The Truth About Immigration: Asylum
Originally published in 2018, this third article in a five-part series remains relevant and includes updated sources and data
Anti-immigrant rhetoric continues running rampant online. Many bloggers and far-right outlets have exposed how little they know about immigration. As they once tried to define their position by claiming that they are not against immigration in general, but simply against illegal immigration they are now losing it over legal immigrants too. They clearly don’t understand any of it.
Let’s not be naive about it. If you know and understand dog whistles, then you know what and where this “illegal immigrant” rhetoric was born. It is verbiage perpetuated for over a century in the United States. What we’re hearing isn’t new. It’s just much louder. When it comes to the border, it’s so much worse.
Most of it is derived from the notion that the only avenue to become a legal immigrant in the United States is to apply in one’s home country and wait it out as the process takes its course. While there is some truth to that, it’s not quite that simple. Nor is that the only way to seek legal status.
In this piece, I want to focus specifically on the asylum aspect of immigration policy and law while addressing the complexities of the process. It’s not as simple as the Charlie Kirks and Steve Bannons of the world would have you believe. They’re not even close.
UPDATE: Arturo Dominguez — The Racism and Antisemitism Behind Trump's Border Policy, December 2024
“Conservative policy institutes, far-right influencers, and lawmakers across the country, including the U.S. Congress, are promoting fraudulent validations of the “Great Replacement” conspiracy theory. An evolution that has resulted in conservative policy wonks and lawmakers targeting non-profits or, Non-Governmental Organizations (NGOs), as part of their broader narrative. The normalization of foundational hateful ideologies poses obvious dangers to marginalized groups.”
The Process
There are only two ways to apply for asylum in the United States — one at a port of entry, and the other by being present in the U.S. Migrants typically cannot apply for asylum at an embassy or consulate and cannot apply for asylum through their government in their home countries. This is a common misconception that has been perpetuated online and is nothing more than anti-immigrant rhetoric born of extremist groupthink.
To qualify for asylum migrants must meet the definition of a “refugee” as defined by international law. A refugee is clearly defined by The United Nations 1951 Convention and the 1967 Protocol 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.”
The United States Congress incorporated this definition into law as part of the Refugee Act of 1980.
As a signatory to the 1967 Protocol and through the Refugee Act of 1980, the United States has legal obligations to provide protection to those who qualify as refugees. The Refugee Act established two paths to obtain refugee status — either from abroad as a resettled refugee (e.g. a war zone) or from within the U.S. as an asylum seeker.
For those migrants already in the United States, commonly referred to as illegals, there are two ways to apply for asylum. They are defined individually as the affirmative process and the defensive process respectively. Asylum seekers who arrive at a port of entry or enter the United States without inspection must apply through the defensive process.
Affirmative Asylum is specifically for persons not in removal proceedings (deportation hearings) while Defensive Asylum is for persons who are in the removal process. While Affirmative Asylum is handled through the United States Citizenship and Immigration Services (USCIS) a division of the Department of Homeland Security (DHS), the Defensive Asylum process is handled via an immigration judge (by request only) at the Executive Office for Immigration Review (EOIR) in the Department of Justice (DOJ).
Unlike criminal court, EOIR does not provide appointed counsel for persons in immigration court, even if the individual is unable to retain legal counsel on their own. When a person applies for Defensive Asylum as a defense against removal from the United States, without proper representation, they are often forced into signing documentation they do not understand and are subject to manipulation by immigration officials.
Studies have found that migrants who are detained during removal proceedings are five times less likely to secure legal counsel than those not being detained — a disparity that can affect an individual’s case significantly. Those with representation are more likely to apply for protection and are equally likely to successfully obtain relief via asylum.
It is here, through the Trump administration’s first-term zero-tolerance policy, that families were separated and parents were coerced into signing their children away into the custody of the Office of Refugee Resettlement (ORR). Oftentimes leaving very young children to represent themselves in court.
It has been determined that detention exacerbates the challenges asylum seekers already face and can negatively impact a person’s asylum application. Families who are detained, particularly children, suffer mental and physical health problems that include depression, post-traumatic stress disorder (PTSD), frequent infections, and a lack of proper or expedited medical attention.
The Trump administration, without going through Congress to change existing law, plans to not just make it more difficult for individuals to apply for and receive asylum but also question whether applicants can access the protections as refugees that international and U.S. law entitles them. The asylum process is merely another casualty in the Trump administration’s relentless attack on the rights of immigrants and refugees of color.
UPDATE: Council of Foreign Relations — Seeking Protection: How the U.S. Asylum Process Works, June 2024
“Asylum is a form of legal protection that host countries grant to migrants who have been forcibly displaced and are fleeing harm or persecution, or the fear of persecution, in their place of origin. According to U.S. and international law, a claim of persecution must be made based on one of five “protected grounds”: race, religion, nationality, political opinion, or membership in a particular social group. (The breadth of this last category has stoked many legal debates.) The right to asylum is laid out in U.S. immigration law and Article 14 of the Universal Declaration of Human Rights; it is also outlined in the 1951 Refugee Convention and its 1967 Protocol. While asylum offers the same protection as refugee status, migrants seeking asylum in the United States must apply for it from within the country or at one of its 328 official ports of entry rather than from abroad.”
Credible Fear
Executive Order 13767, signed by Donald Trump in January 2017 instructed the Secretary of Homeland Security to revise the process for determining credible fear of persecution. The Asylum Division of USCIS responded by releasing new lesson plans to train asylum officers to recognize legitimate fear. Those lesson plans created a higher standard for establishing credible fear in interviews. The Biden administration also created many roadblocks for credible fear claims.
Those changes will only make it easier to prevent asylum seekers with legitimate claims from accessing a full hearing in immigration court. Migrants with language barriers, complex situations, and traumatized applicants are especially vulnerable. Without hearings establishing the facts of a case, a small error in a form is often used to sabotage valid asylum claims.
The DHS memos state that the goal of these changes is to prevent abuse of the system. However, this representation is a serious distortion of the purpose of the credible fear process and ignores the structural obstacles preventing legitimate asylum seekers from succeeding in their claims — such as over-detention and under-representation. The Trump administration’s proposed efforts to further raise the credible fear standard will result in more legitimate claims being denied early in the asylum process than are currently denied — before asylum-seekers have the chance to make a full case.
Even if an asylum seeker establishes credible fear in an interview with an asylum officer, many are deported before receiving a full evidentiary hearing in front of an immigration judge. When Jeff Sessions vacated a 2014 precedential decision by the Board of Immigration Appeals (BIA) in March of 2018, he opened the door to these actions.
The BIA decision entitled petitioners to a hearing before a judge to present evidence and clear up any errors or misunderstandings that occurred in earlier steps of the process. In vacating this decision, Sessions signaled to immigration judges that they are permitted to order asylum-seekers deported without a court hearing in which to make their best possible case.
Sessions’ decisions at the time and Trump’s proposed policy decisions now leave at-risk migrants even more vulnerable by exposing them to treacherous conditions upon reaching their home country after deportation from the United States. Many of these migrants who sacrificed much on their pilgrimage, are seen as traitors or objectors by those who would do them harm in their home countries. This added stigma typically results in torturous conditions and murder by the violent gangs and militias migrants were initially seeking sanctuary from.
The immigration process was a mess in dire need of reform before the Trump administration’s proposed policies. With Trump’s team headed by Stephen Miller, pushing an agenda based on an ideology of nationalistic superiority and not based on patriotism or the greater good, the process will not only become more complex but much more expensive to operate.
The administration’s policy agenda comes at a much greater cost to taxpayers too. Much more than reforming the system would. As long as the few are as equally represented in the United States as the many, such expenses will continue unabated.
The vast majority of Americans who disapprove of these actions are left unheard due to the silence of those in politics and the news media who dare not speak up and hold this administration to account.
Perhaps the most daunting aspect of the discussion about immigration and the pilgrimage of migrants from Latin America is the oversimplification of the complexities of the immigration process. This leads to a lack of understanding of how things work, how much they cost taxpayers, and what it all means.
Until this ends, we may never see the much-needed reforms to a bloated and unaccountable immigration system in the United States.
“The proposal would make the interviews harder for some asylum seekers to pass (and thus be given a full hearing). This “credible fear” screening is already an opaque step in the asylum process, in which asylum seekers have essentially no access to lawyers or the ability to present evidence. At the same time, given the limited number of asylum officers available to carry out credible fear interviews, relatively few people who cross the U.S./Mexico border are currently being subjected to screening interviews instead of simply receiving notices to appear before an immigration judge.”
Sources
Brookings Institute: A dozen facts about immigration
Center for American Progress: The Facts on Immigration Today
Pew Research: Immigrants in America: Key Charts and Facts
Just Facts: Be Informed: Immigration
I’m a freelance journalist. Find my work at Latino Rebels, Unicorn Riot, The Antagonist Magazine, and more. I’m also on TikTok, Twitter, Facebook, Instagram, Mastodon, and Threads. To support my work, consider becoming a paid subscriber or donate on Venmo, PayPal, or CashApp