "refugee" was defined in geographical and political terms, as persons fleeing communist or communist-dominated countries or the Middle East. Conditional entrants were numerically limited under a preference system to 17,400 refugees annually.
2. United Nations Treaties
  
  In 1968, the United States acceded to the 1967 United Nations Protocol Relating to the Status of Refugees, which incorporates the 1951 United Nations Convention relating to the Status of Refugees (Refugee Convention). Article 33 of the Convention prohibits a State party from expelling or returning a refugee to a country where his or her life or freedom would be threatened on account of a protected characteristic in the refugee definition ("non-refoulement"). A "refugee" is defined as any person who "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country..." (1951 United Nations Convention relating to the Status of Refugees, Art. I.A(2), United Nations Treaty Series No. 2545, Vol. 189, p. 137; 1967 United Nations Protocol Relating to the Status of Refugees, Art. I.2, United Nations Treaty Series No. 8791, Vol. 606, p. 267)
3. Passage of Refugee Act of 1980
  In 1980, Congress enacted legislation to bring U.S. law into compliance with obligations it assumed when it signed the Protocol on November 1, 1968. Prior to implementation of the 1980 Refugee Act, refugees under U.S. law were defined in political and geographical terms; unless there was a special act of Congress, refugees had to come from either communist countries or countries in the Middle East. The Congressional intent of the 1980 Refugee Act was to establish a politically and geographically neutral adjudication standard for both asylum status and refugee status, a standard to be applied equally to all applicants regardless of country of origin.
  
  The statutory definition of refugee was derived from the Refugee Convention definition. Following the principle of non-refoulement, the Act made mandatory the withholding of deportation¹ to a country where an individual's life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion.
  
  In contrast to the international definition, U.S. law expanded the definition of "refugee" to include someone who has been persecuted in the past, as well as someone who has a well-founded fear of future persecution.
  
  Section 101(a)(42) of the INA states the following:
  The term "persecution" was not, and still is not defined by treaty, statute, or regulation. There is no universally accepted definition of persecution, only guidelines from various sources, including the UNHCR Handbook, precedent decisions, and international human rights law.
4. 1980 Interim Regulations
  
  Interim Regulations for implementing the 1980 Refugee Act were promulgated in June of 1980. INS District Directors remained responsible for the adjudication of asylum applications filed by applicants who were not in deportation or exclusion proceedings (affirmative applications). Immigration officers conducted asylum interviews, in addition to their other duties.
5. 1990 Final Regulations
  Final Regulations were published on July 27, 1990, and came into effect October 1, 1990, establishing the Asylum Corps:
  Seven asylum offices opened in 1991, and an eighth, New York, opened in December 1994. The offices are currently located in Los Angeles (Anaheim), San Francisco, Newark (Lyndhurst), Houston, Miami, Chicago, Arlington, and Rosedale, New York. Initially, there were eighty-two asylum officers. There are currently approximately 300 asylum officers.
  
  The Resource Information Center (RIC), an in-house library and documentation center created pursuant to the 1990 regulations, opened in late 1991. Following the example of several refugee-receiving countries, primarily Canada, its mandate is to collect and disseminate to asylum officers information on country conditions needed to make quality asylum adjudications.
  
  In particular, the information disseminated by the RIC includes reports regarding human rights conditions in refugee-producing countries. Additionally, the RIC provides updated versions of REFWORLD, a UNHCR computer database that contains country conditions and legal information relevant to asylum adjudication. The RIC conducts some original research, primarily synthesized papers written by outside experts, and also responds to inquiries made by asylum officers regarding particular claims or issues.
6. Reform
  
  When the Asylum Corps was established, it was expected that the number of annual asylum applications filed would be approximately 70,000. However, in fiscal year (FY) 1992, asylum seekers filed approximately 103,000 applications. By FY 1993, the rate of receipt had jumped to 150,000. This rate continued into FY 1994. Due to a variety of factors, particularly a lack of resources and a diversion of available resources to the screening of Haitian asylum-seekers at Guantanamo Bay, Cuba, the backlog of unadjudicated applications increased to overwhelming numbers. See, Beyer, Gregg A. "Reforming Affirmative Asylum Processing in the United States: Challenges and Opportunity" The American University Journal of International Law and Policy (Vol. 9, No. 4, November 1994), p. 43-78.
  
  As the backlog grew, the asylum system became more vulnerable to fraud and abuse. Malafide applicants could file fraudulent claims and obtain work authorization while their requests remained pending in the backlog. At the same time, genuine refugees were deprived of expeditious adjudication of their requests, which were bogged down in the backlog.
  
  In July 1993, the President mandated that the Department of Justice undertake reform of the asylum process. In an attempt to speed up the asylum process, eliminate the backlog of pending cases, and discourage abuse of the asylum process, reform regulations were implemented January 4, 1995. Except for the provisions regarding work authorization, these revised regulations applied retroactively to cases not yet interviewed by January 4, 1995. Some of the main elements of reform are as follows:
  1. Decoupled asylum request from automatic employment authorization
    
    Prior to reform, asylum applicants could apply for employment authorization at the same time they applied for asylum. So long as the asylum request was not "frivolous" (manifestly unfounded or abusive), employment authorization was granted. See 8 C.F.R. § 208.7 (1990).
    
    The revised regulations decoupled employment authorization from asylum to the extent that asylum applicants no longer can apply for employment authorization at the same time they apply for asylum. Rather, the applicant must wait until granted asylum or 150 days after the Service receives a complete application before the applicant can apply for employment authorization. The Service then has 30 days to either grant or deny the request. (8 C.F.R. § 208.7)
  2. Created referral process
    
    Prior to reform, asylum officers issued final decisions on all applications for asylum and withholding of deportation. An applicant who was found ineligible was denied, and the applicant had the right to file an asylum application de novo with the Office of the Immigration Judge, if exclusion or deportation proceedings were initiated. (8 C.F.R. §§ 208.14(a); 208.18(b) (1990))
    
    Pursuant to the 1995 revised regulations and current regulations, requests filed by applicants who are deportable or removable and who are found ineligible for asylum must be referred directly to the Office of the Immigration Judge for adjudication in removal proceedings. (8 C.F.R. § 208.14(b)) (Note that a referral is not a final decision.)
    
    The Immigration Judge adjudicates the same asylum application that was filed with the Asylum Office. As a matter or discretion, the Immigration Judge may allow the applicant to amend the application.
    
    Under the 1995 and current regulations, asylum officers have the authority to grant asylum in the exercise of discretion to qualified applicants. (8 C.F.R. § 208.14(b))
  3. Removed right to rebut in most cases
    
    Prior to reform, asylum applicants who were found ineligible for asylum were sent written explanations and were provided an opportunity to rebut the preliminary decision before a final decision was made. This was a very lengthy process. With reform, asylum applicants no longer are provided an opportunity to rebut a preliminary negative decision, with the exception of individuals who are still in lawful, non-immigrant status or class members of the ABC Settlement Agreement².
  4. Decisions no longer mailed in most cases
    
    Prior to reform, asylum decisions and any documents initiating deportation or exclusion proceedings were mailed to the applicant's last known address.
    
    An asylum applicant now must return to the asylum office for personal service of a final decision or referral with accompanying documents initiating removal proceedings. An exception is made for asylum applicants who are not interviewed at an asylum office (i.e., applicants interviewed on circuit rides) or who are in legal status. (8 C.F.R. § 208.9, 208.19)
  5. Removed authority to adjudicate requests for withholding of deportation in most cases
    
    Prior to reform, asylum officers adjudicated requests for withholding of deportation (now withholding of removal) with each asylum request. (8 C.F.R. § 208.16(1990)) (Note that the application for asylum is at the same time an application for withholding of deportation. (8 C.F.R. § 208.3(b))
    
    Reform regulations gave asylum officers jurisdiction to decide withholding of deportation only for stowaways, crewmen, and certain individuals excluded as security risks. (8 C.F.R. § 208.16(a)(1995)) Under current regulations, asylum officers no longer have such jurisdiction.
7. Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
  
  The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was signed into law on April 24, 1996. It creates a process by which the U.S. government can designate organizations as "foreign terrorist organizations." Certain persons involved in these organizations are ineligible for asylum and withholding of deportation or withholding of removal.
8. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
  
  On September 30, 1996, President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Some of the provisions of the act were immediately effective, while others become effective after that date. (The changes to section 208 are applicable only to applications filed on or after April 1, 1997.) The IIRIRA nullified certain provisions in AEDPA. It expanded Section 208 of the INA to codify a number of provisions that previously were regulatory and to incorporate new provisions. The most significant changes are listed below.
  1. Expanded definition of political opinion to include resistance to a coercive population control program. The following was added to INA § 101(a)(42):
    For any fiscal year, not more than a total of 1,000 persons who fall into this category may be admitted as refugees or granted asylum. (INA § 207(a)(5))
  2. Created three new restrictions on applying for asylum (INA § 208(a)(2)):
    1. restriction on those who have been in the U.S. more than a year without filing and who cannot show the existence of changed circumstances that materially affect eligibility for asylum or extraordinary circumstances relating to the delay in filing the application;
    2. restriction on those who have been denied asylum in the past and cannot show the existence of changed circumstances that materially affect eligibility for asylum;
    3. restriction on those who can be returned to a "safe" country with which the U.S. has a bilateral or multilateral agreement for such returns.
  3. Required identity check against all appropriate records or databases maintained by the Attorney General and by the Secretary of State before asylum may be granted. (INA § 208(d)(5)(A)(i))
  4. Added penalty for the filing of a frivolous asylum application.
    
    If the Attorney General determines that an alien has knowingly made a frivolous application for asylum and has received notice of the penalty for filing a frivolous application, the alien shall be permanently ineligible for any benefits under the INA. (INA § 208(d)(6))
  5. Expanded definition of aggravated felony. (INA § 101(a)(43))
  6. Established a process for expedited removal, which took effect on April 1, 1997. (INA § 235(b)(1); see also, 8 C.F.R § 208.30)
    
    This affects aliens arriving at a port of entry with fraudulent documents or no documents. An alien subject to expedited removal and who indicates either an intention to apply for asylum or claims to have a fear of returning to his or her country of nationality or last habitual residence if stateless, is referred to an asylum officer for a credible fear determination. (8 C.F.R. §208.30(a))
    
    If the asylum officer finds the alien to have a credible fear of persecution, the alien is issued a Notice to Appear (NTA) (Form I-862) and placed in removal proceedings where he or she may apply for asylum before an immigration judge. An alien who is not found to have a credible fear of persecution is issued a Notice and Order of Expedited Removal, and is given the opportunity to request a review by an immigration judge of the decision.
    
    Stowaway cases involve slightly different procedures, but the legal standard for credible fear is the same.
9. Regulations Implementing U.S. Obligations under the United Nations Convention against Torture
  
  On October 21, 1998, President Clinton signed legislation that required the Department of Justice to promulgate regulations to implement the United States' obligations under Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (27 June 1987), subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution to ratify the Convention. (Section 2242(b) of the Foreign Affairs Reform and Restructuring Act of 1998 (Pub. L. 105-277))
  
  Article 3 of the Convention against Torture prohibits the return of any individual to a country where there are substantial grounds for believing that the person would be in danger of being subject to torture. This is similar to Article 33 of the Refugee Convention, which prohibits removal of a person to a country where the person's life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion.
  
  On February 19, 1999, the Department of Justice published an interim regulation, which became effective on March 22, 1999, that allows individuals to seek withholding of removal or deferral of removal under the Convention against Torture. A person will be entitled to withholding of removal if he or she establishes that it is "more likely than not" he or she would be tortured in a country to which the person would be removed and no mandatory bars apply. If mandatory bars (such as certain criminal convictions or a determination that the person is a security risk) apply, but the person would be tortured, he or she is entitled to deferral of removal. (64 Fed. Reg. 8478 (February 19, 1999); 8 C.F.R. §§ 208.31, 208.30, 208.16, 208.17 (1999))
  
  Unlike asylum, both withholding of removal and deferral of removal are country specific. This means that the person could be removed to a third country if he or she would not be tortured there.
  
  In most cases, immigration judges will determine whether withholding of removal or deferral of removal is required. However, asylum officers are tasked to ensure compliance with the Convention against Torture by conducting "credible fear of torture" and "reasonable fear of torture" screenings.
  
  The regulations expanded the scope of the credible fear determination in expedited removal to include "credible fear of torture," as well as "credible fear of persecution." (8 C.F.R. § 208.30 (1999))
  
  In addition, asylum officers are tasked to conduct "reasonable fear" screenings in two types of administrative removal cases, if an individual expresses fear of return. (8 C.F.R. § 208.31) These are cases in which 1) the INS reinstates a prior exclusion, deportation, or removal order pursuant to section 241(a)(5) of the INA or 2) the INS orders the person removed pursuant to section 238(b) of the INA, based on an aggravated felony conviction. If the asylum officer determines that a person has a reasonable fear of torture or persecution, the asylum officer will refer the case to an immigration judge for a determination of whether the person is eligible for withholding of removal under the Convention against Torture based on a likelihood of torture or under 241(b)(3) of the INA, based on likelihood of persecution. If the asylum officer does not find a reasonable fear of torture or persecution, the person may seek immigration judge review of that determination. The person will be removed if review is not sought, or if review is sought and the immigration judge upholds the adverse determination.
10. 2000 Final Rule Amending Asylum Regulations Implementing IIRIRA
  
  On December 6, 2000, a final rule was published in the Federal Register that implemented provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), governing asylum claims. Additionally, this final rule amended portions of the regulations governing cases in which an applicant has established past persecution or in which an applicant may be able to avoid persecution in a particular country by relocating to another area of that country. Finally, the rule also identified factors that may be considered in the exercise of discretion in asylum cases in which the alien has established past persecution but may not have a well-founded fear of future persecution. The most significant changes are below.
  1. Expands the non-exhaustive list of types of "changed circumstances" to include an alien who had previously been included as a dependent in another alien's pending asylum application, and lost his or her derivative status through marriage, divorce, death, or attainment of age 21. (8 CFR § 208.4(a)(4))
  2. Expands the non-exhaustive list of types of "extraordinary circumstances" to include:
    1. maintaining valid immigrant or nonimmigrant status, parole status, or Temporary Protected Status (TPS) (8 CFR § 208.4(a)(5)(iv)); and
    2. the death or serious illness or incapacity of the applicant's legal representative or a member of the applicant's immediate family. (8 CFR § 208.4(a)(5)(vi))
  3. Expands the factors that may overcome the presumption that once past persecution has been established, the applicant's fear of persecution is well-founded (8 CFR § 208.13(b)(1))
    
    Under the final rule, the presumption of well-founded fear is overcome if the Service establishes by a preponderance of the evidence that either
    1. there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution; or
    2. the applicant could avoid future persecution by relocating to another part of the applicant's country or, if stateless, country of last habitual residence.
  4. Codifies long-standing precedent that an applicant cannot establish a well-founded fear of persecution if the applicant could avoid persecution in the future by relocating to another part of the applicant's country, and if under all the circumstances, it would be reasonable to do so. (8 CFR § 208.13(b)(2)(ii) and 8 CFR § 208.13(b)(3))
  5. Broadens the adjudicator's discretion to grant asylum to applicants who no longer have a well-founded fear of future persecution, by allowing a grant of asylum to an individual who suffered past persecution and fears serious harm in the future other than persecution on account of a protected characteristic. (8 CFR § 208.13(b)(1)(i)(B))
11. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001)
  
  On October 26, 2001, President Bush signed into law the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act of 2001) in response to the September 11, 2001 terrorist attacks in the United States. The act amended sections 212(a)(3)(B) and 237(a)(4)(B) of the INA by expanding grounds of inadmissibility based on terrorism, broadening the definition of "terrorist activity," adding two new definitions of "terrorist organization," and adding a separate ground of inadmissibility for those who have associated with a terrorist organization. The amendments are fully retroactive and apply regardless of when an alien filed his or her asylum application.
  
  The USA Patriot Act also amended section 208(b) of the INA by prohibiting the granting of asylum to anyone who:
  1. is a representative of a political, social, or other similar group whose public endorsement of acts of terrorist activity the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities (unless the Attorney General determines, in his discretion, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States)(INA § 212(a)(3)(B)(i)(IV)(bb) and INA § 208(b)(2)(A)(v))
  2. has used the alien's position of prominence within any country to endorse or espouse terrorist activity, or to persuade others to support terrorist activity or a terrorist organization, in a way that the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities. (INA § 212(a)(3)(B)(i)(VI))
12. Enhanced Border Security and Visa Entry Reform Act of 2002
  
  On May 14, 2002, President Bush signed the Enhanced Border Security and Visa Entry Reform Act of 2002. Section 309 of the act requires the INS to issue employment authorization documents containing at least a fingerprint and photograph to all asylees immediately upon being granted asylum under section 208 of the INA. This provision went into effect in November 2002.
13. Child Status Protection Act of 2002
  
  On August 6, 2002, President Bush signed into law the Child Status Protection Act (CSPA). The CSPA went into effect immediately for asylum applications pending on or after August 6, 2002. The CSPA amended section 208(b)(3) of the Immigration and Nationality Act with respect to the definition of "child." Section 208(b)(3)(B) provides that a child who turns 21 years of age after his or her parent's asylum application was filed but prior to a decision being made on the application will continue to be classified as a child and to be eligible for derivative asylum status. The child must have been unmarried and under 21 years of age on the date that his or her parent filed the Form I-589, Application for Asylum and for Withholding of Removal. The filing date is the date that the INS received the Form I-589.
  
  There is no requirement that the child have been included as a dependent on the parent's asylum application at the time of filing, only that the child be included while the application is still pending. A parent may add to his or her asylum application an unmarried son or daughter who is over 21 years of age, if the child was under 21 at the time the application was filed and the application has not been adjudicated.
LIST OF ARTICLES FOR ADDITIONAL BACKGROUND ON THE HISTORY OF THE ASYLUM PROGRAM
1. Beck, Susan. "Cast Away," The American Lawyer (October 1992), p. 54-59.
2. Beyer, Gregg A. "Affirmative Asylum in the United States," Georgetown Immigration Law Journal (Vol. 6, No. 2, June 1992), p. 253-284.
3. Beyer, Gregg A. "Establishing the United States Asylum Officer Corps: A First Report," International Journal of Refugee Law (Vol. 4, No. 4 , July, 1992), 39 p.
4. Beyer, Gregg A. "Reforming Affirmative Asylum Processing in the United States: Challenges and Opportunity" The American University Journal of International Law and Policy (Vol . 9, No. 4, November 1994), p. 43-78.
5. Conover, Ted. "The United States of Asylum," New York Times Magazine (September 20, 1993), p. 56.
6. Cooper, Bo. "Procedures for Expedited Removal and Asylum Screening under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996," Connecticut Law Review (Vol. 29, No. 4, Summer 1997), p. 1501-1524.
7. Martin, David A. "Making Asylum Policy: The 1994 Reforms," Washington Law Review (Vol. 70, No. 3, July 1995), p. 725-755.
8. Office of the High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, (Geneva, 1992).

¹Now called "withholding of removal," as a result of changes to U.S. law in 1997.

²American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) (ABC) was a lawsuit brought against the U.S. government in 1985 by a group of religious organizations and refugee advocacy organizations. A federal judge subsequently certified a class of Guatemalan and Salvadoran nationals as plaintiffs in the lawsuit. The plaintiffs alleged, among other things, that the INS, the Executive Office of Immigration Review and the US Department of State engaged in discriminatory treatment of asylum claims made by Guatemalans and Salvadorans. In 1990, the government and attorneys representing the certified class settled the class action lawsuit. The Settlement Agreement, which was approved by a federal court in 1991, provides that an eligible class member who registers for benefits and applies for asylum by the agreed-upon dates is entitled to an initial or de novo asylum interview and adjudication pursuant to the regulations published July 1, 1990, and special procedures set forth in the settlement.

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