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Protection granted to Aliens who cannot return to their homeland.
Asylum is not to be confused with refuge, although the terms are sometimes used inter-changeably. An alien who wishes to emigrate to another country is granted refugee status before leaving his or her native country. An asylum seeker (or asylee) seeks that status after arriving in the new country.
People who live in fear of being tortured or killed by their government often seek asylum, as do people who are persecuted for their religious or political beliefs. The United States has long been a haven for asylum seekers; in colonial days people came to America to escape religions persecution, and in later years people in danger of political torture have seen the United States as a place of hope and safety. In times of crisis, the United States has sometimes placed restrictions on who can enter the country. Immigration restrictions were enacted immediately after World Wars I and II. The september 11th terrorist attacks on New York City and Washington, D.C., likewise changed the picture for immigration. Nonetheless, the United States remains committed to providing a safe haven for people whose governments intend to do them harm.
Asylum in the United States is regulated under Section 208 of the Immigration and Nationality Act (INA), which was passed in 1952 and amended periodically afterward. Previously, asylum matters were handled by the Immigration and Naturalization Service (INS). The Homeland Security Act of 2002 created three new agencies to handle all matters formerly handled by the INS. These new agencies, the Bureau of Citizenship and Immigration Services (BCIS); the Bureau of Customs and Border Protection; and the Bureau of Immigration and Customs Enforcement were made part of the Homeland Security Department that became operational in March 2003. Information about the new organizations and its structure was available online at <uscis.gov> (accessed December 5, 2003). Although the BCIS was technically a new agency, it was to continue to conduct all business, including processing applications and requests, as the INS had.
Eligibility for Asylum
People who can prove that they will be persecuted if they are returned to their home country can apply for asylum in the United States. Much persecution is based on race, religion, and politics, but there are other reasons as well. Students are frequently targeted for persecution, particularly if they choose to engage in social or political activism. Women in some countries may be subject to severe punishment (including execution) simply for having a baby out of wedlock. Homosexuals are persecuted in a number of countries, especially those in which religion is an integral part of the government.
People with a criminal record including aggravated felonies (serious crimes such as rape and murder) are generally not eligible for asylum, nor are those who have been found guilty of subversive activity against government agencies. Waivers are difficult to obtain; a person would need to provide substantive and irrefutable proof that he or she had been wrongfully or falsely charged by his or her government. Those who have communicable diseases or who have physical or mental disorders are ineligible for asylum unless they can provide proof that their condition is either cured or under control. Some people come to the United States to seek better job opportunities. Those people are not candidates for asylum; they are required to follow standard immigration procedures.
A person can seek asylum in the United States either through affirmative asylum or defensive asylum. In affirmative asylum, the person applying submits the proper paperwork (known as Form I-589) to the BCIS and is called to appear before an asylum officer for an interview. In defensive asylum, the person in question has been placed in removal proceedings by the Immigration Court and has to appear before an immigration judge from the Executive Office for Immigration Review (EOIR). Those who seek defensive asylum include undocumented aliens who have been caught entering the country illegally, but who also may be genuinely afraid of being persecuted if they are sent home. (Asylum officers often refer undocumented aliens to EOIR for a defensive hearing if they feel that the fear of persecution is credible.)
Article 3 of the United Nations Convention Against Torture (1999) states that no asylum seeker can be returned home if the threat of torture is strong enough. The BCIS does have the option, however, of sending an unsuccessful asylum seeker to a third country in which there is no danger of torture or persecution.
Often asylum seekers want protection not just for themselves but for their families. Anyone seeking asylum may include a spouse and children under the age of 21 on the I-589 form. Derivative asylum is designed to give that same option to people who have already been granted asylum. Stepchildren are eligible if the applicant and spouse married before the child's eighteenth birthday; adopted children must have been adopted before their sixteenth birthday and the applicant must have been a legal parent for at least two years. Asylum seekers have two years from the date they are granted asylum to apply for derivative asylum.
Temporary Protected Status
In some cases, an alien in the United States may choose to obtain "Temporary Protected Status" (TPS). Typically, TPS is granted by the Justice Department to aliens whose home country is unsafe due to such causes as armed conflict or natural disaster. TPS generally lasts from six to 18 months; when TPS status terminates, the aliens generally return to the same immigration status they held before the status was granted.
The R-A Rule
In 1999, the Bureau of Immigration Affairs (BIA) ruled against an asylum seeker in In re R-A-, RESPONDENT, 22 I. & N. Dec. 906, Interim Decision (BIA) 3403, 2001 WL 1744475 (BIA, Jan 19, 2001), ruled against granting asylum in part because it saw Domestic Violence as a private matter within her own family. When the woman countered that she was in fact a member of a persecuted group (she belonged to a support group for abused women), the BIA was still not convinced. The woman appealed the case to the Ninth Circuit Court of Appeals, where as of early 2003 it was under review by the Justice Department. The Justice Department consulted with experts in domestic violence and noted that it feels certain forms of domestic violence may indeed constitute persecution. For example, if a country's domestic violence laws are weak or ineffective against protecting abused spouses, that could be construed as a public issue, not merely a private one within individual families.
Kimmel, Barbara Brooks, and Alan M. Lubiner. 2000. Immigration Made Simple: An Easy-to-Read Guide to the U.S. Immigration Process. Chester, N.J.: Next Decade.
Nicholson, Frances, and Patrick Twomey, eds. 1999. Refugee Rights and Realities: Evolving International Concepts and Regimes. Cambridge, U.K.: Cambridge Univ. Press.
ASYLUM. A place, of refuge where debtors and criminals fled for safety.
2. At one time, in Europe, churches and other consecrated places served as asylums, to the disgrace of the law. These never protected criminals in the United States. It may be questioned whether the house of an ambassador (q.v.) would not afford protection temporarily, to a person who should take refuge there.