On September 12, 2018, a settlement reached between the Department of Justice (DOJ) and lawyers representing the migrant families separated at the border under the current administration's "zero tolerance" migration enforcement policy. This settlement, if approved, will give those who have been ordered to be removed, but are still in the United States (U.S.) a second "credible fear interview."
Although this settlement is a significant step forward for migrant families participating in the current lawsuits, it will not set a precedent for future asylum seekers. However, future asylum seekers should continue to express their fear of persecution to a Customs and Border Protection (CBP) officer because seeking asylum is an international human right, and under the principle of non-refoulement, a country is barred from returning asylum seekers back to countries where they might face persecution.
Asylum law in the U.S. is derived from international human rights law, the 1951 Refugee Convention, which provides protection to individuals who are in the U.S. or at the U.S. border. For a person to qualify for asylum, he or she must first meet the international law definition of a "refugee." The 1951 Refugee Convention defines a refugee as someone who is unable or unwilling to return to his or her country of origin due to past persecution or a well-founded fear of future persecution for reasons of race, religion, nationality, political opinion, or membership of a particular social group.
The agencies adjudicating asylum applications in the U.S. are the Executive Office for Immigration Review (EOIR) and the U.S. Citizenship and Immigration Services (USCIS). There are two ways in which a person may apply for asylum: 1) "affirmative asylum processing with USCIS" and 2) "defensive asylum processing with the EOIR."
Under the affirmative process, a person who is not in removal proceedings may apply for asylum through USCIS. To apply for asylum affirmatively, the asylum seeker must be physically present in the U.S. The method in which the asylum seeker arrived in the U.S. is irrelevant. The asylum seeker must apply for asylum within one year of arriving to the U.S. If granted, the asylum seeker is immediately entitled to live, work, and can possibly obtain U.S. citizenship after five years. If denied, and the asylum seeker does not have a legal status, then the asylum seeker may request asylum as a defense against removal from the U.S. through the "defensive asylum processing with EOIR." In this instance, the asylum seeker will be refereed to an immigration judge for an independent review and decision.
In addition, asylum seekers who arrive at a U.S. port of entry, generally, must also apply for asylum through the defensive asylum process. More specifically, individuals who come across to a U.S. official at a port of entry are subject to expedited removal. Once in expedited removal, the asylum seeker must express to a CBP officer his or her fear of returning to the country of origin and intention of applying for asylum. The CBP officer is then required to refer the asylum seeker to an asylum officer for a "credible fear interview." If the asylum officer determines the asylum seeker to have a credible fear of persecution, then the asylum seeker is referred to the immigration court to proceed with the defensive asylum application process. If the asylum officer does not find a credible fear of persecution, then the asylum seeker is ordered to be removed from the U.S., and the asylum seeker is left with the option of challenging his or her case through the appellate process.
Immigration laws and policies are constantly changing, and given the inherit complexity of asylum cases, our firm strongly encourages asylum seekers to speak to an experienced immigration attorney. Our team is here to help, so call us today at (323) 438- 8435 to schedule a consultation.