Who is an asylum seeker? An asylum seeker is a person who has been forced to flee their country of origin due to past persecution or a fear of future persecution for reasons of race, religion, nationality, political opinion, or membership in a partic-ular social group. An asylum seeker enters, seeks, and applies for sanctuary in another country after fleeing the country of persecution.

What is the difference between an asylum seeker and a refugee?The distinction between an asylum seeker and a refugee is dependent on where the individual applies for asylum. Refugees are processed overseas and enter the United States through the resettlement process. Asylum seekers come to the U.S., and seek asylum in the country or at a port of Entry.

Who can legally seek asylum? Any foreign national present in the U.S. or arriving at a port of Entry can legally seek asylum. People who seek asylum must generally apply for asylum within one year of entry into the U.S. However, there are exceptions to this one year filing deadline based on changed or ex-traordinary circumstances.

What is the process of seeking asylum?There are two major pathways of seeking asylum in the U.S. The first pathway is the affirmative process where the asylum applicant submits an asylum application directly to the United States Citizenship and Immigration Services (USCIS) and will have an interview with an asylum officer. The second pathway is the defensive process. A person who applies in the defensive process has already been placed in removal proceedings before an immigration judge and must apply for asylum to avoid removal from the U.S. Both processes are legal ways to seek asylum.

1. In affirmative asylum process, migrants can apply for asylum status regardless of how they entered the U.S.

Affirmative asylum applications are filed and decided within USCIS. No matter how the asylum seeker entered the U.S. - either at a port of Entry or without inspection - the asylum seeker must submit the asylum application within one year of arrival to the U.S. In some instances, an exception based on extraordinary or changed circum-stances preventing one from applying for asylum within one year could apply.

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Asylum SeekersDISCLAIMER: The information provided in this document is for general informational purposes only and does not consti tute legal advice. It is not guaranteed to be complete or up-to-date due to frequent immigration policy changes and court decisions. Do not act or rely on any informa-tion contained in this document. Seek the advice of a qualified attorney before taking any action regarding the subject matter of this document.

If the asylum seeker is not granted asylum, and does not hold lawful immigration status, removal proceedings are initiated. An asylum seeker has the opportunity to reap-ply for asylum through the defensive process through the immigration court system.

2. In defensive asylum process, migrants found to be without valid documentation and put into removal proceedings can apply for asylum in order to prevent deportation.

The applications are filed with an immigration judge at the Executive Office for Immigration Review (EOIR) in the Department of Justice (DOJ). Defensive applications can be filed by asylum seekers who are found to be living in the U.S. and detained by the U.S. Immigration and Cus-toms Enforcement (ICE).

The defensive asylum process also applies to individu-als who arrive at a port of entry without valid documents or those who have entered without inspection and have been apprehended within 14 days and within 100 miles from the border. These migrants are placed in expedited removal proceedings. If individuals in expedited remov-al indicate a fear of returning to their home country then Customs and Border Protection (CBP) refers the appli-cant for a credible fear screening interview. An asylum officer with USCIS will conduct the credible fear screen-ing interview and if the individual passes the interview they will be eligible to apply for asylum before an immi-gration judge.

Neither defensive asylum seekers nor affirmative asylum seekers are guaranteed an attorney. While they may hire their own immigration lawyers, the government does not have an obligation to provide them with legal counsel as in criminal cases.

How long is the asylum application process?It varies, but the full process usually takes between six months and several years. Under the Immigration and Nationality Act, the affirmative asylum process requires an interview to be held within 45 days of the initial appli-cation date and for USCIS to issue a decision within 180 days after the application is filed. In reality, the system’s backlog means that few applications are decided within this timeframe. As of January 2019, there were 325,277 asylum cases pending with USCIS. The historic height of the application backlog occurred in March of 2018, with more than 690,000 open deportation cases. On average, asylum seekers who had received asylum status by March 2018 had waited more than 1,000 days for the decision.

What happens to asylum seekers while their applications are being processed?Under the 1996 Illegal Immigration Reform and Immi-grant Responsibility Act, all asylum seekers who arrive at a port of entry must be held in immigrant detention cen-ters. The asylum seekers are detained until a decision is reached on whether the claim of asylum is credible.

Detained asylum seekers may be removed from deten-tion under two circumstances: 1) If the migrant applies

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for asylum at a port of entry and immigration officials deem that the applicants pose no security risk and do not serve as a flight risk, the asylum seeker may be re-leased from detention under parole. Parole is granted by ICE, and in many cases asylum seekers wear GPS ankle bracelets monitored by immigration officials. 2) If a mi-grant is apprehended and applies for asylum under the defensive application process, they may be released on a bond granted by ICE or an immigration judge. Howev-er, high cost of bail often presents a barrier for asylum seekers.

The retention rate of asylum applicants is high, with 96 percent of asylum applicants attending all immigration court hearings.

Since the 1987 Flores Settlement Agreement, there have been time and condition limitations imposed on the practice of detaining immigrant children. Under the agreement, children cannot be held in detention centers for longer than 20 days in emergency periods of high

influx of migrants. Migrant parents and their biological children are therefore either held in ICE family detention centers or released until their court hearing.

For unaccompanied minors, the agreement requires child migrants to be released to parents, adult relatives, or accredited programs as soon as possible. Within Bor-der Patrol facilities, children should be placed in the least restrictive setting appropriate, and have access to safe and sanitary conditions. The agency has repeatedly been criticized for failing to meet these standards of care.

How many people apply for asylum?In FY 2018, 106,147 asylum seekers applied through the affirmative asylum process, representing a 25 percent decrease from the preceding year and the first decrease in application submissions in eight consecutive years. In addition, 111,887 asylum seekers applied through the defensive asylum process, representing an 8 percent de-crease from 2017.

How many people are granted asylum per year?

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© 2018 TRACSource: Transac�onal Records Access Clearinghouse

Asylum Decisions and Denials Jump in 2018

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Does having legal representation impact asylum decisions?

Yes. Detained immigrants with access to representation were nearly 11 times more likely to seek asylum or other types of relief than those without representation. Among non-detained immigrants, the rate of seeking asylum or other types of relief was five times higher than those without representation.

Representation also impacts the approval rate of the applications. For detained immigrants, applicants with representation were twice as likely to be granted asylum or other types of relief as those without representation. Non-detained immigrants were nearly five times as likely to be granted asylum or other types of relief.

Do asylum seekers regularly fail to appear in court?

No. The overwhelming majority of asylum seekers attend mandated court hearings. According to Department of Justice statistics, between 2013 and 2017, 92 percent of asylum seekers appeared in court for their final decision. In addition, between 2001 and 2016, 92 percent of asy-lum seeking families who were released from detention centers complied with all court obligations. From Sep-tember 2018 to May 2018, 85.5 percent of families who had been released from detention centers attended their first court hearing, and 80.9 percent of families appeared at court hearings so far this year.

Furthermore, TRAC found nearly 100 percent of asylum seeking families comply with all court hearings when they have access to legal representation.

Can asylees and asylum seekers legally work in the U.S.?

Yes. After gaining asylum status, asylees have the ability to apply for a Social Security card and are authorization to work in the U.S. Asylum seekers are eligible to apply for work authorization if their asylee case has been pend-ing for six months.

Can asylees become citizens?

Yes. Asylees can apply for legal permanent residence (also referred to as a green card) after one year and can apply for citizenship after five years.

What is the Migrant Protection Protocols program and how does it impact asylum seekers?

The Migrant Protection Protocols program (MPP), also referred to as the Remain in Mexico deal, allows the U.S. government to send asylum seekers across the border and remain in Mexico while their asylum case is being processed. Asylum seekers who arrive at the U.S. port of entry and seek asylum are placed into immigration custody are returned to Mexico and given a court date weeks in the future.

As of August 2019, the MPP program has been imple-mented in areas near San Diego, Calexico, El Paso, Lare-do and Brownsville. According to DHS, more than 31,800 migrants have been sent over the Mexican border. These migrants often become targets for kidnapping and rob-beries while waiting in Mexican cities. Many decide to abandon their asylum claims and return to their home countries. Immigration advocates have challenged the deal, but the U.S. Court of Appeals for the 9th Circuit has allowed the practice to continue until a decision is issued.

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