The Asylum-Claiming Process

Editor’s Note: The following article is published as a background guide to GPI’s 2023 Think-a-Thon. To learn and register, we invite you to click here.

While each country has a different asylum claiming process, most follow a generally similar procedure. The individual is subject to an interview with a migration official, during which they must prove their eligibility for refugee status. While applying, the individual bears the burden of proof, and in order to successfully gain access to asylum, they must prove that they are facing a legitimate, well-founded threat of persecution in their home country. This claim must be corroborated by testimonial or documented evidence. In America, this is adjudicated by the Board of Immigration Appeals (BIA) and overseen by the United States Citizenship and Immigration Services (USCIS), with most countries employing similar national bureaucracies. For the many countries who host refugees but have not ratified the 1951 Convention, such as Jordan, Lebanon, India, Egypt, Pakistan, and Malaysia, the adjudication process is administered by local UNHCR offices.  

The 1951 Convention guarantees that an individual’s mode of entering a country, whether legal or not, will not affect the asylum-seeking process, meaning that individuals will not be punished for entering the country illegally. However, some nations do have time limits for how long someone may reside in the country before filing for refugee status. The United States has a year-long deadline, Mexico has a month, and Ethiopia has a fifteen day deadline, although these deadlines are subject to “extraordinary circumstances.” 

In America, there are two modes of seeking asylum: the affirmative process and the defensive process. The affirmative route requires the individual to be present in the United States or along the border at the time of application, although it does not matter the way in which the individual arrived nor their current immigration status. The process is initiated with Form I-589, the Application for Asylum and for Withholding of Removal, which is submitted to the USCIS. 

Once the application is submitted, the individual will receive an appointment for biometric services and begin security vetting with the U.S. Refugee Admissions Program (USRAP). Once cleared by the USRAP, the individual receives medical and travel clearance from the Resettlement Support Center (RSC) who then begins forming sponsorship arrangements with a domestic resettlement agency. Lastly, Customs and Border Protection (CBP) must finally verify the individual as admitable. Upon doing so, the person receives refugee status and arrives in the United States.

If an applicant is not found to have credible reasoning for their request, they have the right to appeal the decision via the defensive application process. In America, The Immigration and Refugee Protection Act also guarantees that the individual will be supplied with an explanation detailing their denial. However, because the Convention against Torture prohibits forced extradition of an individual to a country where they could face extreme dangers, there are also a myriad of other titles for asylum-seekers that provide legal rights and protections, although not as significant as those for refugees.

The defensive application process is reserved for asylum seekers who were denied through the affirmative process or who have been detained by Immigration and Customs Enforcement (ICE) or CBP. This adjudication process takes place within immigration courts in front of a judge between an asylum seeker, their attorney (if they have been able to access one), and an ICE attorney. Because this process takes place within the court system, it takes considerably longer than the affirmative process, with an average time period of 2 years. At its conclusion, the individual is either deemed eligible or ineligible for asylum. If ineligible, the judge determines whether they are eligible for other forms of protection or for removal. In any case, both the individual and the US government are able to appeal the decision. 

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