The exact number of illegal aliens currently present in the United States is unknown. According to Statista the population of unauthorized immigrants in the United States was around 10.99 million people as of 2022. However, studies show that the number of encounters with illegal aliens by the United States Border Patrol has significantly increased in the last few years, with 2,063,692 registered alien apprehensions and expulsions recorded in 2023.
It is often assumed that persons entering the United States illegally are refugees seeking asylum in this country. Indeed, this could well be true. However, very little, if any, accurate reporting is available to explain an often overlooked fact: “Asylum” and “refugee” are legal terms that are defined in U.S. law. Not just anyone who has left his homeland seeking a better life in the United States will qualify for asylum. Here is a brief primer on the U.S. law of asylum.
Definition
Under the the Immigration and Nationality Act (INA) and related federal regulations, “asylum” is a form of protection granted to individuals who are already in the United States or seeking entry at a port of entry and who meet the definition of a “refugee.” Under U.S. law, a refugee is someone who:
Has been persecuted and/or has a well-founded fear of future persecution based on one of five protected grounds:
- Race
- Religion
- Nationality
- Membership in a particular social group (PSG)
- Political opinion.
2. Eligibility Criteria
To qualify for asylum, applicants must demonstrate that:
- They are unable or unwilling to return to their home country due to past persecution or a well-founded fear of future persecution;
- The persecution has been/or will be carried out by the government or by groups the government is unable or unwilling to control; and,
- The persecution is linked to one of the five protected grounds mentioned above.
3. How to Apply for Asylum
There are two primary ways to apply for asylum:
Affirmative Asylum Process:
- Applicants must be physically present in the U.S. and file Form I-589 (Application for Asylum and for Withholding of Removal) with U.S. Citizenship and Immigration Services (USCIS).
- Applicants are not placed in removal (deportation) proceedings unless their case is denied.
Defensive Asylum Process:
- This occurs when someone applies for asylum as a defense against removal in immigration court.
- These cases are handled by an immigration judge within the Executive Office for Immigration Review (EOIR), under the jurisdiction of the Department of Justice.
4. Timeframe for Filing
Asylum applicants must generally file within one year of entering the United States unless they can show:
- Changed circumstances that materially affect eligibility.
- Extraordinary circumstances that caused a delay in filing.
5. Benefits of Asylum
Individuals granted asylum can:
- Stay in the U.S. indefinitely.
- Apply for work authorization.
- Petition to bring immediate family members (spouse and children under 21).
- Apply for a green card (permanent residency) after one year.
6. Barriers to Asylum
Certain factors may disqualify an individual from receiving asylum, including:
- Participation in persecution of others.
- Convictions for particularly serious crimes.
- Security-related concerns.
- Safe resettlement in a third country before arriving in the U.S.
If you believe you qualify for asylum, make sure you qualify on time, and seek the help of an expert. It is not recommended that you prepare the application yourself or with the aid of an unscrupulous “notario” who doesn’t know what he’s doing and will charge thousands of dollars for his services. Proving that you qualify as a “refugee” is extremely difficult. Merely suffering hardship in your home country is not enough. You must prove persecution based on one of the five enumerated grounds listed above, and the persecution must be at the hands of the government or persons the government cannot or will not control. Seek the advice of a reputable immigration attorney who can evaluate your case and offer wise counsel.