Legalese — Immigration and Asylum

Since immigration seems to be such a hot topic these days, especially asylum seekers at the border, and since I know very little about immigration, as I don’t practice that area of law, I thought I would learn a little bit about it so I would be informed.  Following is what I learned.

The first question is, what is “asylum”?  Asylum is a legal protection for someone who can show that they have a “well-founded fear of persecution” based on their race, religion, nationality, political opinion, or membership in a particular social group.  The difference between an asylum seeker and a refugee in the United States is that an asylee (apparently this is a word) is already here.

According to the U.S. Citizenship and Immigration Services official government website, you can’t ask for asylum until you are already on United States soil.  There are seven basic steps for seeking asylum:

  1. Arrive in the U.S.
  2. Apply for asylum
  3. Get fingerprinted and have a background and security check
  4. Receive a notice of your interview
  5. Actually have the interview
  6. The Asylum Officer makes a determination as to your eligibility, and then a supervisor reviews the decision
  7. You receive notice of the decision.

There are two kinds of asylum processes – affirmative and defensive.  Affirmative happens when you first arrive and immediately declare that you are seeking asylum: you have not been placed in removal proceedings before an Immigration Judge and have affirmatively submitted Form I-589 to USCIS.  In defensive asylum proceedings you have been placed in removal proceedings and you are saying you should not be removed from the United States because you have a valid asylum claim.

This process is radically different than it was in our great-grandparents’ time.  Nowadays, we live in a documented, paperworked society.  Back then, not everyone had a birth certificate or a passport or official documentation.  In 1892-1954, more than 12 million immigrants passed through Ellis Island, most of them undocumented[1].  For 80% of the immigrants passing through Ellis Island (like my great-grandparents) it only took a few hours to pass through.  Passenger manifest documents, written in script, created from the point of departure, were often the only means of identifying those on board.  They were given medical examinations when they disembarked from the boats, and were generally only detained if there were a medical issue involved, or if there were questions of morality (like a pregnant, unmarried woman) or someone suspected of being an anarchist or someone being brought in to break a labor strike.

It’s interesting to me how different things are from how they were, and it is interesting to me to imagine how I would act if I were a non-English speaker hearing tales of the freedom and prosperity of the U.S. while living in an oppressive regime.  What would I do or sacrifice to get here?  What access would I have to American immigration forms before I got here?  If I had one opportunity to leave before I could get official paperwork to come through, would I take that opportunity and beg for asylum once I reached the U.S., hoping it would come through?

I don’t know any of those answers, and I am fortunate not to have to know, as I was born a United States citizen and have no plans to leave.  What would you do?


Nothing in this article should be construed as legal advice.  It is being offered for informational purposes only.  

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