CRS releases report: Asylum and “Credible Fear” Issues

On June 29, 2011, the Congressional Research Service (CRS) released a report that is prepared for members and committee members of Congress. The report addresses issues asylum seekers face in the United States, including HRI clients. A full copy of the report may be found at http://assets.opencrs.com/rpts/R41753_20110406.pdf.

The following is a summary of the report’s findings by Esther Cantor, HRI’s Asylum legal intern:

Legislative developments
The Refugee Protection Act of 2011 (S.1202, H.R. 2185) was introduced in both Houses on June 15, 2011 (by Patrick Leahy in the Senate and Zoe Lofgren in the House). It proposes, among other things, the following changes to current refugee law:

  • Changed circumstances would remove the one year filing deadline in all cases
  • Sets out conditions in which coercion would be an exemption to the terrorism bar
  • Gives aliens interdicted at sea the opportunity for an asylum interview
  • Lays out alternatives for asylum seekers to detention
  • Changes some of the elements for a successful asylum claim

Overview of Current Policy
The first section of the Report is an “overview of current policy” in the United States, including a look at historical laws and trends, as well as the elements of a successful asylum case.  Credible fear and well-founded fear standards are defined, as is the rule concerning mixed motives. The Report then gives brief explanations of different kinds of asylum claims (affirmative, defensive, expedited removal) and the process of background checks and how victims of torture are treated under the law. Included in this section is an analysis of the number of cases filed and approved since 1996.

Overview of Sending Countries
The second section is an analysis of the countries that asylum seekers come from. This includes a brief explanation of the trends of the top-ten source countries since the 1980s, and then a more detailed breakdown of the numbers for China, Colombia, El Salvador, Ethiopia, Haiti, and Mexico. During the 1980s and much of the 1990s a large majority of asylum seekers came from the Western Hemisphere, with half coming from El Salvador and Nicaragua alone. However, since the late 1990s the number of Western Hemisphere asylum seekers has dramatically declined, and more have come from the People’s Republic of China, which has been the largest source country throughout the 2000s. In 2009, only five of the top-ten source countries for asylum seekers were in the Western Hemisphere: Haiti, Mexico, Guatemala, El Salvador, and Colombia. Ethiopia is the only African state on that list and the others are China, Nepal, Russia and India (In no particular order). More Western Hemisphere countries make the top-ten list for those who claim credible fear at the border: Guatemala, Mexico, Somalia, Eritrea, Haiti, Ecuador, the Dominican Republic, El Salvador, Honduras, and China.

Overview of Application Approvals
The third section looks at the number of asylum case approvals, first by country, then by regional office and immigration court. More Chinese asylum-seekers are approved every year than from any other country, due to the large number of applicants and US concern of Chinese human rights abuses. Most asylum seekers are not from African countries, but Cameroon, Ethiopia and Eritrea are all in the top-ten source countries for approved cases. Middle Eastern and South Asian nations also have higher levels of approval compared to the number of applicants they send. Different US regional offices and Immigration Courts have very different rates of acceptance, leading to allegations of “refugee roulette,” where the chances of approval could vary drastically from Asylum Officer to Asylum Officer, and office to office. The same is true between immigration courts, and indeed between circuit courts who reviewed Board of Immigration Appeals decisions. Even when various factors were accounted for, the Government Accountability Office found that similarly-situated applicants or respondents faced very different likely outcomes based on where their cases were heard. Since the first studies on this issue were published, the disparities have decreased somewhat, but an analysis of decisions made between 2008 and 2010 showed that differences remain “substantial.” (CRS Report, pg. 28)

Current Policy Debates
U.S. National Interests

  • Some argue that more attention must be paid to US interests in deciding whether or not to accept asylum seekers and that too many with dubious claims are being granted asylum.
  • Others argue the opposite, that more protection should be available.

Disparity in Decisions

  • The disparity in decisions discussed above has led some to argue that Congress should have more oversight over immigration courts, including more funding to match greater caseloads.
  • Others say that better judges are the solution to the problem and more training is needed.  Some are afraid that if the federal government were to become more involved then the process would become more political and lessen judicial independence.

Access to Counsel

There is no right to counsel in immigration proceedings because they are civil in nature. Applicants and respondents do have the right to representation, but only “at no expense to the government.” All aliens must be given a list of pro bono services available. It has been argued that most applicants and respondents are not capable of representing themselves adequately and that there are not enough pro bono services available. Some say that disparities in income, which can lead to disparities in outcome, should be remedied by providing representation. The GAO has found that asylum seekers with counsel were three times as likely to be successful than those without.

Time Limit on Filing

  • The current rule requires affirmative applicants to file within in a year of arrival in the United States, except where circumstances have changed or there are extraordinary circumstances that prevented them from timely filing. This rule was added in 1996, and supporters say that the drop in claims after that date show that it was successful in rooting out frivolous or bogus claims.
  • Others say the rule prevents legitimate claims from being properly adjudicated, and point out that many who have missed that deadline are able to meet the higher standard required to get withholding of removal or Convention Against Torture relief. Some say that there should be an additional exception to the filing deadline for “good cause.”

Mandatory Detention

  • Currently, there is mandatory detention for asylum seekers in expedited removal. The United Nations High Commissioner for Refugees says that this kind of detention is “highly undesirable” because it can further traumatize victims of persecution, especially since some asylum seekers are held with aliens who have been convicted of crimes. (CRS Report, pg. 32). Some are pushing for alternatives, such as electronic monitoring, for asylum seekers or that the policy should be abandoned completely because those who pose a risk can be held under other policies.
  • The argument for detention is that releasing claimants would allow those with fraudulent claims to enter the United States.  It is also argued that releasing asylum seekers would require more resources to be spent on looking for aliens who have not reported as required. Proponents of detention say that it is a deterrent against filing false claims.

Terrorist Infiltration and Material Support

  • There is a fear that terrorists will infiltrate the United States through an illegitimate asylum claim. Some say that national security should trump humanitarian concerns, and that we should restrict asylum.
  • Others say that there are plenty of safeguards to make sure that terrorists are not able to enter as asylum seekers. They say that the real problem is a lack of intelligence about who poses a risk and that this concern has been reduced due to recent improvements in intelligence. Some go so far as to say that taking in asylum seekers from the countries we are most concerned about could in fact improve national security, as these may be persons who can help law enforcement fight terrorism.

It has also been argued that the current bar on asylum for those have supported terrorism should include an exception for those who are forced to support terrorists against their will.

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