Refuge & Asylum in the U.S.

It’s a many-forking path. You might want to revisit my DHS primer for context.

People leave their home countries for all kinds of reasons. Most of them are “pulls” or things that attract you to new place: a better job, a higher standard of living, to be closer to loved ones, a cheaper retirement, or to try something different. But sometimes it’s a “push” — in times of war, natural disaster, or other dangers, people flee just to survive.{1}

Depending on where someone starts out, they can end up going a number of routes. If you have the resources, maybe you’ll be lucky enough to fly. (Check in with any Venezuelans you know in the U.S.; they probably know someone who made an exit that way.) If not, you might find yourself on foot or (worse) in a raft. (Also: The end of The Sound of Music, when the von Trapps escape over the mountains? That’s a refugee story.)

Maybe you’ll land somewhere else. Maybe they’ll take you in. Maybe you’ll be asked to spend some time in a camp because the first country you arrive in won’t be enthusiastic about integrating you into their communities. (Sometimes a group will find themselves in a refugee camp for generations. There’s a whole literature about Dadaab, host to a complex of five camps in eastern Kenya, mostly displaced Somalis.)

FORK ONE: Here’s where a note about the language becomes necessary. In most of the world, the terms “refugee” and “asylum-seeker” are pretty much synonymous: someone arriving in your country seeking safe harbor. However, there are a few countries that make a distinction. The U.S., Canada, and Australia, which throughout the 20th Century were pretty far removed geographically from major refugee flows (and have been traditionally known as largely immigrant nations, no coincidence) have in recent years been the top destinations for what’s called “third-country resettlement.”{2} It’s a humanitarian gesture that, while varying in popularity over time, has been a codified part of their immigration systems.

For these three (and perhaps the Nordics — I’m not really familiar with their terminology), the distinction is thus:

• Someone who is interviewed in a camp or community elsewhere (say, Iraqis in Jordan or Burmese in Thailand), passes all the requisite security checks, and is selected for sponsorship to the third country: she’s a refugee.
• Someone who shows up at the border (or sometimes is able to get into the country) and states that they cannot go home due to a well-founded fear of persecution: he’s an asylum-seeker (or asylee). The Central Americans arriving at the U.S. border now are why this is a hot topic.

(Italy, for example, doesn’t have this distinction because people will navigate the Mediterranean and land directly on its shores; it doesn’t have the luxury of inviting people from farther afield. Canada, by contrast, does.)

The U.S., under the auspices of USCIS, has dedicated Refugee Officers and Asylum Officers who focus on interviewing one of these populations to determine their eligibility for humanitarian immigrant status in the U.S. Refugee Officers go overseas, Asylum Officers work within the U.S. (It’s not infrequent that one group is reassigned to assist the other, and it’s gone both ways in the past.) We’re going to focus on the latter here.

FORK TWO: There are two types of asylum-request processes in the U.S. The fun thing is that they take very different paths (being seen by different departments of the government, even) but may end up in the same place. This page at USCIS is a good overview, but in a nutshell:

• Affirmative asylum: An application by someone already in the U.S.; he or she could be someone who’s “in status” — as a visitor{3} (tourist, student, etc.) and, while still legally allowed to be here, is afraid to return home — or could be undocumented. They get an appointment to be interviewed by a USCIS Asylum Officer, and if their case is adjudicated favorably, they are granted asylee status and can later become a permanent resident. I do not have personal experience with them but according to all sources the interview takes a few hours, is non-adversarial (in other words, just focuses on establishing the facts and merits of the case), and involves staff who undergo constant training on country conditions and are vetted by supervisory review.
• Defensive asylum: Everyone else ends up here. If someone undocumented is (1) caught by immigration enforcement or (2) comes to a border crossing to present themselves and they make a claim of credible fear{4}, they’ll be referred to the Executive Office for Immigration Review (EOIR, a.k.a. immigration court), a part of the Department of Justice. (If someone who is undocumented has gone the affirmative asylum route and had their case denied, they’ll end up here too for “a second bite at the apple.”) FORK THREE: If a defendant does not prevail here, they’re up for deportation. (If they do prevail, they come to our office to get their paperwork in order — it’s the only time we would see asylum applicants.)

Defensive asylum is one version of the immigration court process that John Oliver featured in some depth on his show a couple of months ago{5}, that’s been likened to “a murder trial in traffic court,” and in which children as young as three can be named as defendants without legal counsel. Of course, before getting to court, there’s the waiting game. Asylum-seekers are often kept in detention (yes, here’s where it ties in with recent news) until they can have their claim vetted and be “paroled into” the country before being given an immigration-court date; otherwise they are subject to expedited removal (i.e., cursory deportation). This is supposed to be a quick process.

I realize this is only an abstraction of how the process is theoretically expected to work. In an ideal world, none of this would be necessary because no one would be pushed to leave their home country. In a world of open debate between good-faith political opinions, there is room to talk about how to determine who actually is fleeing danger and who may just be trying to exploit the system to get in.{6} Our asylum process has never been a free pass; I know people who have been through it (including more than one medical professional) and it’s no picnic, but its aim is to be fair and just.

Current administration policy means the facts on the ground are different; there are many tangled factors in play right now. I can’t speak to any of that (because I just don’t know firsthand), but here are some pretty timely and trustworthy recent reports:

• The San Diego Union-Tribune does a good job tracking what the asylum process looks like today for people approaching the U.S. border.
• The Economist takes an internationalist, historical look at how we got to where we are.
• The latest from The Hill: a D.C. District Court judge has struck down some recent treatment of asylum seekers on the border as arbitary detention.

Obviously, more to come.

{1} In the international refugee regime, it matters why people are leaving — generally, it’s important whether there is a functional government that has the capacity to protect people from persecution. (Natural disasters are often considered a different situation.)

Millions of others are in a category known as Internally Displaced Persons (IDPs): if you have to flee home but don’t cross an international boundary — like the six million Syrians who escaped the civil war but are still in Syria, or the hundreds of thousands of Puerto Ricans who came to the mainland U.S. last fall — you’re not technically a refugee.

{2} Your home country being first, the place you’re able to escape to — most often a neighboring country — being the second, and (if you’re lucky to be chosen, which is often a 1% chance) the country of final resettlement is the third.

{3} The term used is “nonimmigrant” — the idea being that while they have been admitted (welcomed) to the country, they expectation is they’re not going to be here permanently.

{4} This is supposed to include a screening (though not a final adjudication) by an Asylum Officer, but it becomes difficult when CBP and ICE (you remember) don’t think a referral is necessary or there aren’t enough Asylum Officers available to get to them.

{5} This was the first and only time, watching one of his “main story” pieces, that I was shocked to find I was already familiar with every factual statement being made. I don’t know what to do with that knowledge.

{6} In the current bad-faith climate, some people are intent on focusing on the very small proportion of people who are trying to sneak in in order to fuck shit up, to the exclusion of the vast majority who are looking out for their personal safety. That’s a weighing I’m not keen on.