Asylum in the United States

Photo from the Washington Post(Rebecca Blackwell/Associated Press)

The caravan of Central American immigrants recently started leaving Mexico City making it's way north to cross the border into the United States. With the immigrants carrying Mexican and Honduran flags this does seem to be more of an invasion than a caravan of refugees. Why are these people carrying flags of countries they feel are persecuting them, why wouldn't they be carrying an American flag? Given the success, so far, of this caravan more caravans are starting to form further to the south heading north. The number of immigrants collectively now appears to be in excess of 5000. With the reporting being around the caravan consisting mostly of refugees seeking asylum, I started wondering how people obtained asylum in the United States.

There are actually two methods of seeking asylum in the U.S. both requiring the person seeking asylum be physically in the United States. According to the United States Citizenship and Immigration Services (USCIS) these methods are the Affirmative Asylum Processing through the USCIS and the Defensive Asylum Processing through the EOIR (Executive Office for Immigration Review).

Under the Affirmative Asylum Process, individuals in the United States have up to one year to apply for asylum. The system is applicable regardless of how the alien arrived in the United States, legally or illegally, and the time frame may be extended under certain circumstances. The process is started by simply filing a form with the USCIS.

The Defensive Asylum Process is for those in the process of being deported by the immigration system. This includes those having unsuccessfully attempted the Affirmative Asylum Process, those failing to have proper documentation at a port of entry, and those that have been apprehended in the United States illegally.

Keep in mind that seeking asylum is completely different from seeking legal residency or citizenship. An immigrant can seek legal residency or citizenship based on the desire to obtain a better job and make a better life for themselves and their family, but asylum cannot be granted based on the desire to obtain a better job. Asylum is protection, pure and simple.

To obtain asylum one must prove status as a refugee. 8 U.S. Code § 1101 - Definitions defines a refugee as someone that cannot remain in their country of residence "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion". Under 8 U.S. Code § 1158 - Asylum the burden of proof for establishing refugee status is on the person seeking asylum.

Proof of persecution may be through evidence but it can also be based simply on the testimony of the individual. If there is no evidence, the decision comes down to evaluating the credibility of the individual. The testimony is evaluated for consistency, if the story keeps changing maybe it should be written down and sold as a work of fiction. It should also be evaluated against activities going on in the country from which the individual is seeking asylum. If the asylum seeker is claiming religious persecution, but it's known there is no widespread religious persecution by the government in the country maybe the story isn't true. Using this criteria, I couldn't go to Canada or Mexico seeking political asylum because I am a conservative because there is no widespread persecution by the government of conservatives in the United States.

Many in the liberal press, which is most of the press, say our immigration system is broken and needs to be replaced. I would propose that possibly the immigration system is not broken but the execution of the system is failing. I'm sure there are aspects of the system that could be improved but before we deem the immigration system as completely broken shouldn't we try applying the current laws. This includes better security of our borders as well as adequate resources to quickly deal with those breaking our immigration laws. Other countries may have better immigration laws than we do and probably they are better enforced than ours.

Asylum is a world wide issue allowing those that cannot live in their resident country, with the expectation the government of that country will protect them, to relocate to a different country. But all of these countries being sought as asylum countries are providing protection for those who are in danger or have a reasonable fear of being in danger. The concept of someone seeking asylum to make a better life for themselves has limitations. That better life has to include the removal of persecution when the government of the country they are leaving cannot or will not provide protection.