Immigration (210452)
Credit: Flickr/Creative Commons/Jeff Djevdet/

In the current Trumpian dictatorial atmosphere of rule by executive orders, tweets and dog whistles, there seems to be a determined effort to use the derogatory and inaccurate term “illegal” to describe immigrants arriving at the U.S. border and wishing to apply for refugee status and asylum.

That of course is another effort by this administration to present alternative facts—a “bigly” effort indeed. But here are the facts, according to the U.S. laws and the U.S. Citizenship and Immigration Services guidelines, as laid out on its own website as it relates to refugee and asylum applicants arriving at the U.S. borders.

  1. Although some people use the terms refugee and asylum interchangeably, it’s necessary to note that there are, in fact, distinct differences. They are both considered protections to foreign individuals who feel their safety is in jeopardy if they return to their home countries, but refugee status is for those who are currently outside the United States. Those who arrive at the U.S. ports or are already in the United States, either through a visa or other means, can seek asylum. Both of these options, if approved by the government, would permit an individual to stay in the country indefinitely.

  2. You can apply for asylum at the port of entry in the U.S. or, regardless of your immigration status, within a year of coming to the United States. You cannot apply abroad.

  3. In the United States, there is no fee to apply for asylum. Asylum seekers can list their spouse and all their children on Form I-589, Application for Asylum and for Withholding of Removal.

  4. There are two paths to claiming asylum: Affirmative and Defensive.

Affirmative asylum

To obtain asylum through the affirmative asylum process, an immigrant must be physically present in the United States. An immigrant can apply for asylum status regardless of how the individual arrived in the United States or the individual’s current immigration status.

The immigrant can apply for affirmative asylum by submitting Form I-589, Application for Asylum and for Withholding of Removal, to the U.S. Customs and Immigration Service.

If the case is not approved and the applicant does not have legal immigration status, the applicant will be issued a Form I-862, Notice to Appear, and the case will be referred to an immigration judge at the Executive Office for Immigration Review. The immigration judge will conduct a de novo hearing of the case. That means the judge conducts a new hearing and issues a decision independent of the decision made by USCIS. If the agency does not have jurisdiction over case, the Asylum Office will issue an I-863, Notice of Referral to Immigration Judge, for an asylum-only hearing.

Affirmative asylum applicants are usually rarely detained by U.S. Immigration and Customs Enforcement and can live in the United States while the application is pending before USCIS, unlike what we are seeing now.

Even if the applicant is found ineligible, the applicant can remain in the United States while the application is pending with the immigration judge, even though most asylum applicants are not authorized to work.

Defensive asylum processing

A defensive application for asylum occurs when an immigrant requests asylum as a defense against removal from the U.S. For asylum processing to be defensive, the immigrant must be in removal proceedings in immigration court with the Executive Office for Immigration Review.

Individuals are generally placed into defensive asylum processing in one of two ways:

They are referred to an immigration judge by USCIS after they have been determined to be ineligible for asylum at the end of the affirmative asylum process, or they are placed in removal proceedings because they were apprehended (or caught) in the United States or at a U.S. port of entry without proper legal documents or in violation of their immigration status.

They were caught by U.S. Customs and Border Protection trying to enter the United States without proper documentation, for example, crossing the border illegally, and were placed in the expedited removal process, or were found to have a credible fear of persecution or torture by an asylum officer at the border.

Immigration Judges hear defensive asylum cases in courtroom-like proceedings. The judge will hear arguments from both the individual (and his or her attorney, if represented) and the U.S. government, which is represented by an attorney from Immigration and Customs Enforcement

The immigration judge then decides whether the individual is eligible for asylum. If found eligible, the immigration judge will order asylum to be granted. If found ineligible for asylum, the immigration judge will determine whether the individual is eligible for any other forms of relief from removal. If found ineligible for other forms of relief, the immigration judge will order the individual to be removed from the United States. The immigration judge’s decision can be appealed by either party.

These laws are on the books, despite what Donald Trump says. Know your rights!