The Asylum Process: Background
Seeking asylum is a legal process by which people who have fled their home countries can apply for a protected status that allows them to remain legally in the U.S. Those with credible asylum cases must provide evidence to prove that they were either harmed or threatened due to their race, religion, nationality, political opinion, or membership in a particular social group. Although the asylum process can provide a pathway to lawful permanent residence for some, and provides the hope of living with safety and dignity for many, the asylum system is largely flawed and inefficient. Asylum seekers must overcome numerous barriers and many remain stuck in legal limbo for years.
According to the American Immigration Council, immigrants who arrive at a U.S. port of entry without proper legal documents are subjected by the Department of Homeland Security (DHS) to expedited removal, “an accelerated process which authorizes DHS to perform rapid removal [deportation] of certain individuals.”
A person who is in removal proceedings may initiate the defensive asylum process by requesting asylum as a defense against removal from the U.S. The defensive process takes place in the presence of an immigration judge at the Executive Office for Immigration Review (EOIR) in the Department of Justice. A person who is not in removal proceedings and arrived in the U.S. no more than one year prior may apply for affirmative asylum through U.S. Citizenship and Immigration Services (USCIS), a division of the DHS.
Both of these processes present numerous barriers for those navigating them. Among the barriers and difficulties associated with the affirmative and defensive asylum processes are backlogged and disconnected systems, difficulty finding a trustworthy attorney, varying rates of asylum approval across the country, access to translators and interpreters, and high legal and attorney costs.
When individuals apply for asylum via the affirmative process, their application is sent to USCIS and is received by one of only 5 service centers. According to the FY 2021 USCIS Annual Statistical Report, USCIS received 61,800 applications for affirmative asylum in 2021 and processed 38,200 of those applications, meaning 23,600 asylum seekers remain in legal limbo while they wait for USCIS to process their application. USCIS claims that a decision should be made on asylum applications within 180 days after the date it was filed “unless there are exceptional circumstances,” however in July of 2022 USCIS announced significant processing delays with no estimation of a decision timeline. TRAC found that in 2021, the processing and decision times due to these backlogs averaged 1,489 days, or about four years.
For the defensive asylum process, there are backlogs in immigration courts under the DOJ. These backlogs were created and worsened by staffing shortages, paper-based processes, and policies and political actions such as increased interior deportations, the Migrant Protection Protocols (also known as “Remain in Mexico”), Title 42, and a large influx of unaccompanied minors and migrants from Cuba, Venezuela, and Nicaragua at the border. TRAC’s Immigration Court Backlog Tool indicates that as of November 8, 2022, there are 1,936,504 asylum cases in the backlog, and the average wait time for a defensive asylum decision is 54 months, or about four and a half years.
An overview of the asylum process will demonstrate the numerous steps and agencies one must go through when applying for asylum. Migrants must navigate U.S. Citizenship and Immigration Services, the Department of Homeland Security, the Board of Immigration Appeals, and the Department of Justice, which all have their own distinct processes and policies. Navigating complex agencies like these is especially difficult when one is in a foreign country and does not know how the agencies’ processes work.
Untrustworthy Attorneys & Fraud
In the defensive asylum process, asylum seekers are not guaranteed or provided legal counsel. However, the likelihood of asylum being granted is increased if the asylum seeker has legal representation. This means asylum seekers must find their own immigration attorney, which can be particularly difficult in a new country where one does not have the means to research and find an attorney, let alone a trustworthy one. This leaves many asylum seekers in a vulnerable position that allows dishonest attorneys and unauthorized immigration law practitioners, also called notarios, to take advantage of them by taking their money and harming their immigration cases. Although there are some lawyers associations attempting to spread the word about notarios, as well as some mechanisms to report instances of fraud and scams to the Department of Justice, these reporting mechanisms cannot undo the harm that the fraud has already done to asylum seekers and does not prevent others from defrauding asylum seekers in the future.
Varying Asylum Approval Rates Across the Country
Depending on the state in which a migrant is applying for asylum, their proceedings could look and end differently. Although courts are intended to be unbiased, one lawsuit filed by several immigrant rights agencies claimed that immigration courts are affected by “pervasive dysfunction and bias.” One example they cite is “the Enforcement Metrics Policy, which gives judges a personal financial stake in every case they decide and pushes them to deny cases quickly.”
The 2021 TRAC Report from Syracuse University found that the likelihood of one’s asylum petition being approved or denied in court depended heavily on which state and region in which the asylum seeker was petitioning. For example, in 2021, 65% of all applicants were granted asylum in New York, while only 9% of all applicants were granted asylum in Georgia. In addition to which city the asylum seeker applies in, other factors can also influence the outcome of their case, including their race, nationality, age, gender, and language.
The variation of approval rates in immigration courts across the country causes great uncertainty and forces many asylum seekers to make difficult decisions about where to pursue their case. If they have the ability to choose, they must decide between living in a state where they might have a support system but a low likelihood of being granted asylum, or a state where they might have a higher chance of being granted asylum but no support system.
High Legal & Attorney Costs
Although there is technically no fee to file the asylum application with USCIS, the fees charged by immigration attorneys for filing the asylum application and representing clients throughout the process can range anywhere from $5,000-$20,000. The amount owed to the attorney can depend on the size of the law firm, whether they charge a flat or hourly fee, the client's family size, the difficulty of the case, and the geographical location. Pair this major cost with the 180 day period that asylum seekers must wait before applying for work authorization – not to mention the significant backlogs in EAD processing time causing many applicants to wait up to a year to receive a work permit – and asylum seekers are put in an impossible situation: high fees due and no viable way to pay them.
Interpretation services present an additional cost associated with the asylum process. Although federal law requires an interpreter to be present for an immigration hearing if the defendant does not speak English, courts typically only have a limited number of interpreters for Spanish and Mandarin, the most common foreign languages among immigrants. If an asylum seeker speaks a language for which the court does not have an interpreter, the law firm must charge the asylum seeker additional fees to secure the services of a private interpreter both for the one-to-one work between the lawyer and client as well as during court hearings. This issue drives the legal cost for asylum seekers even higher, especially for indigenous migrants from regions like Central and South America who speak local languages and dialects.
Breaking Down the Barriers
The mission of the Alabama Interfaith Refugee Partnership (ALIRP) is to support refugees and asylum seekers through education, advocacy, and direct support. We envision a world where all refugees and asylum seekers find safety and live with dignity.
To make our vision a reality, ALIRP works to remove some of the barriers to seeking asylum by advocating to elected officials for the improvement of asylum application processes and systems. ALIRP also makes an effort to educate the public on these issues to empower individuals and other community groups to join the advocacy efforts.
In addition to advocacy and education efforts, ALIRP also provides direct support to asylum seekers in Birmingham to help them navigate legal and financial barriers. We do this by providing our partners with:
Seeking asylum in the U.S. is no easy feat, and those who take on the challenge show strength, bravery, and determination every step of the way. Show that you stand with asylum seekers in Birmingham and across the globe by joining ALIRP in our efforts to support them. To do so, consider volunteering your time, making a financial contribution, or sharing this article with a friend. Every action to remove barriers to seeking asylum is necessary, and we hope you will take action today.