Tcl - Seeking Refuge:the U.s. Asylum Process - October 2006 - Immigration Law - a Primer
| Publication year | 2006 |
| Pages | 71 |
| Citation | Vol. 35 No. 10 Pg. 71 |
2006, October, Pg. 71. TCL - Seeking Refuge:The U.S. Asylum Process - October 2006 - Immigration Law - A Primer
October 2006
Vol. 35, No. 10 [Page 71]
Regina Germain is the Legal Director of the Rocky Mountain Survivors Center, which provides legal assistance, medical referrals, and mental health and social services to victims of torture and war trauma from around the world. Formerly, Germain was Senior Legal Counselor for the United Nations High Commissioner for Refugees in Washington, D.C. - (303) 321-3221, ext. 220, rgermain@rmscdenver.org.
This article describes the sources of U.S. asylum law and discusses the definition of "refugee." The article explains the U.S. asylum process, including both affirmative and defensive procedures.
The word "refugee" conjures up many different images. One image might be that of a mass outpouring of refugees from Darfur into neighboring Chad. Another image could be that of Somalis in refugee camps in Kenya. Still another image might be of the Cuban and Haitian boat people desperately trying to reach U.S. shores. These are images of people fleeing desperate situations; however, that is not to say they all can be classified as or meet the legal definition of "refugees."
Outside the United States, the United Nations High Commissioner for Refugees ("UNHCR") determines who will be classified as a refugee. In the United States, asylum officers in the U.S. Department of Homeland Security ("DHS") and immigration judges in the U.S. Department of Justice ("DOJ") make that determination.
Who qualifies as a refugee is a complicated issue. This article will provide a summary of the refugee definition and the basics of the U.S. asylum process.
Sources of U.S. Asylum Law
U.S. asylum law has evolved since 1980 through case law, regulations, and numerous administrative guidelines and policy memoranda. Asylum officers and immigration judges are bound by U.S. Supreme Court decisions, decisions from the federal circuit court of appeals having jurisdiction over the state in which they sit, and decisions from the Board of Immigration Appeals ("BIA").(fn1)
Federal asylum regulations address many procedural aspects of applying for asylum, such as jurisdiction,(fn2) where to file,(fn3) interview procedures,(fn4) failure to appear,(fn5) the one-year filing deadline,(fn6) and Department of State comments.(fn7) In addition to regulations, both asylum officers and immigration judges rely on policy memoranda and guidelines drafted by the Asylum Division of the U.S. Citizenship and Immigration Service ("USCIS") or by the Office of the Chief Immigration Judge. These memoranda and guidelines address issues such as the adjudication of children's asylum claims(fn8) and the confidentiality of asylum claims.(fn9)
Definition of "Refugee"
The definition of "refugee" under U.S. law is derived directly from the 1951 United Nations Convention(fn10) and 1967 Protocol Relating to the Status of Refugees(fn11) ("Protocol"). The United States signed the Protocol in 1968. To ensure compliance with its international obligations, the United States enacted the Refugee Act of 1980.(fn12)
The basic definition of "refugee" can be found at 8 U.S.C. § 1101(a)(42)(A):
The term "refugee" means . . . any person who is outside any country of such person's nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
This definition, not surprisingly, is almost identical to the United Nations definition.(fn13)
In 1996, the U.S. Congress modified the definition of "refugee" to include:
a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of a political opinion, and a person who has a well-founded fear that he or she will be forced to undergo such a procedure or [be] subject to persecution for such failure, refusal or resistance shall be deemed to have a well-founded fear of persecution on account of political opinion.(fn14)
This modification is one example in which U.S. asylum law is broader in scope than international law.
The refugee definition can be divided into seven elements. The asylum-seeker must demonstrate that he or she is: (1) outside his or her country of nationality or last habitual residence and (2) unable or unwilling to return (3) because of past or (4) a well-founded fear of (5) persecution (6) on account of (7) a protected ground, that is, race, religion, nationality, membership in a particular social group, or political opinion.(fn15)
Outside Country of Nationality or Last Habitual Residence
Sometimes it is easy to determine an asylum-seeker's nationality, through a passport or a birth certificate that shows his or her place of birth. More complicated issues arise when an asylum-seeker may have dual citizenship or no nationality at all. Sometimes the country of an asylum-seeker's birth no longer exists.
To determine whether an asylum applicant had dual nationality, the BIA has looked to the Immigration and Nationality Act's ("INA") definition of the term "national."(fn16) According to the INA, a "national" is a person owing a permanent allegiance to a state. In its unpublished opinion in Matter of Fatoumata Toure,(fn17) the BIA concluded that an asylum applicant who was a citizen of Guinea and feared persecution there was eligible for asylum despite the fact that she possessed a passport from the Ivory Coast. In reaching this conclusion, the BIA relied on the definitions of "national" and "refugee" in the UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status ("Handbook").(fn18) The court found that a contrary result would require the deportation of an asylum applicant to a country where he or she had little or no connection.(fn19)
The refugee definition specifically allows for protection of individuals who have no nationality and who are outside their country of last habitual residence. The United Nations defines "stateless person" as "a person who is not considered a national by any State under the operations of its law."(fn20) Such persons are afforded protection under U.S. asylum law if they establish past persecution or a well-founded fear of persecution in their country of last habitual residence. For example, Palestinians who resided in Saudi Arabia, Qatar, and the United Arab Emirates and who, following the Persian Gulf War, were expelled, denied re-entry, or had their property confiscated, were eligible for asylum in the United States.(fn21)
Unable or Unwilling to Return
Unwillingness to return relates to the asylum applicant's fear of persecution. According to the UNHCR Handbook: "As long as [the asylum applicant] has no...
To continue reading
Request your trial