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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).
The asylum process is lengthy and complicated. Some resources for further reading include:
Asylum in the United States | American Immigration Council
Introduction to US Asylum - DASH Network
Fact Sheet: U.S. Asylum Process - National Immigration Forum
Obtaining Asylum in the United States | USCIS
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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