Backlogged and political: How asylum works in America

(NewsNation) — The border crisis is fueled, in part, by those seeking asylum in the United States. But exactly who qualifies for asylum isn’t an easy question to answer.

Hundreds of thousands seek asylum in the United States, but only a small fraction of those are admitted. Asylum-seekers face a difficult system fraught with legal delays and personal limbo as they try to build a life in a new country without knowing if or when they will be allowed to work, to travel internationally or simply whether they will be allowed to stay.

Take Maria and Andres Zombo. Originally from Angola, the couple have been in Maine for nine years, building a business and settling into the community. But they still have no answers as to whether they will be granted asylum as their case lingers in the courts.

They aren’t alone. As of the end of fiscal year 2022, more than 750,000 asylum cases are backlogged in immigration court, leaving thousands of people in limbo even after they’ve made the decision to flee their home country.

R.D., who asked that his full name not be used because he’s currently in legal proceedings to seek asylum, said while he’s happy to be in the United States, it was difficult to leave his home in Ethiopia.

“It’s not pretty to come here, because (you’re running) away from your own country because of dictatorship,” he said.

Who qualifies to seek asylum?

Legally, an asylum-seeker is defined as: someone who is outside their country; someone who is unable or unwilling to seek protection from the government of their country, or their country of last residence; and someone who has a well-founded fear of persecution on protected grounds including race, religion, country of origin, political opinion or particular social group.

“As complicated as the asylum is, like, if it is really complicated, the concept of asylum is fairly simple. It’s the ability to ask for help and have someone listen to your story. And I think that that’s very easy to lose sight of,” said Amy Grenier of The American Immigration Lawyers Association.

R.D. says he fled Ethiopia because he experienced physical torture as a member of an ethnic minority in the country. Maria and Andres Zombo left Angola for similar reasons, facing violence and persecution because Maria’s father had been involved with a revolutionary group.

“They’re not running away from a country because you are missing money or some kind of social life, Maria Zombo said. “No, it’s because they have this kind of a problem, and they need to protect your life and your kid’s life.”

Asylum is an old concept, but the legal definitions are relatively modern. The United Nations recognized the need for asylum after World War II and created the formal definition for what makes someone a refugee in 1951. But U.S. immigration law didn’t create a system for asylum-seekers until 1980.

Requesting asylum is a legal right, but the process can be complex and time-consuming.

How does asylum work?

The first step for someone who wants asylum is to get to the United States. Asylum-seekers must be physically present in the country or at the border to apply; it can’t be done from their home country although the Biden administration has begun experimenting with an app and phone screenings.

In general, immigrants must request asylum within their first year of being in the U.S., though there are exceptions for changes in circumstances in their home country.

That’s part of the reason Title 42 has been so controversial. It’s a decades-old statute that gives the president authority to turn people away at the border in a public health emergency, and former President Donald Trump invoked it in 2020 during the early days of COVID-19 pandemic.

In addition to preventing people from applying for asylum, Grenier said the policy has also driven up the number of border encounters reported by the government.

“There’s no end to how many times you can reappear at the border under Title 42,” she said.

That means a single individual who makes multiple attempts to reach the U.S. can account for multiple encounters, potentially skewing the perception of how many people are trying to cross into the country.

“If you express fear, if you say, ‘I am afraid to return to my country,’ at the border, you will be interviewed for what’s called a credible fear interview,” Grenier said.

If the immigration officer believes an asylum-seeker has grounds for credible fear, that can kick off the process. Someone who passes that interview can be paroled into the U.S., where they can file an official application and, after a waiting period, apply for a work visa.

What’s the difference between affirmative and defensive asylum?

Under U.S. law, there are two ways to request asylum. The first is affirmative, which happens when a person is not facing deportation. That could be someone on a different type of visa, such as a student visa, who needs to apply due to a changing situation in their home country. Affirmative applications go through U.S. Customs and Immigration.

“Unlike in immigration courts, there isn’t an immediate risk of being ordered deported if they fail in their claim. If they are granted asylum, then that’s it, they have won their case,” said Aaron Reichlin-Melnick, policy director for the American Immigration Council.

Defensive asylum happens when the government is actively seeking to remove someone. That could be someone who has been in the U.S. and is detained, or someone coming to the border where agents are seeking to turn them away. Defensive asylum cases are heard in immigration court.

The type of case can make a big difference. TracImmigration found defensive claims are denied far more often than affirmative ones. In 2021, they reported 70% of defensive asylum claims were rejected by judges, while only 35% of affirmative cases were disallowed.

How long does it take?

Due to court backlogs, each stage of the process can drag on.

“If you apply in the United States, affirmatively, it could be multiple years before your case is finalized,” Grenier said.

As of Nov. 30, 2022, the immigration court system showed a backlog of 787,882 cases, according to TracImmigration.

Another hurdle for asylum-seekers is they have no legal right to an attorney. In 2022, fewer than 1 in 10 asylum-seekers had representation.

But people with lawyers are far more likely to be granted asylum than those who try to navigate the system themselves. R.D.’s lawyer said she was trying to move his case along, but they were looking at waits of over a year because the system is overwhelmed.

The Zombos have been in the U.S. for nine years, and while they’ve received work visas that allowed them to open a specialty grocery store in Maine, which sells African food and ingredients, they are still waiting on their case. That means they aren’t allowed to leave the country, which makes running their business more difficult.

“So, even (if I) wanted to go to buy some stuff, to import goods here, I cannot, because I cannot move,” Andres Zombo said.

Can asylum-seekers be detained?

Technically yes, though the extent to which presidential administrations focus on the detention of migrants has varied over time.

“However, the U.S. government simply doesn’t have enough detention resources to hold every single asylum seeker in ICE detention, which is why many people instead get released,” Reichlin-Melnick said.

Homeland Security Secretary Alejandro Mayorkas was grilled on the issue by Senate Republicans. Sen. Mike Lee, R-Utah, who accused Mayorkas of not following the law, which, Lee says, requires border agents to detain as many asylum-seekers as possible and then turn people away when space runs out.

What happens to people waiting?

For those who are paroled, the process of trying to start their lives in America can be fraught with obstacles thanks to delays in the system.

Agencies such as U.S. Citizenship and Immigration Services, which handles work visas, are also backlogged.

Those visas are crucial for people trying to start a life in the U.S. Everything from employment to housing is impossible to obtain above board without a work visa.

“Everything’s in limbo until they can get access to a work authorization document,” Grenier said.

R.D. has been in the country for about six months and still hasn’t received employment authorization. He said it’s frustrating, because he wants to get back into business marketing, which is what he did before he came to the U.S.

“I want to become a productive member of society, and to work and contribute,” he said.