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U.S. Immigration Policy on Asylum Seekers

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Abstract:

The United States has long held to the principle that it will not return a foreign national to a country where his life or freedom would be threatened. This principle is embodied in several provisions of the Immigration and Nationality Act (INA), most notably in provisions defining refugees and asylees.

Aliens seeking asylum must demonstrate a well-founded fear that if returned home, they will be persecuted based upon one of five characteristics: race, religion, nationality, membership in a particular social group, or political opinion. Aliens present in the United States may apply for asylum with the United States Citizenship and Immigration Services Bureau (USCIS) in the Department of Homeland Security (DHS) after arrival into the country, or they may seek asylum before the Department of Justice's Executive Office for Immigration Review (EOIR) during removal proceedings. Aliens arriving at a U.S. port who lack proper immigration documents or who engage in fraud or misrepresentation are placed in expedited removal; however, if they express a fear of persecution, they receive a "credible fear" review with an USCIS asylum officer and -- if found credible -- are referred to an EOIR immigration judge for a hearing.

In FY2004, there were 27,551 claims for asylum filed with USCIS, and 55,067 asylum cases filed with EOIR. Generally, over two-thirds of all asylum cases that EOIR received were cases referred to the immigration judges by the asylum officers. The USCIS asylum officers approved 10,101cases in FY2004, a 32% approval. Of asylum cases EOIR decided in FY2004, the approval rate was 34%. At the end of FY2004, there were 182,015 cases pending for asylees to adjust to legal permanent resident (LPR) status.

Although there are many who would revise U.S. asylum law, those advocating change have divergent perspectives. Some express concern that potential terrorists could use asylum as an avenue for entry into the United States, especially aliens from trouble spots in the Mideast, northern Africa and south Asia. Others argue that -- given the religious, ethnic, and political violence in various countries around the world -- it is becoming more difficult to differentiate the persecuted from the persecutors. Some assert that asylum has become an alternative pathway for immigration rather than humanitarian protection provided in extraordinary cases. Others maintain that current law does not offer adequate protections for people fleeing human rights violations or gender-based abuses that occur around the world. At the crux is the extent an asylum policy forged during the Cold War can adapt to a changing world and the war on terrorism.

Major asylum provisions that were dropped from the Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458) were included in the REAL ID Act of 2005 (P.L. 109-13, Division B). This law also eliminated the annual cap of 10,000 on asylee adjustments. The House-passed Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005 (H.R. 4437) has provisions that may affect asylum seekers. This report will be updated as warranted.