Academic journal article Current Politics and Economics of the United States, Canada and Mexico

Asylum and "Credible Fear" Issues in U.S. Immigration Policy *

Academic journal article Current Politics and Economics of the United States, Canada and Mexico

Asylum and "Credible Fear" Issues in U.S. Immigration Policy *

Article excerpt

Latest Legislative Developments

Comprehensive refugee reform legislation, the Refugee Protection Act of 2011 (S. 1202/H.R. 2185), would make significant revisions to asylum policy. Senate Committee on the Judiciary Chairman Patrick Leahy and House Committee on the Judiciary Subcommittee on Immigration Policy and Enforcement Ranking Member Zoe Lofgren introduced the companion bills on June 15, 2011. Among the asylum revisions in S. 1202/H.R. 2185, the bill would eliminate the time limits on seeking asylum in cases of changed circumstances; proscribe conditions under which an asylum seeker who was a victim of terrorist coercion would not be excluded as a terrorist; provide alternatives to detention of asylum seekers; modify certain elements necessary for the asylum seeker to meet the conditions for the granting of asylum; and, allow aliens interdicted at sea the opportunity to have an asylum interview.

Overview of Current Policy

Introduction

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.1 This principle is embodied in several provisions of the Immigration and Nationality Act (INA), most notably in provisions defining refugees and asylees.2 Foreign nationals 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.3

Foreign nationals arriving or present in the United States may apply for asylum with the United States Citizenship and Immigration Services (USCIS) in the Department of Homeland Security (DHS) after arrival into the country, or they may seek asylum before a Department of Justice Executive Office for Immigration Review (EOIR) immigration judge during removal proceedings. Foreign nationals arriving at a U.S. port of entry 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" hearing with a USCIS asylum officer and-if found credible-they are referred to an EOIR immigration judge for a hearing.4

The INA makes it clear that the Attorney General and Secretary of Homeland Security can exercise discretion in the granting of asylum. Foreign nationals who participated in the persecution of other people are excluded from receiving asylum. The law states other conditions for mandatory denials of asylum claims, including when the alien has been convicted of a serious crime and is a danger to the community; the alien has been firmly resettled in another country; or there are reasonable grounds for regarding the alien as a danger to national security.5 The INA, moreover, has specific grounds for exclusion of all aliens that include criminal and terrorist grounds.6

This report opens with an overview of current policy, discussing the threshold of what constitutes asylum and the procedures for obtaining it.

The second portion of the report identifies the top sending countries and includes a time series analysis of six selected source countries for asylum seekers.7 The third section of the report analyzes asylum approvals by country of origin. The report rounds out with a discussion of selected legislative policy issues.

Recent History of U.S. Asylum Policy

In 1968, the United States became party to the 1967 United Nations Protocol Relating to the Status of Refugees (hereafter referred to as the U.N. Refugee Protocol), agreeing to the principle of nonrefoulement. Nonrefoulement means that an alien will not be returned to a country where his life or freedom would be threatened, and it is embodied in several provisions of U.S. immigration law.8

The U.N. Refugee Protocol does not require that a signatory accept refugees, but it does ensure that signatory nations afford certain rights and protections to aliens who meet the definition of refugee. …

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