Jacqueline
Varas, Kevin Lentz December 5, 2018
EXECUTIVE SUMMARY
- U.S. refugee and asylum programs are designed to
provide sanctuary for individuals fleeing persecution in their home
countries. Individuals apply for refugee status outside of the United
States, while they apply for asylum from within the United States.
- The application process for both refugees and asylees
involves biometric screening, criminal checks, and vetting evidence of
current or future persecution.
- The number of refugees admitted to the United States
dropped in 2018 to its lowest level since 1980. In contrast, the number of
individuals seeking asylum has increased to record levels, leading to a
large backlog of asylum claims that current government resources are
unable to process.
- The
Trump Administration is seeking measures to lower both the number of
refugees (by lowering the cap) and asylees (by restricting eligibility)
seeking entry into the United States.
The United States has long accepted refugees and
asylees. Refugee resettlement dates back to the Displaced
Persons Act of 1948, when the U.S. government first offered
residency to displaced Europeans in the wake of World War II. Today, the United
States is a global leader in
refugee resettlement, having welcomed nearly 3.5 million refugees over
the past 40 years. In addition, the United States grants asylum to 20,000 to 25,000
individuals each year.
The Refugee Act of 1980 established the
modern-day system for identifying, vetting, and accepting refugees and asylees.
This legislation established a
uniform method for admitting refugees and authorized federal funds for their
resettlement and to promote their self-sufficiency. Per this act, asylum
awardees are not capped, while the president dictates the number of refugee
admissions. Each fiscal year, the president consults with Congress to set a
ceiling for overall refugee admissions as well as limits on how many refugees
may come to the United States from each region of the world.
To become a refugee,
an individual must be fleeing his or her country due to persecution or fear of
persecution for religion, race, nationality, or membership in a social or
political group. To be granted refugee status, applicants must be outside of
the United States, meet the definition of refugee, and be of special
humanitarian concern. To be granted asylum, applicants must also meet the
definition of refugee and be of special humanitarian concern, but instead of
applying from outside of the United States, they must apply either from inside
the United States or at a port of entry.
ADMISSIONS PROCESSES
REFUGEE ADMISSIONS
The U.S. Refugee Admissions program under the Department
of State (DOS) dictates the refugee
application process. To qualify, applicants must fall under one of
three priority categories. Priority 1 (P-1) is for individuals referred by the
United Nations High Commission for Refugees (UNHCR), a U.S. embassy, or certain
non-government organizations; priority 2 (P-2) is for groups of special
humanitarian concern (as dictated by ; and priority 3 (p-3) is reserved for family
reunification. Most individuals are admitted via referral. In 2016, 64 percent
of refugees were admitted under P-1, 34 percent under P-2, and only 0.5 percent
were admitted for family reunification purposes.
To be referred for refugee status in the United
States, individuals must first apply for refugee status directly through UNHCR,
which vets all applicants separately. Once referred to the United States,
refugees must additionally meet U.S. eligibility criteria. All applicants
further undergo a screening process in the United States to ensure that they do
not have any criminal, medical, or political history that would make them
ineligible for admission.
The refugee vetting process involves a
collaboration of several federal agencies. First, a Refugee Support Center (RSC) conducts
pre-screening interviews with applicants before they depart for the United
States. There are nine RSCs around the world, managed and funded by the
Department of State, which are charged with gathering preliminary information
on applicants and preparing them for security screenings and resettlement
consideration. Once approved by the RSC, U.S. Citizenship and Immigration
Services (USCIS) officers interview the applicants to determine if they meet
eligibility and admissibility criteria for resettlement. This interview is also
performed outside of the United States.
Security screenings are the joint responsibility
of DOS and Department of Homeland Security (DHS). The screenings consist of both
biometric and biographic checks carried out at multiple stages: immediately
after RSC interviews, before a refugee leaves for the United States, and on
arrival at a U.S. port of entry. First, DOS runs the names of potential
refugees against a known watch-list. Individuals designated by DOS as requiring
a higher-level check must also receive a positive Security Advisory Opinion, a
process in which biographic data is analyzed by one or more of various agencies
including DHS, DOS, The Department of Commerce (DOC), the Federal Bureau
of Investigation (FBI), and the Central Intelligence Agency (CIA). Applicants
must then pass an inter-agency check conducted by the National Counterterrorism
Center, which also reviews biographic information.
Three separate agencies review biometric
information (such as fingerprints) collected by the RSC during pre-screening.
The FBI performs a biometric check to determine criminal history, the
Department of Defense runs the data against biometric information collected
from countries with a large U.S. defense presence (such as Iraq), and DHS
performs a check for immigration violations and law enforcement and national
security concerns. Finally, U.S. refugee applicants must undergo a medical
exam. Applicants are considered ineligible for
admission if they have a communicable disease of public health
significance, fail to present proof of vaccinations, have a physical or mental
disorder with associated harmful behavior, or are drug abusers or addicts.
Individuals that successfully pass screening and
meet all admissions requirements are assigned sponsors once they arrive in the
United States. These sponsors are resettlement agencies that provides housing,
employment, and other services. Upon arrival, refugees are granted the right to
work and may request documentation to travel outside the United States. They
must wait one year, however, before completing a mandatory application for
legal permanent residency status.
The government designates approved refugees as
“principal” refugees, and they have up to two years to petition for their
eligible spouse and unmarried children to join them as derivative refugees. In
order for spouses to be eligible,
they must have been the principal refugee’s spouse before the principal refugee
was granted his or her status. Additionally, the unmarried children of the
principal refugee are only admissible if they were conceived before the mother
or father was granted refugee status and are under 21 at the time of the
petition. These derivative refugees count toward the number of total refugees
admitted every year. In 2016, spouses and dependent children made up 63 percent of
total refugee admissions.
ASYLEE ADMISSIONS
There are two main ways to
seek asylum, both of which require the individual to be physically present in
the United States. Individuals can apply for asylum affirmatively through USCIS
upon arrival at a port of entry or within one year of their last arrival in the
United States. Alternatively, individuals already in removal proceedings can
apply for asylum defensively with the Executive Office for Immigration Review
(EOIR), under the Department of Justice (DOJ). In 2016, a total of 20,455
individuals were granted asylum, with 57 percent granted asylum
affirmatively and 43 percent granted asylum defensively.
After filing for asylee status, the vetting and
adjudication procedures differ depending on whether the applicant is seeking
asylum affirmatively or defensively. Both affirmative and defensive asylum
seekers must demonstrate that they have a “well-founded fear” of future
persecution in their home country and prove that they meet the definition of a
refugee. Affirmative asylum seekers demonstrate this fear through interviews
with USCIS officers. After an application is received but before an interview,
they must also undergo biometric collection in which they appear at an
application support center to be fingerprinted. Affirmative applicants are
permitted to live in the United States while their application is being processed.
They are not granted the right to work, however, until a decision is made.
Applicants for defensive asylum file directly
with EOIR as a defense against removal from the United States. Individuals are
placed into defensive processing under one of two circumstances: They applied
for asylum status affirmatively and were denied, and thus placed into removal
proceedings, or they were caught trying to enter the United States, either at a
U.S. point of entry or elsewhere on the border, and thus placed into expedited
removal. Individuals in expedited removal processes must undergo “credible fear” or
“reasonable fear”
interviews to prove their eligibility for asylum. Credible fear interviews are
available to individuals that inform Customs and Border Protection officers
that they fear persecution or torture in their home countries. Reasonable fear
interviews are available to individuals who re-enter the United States after a
prior deportation or were convicted of certain felonies, and they require a
higher standard of proof. In 2016,
92,000 credible fear screenings were conducted with 75 percent resulting in a
positive finding, compared to 9,400 reasonable fear screening with a 32 percent
positive finding rate.
If a positive credible or reasonable fear
determination is made, the case proceeds to an immigration court, where
immigration judges hear arguments from the individual and his or her attorney
as well as the U.S. Government (represented by an ICE attorney). If found to be
eligible, the applicant will be granted asylee status. If found ineligible, the
judge will determine if the applicant is eligible for any other form of relief,
and if not, the judge will order the applicant to be removed from the United
States.
Applicants for asylum, both defensive and
affirmative, can be barred from receiving asylee status for a number of
reasons. Examples include participating in the persecution of
another, posing a danger to national security, participating in terrorist
activity, or firmly resettling in another country before coming the United
States. If an individual is successfully granted asylum, however, they may
petition to bring family members to the United States that were not included in
their original asylum applications. After a year of physical presence as an
asylee, individuals and their spouses or unmarried children under the age of 21
may apply for green cards.
TRENDS IN REFUGEE AND ASYLEE ENTRY
REFUGEE ENTRY
Refugee admissions to the United States have fluctuated
significantly over time, as shown in the chart below. When the
program was first established in 1980, the United States set an annual cap of
231,700 and admitted 207,000 refugees. This cap dropped to 67,000 by 1986 and
rose again to 142,000 by 1993, but the number of refugees admitted never fell
far from the cap. This correlation changed after the September 11th terrorist
attacks, when fewer than 30,000 refugees were admitted even while the cap was
set at 70,000. Similarly, in 2018, the United States admitted 22,491 refugees,
the lowest number since the Refugee Act of 1980 and less than half of the
45,000-limit set by the Trump Administration. Next year, the cap will
purportedly be lowered further to
30,000.
The chart below shows how the regional makeup of refugees changes
in response to different global crises. In the early years following the end of
the Vietnam War, the vast majority of refugees originated from East Asia. After
the end of the Cold War, an increased number of individuals from Europe and the
former Soviet Union sought refuge in the United States. Most recently, the
number of refugees originating from countries in the Near East and South Asia
rose with the escalation of the wars in Iraq and Afghanistan, and the number of
refugees from Syria increased because of the Syrian civil war.
The most recent year of data shows that, of the
22,491 refugees admitted in 2018, almost half came from Africa. This
development is new: Over the past 10 years, the largest population of new
refugees has generally come from Asia, specifically from countries such as
Bhutan and Burma. The percentage of refugees from African countries has
gradually risen, however, driven by an increase in refugees from nations such
as Somalia and the Democratic Republic of the Congo.
ASYLEE ENTRY
The number of individuals seeking asylum in the
United States has dramatically increased. In 2016 (the
last year of available data), 115,399 individuals applied for affirmative
asylum, 39 percent more than in 2015 and the highest amount in 20 years.
Similarly, the United States received 65,218 applications for defensive asylum,
a 42 percent increase from 2015. There has been a particularly large increase
in credible fear screenings, available to individuals caught at the border and
placed into expedited removal proceedings. Credible fear interviews have
skyrocketed from fewer than 5,100 in 2008 to 92,000 in 2016, of which 75
percent met the credible fear standard.
The increase in asylum seekers has not been met
with a corresponding increase in government capability to process applicants.
Between 2010 and 2018, during a time when pending immigration cases rose
by 200 percent, the
number of immigration judges only increased by 60 percent.
This mismatch has resulted in a record backlog of nearly 800,000 pending
immigration cases in the court system and extended wait times for adjudication.
Due to the backlog and other considerations, an
increase in applications does not necessarily translate to an increase in
asylees. The chart below shows that number of
individuals granted asylum has remained relatively steady over
time. There has been a shift in how people seek asylum, however: Since 2007,
there has been a relative increase in the proportion seeking asylum
affirmatively compared to those seeking asylum as a defense against removal.
This trend flipped in 2016, though, when the proportion of people seeking
asylum defensively jumped from 32 percent to 43 percent.
In 2016, the most common
countries from which either an affirmative or defensive asylee
originated were China, El Salvador, Guatemala, and Honduras. El Salvador was
the country of nationality for 12 percent of affirmative asylees, making it the
top source country for affirmative grants. Similarly, China was the source
country for nearly 36 percent of defensive asylees. Overall, China, El
Salvador, and Guatemala accounted for 42 percent of all individuals granted
asylum.
The regional composition of asylees, both affirmative and defensive,
is quite similar. Regionally, the largest group of asylees originated from Asia
(42 percent of total asylees), followed by North America (including Central
America, 33 percent) and Africa (16 percent). The regional breakdown is
displayed in the chart below.
RECENT DEVELOPMENTS
TRUMP ADMINISTRATION ASYLUM EXECUTIVE ORDER
Recently, President Trump issued an executive order,
which has since been blocked by a federal judge in San Francisco, limiting
who is legally eligible to seek asylum. The new rule,
if adopted by DOJ and DHS, would change current law so that only individuals
entering the United States at official ports of entry can apply for asylum.
Furthermore, any individual that has crossed the southern border without proper
documentation would be ineligible for asylum. These changes would create major
shifts in admissibility laws for asylum applicants: Current law dictates that
an individual is eligible to apply for asylum no matter where they cross the
border if they meet the definition of a refugee and can demonstrate a credible
fear of persecution if they return to their home country. This rule would in
effect make all future undocumented border crossers ineligible for asylum and
would direct all asylum seekers to U.S. ports of entry.
SAFE THIRD COUNTRY AGREEMENTS
President Trump has also expressed
interest in establishing a “safe third country” agreement with
Mexico. Refugees today are rarely able to travel directly from their country of
origin to their intended destination; rather, they often pass through multiple
“third countries” along the way. A safe third country agreement between two
nations allows one nation to return refugees to the other without ruling on the
substance of their claims under one of two conditions: either the third country
that the refugee traveled through was a “safe third country,” and therefore the
person should have applied for asylum there, or the third country already
granted the person protection and was therefore in effect the “first country of
asylum.” Currently, the United States has only one safe third country
agreement, with Canada.
https://www.americanactionforum.org/research/primer-u-s-policy-on-refugees-and-asylum-seekers/#ixzz5ZUL6GuA9
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