Background

Contents


What is asylum?

Asylum is a form of protection granted to foreign nationals who meet the definition of “refugee”, which is defined as a person who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion.” (8 U.S.C. §1101(a)(42)) 

In the above definition, persecution must take the form of individualized harm, inflicted by a government or by a group that the government cannot or will not control, and may include but are not limited to threats to life, torture, sexual assault, forced sterilization, and female genital cutting. Also, membership in a particular group may be defined as persons of similar background, habits, social status, interests, fundamental characteristics, etc., and often requires more evidence or characteristics to demonstrate. Examples include asylum applicants who have experienced domestic violence or who identify as LGBTQIA+.

In the United States, eligibility for asylum protection also requires that individuals are already in the U.S. or at the border, and that they apply for asylum within 1 year of arrival in the United States. The latter requirement may be waived in the case of circumstances that affect eligibility or ability to file on time (e.g. serious illness or disability).

Individuals who are granted asylum are authorized to work in the U.S. and can sponsor immediate family members for family reunification. They can further apply for legal permanent residence (green card) after 1 year, and can be naturalized after 5 years for U.S. citizenship. (Naturalization refers to the process of becoming a U.S. citizen from a permanent resident status, born outside the United States.)


What is the difference between asylum-seekers, refugees, and asylees?

In the United States, a “refugee” is someone who meets the aforementioned definition and is outside the U.S. when provided with this legal status by relevant U.S. agencies and the UN High Commissioner for Refugees (UNHCR). They are then brought to the U.S. for permanent residence. An “asylum-seeker” is someone who arrives in the U.S. without official status as a refugee, but is seeking to be recognized as such by applying for asylum from within the U.S., in hopes of being granted protection. If legal protection is granted, they are called “asylees”. 

In other words, this means both individuals seeking to be recognized as refugees or asylees must meet the definition of a refugee. However, those seeking refugee status typically do so outside the U.S., while asylum-seekers do so within the U.S. as they have already entered the country.


How does the refugee/asylum process work?

As illustrated by the below diagram, there are multiple ways an individual seeking protection may enter this process and arrive in the United States. 

  1. Refugee resettlement: Individuals apply for and are granted U.S. Refugee Status by relevant U.S. agencies and the UNHCR, all while outside the United States. They are then brought to the U.S. and provided assistance for resettlement in the country.
  2. Affirmative asylum process: Individuals fleeing persecution enter the U.S. and voluntarily submit an affirmative asylum application within 1 year of arrival. They interview with the U.S. Citizenship and Immigration Services (USCIS), which may or may not grant asylum status. If denied by USCIS, the individual will be referred to the defensive asylum process (see below).
  3. Defensive asylum process: Individuals fleeing persecution enter the U.S. but may for a variety of reasons be subject to removal proceedings (deportation), such as for overstaying issued visas. During these proceedings, the individual may request defensive asylum to prevent removal. Alternatively, individuals may be apprehended at the border where they request asylum, after which they undergo an interview with an asylum offer to establish credible fear of persecution of torture. Either way, these applicants enter the defensive process, they must argue their case before an Immigration Judge in immigration court. During this hearing, the individual and their attorney (if represented) must argue against the U.S. government as represented by U.S. Immigration and Customs Enforcement. The decision by the immigration court is independent of any previous USCIS decision (e.g. for individuals denied asylum through the affirmative process). If the court denies asylum, the judge will seek to determine whether individuals are eligible for other forms of protection (see below for details). For denied applications, applicants can appeal to the Board of Immigration Appeals, then to a Circuit Court of Appeals, and finally to the U.S. Supreme Court.
Image source: UNHCR.org

What is the role of the clinician during this process?

In this process, the applicant seeking asylum needs evidence to corroborate and bolster their claims, which is where clinician’s role comes in. After interviewing and evaluating applicants, clinicians will compose an affidavit that contains a medical and/or psychological evaluation, often working with medical students in this process. This affidavit seeks to document evidence of torture and abuse and provide medical and psychological expertise on the extent to which these findings corroborate the asylum-seeker’s narrative. Furthermore, this serves as an opportunity for clinicians to educate adjudicators on the impact of potential trauma and how that may affect individuals throughout the application process and beyond, such as their ability to file on time and their recall of past traumatic events. Overall, the clinician’s evaluation provides important evidence that forms a critical part of the asylum applicant’s legal case.

As with other parts of the asylum process, clinician evaluations abide by the Istanbul Protocol (or The Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment). This document details international guidelines set forth by the UN for documentation of torture and for conducting relevant legal and medical investigations.


What are other forms of protection that the U.S. offers?

Aside from asylum protection, there are two other related forms of relief for applicants who are denied asylum : withholding of removal and withholding of removal under the UN Convention against Torture (CAT). While they may prevent removal to countries where they may be persecuted, they offer fewer benefits compared to asylum protection.

  • Withholding of removal: This prohibits the individual from being returned to countries where their “life or freedom would be threatened.” Applicants must show that they are “more likely than not” to experience persecution if removed. It is often more difficult to qualify for this protection, but if eligible, provision is mandatory and not up to the discretion of the Immigration Judge. This status allows work authorization in the U.S., but offers no path to citizenship and can be terminated if the U.S. determines that relevant circumstances have changed.
  • Relief under UN CAT: The Convention, ratified by the U.S., prohibits moving individuals to a country where they would likely experience torture, though this includes a third country that is not the U.S. if available. Unlike the U.S. provisions for withholding of removal, there are no bars to eligibility (for instance, individuals who have committed felonies can still be eligible). Similarly, this option offers no path to citizenship and can be terminated if the U.S. determines that relevant circumstances have changed.

In addition, the U.S. also offers alternative paths to protection and legal status for immigrants who have been subject to certain crimes:

  • U visas: This may be granted to immigrants who are survivors of substantial abuse and crime within the United States, including domestic violence, sexual assault, torture, etc. Once granted, individuals can stay for up to 4 years, but can apply for permanent residence (green card) after 3 years and eventually apply for citizenship.
  • T visas: This may be granted to immigrants who are survivors of human trafficking within or into the United States. Similarly, once granted, individuals can stay for up to 4 years, but can apply for permanent residence (green card) after 3 years and eventually apply for citizenship.
  • Violence Against Women Act (VAWA): This act allows petitioning for legal status by immigrants, regardless of gender, who have been subject to abuse by their spouses, parents, and/or children who are U.S. citizens or permanent residents. This seeks to protect survivors of all genders and allow them to apply for permanent residence (green card) and eventually citizenship, such that they do not need to rely on abusive family members for legal status in the United States.
  • Special Immigration Juvenile (SIJ) status: This may be granted to minors (unmarried and under 21 years of age) who have experienced abuse, abandonment, or neglect by their parent(s). If granted, the individual can apply for permanent residence and eventually citizenship as well.

References and Additional Readings

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