The Right to Asylum: Legal Relief From Persecution
There is no more natural trait to humanity or to the nature of any being on this planet than migration. Migration has accompanied us since our origins, and the causes for migration vary from climate change, to wars, to seeking new opportunities. At the same time, it is one of the subjects most utilized by politicians — to stoke fear, to blame, or to simply separate people. The time has come to end the stigma of migration, for we are all migrants.
But, one step at a time. Today, we will look at the most paramount aspect of migration – the right to asylum – given to those who escape persecution due to race, religion, political opinion, nationality or membership of a particular social group. These are the factors stipulated in The 1951 Geneva Convention Relating to the Status of Refugees.
“[A refugee] 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 to or owing to such fear, is unwilling to avail himself of the protection of that country.” – 1951 Geneva Convention Relation to the Status of Refugees.
Asylum seekers are often treated unfairly, scorned for seeking refuge from discrimination. This is not just a problem in the United States, but across the world. I cannot grasp how Europe, my home and the land torn by the two World Wars, brought the ‘sanctity’ of asylum to the level of a trash can. Keeping in mind that contemporary asylum laws were created primarily for Europeans impacted by World War II, and only later its refugee definition started to encompass everyone else.
I still cannot grasp why the media use the words refugee and economic migrant interchangeably. These two are as different as the sun and the moon. Although we are not discussing today the right of the latter; this piece is not to diminish the economic migrants at all. It is to highlight the fact that refugee status is an entity protected and guaranteed by international law, by the obligations of each and every state party to the Geneva Convention, but also a core value that any country that prioritizes human rights should duly respect.
Meanwhile, asylum seekers are placed in inhumane detention, are subject to involuntary rendition, homelessness, or unlawful deportations violating the principle of “non-refoulment.” From the European Union, through the United States of America, to Australia it seems like we cannot get it right. Perhaps we too quickly forget the history, and have less sympathy for the victims of wars and persecutions today, as well as not enough courage to speak out against the erosion of the right to asylum. Some scholars may say that it is because of race, some that it is because of economy – that we “cannot afford the refugees.” Yet politicians and hate-spillers dehumanize refugees when they refer to them as “herds,” “disease carriers,” or “terrorists.” Rather, in their tired feet and eyes that saw way too much we should see the eyes of Jews seeking a refuge from the Nazis; we should see Jesus Christ, The XIV Dalai Lama, Albert Einstein, Madeleine Albright, or Freddie Mercury and many others – who were refugees themselves or children of refugees.
But an even worse failure and a ‘red light’ to our democracies and civil liberties come with our disregard of the Geneva Convention and other international doctrines. Can we not see it- how easily our governments undermine themselves to not fulfill their obligation to legal documents they signed and ratified? We speak so often about the ‘slippery slope’ when it comes to freedom of speech, but if they can so easily disobey the right to asylum, what international laws will they disregard next?
Having all of these thoughts in mind, I have commenced my fellowship at the American Civil Liberties Union (ACLU), a champion of human rights that fights to keep them alive and thriving in the United States. In these series of entries, I will take a closer look at the issues involving the right to asylum in the U.S., a party to international treaties. In the first two posts, I will talk to an asylum law expert and a forerunner of the Immigration & Human Rights Clinic at the University of Akron School of Law, Professor Elizabeth Knowles.
- Q: What are the procedures and legal stipulations for someone seeking asylum? What are the factors that generally determine the success of someone being granted asylum versus the factors that lead to their claim being denied?
- A: Let us do a little primer right now. I am in fact doing legal primers to pro bono attorneys who are interested in learning how to help our detained asylums seekers in Northeast Ohio once a month at the ACLU’s Office in Cleveland.
The process of applying for asylum has remained the same but evolved little bit over time. Some rules have been added during the previous administration that have narrowed the window for individuals seeking asylum. It is a much more difficult process than a member of the general public would imagine. I think that there is a misconception, a general feeling that everyone who fears the return to their home country, or who simply just wishes to leave their home country and wishes to have a better life here in the US, is able to pursue this opportunity. When actually there is a very structured and specific legal framework in place in our domestic asylum law. On a basic level, an individual who is afraid of returning to their home country and can prove that they have a well-founded fear of persecution in their home country based on their race, religion, nationality, political opinion, or that they are a member of what is called a particular social group, and that their government is unable or unwilling to protect them from this persecution that they face based on one or more of these five grounds is potentially eligible for asylum. And, then they either would go through the proceedings defensively before the immigration judge or they could apply affirmatively which is a written application submitted to the US Citizenship and Immigration Services (USCIS).
Now, what are the claims of persecution would somebody have that might be eligible of asylum? I pointed out the five grounds and something that I tell the groups to the detainees who I speak to, who might be seeking the asylum at the detention centers is that you can have fear and you can be here and you can be seeking protection, but if your fear is not based on one of those five grounds you will not meet the legal criteria for seeking asylum in the United States.
- Q: Who can qualify as a member of a “particular social group”?
- A: When I say protected social group this is really the broadest basis for asylum and one we see most often. Frequently, the basis overlap may not be just one thing. It could be religious persecution and somebody is a member of a particular social group. We see that a lot. And that is ok, it can be more than one, but there has to be at least one. A social group for asylum purposes requires that you are part of a group which is two or more people, and everybody in the group shares immutable characteristics. At least one immutable characteristic, which means something you cannot change or should not be expected to change. Something like your sexual orientation, your gender, the color of your skin these are the things we should not be expected to change or just cannot. In many countries people who share this immutable characteristics and they are myriad of these immutable characteristics can result in persecution. Another thing that it requires, is that there is social distinction, so there has to be a well-defined group, and the group that general society outside that group recognizes. So there is some acknowledgment that this group is out there and that they suffer based on these immutable characteristics for which they were persecuted for.
- Q: What does somebody get when they receive asylum?
- A: First and foremost, they get protection. They are able to stay here; live and work permanently in the United States. One year from the date that their asylum status is granted either by the asylum officer if their application was affirmatively submitted or by the immigration judge if they went to the defensive court process. A year from that date they are eligible to get a green card, and that puts them on the path to be able to become citizens of the United States. So the asylum is a form of relief. A protector relief that eventually leads to citizenship. Another major benefit of the asylum for those who seek it is that their children and spouses can also receive asylum. If their children are under 21 and unmarried and if they have their spouse in their home country they are able to come over and benefit from the asylum status. Unfortunately, this does not apply to the parents of refugees.
- Q: What are the other forms of legal protection for people who may not qualify for the asylum?
- A: There are couple of other forms of relief that you can apply on the same application: the withholding of removal and for protection under the Convention Against Torture (CAT). These forms of relief do not lead to a green card or citizenship, and they do not allow for your family members and children or spouse to come over if you are granted one of these two forms of relief. Asylum definitely carries more benefits than other protective forms of relief in regard to withholding of removal and protection under the CAT.
- Q: Can you tell us more about the mechanics of asylum proceedings?
- A: Somebody would make their way from their country of origin; may have traveled to eight or nine other countries to get here. Then, they arrive on our international border and present themselves and a border patrol agent and border protection officer will meet them and ask for documentation, and if they do not have documentation they say, “I am afraid of returning to my own country.” Then, they will be paroled and they will be given opportunity to sit down with the US asylum officer and will have what is called the critical fear interview. Which is sort of a prima facie determination about whether or not that particular individual can present a full claim before an immigration judge for asylum. The asylum officer that conducts the interview is not going to decide whether or not they will receive the asylum. They are simply going to say that this person has an incredible fear of return and can potentially establish an eligibility for asylum. And also that assessment during the interview makes an assessment for the potential claims under the CAT. And, they will do an assessment for any potential bars that would exist for seeking asylum. Some of these bars include applying after one year of being inside the United States. Individuals must apply for asylum within one year of setting foot in the United States from their most recent entry. This generally would not be a concern for somebody that just arrived at the border and it is their first time coming in. There is a prosecutor bar; the purpose is to say that we are not going to grant humanitarian protection and relief to somebody who has persecuted others in the past on the same or similar grounds. A formal settlement bar – the officer would ask questions to determine whether or not they have actually been granted some permanent opportunity to live permanently in another country, a third country, not the United States, and not their home country. Moreover, individuals who have a severe criminal history are not eligible for asylum.
Somebody has been removed from the United States before they have a removal order and they came in that same way that I have mentioned as an arriving alien they would not get a credible fear interview, they would get what is called the “reasonable fear interview.” Which means that they are not eligible for the asylum, they are eligible for withholding of the removal which requires an individual to prove in the same way that they have a well-founded fear of persecution that their life would be threatened and that is more likely than not that their life would be threatened based on these five grounds: race, religion, nationality, political opinion, or a membership in a particular social group.
The burden is higher on the applicant for withholding of removal. They have to show that it is 51% chance or more that the fear that they have would result in the persecution. The burden is the same for the protection under the CAT but they do not have to show that their fear is based under one of the five grounds, but they need to show that the government, an actor or an agent of the government itself would be torturing them or would act as to them being tortured.
- Q: Could you mention the nationalities of asylum seekers and tell us what is the percentage of granted asylums?
- A: The vast majority of asylum seekers when we had them, and I am talking from my last year experience in Northeast Ohio, they were from El Salvador, Haiti, Guatemala, Mexico, Honduras, and we had some Venezuelans.
We have heard a lot about the asylum seekers flooding the southern borders and coming in and asking for relief. That was mostly before the current administration. Now, we are seeing a stark drop off of asylum seekers. The current rates for granting asylum are different across the different states and across the immigration courts. It should not be that way. It should be a lot more uniform looking in the percentages than what it is. For example, I believe in Cleveland we have 13% grant rate which is not that high. Places like Stewart Detention Center in Atlanta is 2-6%. The highest rates are I believe in New York City. In San Diego it was pretty much down the middle, between 48% and 50% which is healthier but there are also more judges there. There are plenty of theories that can be put forward on what affects the rate in a particular region. In my opinion it is the number of judges what would affect the ratio and the experiences that they bring to the bench. It also is a very politically driven process. There are some concerns about how many judges would be appointed under the current administration. Many of the individuals who are appointed immigration judges are ICE attorneys, a large percentage of them.
DISCLAIMER — The views expressed in this article are the author’s own and do not necessarily reflect the views of the ACLU.
* Prof. Elizabeth Knowles is an Assistant Clinical Professor of Law at the University of Akron School of Law which she joined in 2016. At Akron Law, she supervises the Immigration & Human Rights Law Clinic and teaches asylum law. Before coming to Akron, she served as the Executive Director of the American Bar Association’s Immigration Justice Project (IJP). She is a member of the California State Bar, the American Immigration Lawyers Association, and the American Constitution Society (more information about prof. Knowles can be accessed over here: https://goo.gl/NZ1vJB).
* Lukasz W. Niparko LL.M., is a Humanity In Action Fellow (HIA) at the ACLU of Ohio. He graduated from the European University Viadrina with a degree in international human rights and humanitarian law. Prior to coming to the ACLU, Lukasz has served with various NGOs such as The Association for Legal Intervention, The Helsinki Foundation for Human Rights, and Polish Humanitarian Action.