Asylum

To qualify as an asylee, a person must meet the following definition from Section 101(a)(42) of the Immigration and Nationality Act:

“any person 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 distinction between a refugee and an asylee is that refugees apply for entry to the U.S. from abroad, and asylees are already in the U.S., legally or illegally, when the application is made.

The asylum application backlog was estimated at 324,438 at the end of FY01. 80 percent of the backlog of asylum applications is from just two countries, El Salvador and Guatemala. The top five source countries for applications in the asylum backlog comprise 90 percent of the backlog, as follows.

1. El Salvador 162,000 50%
2. Guatemala 96,000 30%
3. Haiti 17,000 5%
4. Nicaragua 13,000 4%
5. China 4,000 1%

Immigration and Naturalization Service, Asylum Reform: 5 Years Later, Feb. 2000.

“In 1991, the first professional asylum corps was formed as part of a final rule to implement the 1980 Refugee Act. While the final rule created a fair process in which professional asylum officers were trained to elicit refugees’ claims in a non-adversarial setting, the program quickly became subject to abuse. A lack of resources, combined with a lengthy process and easy availability of employment authorization to almost all asylum applicants, made the program vulnerable to fraudulent applications and many genuine refugees’ applications languished in an ever-increasing backlog.”

Although asylum applicants are judged by the same definition as refugees, in practice there are significant differences due to the fact the applicants are already in the United States and have the advantage of access to counsel and the U.S. courts if the INS does not accept their request for asylum status. In practice, a majority of the asylum applications each year are “defensive” applications filed by deportable aliens attempting to use asylum as a means to avoid deportation.

In addition, decisions by U.S. judges have stretched asylum to accommodate new classes of aliens never contemplated by the legislation’s authors. For example, in March 2000, a federal court held that a Filipino “whistleblower” who stayed in the United States illegally qualified for asylum because he could face persecution if returned to his country. Other new asylum claimants are people suffering from spousal abuse and social customs such as genital circumcision, gays and lesbians, and even people who have simply become “too Americanized” to be sent home. In the 106th Congress, a bill was introduced to extend asylum status to victims of human trafficking.

Soaring Numbers

asylum application chart

When Congress passed a law in 1980 allowing people to claim political asylum, federal officials predicted the United States would receive a maximum of 5,000 applicants annually. Instead, applications have soared as high as 150,000 a year, with many claims frivolous and fraudulent. Asylum has become a “back door” for circumventing the regular immigration process. Its abuse is unfair to the people trying to immigrate legally to the United States and to those who truly merit asylum.

Asylum is the riskiest of all the benefits given under the immigration laws. We are taking at face value the claims of aliens about whom we know nothing. Because of the nature of asylum claims, the claimant’s true background and history are difficult to verify, and it is nearly impossible to determine whether a claimant is bona fide or is a threat to the well being and safety of our society.

Because all applications for asylum by people currently in the U.S., no matter how frivolous, must be adjudicated, some illegal aliens use asylum claims to avoid deportation. Since there are sometimes too many asylum applicants to detain, they can be released to await a hearing on their claim. Having obtained their freedom, these asylum applicants often fail to show up for their hearings and simply disappear into society.

grants of asylum chart

Asylum Reform

The federal government’s attempts to improve the asylum system are confined mostly to speeding up the rate at which applications are processed. Still, the withholding of work permits from asylum applicants accomplished by the asylum reforms of 1995 has helped to bring the number of applicants down dramatically.

But, as the INS sped up the decision-making process and asylum applications became less viable as a means to buy time, immigration attorneys have tried to widen the definition of asylum to make more and more people eligible. Continued efforts by immigration lawyers have expanded the definition of asylum far beyond its original meaning of individualized persecution by one’s government. Now, aliens are granted asylum simply for showing that their beliefs and practices are not in perfect agreement with those of their society and culture.

We need not just a faster asylum system, but a better one. In order to curb asylum abuse, the following changes must be made.

  • Asylum applications should have to be filed within 45 days of entering the United States.
  • Asylum applicants without travel documents should be excluded from entering the country.
  • Denials of asylum by trained asylum officers should not be appealable, except for review of procedural errors.
  • Asylum applicants who arrive at the U.S. via another safe country should not be admitted.
  • The claims of applicants from countries that do not practice individual political persecution should be automatically rejected.
  • Illegal aliens in the deportation process should not be allowed to file asylum claims.
  • Aliens who file frivolous asylum claims should become ineligible for any immigration status.
  • “Cultural” asylum and other expanded definitions of asylum must be ended, and the original meaning of asylum restored.



Updated 10/2002

 

Selling America Short: The Failure of the EB-5 Visa Program (2012)
The Employment Based 5th Preference (EB-5) Visa, also known as the Immigrant Investor Program, was established by Congress in 1990 to grant foreign nationals legal permanent residency (LPR) status for investing in the U.S. and creating jobs for at least two years (INA §203(b)(5)).