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Seeking asylum is a legal right. The terminology and processes are complicated, so let’s break down some key points to understand who asylum seekers are and how they access protection in the United States.
Who are asylum seekers?
Asylum seekers must meet the same international definition of a refugee, but they arrive through different means. Under the 1951 Refugee Convention, a refugee is someone who has fled and is unable to return to their country due to a well-founded fear of persecution due to their race, religion, nationality, political opinion, or membership in a particular social group. This definition was also codified into U.S. law through the Refugee Act of 1980.
Those who arrive in the United States as refugees begin their process overseas when they are referred to the U.S. Refugee Admissions Program by UNHCR or U.S. Embassies. Refugees go through a strenuous vetting process and are provided support through one of the nine resettlement agencies.
Asylum seekers must meet the same definition under the Refugee Convention and the Refugee Act of 1980, but they do not arrive through the same formal process. U.S. law allows individuals with a credible fear claim to apply for protection within one year of arriving on U.S. soil. The timeline and means of filing that claim can greatly vary: some people arrive at a port of entry and immediately make a request, while others may enter the country on a temporary visa or parole and make a claim at a later date.
What happens when someone applies for asylum?
A key point to remember is that someone cannot request asylum from outside of the U.S. - they have to be on U.S. soil. Once in the U.S., someone is allowed to apply for asylum regardless of their immigration status. Therefore, it is possible for someone to cross the border illegally, but then be allowed to stay in the country legally to pursue their claim, often because they have demonstrated a credible fear of persecution if they are deported.
There are two main paths for requesting asylum depending on whether someone is or is not already in removal (deportation) proceedings.
Affirmative asylum - Applicants can apply at ports of entry or with U.S Citizenship and Immigration Services (USCIS) within one year of arrival in the country. These applications are adjudicated by USCIS officers rather than an immigration judge.
Defensive asylum - Applicants can apply for asylum as a “defense against removal” once they are apprehended by immigration officials with ICE or Customs and Border Protection (CBP). The cases are processed through the immigration court system with the Executive Office for Immigration Review (EOIR).
What are some barriers that asylum seekers face in gaining legal entry?
It’s important to note that in recent years asylum seekers have faced many challenges and barriers in their efforts to seek asylum. The ideal scenario for asylum seekers would be approaching an officer at a legal point of entry to request asylum, rather than crossing between ports of entry and requesting asylum after encountering a Border Patrol agent. However, access to ports of entry have been limited or even completely restricted over the last several years. Both the Trump and Biden administrations have carried out policies, such as metering, “Migrant Protection Protocols,” and Title 42 expulsions, that have denied asylum seekers access to ports of entry. This lack of access to legal ports has fueled increased illegal crossings for those who are desperate to have their claims heard.
The new asylum rule implemented by the Biden administration in May 2023 also adds significant barriers to the asylum seeking process, and limits access to ports of entry through use of the CBP One phone app. Read more here about the changes brought on by the rule.
The asylum process is lengthy and complicated. Some resources for further reading include:
As shown in the chart below in sections B, C, and D, asylum seekers can file a claim through several different means.
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