Given the several thousand extra asylum seekers who have arrived in our communities this year, many volunteers, church partners, and community members are looking for ways to support these families and individuals. Two of our immigration attorneys, Sarah Flagel and Ryan McDuff, share a couple things about asylum law we hope you’ll find helpful.
Context: The Disconnect
The immigration process often dehumanizes people seeking refuge. It can reduce their inspiring stories of suffering and hope to mere answers on a bureaucratic form. As we counsel and represent people from around the world applying for asylum, our team sees up close how human survival is complex. And so are the systems our clients must navigate.
What sticks out to us most is the jarring disconnect between the things asylum seekers tell us daily about their life experience, the labyrinth of law and procedure they must navigate, and the simplistic soundbites in the media. Here are two critical things to understand about asylum law.
Defining Elements
1). Filing posture and jurisdiction. Asylum cases can be filed in one of two postures: affirmatively or defensively. The Department of Homeland Security (USCIS) adjudicates affirmative cases and the appropriate immigration court housed within the Department of Justice adjudicates defensive cases. Jurisdiction affects the process in a few ways:
- Procedures. All cases are generally governed by the same substantive law, but procedural issues like where and how to apply differ significantly based on filing posture.
- Wait times. Jurisdiction also impacts the wait. Many DOJ immigration courts take 4-5 years to adjudicate an asylum case, whereas USCIS may take 2-3 years.
- Subjectivity in approval rates. The specific court or USCIS office makes a huge difference in the outcome of a case. For example, New York’s USCIS office grants asylum to only about 7 percent of cases, but its immigration court grants 60 percent.
2). Complexity of the laws and legal representation. To win an asylum claim, the applicant must meet the definition of a refugee by establishing three things:
- a well-found fear of persecution
- on account of
- a protected ground, such as race, religion, or political opinion.
But the law defining those elements is based on case law — over 40 years of layered legal precedent. We find nearly all our clients have suffered persecution – things like extortion, kidnapping, assault, death threats, etc. But not everyone can prove that the reason for persecution is a protected ground.
For example, a local drug cartel forces the owner of a corner store to pay weekly “taxes” to stay in business. The owner refuses and persecution escalates to vandalism, death threats, and assault. Is the persecutor’s motive financial gain? Or because the owner is involved in marches protesting the gang-controlled state? Or because they are part of an indigenous group hated by the cartel?
Navigating such questions through the application process is why legal representation matters so much. Ninety percent of people granted asylum are represented by legal counsel. Less than 20 percent of those without legal counsel receive asylum. (TRAC – Syracuse University.)
Conclusion: Staying Human
The asylum system faces numerous challenges, but our clients remind us why the work matters. They motivate us to advocate for comprehensive immigration reform and welcome those already here.
During a recent meeting with an asylum seeker, we finally finished completing all the required forms. The client bowed his head as he let out a heavy sigh. After a moment he gathered himself and said, “I hope at the end of this process I’ll be seen for the human that I am.”
You can come alongside our legal team to support asylum-seekers in practical ways.