US Asylum System is Under Attack
Author: US Asylum Attorney Alena Shautsova
The US asylum system has saved the lives of thousands, maybe hundreds of thousands of people who would have been tortured, humiliated, beaten, arrested and deprived of all possible freedoms and rights in their home countries. The system is structured to have two tracks: an administrative (or affirmative) and a judicial (or defensive). It does not provide any interim benefits, except for an employment authorization after six months from the filing of the first application. It also establishes a crucial deadline: one year since entry, that an applicant has to meet in order to file for asylum in the US.
Yet, many, including Attorney General Jeff Session criticize the system. They state that the US allows too many applicants in, and provides them with an opportunity to “game” the system.
The US Asylum system and many of its parts are built on the International Conventions. The most crucial document here would be the 1951 Refugee Convention. In 1967 followed its Protocol. It is not only the US, but virtually all the countries in the world that drafted and joined this Convention and the Protocol recognizing one huge issue: there are people in the world who need the protection of countries other than the ones they were born in. It happens that not all world leaders and not all people in the world are playing by the rules. There are places with great evil, and we cannot just turn our backs on brothers and sisters and little children that suffer from deprivation and persecution. Hence, the countries agreed to recognize that status of refugees, people who do not want to, or are unable to, to return to their home countries to some very serious reasons. Therefore, the US, asylum seekers or Immigration attorneys did not invent “asylum.” It is all based on a long history of humankind and International norms.
What differs from country to country is the way various governments implement the International norms. Some, provide financial benefits to the seekers before their applications are decided. Some, allow only an administrative path, without a judicial review. Some, are not parties to the Convention at all and there is no opportunity to apply for asylum in those countries at all.
What is different about the US, is that it allows one to claim or apply for asylum at the US border, before they enter the country. The procedure is known as a “credible fear” interview. A person comes to the border, surrenders herself to the border agents and states that she would like to seek asylum in the US. Such a person is usually detained. Then, such a person has an interview with an Immigration officer who determines if such a person has a “credible fear” of returning to their home country. If the answer is positive, the person is freed from the detention (often on bond) and can present her claim in the US Immigration Court. In court, an Immigration Judge decides if such a person’s claim will be granted.
Further, in the US, under the Real ID Act, an asylum seeker must present evidence to corroborate his/her claim or provide sufficient explanation if such evidence is missing. The government, and the Immigration Judge (“IJ”), both challenge the evidence and make sure that the applicant’s testimony is consistent and credible. If the IJ denies a person’s claim, he/she can file an appeal.
Attorney Gen. Sessions recently stated that the US Asylum system is being gamed. It is unclear what exactly he referred to. The US Asylum system is built partially on International law and partially on principles of due process and access to justice. To deny asylum seekers a fair and just opportunity to save their lives in the US due to fear of fraud, would be the same as to execute every person charged with a crime without giving them a chance of due process and the presumption of innocence.
Finally, the US has very serious consequences for those who file false asylum claims: if a person is found to file a false asylum claim, he/she will be forever inadmissible into the US.
