- What is the difference between a refugee and an asylum seeker?
- Where are most refugees from? Asylum seekers?
- Where are most refugees currently residing? Asylum seekers?
- Are there US government assigned quotas for refugees from various countries?
- Do refugees from communist and former communist countries get preferential treatment in the US?
- What percentage of immigrants in the US are here as a result of seeking asylum, and how do these numbers compare to other ways by which foreigners arrive here?
- What are the different ways foreigners may legally enter the United States? What are the different ways foreigners may legally be granted US citizenship?
- Why does it take so long for some asylum cases to be heard?
- What is an "affirmative" asylum application?
- What is a "defensive" asylum application?
- What are the differences between the old and the new asylum processes (pre-post 1995?, and then 1996?) in the US?
- How does the asylum branch and its Asylum Corps relate to the rest of the INS (US Immigration and Naturalization Service)?
- Is there any quality control within the system?
- How does one get to be an Asylum Officer?
- What kinds of training do the Officers have?
- How long do officers have to prepare for each case?
- How do applicants find translators? Lawyers?
- Are those who are referred and then denied asylum by the Immigration Judge really deported right away?
- How do I apply for asylum?
What is the difference between a refugee and an asylum seeker?
Both refugees and asylum seekers are people who are living outside their home countries and are seeking the protection of another country on the grounds that they fear persecution because of race, religion, nationality, membership in a particular social group, or political opinion in their homelands.
By definition, asylum is the protection that a government grants to refugees and asylees who demonstrate a well-founded fear of persecution. Asylum seekers and refugees must meet the same fear requirements, but the procedures are a little different, and they vary if the person is in the United States or out of the country.
While an asylum seeker must be in the United States -- or another country that offers asylum -- to apply for the protection of that country's government, a refugee applies for protection while outside that country (generally from a refugee camp or a designated processing site outside one's homeland).
The way that the distinction works here in the US is that a refugee is processed and given papers (by US State Department or INS employees) to travel here to live before s/he ever arrives in the country. An asylum seeker must already be here, physically in the territory of the US, in order to file asylum application papers and begin the process of trying to be granted political asylum. It doesn't make any difference whether s/he is here legally or not, but no one can apply for asylum from abroad. Most asylum seekers in the United States have entered without inspection or with a nonimmigrant visa, such as on a student or visitor's visa.
In many everyday ways, after a person has been granted either refugee or asylum status and is living here in the US, there's a not a lot of difference.
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Where are most refugees from? Asylum seekers?
The specifics change all the time, according to what's going on in the world, and of course they evolve as events play out. It's always safe to say that most of the world's refugees come from fairly poor developing countries, and end up fleeing across the nearest border to whatever country next door will allow them to remain safely. Often the neighboring country haven is also very poor and full of problems of its own.
Looking at figures for the 1987-1999 period, most of the refugees in the US were from East Asia (456,994), followed by the USSR/former USSR (439,035). In Fiscal Year 1999, most refugees were from Eastern Europe (38,654), followed by the former USSR (16,922) and Africa (13,038). In 1998, the top ten places where refugees came from were : Bosnia, the Former Soviet Union, Vietnam, Somalia, Iran, Cuba, Liberia, Iraq, Sudan and Burma.
For the 1991-1999 period, most applicants for asylum in the US came from Guatemala (37,986) and China (26,826). In Fiscal Year 1999, most asylum applications came from China (5,218) and Somalia (3,147). Of asylum cases that are still pending, most come from El Salvador (178,708), followed by Guatemala (100,356).
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Where are most refugees currently residing? Asylum seekers?
Most refugees reside in what are generally intended to be "temporary" situations, like refugee camps, in the country nearest the one they fled. Given the choice, if the situation at home changes enough to seem safe, they often wish to return to their homes as soon as possible. Obviously that doesn't work out a lot of the time.
Throughout most of the world, national authorities and international organizations have to respond suddenly to the arrival of people from other countries who want to claim refugee status: Angolans in Brazil, Afghans in India, Iranians in Thailand and Iraqis in Jordan, to give just a few examples.
Official statistics on refugees never seem all that up to date. According to the United Nations High Commissioner for Refugees (UNHCR), at the end of 1997 (the most recent year for which there are statistics) there were 4,730,300 refugees living in Asia, 3,481,700 refugees living in Africa, 2,940,700 refugees living in Europe, and 668,500 refugees living in North America. You can always get up to date info from excellent websites like the ones maintained by UNHCR and the US Committee for Refugees.
Asylum seekers are different, and not too surprisingly given the distinction between them and refugees, they tend to live in the countries where they hope to win asylum. As of May, 2000, the countries with the most asylum seekers are found primarily in the more affluent regions of the world: Western Europe and North America.
Many states in Central and Eastern Europe, Southeast Asia, Latin America, the Middle East, and Africa are also in the process of establishing structures and procedures that will allow them to examine the asylum applications of people who arrive individually or in small numbers. UNHCR statistics from 1997 show that there were 626,400 asylum seekers living in North America, 267,400 asylum seekers living in Europe, and 37,700 asylum seekers living in Africa.
You can always get up to date info from excellent web sites like the ones maintained by UNHCR and the US Committee for Refugees.
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Are there US government assigned quotas for refugees from various countries?
In the US every year, the administration proposes and then Congress must approve and budget for an annual ceiling, a maximum number, for refugees who can be brought here. There is a specific "legal cap" for people coming from each refugee-producing country by geographical region. Often the number of refugees who are actually brought here doesn't get as high as that ceiling, but that ceiling is the legal limit for a particular year.
The total quota for refugees admitted to the US has declined by 41% from 132,000 in FY 1993 to 78,000 in 1999. The quota for FY 2000 is set at 90,000.
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Do refugees from communist and former communist countries get preferential treatment in the US?
The US has refugee-processing priority categories that get reviewed and change annually. Quotas for refugees from communist and former communist countries, and from any area that has a strong lobbying presence here in the US, have been relatively high at times in the past. The Refugee Act of 1980 explicitly eliminated a provision in the law that gave preference to those fleeing communist-dominated countries.
For FY 2000, the Priority I is restricted to people most in need of resettlement, UNHCR-referred or US embassy-identified cases without specific geographical guidelines. Priority II is for specific groups within certain nationalities who are of special concern to the United States, and includes Cuba, Vietnam and the Former Soviet Union, along with Bosnia, Africa and Iran. There are also Priorities III, IV and V, which are family-based and limited in different ways.
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What percentage of immigrants in the US are here as a result of seeking asylum, and how do these numbers compare to other ways by which foreigners arrive here?
Technically, of course, asylum is a human rights and protection situation, quite distinct from immigration, so in a way this question is a confused one. But if you do compare the numbers of people granted asylum in the US last year with the number of legal immigrants, it shows how tiny asylum is in the overall picture.
Only 13,220 people were granted asylum in the US in 1999, while much closer to a million immigrated legally. Over the past ten years, between 41,000 and 155,000 people have filed asylum claims annually.
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What are the different ways foreigners may legally enter the United States? What are the different ways foreigners may legally be granted US citizenship?
Foreigners may legally enter the US with a passport and an appropriate visa. These are necessary for people from any country except those with whom we have a special arrangement to waive visas for particular categories of travellers, such as tourists from Canada. There is a big range of visas and regulations, and lots of excellent information about this is available on the INS website.
Citizenship application info for the US is available there too, and it is complicated. It's always better to check with the INS or a professional immigration advisor about particular real questions. But in brief, citizenship applications are accepted from people who have been Lawful Permanent Residents of the US (Green Card holders) for five years. The process is called naturalization. It is available to applicants who, in addition to 5 years legal residence, demonstrate a knowledge of US history and government, show they have committed no serious crimes, have paid their taxes, are "of good moral character" and demonstrate that they understand, speak and write ordinary English.
People who are eligible for Green Cards (officially called Permanent Resident Cards, Form I-551) include: those who have close family who are already US citizens and can sponsor them, those who marry a US citizen, those whose US employer will sponsor an application for a position where there is a demonstrated shortage of US workers, refugees and asylum seekers who have lived in the US continuously for at least one year (although there is an annual quota of 10,000 for asylees changing status to LPRs) and people who win visas in the diversity lottery in countries overseas.
A lot of people have asked us, "What about Ellis Island? That's how my grandparents came in. What do we have like that now?" Well, the answer is -- nothing. Legal immigration is much more controlled, by category, than it was in our grandparents's days. A good site to check for information on immigration today is Natl Forum.
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Why does it take so long for some asylum cases to be heard?
If you apply for asylum today, the INS has organized a system so that your case will be scheduled for interview in less than 6 weeks from the date you filed. If for some reason the interview doesn't get scheduled, you can apply for legal working papers 150 days after the date of filing. The INS actually has 180 days to adjudicate every new claim. This fast system has been in effect since 1995.
For the first 5 years of the current asylum system, up until 1995, anyone who applied for asylum was granted legal working papers as soon as the application was processed, on the assumption that a refugee probably would need to earn some income to survive. This was a fairly generous policy on the part of the government, but unfortunately it quickly became a magnet for fraud in some quarters --some unscrupulous immigration advisors steered all sorts of people who needed legal working papers, but who were not necessarily refugees, to apply for asylum. Like a pyramid scheme, the more applications that were filed, the larger the backlog of cases grew and the longer everyone had to wait for interviews. The number of asylum applications rose steeply, from 60,736 in 1990 to 154,464 in 1995.
With advice from the refugee advocacy community, the INS reformed the system in 1995. Before the reforms began to reduce the backlog of cases, asylum seekers sometimes had to wait as long as eight years for their interviews. In a lot of cases, the situations eventually changed in their home countries -- "changed country conditions" is a familiar phrase when old backlog cases are discussed. Meanwhile those asylum seekers were also, inevitably, making new lives here.
Today the backlog is way down from its high point -- close to only 341,633 cases last September. But for each of those individuals who applied for asylum before 1995, the backlog has made their own situations much more complicated.
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What is an "affirmative" asylum application?
Any foreigner who is in the United States and who is not in the process of being deported may apply for asylum by filing an application with the appropriate INS Regional Service Center by mail. Claims filed in this way are called "affirmative" applications. The Service Center sends applicants receipt notices and refers them to one of eight asylum offices around the country.
When Asylum Officers grant claims, the FBI runs fingerprint checks on the applicants to make sure they don't have criminal pasts. If the checks come back clean, the applicants are allowed to stay legally in the United States, to apply for work permits and, after one year of continuous residence, to apply for green cards.
When asylum officers deny applications, the applicants are referred to Immigration Judges. These judges listen to the claims and make final decisions. If applicants are denied at this level, they are allowed one appeal and then the deportation process begins (officially known as "removal proceedings").
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What is a "defensive" asylum application?
A foreigner who is already in removal proceedings can also seek asylum. The Executive Office for Immigration Review (EOIR) has exclusive jurisdiction over these cases, not the INS. In other words, the asylum process skips the regular Asylum office and begins in Immigration Court. Asylum claims filed in this way, before EOIR, are called "defensive" applications, because the request for asylum is raised as a defense against deportation.
When foreigners are caught at a port of entry with invalid papers or no documents at all, they are immediately detained and placed in expedited removal proceedings; in other words, an especially quick deportation process begins. During this process, if the foreigners say that they fear persecution back home, they are interviewed by regular INS Asylum Officers to determine whether they have a "credible fear" of persecution. Credible fear is a lower standard than well-founded fear, and may be established by showing a significant possibility that the applicant could establish at least a 10% chance of persecution. Most applicants meet this standard and then are placed in ordinary removal proceedings where they may submit a "defensive" application for asylum before an immigration judge.
Under the 1996 Illegal Immigration Reform and Immigration Responsibility Act, anyone who is subject to expedited removal, including those referred for credible fear interviews, is now required by law to be held in detention until an Immigration Judge rules on the asylum claim.
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What are the differences between the old and the new asylum processes (pre-post 1995?, and then 1996?) in the US?
In informal conversations, you hear about two different "old" and "new" asylum processes. One of the differences is described in the question above, and it's only about the affirmative asylum process: the distinction between the original system where asylum applicants were granted work authorization as soon as they applied and the reformed system that created a guaranteed fast track to interview for all new applications after 1995. That reform had a big impact in cutting down the number of new applications, and freeing up resources to concentrate on adjudicating more recent claims and reducing the huge backlog of old cases. In part this is the result of strict filing deadlines that have been imposed.
The second big "before" and "after" is about the changes ordered by the 1996 immigration law passed by Congress. Its official name is the Illegal Immigration Reform and Immigration Responsibility Act. The law was a huge one, and covered many, many aspects of legal and illegal immigration but in terms of asylum, it did several things:
- it expanded the existing definition of a refugee to include people who faced government oppression on the basis of a desire to have larger families (especially coercive family planning under China's one-child policy was deemed to qualify as persecution on account of political opinion; this group was already covered under political opinion in most interpretations of the standing definition but the new law made it a specifically protected category). The 1996 law also set a cap on how many people can be granted asylum or refugee status based on this provision -- a maximum of 1,000 people per fiscal year.
- it put a time limit on how long people can wait to apply for asylum after arriving in the country. Now an asylum seeker must file an application within one year of arriving here, unless "there exist changed circumstances affecting the applicant's eligibility for asylum, or extraordinary circumstances relating to the delay in filing."
- it created a new system called "expedited removal" to quickly return people who attempted to enter the United States without proper travel documents to the country from which they last departed. In principle, this process is basically just holding them in custody until their planes turn around for the return journey, though sometimes very time-consuming complications do set in.
- it created a new system of handling people placed into "expedited removal" who then requested asylum in the US This was the big change to the asylum system. Even before the '96 law, there had been an "affirmative" asylum process for people who applied by sending in the forms from someplace here in the country, and a "defensive" process for people who were here but had already been ordered to leave. As a result of the '96 law, there is a very different pathway for individuals who are detained upon entering the country, or trying to enter, than the more common affirmative asylum process that would have been available if they had passed on through immigration and into the country.
The new process mandates that these individuals be detained in custody for 48 hours before a special interview with a regular Asylum Officer. This interview is called a "credible fear" hearing, because the task of the Officer is only to determine whether the asylum seeker might have a have a chance of winning asylum if they ever had a proper hearing. Over 90% of the asylum seekers in detention pass on through their credible fear hearings to a real asylum hearing -- but this time it's straight to court, and the asylum claim is made in front of an Immigration Judge. At this hearing, the applicant should have an attorney, and should be able to demonstrate a well-founded fear of persecution, just as in the other process.
The new process has cut down on asylum claims. But in terms of refugees there are several things about the new process that cause concern:
- detained asylum seekers are now left with no choice but to find representation and prepare their cases while in jail, often without any knowledge of English or access to contacts in the outside, should they be lucky enough to have any.
- asylum seekers do not receive the same "non-adverserial" asylum interview with a trained Asylum Officer but instead go directly to Immigration Court, where prosecuting attorneys represent the government in an adversarial hearing.
- the review process is reduced and compromised, with limitations and the same substantial difficulties of preparing a legal case while living in detention.
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How does the asylum branch and its Asylum Corps relate to the rest of the INS (US Immigration and Naturalization Service)?
For INS purposes, the territory of the United States is divided into regional districts, each with a District Director and full regional bureaucracy. The Asylum Corps, however, is separate and falls under the jurisdiction of the International Division of the INS (everything related to INS business outside the country), and so is not tied to any particular INS district. There are currently eight Asylum Offices in the US: New York, Newark, Arlington, Miami, Houston, Los Angeles, San Francisco and Chicago.
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Is there any quality control within the system?
This question can be about many things, so there are a lot of possible answers. Is the reference to "quality control" intended to mean consistency, fairness, or the actual quality -- arguably good or bad -- of an Asylum Officer's decision?
Strictly speaking, there are real efforts in place to support quality control in the asylum process. Consistent and substantial training is required of every new Asylum Officer and new Officers are given a lot of guidance on how to apply the law. On the job, Officers must clear decisions and paperwork for every case with their own Supervisory Officers. Each Asylum Office now designates a Quality Assurance Officer, who reviews work of the entire staff, and even Directors and Deputy Directors do some review. Problem or "sensitive" decisions are open to considerable additional review both within a particular Asylum Office and from INS headquarters, as well.
The underlying question, however, may be about something else.
- Does every Quality Assurance Officer see "quality" the same way?
- Can any amount of excellent training overcome a strong office socialization effect? (How possible is it to look for refugees when everyone around you is concentrating on looking for fraud?)
- And probably most importantly, can any other method of adjudication improve on the frailties of what is essentially, as Peter says in the film, "a human system"?
A line we overheard so often in Asylum Offices that it almost seemed a motto was, "Reasonable minds can differ." Early on, Officers were showing us how very possible it would be to write and defend a decision, equally true to asylum law and INS regulations, but opposite to the one they did submit. If the Officer was smart and serious, either decision would have been "high quality".
That latitude, the potential variability, is not necessarily a measure of a quality control shortfall. Factors like office politics and individual state of mind have a bearing on the way anyone does any job. The fragility here in the asylum process is that the individual is also the instrument, so variations are enormously influential in how the overall process works. That's why additional review and appeal are critical.
We feel that asylum is much too important, to both the people involved and in what it says about the US and about Americans, not to be handled with the excellence that it deserves. Improvements are always possible. But in terms of the nature of the process itself, and the fragility of individual judgement, it's useful to think of the wild opposite alternative -- would a computer do a better job?
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How does one get to be an Asylum Officer?
From the INS website: Asylum Officers must be knowledgeable of human rights conditions around the world and possess a keen insight into human behavior in order to determine the credibility and consistency of information elicited through interviews they conduct. Asylum Officer positions exist throughout the US, and individuals may be hired at the GS-5 level. Officers may progress, through a competitive process, to the GS-12 level after successful completion of the preceding grade(s).
All kinds of people do become Asylum Officers, both within and from outside the INS. The Asylum Corps has been active in recruiting lawyers and law school graduates, as well as experienced refugee advocates to join.
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What kinds of training do the Officers have?
The Asylum Officer basic training course is a 10-week residential program.
Part 1 of the course is five weeks long and includes instruction in the following subject areas: Immigration law, Immigration and Naturalization Service adjudication process and procedures, naturalization process and procedures, fraudulent document detection, EEO, sexual harassment, and utilization of INS data base systems.
Part 2 of the course is a 5-week long asylum-specific training. Topics include United States asylum and refugee law, international human rights law, interviewing techniques, decision-making and decision writing skills, effective country conditions, research using computer data bases and other reference materials, and utilization of the INS asylum data base system.
In order to successfully complete basic training, all Officers must obtain a score of 70% or better in each of the major areas of study, as well as satisfactorily complete all required practical exercises.
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How long do officers have to prepare for each case?
There's no mandated time for preparation. Each Officer handles a case load a little differently. When we were filming Well-Founded Fear, we learned that the one thing every officer knew was that spending "too much" time on a given case would mean too little time at some point later down the line.
At the time we were shooting, the average caseload was about three cases each day, days a week. Applicants would return to pick up their decisions two weeks from the day of the asylum interview. Usually officers heard interviews in the morning, and followed up with research and writing in the afternoon, using the extra day to catch up, deal with Supervisors, and so forth.
Three interviews in the morning meant that an Officer had to budget time carefully to allow for any review of a file beforehand. Sometimes the country would be a familiar one, other times it was brand new to a particular Officer. Some files were huge with many supporting documents, others had only the minimum pages of INS forms. Given the wide variability, it's not all that meaningful to state averages.
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How do applicants find translators? Lawyers?
This is a far more complicated process than might be considered ideal. Certainly there are many skilled and well-intentioned translators and lawyers who work extensively with refugees and asylum-seekers, but these individuals are, not surprisingly, highly sought-after and thus often overwhelmed with work. It is extremely difficult to attract the attention of such an attorney if the asylum seeker's case is not being handled by one of the major NGOs that deal with asylum (Amnesty International, Human Rights Watch, the Lawyer's Committee for Human Rights, etc.).
Anyone who is actually seeking asylum should be particularly wary of individuals (lawyers and translators alike) who make grand promises of protection by the American government and eventual citizenship. There are many individuals who take advantage of the precarious situation asylum seekers are in order to make fast and easy money. The previously mentioned NGOs are good places to go to inquire about lawyers and translators ... go to our reference page to link to their websites.
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Are those who are referred and then denied asylum by the Immigration Judge really deported right away?
Sometimes yes, sometimes no. The thing is, they can be -- so it's impossible to be sure that it won't happen. Deportations increased 50% from 1997 to 1998, for instance, and have continued to rise. The chance is obviously much greater for people held in detention. For those who are not in custody and have agreed to accept "voluntary departure" but then decide not to depart, life is much more uncertain than if they were simply living here as undocumented persons. Any attention could lead directly to arrest, detention and deportation.
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How do I apply for asylum?
When you spend time in the waiting rooms of the the Asylum Office, as we did almost every day for a couple of years while we were making this film, you meet an awful lot of wonderful people who don't know exactly why they are there, or even quite what the place is. There are plenty of reasons for that, and it's very often not the applicant's own fault, but it doesn't put those people in a very good position for the upcoming asylum interview either. Whether someone ever meant to apply for asylum or not, at this stage, the the consequences are going to be just as serious -- either your case is granted, or you have to begin defending yourself against deportation. There's no middle ground left.
If you are considering applying for asylum in the US, you should definitely get some good professional advice before you take action. That's the most important advice we can offer after our time there. We know that it's not always possible to pay for legal counsel, and we also know the non-profit and pro-bono services are so overstretched that they are not always easy to access. But asylum law is very particular, and we feel pretty strongly that you should get to be familiar with it somehow before you enter into this very serious process. There are some links to potential resources in YOUR TOWN.
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