DTIC ADA465416: U.S. Immigration Policy on Asylum Seekers

Order Code RL32621

CRS Report for Congress

Received through the CRS Web

U.S. Immigration Policy on Asylum Seekers

Updated May 5, 2005

Ruth Ellen Wasem
Specialist in Immigration Policy
Domestic Social Policy Division

Congressional Research Service ❖ The Library of Congress

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U.S. Immigration Policy on Asylum Seekers

Summary

The United States has long held to the principle that it will not return a foreign
national to a country where his life or freedom would be threatened. This principle
is embodied in several provisions of the Immigration and Nationality Act (ENA),
most notably in provisions defining refugees and asylees. Aliens seeking asylum
must demonstrate a well-founded fear that if returned home, they will be persecuted
based upon one of five characteristics: race, religion, nationality, membership in a
particular social group, or political opinion.

Aliens present in the United States may apply for asylum with the United States
Citizenship and Immigration Services Bureau (USCIS) in the Department of
Homeland Security (DHS) after arrival into the country, or they may seek asylum
before a Department of Justice’s Executive Office for Immigration Review (EOIR)
immigration judge during removal proceedings. Aliens arriving at a U.S. port who
lack proper immigration documents or who engage in fraud or misrepresentation are
placed in expedited removal; however, if they express a fear of persecution, they
receive a “credible fear” hearing with an USCIS asylum officer and — if found
credible — are referred to an EOIR immigration judge for a hearing.

In FY2003, there were 42,114 claims for asylum filed with USCIS, and by the
close of the fiscal year, there were 262,102 asylum cases pending at USCIS. The
USCIS asylum officers approved 11,434 cases in FY2003, and the percentage of
cases approved was 29% of cases decided. Generally, over two-thirds of all asylum
cases that EOIR received were cases referred to the immigration judges by the
asylum officers. The percentage of EOIR asylum cases approved was 37% of cases
decided in both FY2002 and FY2003. At the end of FY2003, there were 158,624
cases pending for asylees to adjust to legal permanent resident (LPR) status. A person
who receives asylum today would wait about 16 years to become an LPR.

Although there are many who would revise U.S. asylum law and policy, those
advocating change have divergent perspectives. Some express concern that potential
terrorists could use asylum as an avenue for entry into the United States, especially
aliens from trouble spots in the Mideast, northern Africa and south Asia. Others
argue that — given the religious, ethnic, and political violence in various countries
around the world — it is becoming more difficult to differentiate the persecuted from
the persecutors. Some assert that asylum has become an alternative pathway for
immigration rather than humanitarian protection provided in extraordinary cases.
Others maintain that current law does not offer adequate protections for people
fleeing human rights violations or gender-based abuses that occur around the world.
At the crux is the extent an asylum policy forged during the Cold War can adapt to
a changing world and the war on terrorism.

The 108 th Congress enacted several bills that included asylum provisions, notably
P.L. 108-333 and P.L. 108-458. Elimination of the cap on asylee adjustments as well
as inclusion of asylum provisions dropped from P.L. 108-458 are now in H.R. 418
and H.R. 1268, both of which passed the House, and a compromise version was
retained by the conferees on H.R. 1268. This report will be updated as warranted.

Contents

Introduction .1

Background .1

Current Concerns.2

Legislative History.3

Refugee Act of 1980 .3

Immigration Act of 1990 .4

1996 Revisions to Asylum Policy .4

Expedited Removal .5

Mandatory Detention.5

Deadlines.5

Safe Third Country.5

Other Limitations.6

Employment Authorization.6

Coercive Family Planning.6

Overview of Current Policy.7

Standards for Asylum.7

Credible Fear.7

Well-Founded Fear .7

Mixed Motives.8

Process of Requesting Asylum .8

Affirmative Applications.8

Defensive Applications .9

Expedited Removal .9

Aliens Arriving by Sea.10

Background Checks.10

Safe Third Country Agreement with Canada.11

Victims of Torture.11

Statistical Trends.12

Asylum Requests and Approvals.12

Asylum Officers.12

Immigration Judges .13

Source Countries .14

Coercive Population Control Cases.16

LPR Adjustment Cases Pending .17

Issues of Debate.18

Terrorist Infiltration and Screening.18

Coordination with Border and Transportation Security.19

Mandatory Detention.19

Numerical Limits.20

Cuban and Haitian Policies .20

Gender-Based Persecution.21

Legislation.22

108 th Congress .22

House-passed S. 2845 . 22

H.R. 4011.23

S. 710.23

109 th Congress .23

The Real ID Act (H.R. 418).23

H.R. 1268 (Emergency Supplemental) .24

List of Figures

Figure 1. Asylum Cases Filed with and Approved by Asylum Officers,

FY1973-FY2003 . 12

Figure 2. Asylum Cases Filed with and Approved by Immigration Judges,

FY1996-FY2003 . 13

Figure 3. Asylum Seekers by Regions of the World.16

Figure 4. Conditional Asylum Grants on the Basis of Coercive Population

Control.17

Figure 5. Pending Cases of Asylee Adjustments to FPR Status,

FY1991-FY2003 . 18

List of Tables

Table 1. Top 10 Source Countries of USCIS Asylum Seekers.14

Table 2. Top 10 Source Countries of EOIR Asylum Seekers.15

U.S. Immigration Policy on Asylum Seekers

Introduction

Background

The United States has long held to the principle that it will not return a foreign
national to a country where his life or freedom would be threatened. This principle
is embodied in several provisions of the Immigration and Nationality Act (INA),
most notably in provisions defining refugees and asylees. 1 Aliens seeking asylum
must demonstrate a well-founded fear that if returned home, they will be persecuted
based upon one of five characteristics: race, religion, nationality, membership in a
particular social group, or political opinion. 2

Aliens present in the United States may apply for asylum with the United States
Citizenship and Immigration Services Bureau (USCIS) in the Department of
Homeland Security after arrival into the country, or may seek asylum before a
Department of Justice’s Executive Office for Immigration Review (EOIR)
immigration judge during removal proceedings. Aliens arriving at a U.S. port who
lack proper immigration documents or who engage in fraud or misrepresentation are
placed in expedited removal; however, if they express a fear of persecution, they
receive a “credible fear” hearing with an USCIS asylum officer and — if found
credible — are referred to an EOIR immigration judge for a hearing. 3

The INA makes clear that the Attorney General can exercise discretion in the
granting of asylum. Aliens who participated in the persecution of other people are
excluded from receiving asylum. The law states other conditions for mandatory
denials of asylum claims, including when: the alien has been convicted of a serious
crime and is a danger to the community; the alien has been firmly resettled in another
country; or there are reasonable grounds for regarding the alien as a danger to

1 Refugees are aliens displaced abroad and their cases are considered overseas. For a full
discussion of U.S. refugee admissions and policy, see CRS Report RL31269, Refugee
Admissions and Resettlement Policy, by Andorra Bruno.

2 INA §208;8U.S.C. §1158.

3 Distinct from asylum law and policy, aliens claiming relief from removal due to torture
may be treated separately under regulations implementing the United Nations Convention
Against Torture. For a full legal analysis of the this convention, see CRS Report RL32276,
The U.N. Conven tion Against Torture: Oven’iewofU.S. Implementation Policy Concerning
the Removal of Aliens, by Michael John Garcia.

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national security. 4 The INA, moreover, has specific grounds for exclusion of all
aliens that include criminal and terrorist grounds. 5

Current Concerns

The core concern is the extent an asylum policy forged during the Cold War can
adapt to a changing world. Most people who have traditionally received refugee or
asylum status were fleeing communist or socialist countries. From 1946 through
2000, the United States gave legal permanent resident (LPR) status to 3.5 million
refugees, asylees, and other humanitarian entrants. Over half (53%) of all of these
refugees and asylees were from three countries: Vietnam (19%), Cuba (18%), and
the former Soviet Union (16%). As one might expect, the collapse of the Soviet
Union has altered the makeup of recent humanitarian admissions. During FY2001-
FY2002, nationals from four countries comprised more than half (55%) of all the
234,590 refugees, asylees and humanitarian entrants who became LPRs:
Bosnia-Herzegovina (20%), Cuba (20%), Ukraine (8%), and the former Yugoslavia
(7%). 6

Although there are many who would revise U.S. asylum law and policy, those
advocating change have divergent perspectives. Some express concern that potential
terrorists could use asylum as an avenue for entry into the United States, especially
aliens from trouble spots in the Mideast, northern Africa and south Asia. Others
argue that — given the religious, ethnic, and political violence in various countries
around the world — it is becoming more difficult to differentiate the persecuted from
the persecutors. Some assert that asylum has become an alternative pathway for
immigration rather than humanitarian protection provided in extraordinary cases.
Others maintain that current law does not offer adequate protections for people
fleeing human rights violations or gender-based abuses that occur around the world.

This report is organized into four substantive sections. The first section
summarizes the legislative history of U.S. asylum policy, highlighting the key
provisions of the major immigration laws that established this policy. The second
section presents an overview of current policy, discussing the concepts of “credible
fear” and “well-founded fear,” explaining affirmative and defensive avenues to seek
asylum, and describing key procedures such as background checks and expedited
removal. The third section analyzes asylum data, exploring trends over time as well
as source countries and regions of the world. The final section synthesizes the issues
of current debate, offering a range of alternative views.

4 INA §208(b)(2); 8 U.S.C. §1158.

5 CRS Report RL32480, Immigration Consequences of Criminal Activity, by Michael John
Garcia; and CRS Report RL32564, Immigration: Terrorist Grounds for Exclusion of Aliens,
by Michael John Garcia and Ruth Ellen Wasem.

6 CRS analysis of data from Table 23, Department of Homeland Security, Office of
Immigration Statistics, 2002 Yearbook of Immigration Statistics, Sept. 2003. For more on
Cuban migration in particular, see CRS Report RS20468, Cuban Migration Policy and
Issues, by Ruth Ellen Wasem.

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Legislative History

Refugee Act of 1980

In 1968, the United States became party to the 1967 United Nations Protocol
Relating to the Status of Refugees (hereafter, U.N. Refugee Protocol). 7 The U.N.
Refugee Protocol does not require that a signatory accept refugees, but it does ensure
that signatory nations afford certain rights and protections to aliens who meet the
definition of refugee. At the time the United States signed the U.N. Refugee
Protocol, Congress and the Administration assumed that there was no need to amend
the INA and that the withholding of deportation provisions — then §243(h) of INA
— would be adequate. In 1974, the INS issued its first asylum regulations as part
of 8 C.F.R. §108. Prior to the passage of the Refugee Act of 1980, there was no
direct mechanism in the INA for aliens granted asylum to become legal permanent
residents (LPRs).

The Refugee Act of 1980 codified the U.N. Refugee Protocol’s definition of a
refugee in the INA, included provisions for asylum (§208 of INA), and instructed the
Attorney General to establish uniform procedures for the treatment of asylum claims
of aliens within the United States. Under the INA, a refugee is defined as an alien
“displaced abroad who is unable or unwilling to return to, and is unable or unwilling
to avail himself or herself of the protection of, that country because of persecution
or a well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 The law defined
asylees as aliens in the United States or at a port of entry who meet the definition of
a refugee. For the first time, the Refugee Act added statutory provisions to INA that
enabled those granted refugee and asylee status to become LPRs after certain general
requirements were met. 9

The 1980 law specified that up to 5,000 of the refugee admissions numbers,
which are set annually by Presidential Determination in consultation with Congress,
could be used by the Attorney General to give LPR status to aliens who had received
asylum (and their spouses and children), and who have been physically present in the
United States for one year after receiving asylum, continue to meet the definition of
a refugee, are not firmly resettled in another country, and are otherwise admissible
as immigrants. At that time, it appears that Congress and the Administration
assumed that the 5,000 ceiling would be more than adequate. 10

7 19U.S.T. 6223.

8 §101 (a)(42) of INA; 8 U.S.C. §1101.

9 For a full discussion of U.S. refugee admissions and policy, see CRS Report RL31269,
Refugee Admissions and Resettlement Policy, by Andorra Bruno.

10 Later that same year, the Mariel boatlift brought approximately 125,000 Cubans and
30,000 Haitians to U.S. shores, and most of these asylum seekers ultimately became LPRs
through special laws enacted for Cubans and Haitians.

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Immigration Act of 1990

By 1986, the number of aliens receiving asylum annually was growing, and a
backlog in obtaining LPR status developed due to the 5,000 ceiling. Compounding
the frustration with the backlog was the worry of many of those asylees from Eastern
Europe that — as a result of the improved political and human rights conditions in
their native countries — they no longer would qualify as refugees under the law.
Meanwhile, the number of aliens filing asylum claims surpassed 100,000 in 1989.

The Immigration Act of 1990 sought, among other major immigration reforms,
to address the backlogs in asylee adjustments to LPR status. Foremost, it doubled the
annual limit from 5,000 to 10,000 LPR adjustments. It also allowed those asylees
who had filed for LPR adjustments before June 1, 1990, to do so outside of the
numerical limits, effectively clearing out the existing backlog. The Immigration Act
of 1990 further granted LPR status to those asylees who had qualified for LPR status
as of November 29,1990, but were unable to obtain it because of the prior numerical
limits and improved country conditions. The crumbling of communism in Eastern
Europe and the Arias Peace talks in Central America gave optimism to many that the
number of asylum seekers would lessen in the future. 11

1996 Revisions to Asylum Policy

Prior to 1996, aliens arriving at a port of entry to the United States without
proper immigration documents were eligible for a hearing before an immigration
judge to determine whether the aliens were admissible. Aliens lacking proper
documents could request asylum in the United States at that time. If the alien
received an unfavorable decision from the immigration judge, he or she also could
seek administrative and judicial review of the case.

Critics of this policy argued that illegal aliens were arriving without proper
documents, filing frivolous asylum claims, and obtaining work authorizations while
their asylum cases stalled in lengthy backlogs. In the late 1980s and early 1990s, the
mass exodus of thousands of asylum seekers from Central America, Cuba, and Haiti
prompted further concerns that the then-current policy was unwieldy and prone to
abuses because it provided for multiple levels of hearings, reviews, and appeals. The
1993 bombing of the World Trade Center heightened fears that international
terrorists might enter the United States with false documents, file bogus asylum
claims, and disappear into the population.

Supporters of the then-current system asserted that the regulatory reforms begun
by the first Bush Administration and expanded by the Clinton Administration had
already corrected the bureaucratic problems that had plagued the asylum process.
They emphasized that the United States was a signatory to the UN Refugee Protocol
and that INA codified the internationally-held legal principle of nonrefoulement (i.e.,
that an alien would not be forced to return to a country where his life or freedom

11 In Feb. 1987, the Presidents of El Salvador, Honduras, and Guatemala signed a 10-point
peace plan for Central America that was first offered by Costa Rican President Oscar Arias.
Nicaragua joined the peace process later that same year.

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would be threatened). They also pointed out that aliens considered to be terrorists
were already excluded by law from entering the United States. Proponents argued
that aliens fleeing the most dangerous situations were likely to escape with fraudulent
documents to hide their identity, and maintained therefore that even aliens lacking
proper documents should be entitled to a full hearing and judicial review to
determine if they might be admissible.

The Illegal Immigrant Reform and Immigrant Responsibility Act of 1996
(IIRIRA, P.L. 104-208) made substantial changes to the asylum process: establishing
expedited removal proceedings; codifying many regulatory changes; adding time
limits on filing claims; and limiting judicial review in certain circumstances, but it
did not alter the numerical limits on asylee adjustments.

Expedited Removal. Among the significant modifications of the INA made
by the IIRIRA are the provisions that created the expedited removal policy. 12 The
goal of these provisions was to target the perceived abuses of the asylum process by
restricting the hearing, review, and appeal process for aliens at the port of entry. As
a result, if an immigration officer determines that an alien arriving without proper
documentation does not intend to apply for asylum or does not fear persecution, the
immigration officer can deny admission and order the alien summarily removed from
the United States. The amendments to INA made by IIRIRA provide very limited
circumstances for administrative and judicial review of those aliens who are
summarily excluded (including those who are deemed not to have a “credible fear”
as discussed below).

Mandatory Detention. Foreign nationals arriving without proper documents
who express to the immigration officer a fear of being returned home must be kept
in detention while their “credible fear” cases are pending. 13 If an asylum officer
determines that an alien does not have a “credible fear” of persecution, the alien is
removed. If the asylum seeker meets the “credible fear” threshold, they may be
released on their own recognizance while an immigration judge considers the case.

Deadlines. Another important change IIRIRA made to the asylum process is
the requirement that all applicants must file their asylum applications within one year
of their arrival to the U. 14 S. Aliens may be exempted from this time requirement if
they can show that changed conditions materially affect their eligibility for asylum,
or they can present extraordinary circumstances concerning the delay in their
application filing. 15

Safe Third Country. IIRIRA amended INA to bar asylum to those aliens who
can be returned to a “safe-third country.” This provision was aimed at aliens who

12 The IIRIRA provisions amended §235 of INA.

13 For background and analysis on detention policy under the Immigration and Nationality
Act, see CRS Report RL32369, Immigration-Related Detention: Current Legislative Issues ,
by Alison Siskin.

14 INA §208(a)(2)(B).

15 See 8 C.F.R. §208.4(a)(4) and (5).

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travel through countries that are signatories to the U.N. Refugee Protocol (or
otherwise provide relief from deportation for refugees) to request asylum in the
United States. In order to return a potential applicant to a safe-third country, the
United States must have an existing agreement with that country. 16

Other Limitations. An additional restriction on the filing of asylum
applications includes a bar against those who have been denied asylum in the past,
unless changed circumstances materially affect their eligibility. 17 The reforms also
established serious consequences for aliens who file frivolous asylum applications.
For example, the Attorney General now has the authority to permanently bar an alien
from receiving any benefits under the INA if he determines that they have knowingly
filed a frivolous asylum application. 18

Employment Authorization. IIRIRA codified many regulatory revisions of
the asylum process that the former Bush and Clinton Administrations made. Most
notably, aliens are statutorily prohibited from immediately receiving work
authorization at the same time as the filing of their asylum application. Now the
asylum applicant is required to wait 150 days after the USCIS receives his/her
complete asylum application before applying for work authorization. 19 The USCIS
then has 30 days to grant or deny the request.

Coercive Family Planning. IIRIRA also added a provision that enabled
refugees or asylees to request asylum on the basis of persecution resulting from
resistance to coercive population control policies, but the number of aliens eligible
to receive asylum under this provision is limited to 1,000 each year. 20

16 INA §208(a)(2)(A) and (C). The first and only agreement was signed with Canada in

2002 .

17 INA §208(a)(2)(A) and (C).

18 INA §208(d)(6).

19 8 C.F.R. §208.7.

20 This coercive family planning provision was added by §601. It states:

For puiposes of determinations under this Act, a person who has been forced to
abort a pregnancy or to undergo involuntary sterilization, or who has been
persecuted for failure or refusal to undergo such a procedure or for other
resistance to a coercive population control program, shall be deemed to have
been persecuted on account of political opinion, and a person who has a well
founded fear that he or she will be forced to undergo such a procedure or subject
to persecution for such failure, refusal, or resistance shall be deemed to have a
well founded fear of persecution on account of political opinion.

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Overview of Current Policy

Standards for Asylum

Because “fear” is a subjective state-of-mind, assessing the merits of an asylum
case rests in large part on the credibility of the claim and the likelihood that
persecution would occur if the alien is returned home. Two concepts — “credible
fear” and “well-founded fear” — are fundamental to establishing the standards for
asylum. The matter of “mixed motives” for persecuting the alien is also an important
concept.

Credible Fear. The INA states that “the term credible fear of persecution
means that there is a significant possibility, taking into account the credibility of the
statements made by the alien in support of the alien’s claim and such other facts as
are known to the officer, that the alien could establish eligibility for asylum under
§208.” 21 Integral to expedited removal, the credible fear concept also functions as
a pre-screening standard that is broader — and the burden of proof easier to meet —
than the well-founded fear of persecution standard required to obtain asylum.

Well-Founded Fear. The standards for “well-founded fear” have evolved
over the years and been guided significantly by judicial decisions, included a notable
U.S. Supreme Court case. 22 The regulations specify that an asylum seeker has a
well-founded fear of persecution if:

(A) The applicant has a fear of persecution in his or her country of nationality or,
if stateless, in his or her country of last habitual residence, on account of race,
religion, nationality, membership in a particular social group, or political
opinion;

(B) There is a reasonable possibility of suffering such persecution if he or she
were to return to that country; and

(C) He or she is unable or unwilling to return to, or avail himself or herself of the
protection of, that country because of such fear. 23

The regulations also state that an asylum seeker “does not have a well-founded fear
of persecution if the applicant could avoid persecution by relocating to another part
of the applicant’s country....” 24

In evaluating whether the asylum seeker has sustained the burden of proving that
he or she has a well-founded fear of persecution, the regulations state that the asylum
officer or immigration judge shall not require the alien to provide evidence that there
is a reasonable possibility he or she would be singled out individually for persecution
if:

21 INA §235(b)(l)(B)(v); 8 U.S.C. §1225.

22 INS v. Cardoza-Fonseca, 480 U.S. 421 (No. 85-782, Mar. 9, 1987).

23 8 C.F.R. §208.13(b)(2).

24 Ibid.

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(A) The applicant establishes that there is a pattern or practice in his or her
country of nationality or, if stateless, in his or her country of last habitual
residence, of persecution of a group of persons similarly situated to the applicant
on account of race, religion, nationality, membership in a particular social group,
or political opinion; and

(B) The applicant establishes his or her own inclusion in, and identification with,
such group of persons such that his or her fear of persecution upon return is
reasonable. 25

Mixed Motives. The intent of the persecutor is also subjective and may stem
from multiple motives. The courts have ruled that the persecution may have more
than one motive, and so long as one motive is one of the statutorily enumerated
grounds, the requirements have been satisfied. 26 A 1997 BIA decision concluded “an
applicant for asylum need not show conclusively why persecution occurred in the
past or is likely to occur in the future, [but must] produce evidence from which it is
reasonable to believe that the harm was motivated, at least in part, by an actual or
imputed protected ground.” 27 Generally, the asylum seeker must demonstrate in
mixed motive cases that — even though his/her persecutors were motivated for a
non-cognizable reason (e.g., the police’s desire to obtain information regarding
terrorist activities in the Sikh cases) — the persecutors were also motivated by the
asylum seeker’s race, religion, nationality, social group, or political opinion. 28

Process of Requesting Asylum

An applicant for asylum begins the process either already in the United States
or at a port of entry seeking admission. This process differs from a potential refugee
who begins a separate process wholly outside of the United States. 29 Depending on
whether or not the applicant is currently in removal proceedings, two avenues exist
to seek asylum: “affirmative applications” and “defensive applications.” The
affirmative and defensive applications follow different procedural paths, but draw on
the same legal standards. In both processes, the burden of proof is on the asylum
seeker to establish that he or she meets the refugee definition specified in the INA.

Affirmative Applications. An asylum seeker who is in the United States and
not involved in any removal proceedings files an 1-589, the asylum application form,
with the USCIS-Regional Service Center. The USCIS schedules a non-adversarial
interview with a member of the Asylum Officer Corps. There are eight asylum
offices located throughout the country. The asylum officers either grant asylum to
successful applicants or refer to the immigration judges those applicants who fail to
meet the definition. The asylum officers make their determinations regarding the
affirmative applications based upon the application form, the information received

25 8 C.F.R. §208.13(b)(2).

26 Harpinder Singh v. Ilchert, 63 F.3d 1501 (9 th Cir. 1995).

27 Matter of T-M-B-, 21 I. & N. Dec. 775, 777 (B.l.A. 1997).

28 Harpinder Singh v. Ilchert, 63 F.3d 1501 (9 th Cir. 1995).

29 For a full discussion of U.S. refugee admissions and policy, see CRS Report RL31269,
Refugee Admissions and Resettlement Policy, by Andorra Bruno.

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during the interview, and other potential information related to the specific case (e.g.,
information about country conditions). If the asylum officer approves the application
and the alien passes the identification and background checks, then the alien is
granted asylum status.

The asylum officer does not technically deny asylum claims; rather, the asylum
applications of aliens who are not granted asylum by the asylum officer are referred
to EOIR immigration judges for formal proceedings. In some respects, these
applicants/aliens are allowed a “second bite at the apple.” Asylum applicants in the
affirmative process are not subject to the mandatory detention requirements while
their applications are being adjudicated, though there is broader authority under the
INA to detain aliens for other grounds. 30

Defensive Applications. Defensive applications for asylum are raised when
an alien is in removal proceedings and asserts claim for asylum as a defense to
his/her removal. EOIR’s immigration judges and the Board of Immigration Appeals
(BIA), entities in DOJ separate from the USCIS, have exclusive control over such
claims and are under the authority of the Attorney General. Generally, the alien
raises the issue of asylum during the beginning of the removal process. The matter
is then litigated in immigration court, using formal procedures such as the
presentation of evidence and direct and cross examination. If the alien fails to raise
the issue at the beginning of the process, the claim for asylum may be raised only
after a successful motion to reopen is filed with the court. The immigration judge’s
ultimate decision regarding both the applicant/alien’s removal and asylum application
is appealable to the BIA. Applicant/aliens seeking asylum via the defensive
application method may be detained until an immigration judge rules on their
application. The applicant/alien is not detained due to their asylum claim, but rather,
because of their unlawful status in the United States.

Expedited Removal. An immigration officer can summarily exclude an alien
arriving without proper documentation or an alien present in the United States for
less than two years, unless the alien expresses a fear of persecution. According to
DHS immigration policy and procedures, Customs and Border Protection (CBP)
inspectors, as well as other DHS immigration officers, are required to ask each
individual who may be subject to expedited removal (i.e., arriving aliens who lack
proper immigration documents) the following series of “protection questions” to
identify anyone who is afraid of return:

• Why did you leave your home country or country of last residence?

• Do you have any fear or concern about being returned to your home
country or being removed from the United States?

• Would you be harmed if you were returned to your home country or
country of last residence?

• Do you have any questions or is there anything else you would like
to add?

30 CRS Report RL31606, Detention of Noncitizens in the United States , by Alison M. Siskin
and Margaret Mikyung Lee.

CRS-10

If the alien expresses a fear of return, the alien is supposed to be detained by the
Immigration and Customs Enforcement (ICE) Bureau and interviewed by an USCIS
asylum officer. The asylum officer then makes the “credible fear” determination of
the alien’s claim. Those found to have a “credible fear” are referred to an EOIR
immigration judge, which places the asylum seeker on the defensive path to asylum. 31
EOIR reports that it completed 91% of the 50,017 expedited removal asylum cases
in 180 days or less in FY2003.

Aliens Arriving by Sea. On November 13, 2002, the former INS published
a notice clarifying that certain aliens arriving by sea who are not admitted or paroled
are to be placed in expedited removal proceedings and detained (subject to
humanitarian parole). 32 This notice concluded that illegal mass migration by sea
threatened national security because it diverts the Coast Guard and other resources
from their homeland security duties. The Attorney General expanded on this
rationale in his April 17, 2003, ruling that instructs EOIR immigration judges to
consider “national security interests implicated by the encouragement of further
unlawful mass migrations ...” in making bond determinations regarding release from
detention of unauthorized migrants who arrive in “the United States by sea seeking
to evade inspection.” 33 The case involved a Haitian who had come ashore in
Biscayne Bay, Florida, on October 29, 2002, and had been released on bond by an
immigration judge. The BIA had upheld his release, but the Attorney General
vacated the BIA decision. 34

Background Checks. All aliens seeking asylum are subject to multiple
background checks in the terrorist, immigration, and law enforcement databases,
notably the Interagency Border Inspection System (IBIS). 35 Those who enter the
country legally on nonimmigrant visas are screened by the consular officers at the
Department of State when they apply for a visa, and all foreign nationals are
inspected by CBP officers at ports of entry. 36 Those who enter the country illegally

31 For more information, see Obtaining Asylum in the United States: Two Paths to Asylum,
at the USCIS website [http://uscis.gOv/graphics/services/asylum/paths.htm#seekers].

32 Federal Register, vol. 67, no. 219, Nov. 13, 2002, pp. 68923-68926.

33 23 I&N Dec. 572 (A.G. 2003).

34 CRS Congressional Distribution Memorandum, Policy Implications of Department of
Justice Ruling on Bond Determinations for Unauthorized Aliens in Detention, by Alison
Siskin, May 1, 2003.

35 IBIS is a broad system that interfaces with the FBI’s National Crime Information Center
(NCIC), the Treasury Department’s Enforcement and Communications System (TECS II),
the former INS’s National Automated Immigration Lookout System (NAILS) and Non¬
immigrant Information System (NIIS) and the Department of State’s Consular Consolidated
Database (CCD), Consular Lookout And Support System (CLASS) and TIPOFF terrorist
databases. Because of the numerous systems and databases that interface with IBIS, the
system is able to obtain such information as whether an alien is admissible, an alien’s
criminal information, and whether an alien is wanted by law enforcement.

36 For more information and analysis of alien screening and background checks, see CRS
Report RL32564, Immigration: Terrorist Grounds for Exclusion of Aliens, by Michael John

(continued...)

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are screened by the U.S. Border Patrol or the ICE agents when they are
apprehended. 37 When aliens formally request asylum, they are sent to the nearest
USCIS authorized fingerprint site. They have all 10 fingers scanned and are subject
to a full background check by the Federal Bureau of Investigation (FBI). 38

Safe Third Country Agreement with Canada. On August 30, 2002,
Canada and the United States signed the final draft text for the “safe third country”
agreement regarding asylum claims made at land border ports of entry. The
agreement states that any person being removed from Canada in transit through the
United States, who makes an asylum claim in the United States, will be returned to
Canada to have the claim re-examined by Canada. Further, any person being
removed from the United States in transit through Canada, who makes an asylum
claim in Canada, and whose asylum claim has been rejected by the United States, will
be returned to the country from which the person is being removed. If the person has
not had a refugee status or asylum claim determined by the United States, he or she
will be returned to the United States to have the claim examined by the United States.
Responsibility for determining the asylum claim will rest with the receiving
country. 39 On March 8, 2004, DHS published the proposed rule to implement the
safe third country agreement with Canada, but has not yet issued the final rule. 40

Victims of Torture. Distinct from asylum law and policy, aliens claiming
relief from removal due to torture may be treated separately under regulations
implementing the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (hereafter, Torture Convention).
Article 3 of the Torture Convention prohibits the return of any person to a country
where there are “substantial grounds” for believing that he or she would be in danger
of being tortured. The alien must meet the three elements necessary to establish
torture: (1) the torture must involve the infliction of severe pain or suffering, either
physical or mental; (2) the torture must be intentionally inflicted; and (3) the torture
must be committed by or at the acquiescence of a public official or person acting in
an official capacity. Generally, an applicant for non-removal under Article 3 has the

36 (...continued)

Garcia and Ruth Ellen Wasem; CRS Report RL31512, Visa Issuances: Policy, Issues, and
Legislation, by Ruth Ellen Wasem; CRS Report RL32399, Border Security: Inspections
Practices, Policies, and Issues, coordinated by Ruth Ellen Wasem with Jennifer Lake, James
Monk, Lisa Seghetti, and Stephen Vina; CRS Report RL32366, Terrorist Identification,
Screening, and Tracking Under Homeland Security Presidential Directive 6, by William J.
Krouse; and CRS Report RL32234, U.S. Visitor and Immigrant Status Indicator Technology
Program (US-VISIT), by Lisa M. Seghetti and Stephen Vina.

37 CRS Report RL32562, Border Security: The Role of the U.S. Border Patrol, by Bias
Nunez-Neto.

38 For more information, see U.S. Citizenship and Immigration Services, Affirmative Asylum
Procedures Manual, Feb. 2003, pp. 93-144; available at [http://uscis.gov/graphics/lawsregs/
handbook/AffrmAsyManFNL.pdf].

39 A copy of this agreement is available on the DHS website at [http://uscis.gov/
graphics/lawsregs/Dr aftAgree090402.pdf].

40 69 Federal Register, pp. 10620-10627, Mar. 8, 2004.

CRS-12

burden of proving that it is more likely than not that he would be tortured if removed
to the proposed country. If credible, the applicant’s testimony may be sufficient to
sustain this burden without additional corroboration. 41 In assessing whether it is
“more likely than not” that an applicant would be tortured if removed to the proposed
country, all evidence relevant to the possibility of future torture is required to be
considered. However, if a diplomatic assurance (deemed sufficiently reliable by the
Attorney General or Secretary of State) that the alien will not be tortured is obtained
from the government of the country to which the alien would be repatriated, the
alien’s claim for protection will not be considered further, and the alien may be
removed. 42

Figure 1. Asylum Cases Filed with and Approved by Asylum
Officers, FY1973-FY2003

©

Source: CRS presentation of USCIS Office of International Affairs data.

Statistical Trends

Asylum Requests and Approvals

Asylum Officers. As Figure 1 illustrates, the number of affirmative asylum
claims has varied greatly over the past 30 years, shaped by the prevalence of
repression, civil unrest and violence around the world, as well as by changes in

41 8C.F.R. §208.16(c)(2).

42 8 C.F.R. §208.18(c) and § 1208(c). For a full legal analysis of the Torture Convention, see
CRS Report RL32276, The U.N. Convention Against Torture: Overview of U.S.
Implementation Policy concerning the Removal of Aliens, by Michael John Garcia.

CRS-13

asylum policy. There was a drop in affirmative asylum claims being filed in the late
1990s followed by an upturn in FY2001 and FY2002. In FY2003, the affirmative
claims dropped back to 42,114 — a level approaching the low point of 38,013 in
FY1999. At the close of FY2003, there were 262,102 affirmative asylum cases
pending at USCIS, down from a recent high of 393,699 at the close of FY1997. 43

The number of affirmative asylum claims being approved also has fluctuated in
recent years. Approvals by the INS asylum corps first surpassed 10,000 in FY 1995
when 12,454 cases were approved. In FY2000, INS approved 16,693 asylum cases,
and 31,202 cases were approved in FY2002. The number of cases USCIS asylum
officers approved dropped to 11,434 cases in FY2003. The percentage of affirmative
cases approved dropped from 44% of cases in FY2000 and 43% in FY2001 to 36%
in FY2002 and 29% in FY2003. The approval rate has ranged historically from a
high of 55% in FY 1980 to a low 15% in FY 1990. 44

Figure 2. Asylum Cases Filed with and Approved by Immigration Judges,

FY1996-FY2003

Thousands

Source: CRS presentation of DOJ Executive Office for Immigration Review Office of
Planning and Analysis data.

Immigration Judges. Recent trends in asylum statistics from EOIR exhibit
a similar pattern of an overall decline in cases received in the late 1990s followed by
a reversal of the trend in FY2001 and FY2002, as Figure 2 illustrates. Although the
number of cases dropped from 74,127 in FY2002 to 65,153 in FY2003, the number

43 CRS analysis of data from U.S. Department of Homeland Security, Office of Immigration
Statistics, FY2003 Yearbook of Immigration Statistics, Sept. 2004.

44

Ibid.

CRS-14

of cases filed remains higher than the low point of 54,916 in FY2000. Generally,
over two-thirds of all asylum cases that EOIR receives are affirmative cases referred
to the immigration judges by the asylum officers. Only 18,642 of the EOIR asylum
cases were defensive claims in FY2003, making up 28.6% of the caseload. 45

The number of EOIR asylum approvals has risen gradually, as Figure 2 depicts.
(The Y axis is scaled to be comparable to Figure 1, and as a result the change over
time is less apparent). Asylum cases granted by EOIR judges rose from 5,131 in
FY1996 to 9,170 in FY2000. EOIR granted 8,638 asylum cases in FY2002 and
reached a high of 13,365 in FY2003. The percentage of EOIR asylum cases
approved (of the cases decided) in the past five years ranged from 32% in FY1991
to 40% in FY2001, and now has leveled at 37% in FY2002 and FY2003. 46

Source Countries

In FY2003, the top 10 source countries of aliens who made affirmative asylum
claims comprised 61.5 % of the 42,114 asylum cases filed with USCIS. Asylum
seekers from the top five source countries — People’s Republic of China, Colombia,
Mexico, Haiti, and Indonesia — make up 45.7% of all claims filed in FY2003. As
Table 1 indicates, the percentage of cases approved among the top 10 countries
ranges from a high of 50.0% for asylum seekers from the Cameroon to a low of 0.7%
for asylum seekers from Mexico. 47

Table 1. Top 10 Source Countries of USCIS Asylum Seekers

Source country

New cases filed

Cases approved

Percent approved

People’s Republic of China

4,750

2,024

36.1

Colombia

4,547

1,652

36.3

Mexico

3,846

26

0.7

Haiti

3,276

891

32.3

Indonesia

2,808

147

6.6

Guatemala

2,077

118

8.6

Cameroon

1,601

770

50.0

India

1,168

247

31.9

Armenia

924

371

40.0

Venezuela

896

166

33.9

All nationalities

42,114

11,434

29.0

Source: DHS Office of Immigration Statistics, FY2003 Yearbook of Immigration Statistics, Sept.
2004.

45 CRS analysis of data from U.S. Department of Justice, Executive Office for Immigration
Review, FY2003 Statistical Yearbook, Apr. 2004.

46 Ibid.

47 CRS analysis of data from U.S. Department of Homeland Security, Office of Immigration
Statistics, FY2003 Yearbook of Immigration Statistics, Sept. 2004.

CRS-15

In addition to the top source countries overall, there were six source countries
that had (1) more than 50% of their cases approved, and (2) more than 100 cases
approved by USCIS in FY2003. These countries were: Ethiopia, Eritrea, Liberia,
Burma, Togo, and Iraq. 48

The EOIR data on asylum cases are very similar to USCIS’s affirmative asylum
case data. In FY2003, the top 10 source countries of aliens who made defensive
asylum claims comprised 61.9 % of the 65,153 asylum cases filed with EOIR.
Asylum seekers from the top five source countries — People’s Republic of China,
Mexico, Colombia, Haiti, and Indonesia — make up 49.0% of all claims filed with
EOIR in FY2003. 49

The percentage of asylum cases approved (of those decided) by EOIR, however,
exhibits a somewhat different pattern, as Table 2 presents. EOIR generally has a
higher approval rate than USCIS asylum officers — 37.4% compared to 29.0% The
percentage of EOIR cases approved among the top 10 countries ranges from a high
of 45.7% for asylum seekers from Pakistan to a low of 5.8% for asylum seekers from
El Salvador. In FY2003, there were six source countries that had (1) more than 50%
of their cases approved and (2) more than 100 cases approved by EOIR. These six
source countries were: Bangladesh, Burma, Egypt, Iran, Liberia, and Russia. 50

Table 2. Top 10 Source Countries of EOIR Asylum Seekers

Source country

Cases

received

Cases

granted

Cases

denied

Percent
approved
(cases decided)

People’s Republic of China

9,320

3,595

4,593

43.9

Mexico

7,678

64

612

9.5

Colombia

6,802

1,589

3,060

34.2

Haiti

4,424

566

2,438

18.8

Indonesia

3,695

366

809

31.1

Guatemala

2,367

162

762

17.5

El Salvador

2,210

30

485

5.8

India

1,685

595

951

38.5

Armenia

1,102

412

575

41.7

Pakistan

1,070

227

270

45.7

All nationalities

65,153

13,365

22,410

37.4

Source: DOJ Executive Office for Immigration Review, FY2003 Statistical Yearbook , Apr. 2004.
Note: There were 10,146 asylum cases fromMexico that were abandoned or withdrawn in FY2003.

48 Ibid.

49 CRS analysis of data from U.S. Department of Justice, Executive Office for Immigration
Review, FY2003 Statistical Yearbook, Apr. 2004.

50

Ibid.

CRS-16

Asylum seekers come from all over the world, as Figure 3 illustrates, and the
regional distribution of the USCIS claims is not dramatically different from that of
the EOIR claims. The top source regions for USCIS asylum seekers are Asia
(26.5%) and Central America and the Caribbean (24.9%). In terms of EOIR asylum
claims, the top source regions reverse with Central America and the Caribbean first
at 33.8% and Asia second at 24.2%. African asylum seekers comprise 17.5% of
USCIS claims and 9.5% of EOIR claims.

Figure 3. Asylum Seekers by Regions of the World

USCIS

EOIR

South America
15.2%

Other

2.3%

Mideast
5.5% ~

Central American &
Caribbean
24.9%

Europe

10.5%

Europe

8 . 1 %

Central American &
Caribbean
33.8%

South America
14.7%

Source: CRS analysis of data from the DHS Office of Immigration Statistics and the DOJ Executive
Office for Immigration Review.

Note: EOIR data include asylum cases referred by USCIS.

Coercive Population Control Cases

Since 1998, the second year the provision was available, the number of aliens
eligible to receive asylum based on persecution resulting from coercive population
control policies has exceeded the numerical limits of 1,000 annually, as Figure 4
illustrates. As a result, USCIS and EOIR issue conditional asylum status to asylum
seekers who demonstrate a well-founded fear that if returned home, they will be
persecuted based on coercive population control policies.

CRS-17

Figure 4. Conditional Asylum Grants on the Basis of
Coercive Population Control

Source: CRS presentation of data from the USCIS Office of Refugees, Asylum, and
International Operations.

In FY2003, USCIS and EOIR granted conditional asylum status to 2,353 aliens
based on resistance to coercive population control policies. USCIS issued 194
conditional grants of asylum, and EOIR issued 2,159 conditional grants of asylum.
The country of origin for all conditional coercive population control grantees thus far
has been the People’s Republic of China. USCIS issued all 1,000 final grants of
asylum for FY2003. At the end of FY2003, there were at least 7,665 principal
conditional grantees on the waiting list for final approval authorization numbers,
comprising 6,401 EOIR cases and 1,264 USCIS cases. 51

LPR Adjustment Cases Pending

As evident in Figures 1 and 2 above, the number of people granted asylum each
year exceeds the number who are permitted to adjust to LPR status — 10,000
annually. Both the USCIS and EOIR data represent asylum cases, not individuals.
One case may include several people since asylum applicants may list their
immediate family members on the petition. When assessing the potential number of
LPR adjustments and the pressure on the 10,000 limit, the spouses and minor
children of the asylees also must be factored in, even though they are not enumerated

51 Unpublished data provided by the USCIS Office of Refugees, Asylum, and International
Operations.

CRS-18

in the asylum caseload data depicted in the figures, because they count toward the cap
when adjusting as LPRs.

At the end of FY2003, there were 158,624 cases pending for asylees to adjust
to LPR status. As Figure 5 illustrates, the growth of the backlog accelerated in the
late 1990s. Assuming no changes to the law on numerical limits and assuming that
asylees currently waiting to adjust to LPR status wish to remain in the United States,
a person who receives asylum today would wait about 16 years to become an LPR.

Figure 5. Pending Cases of Asylee Adjustments to LPR Status,

FY1991-FY2003

Thousands

Source: CRS analysis of data from the DHS Office of Immigration Statistics.

Issues of Debate

Terrorist Infiltration and Screening

Some have long been concerned that terrorists would seek asylum in the United
States, hoping to remain hidden among the hundreds of thousands of pending asylum
cases. Critics point to asylum seekers from countries of “special concern” (i.e., Saudi
Arabia, Syria, Iran, North Korea, China, Pakistan, Egypt, Lebanon, Jordan,
Afghanistan, Yemen and Somalia) as potential national security risks. Some argue
further that — since asylum is a discretionary form of immigration relief — national
security risks should outweigh humanitarian concerns, and thus asylum relief should
be restricted and judicial review of asylum cases more limited.

CRS-19

Others point out that asylum seekers are subject to multiple national security
screenings and that — if an asylum seeker is a suspected or known terrorist — the
law already bars alien terrorists. They argue that the extent to which security risks
exist, the risks result more from the limited intelligence data on terrorism, rather than
an expansive asylum policy. Some assert further that asylees from countries of
“special concern” may be beneficial to U.S. national security because they may have
useful information that assists in the war on terrorism, much like assistance provided
by communist defectors during the Cold War. Opponents of limiting the judicial
review of asylum cases contend that it would erode two traditional values of U.S.
polity — the right to due process and freedom from repression and persecution.

Coordination with Border and Transportation Security

Although USCIS and EOIR are clearly the lead agencies in asylum policy, the
first contacts many asylum seekers have with the U.S. government are with Border
and Transportation Security (BTS) officials. Some have expressed concern that the
BTS officials (i.e., Customs and Border Protection (CBP) inspectors, U.S. Border
Patrol officers, and Immigration and Customs Enforcement (ICE) agents), are not
adequately trained in asylum policy and other humanitarian forms of immigration
relief. They maintain that BTS officers on the front line are so geared up to protect
against terrorists that the BTS officials may not be flexible enough to recognize bona
fide asylum seekers. They also question whether there is sufficient communication
among the key immigration agencies: CBP, EOIR, ICE and USCIS.

Others point out that the CBP inspectors, U.S. Border Patrol officers, and ICE
agents follow the policy and procedural guidelines to ensure that aliens who express
a fear of returning home are given the opportunity to have their fears considered by
an asylum officer and/or an immigration judge. They maintain the training is more
than adequate and that ample protections are afforded to those who express fears of
persecution.

Mandatory Detention

Opponents to the mandatory detention of asylum seekers in expedited removal
usually cite the U.N. High Commissioner on Refugees, who maintains that detention
of asylum seekers is “inherently undesirable.” 52 Detention is psychologically
damaging, some further argue, to an already fragile population that includes aliens
who are escaping from imprisonment and torture in their countries. Asylum seekers
are often detained with criminal aliens, a practice that many consider inappropriate
and unwarranted. Some contend that Congress should provide for alternatives to
detention (e.g., electronic monitoring) for asylum seekers in expedited removal.
Others argue that the mandatory detention of asylum seekers provision should be
deleted, maintaining that there is adequate authority in the INA to detain any alien
who poses a criminal or national security risk.

52 Office of the of the United Nations High Commissioner for Refugees, UNHCR Revised
Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum
Seekers, Feb. 1999.

CRS-20

Proponents for current law warn that releasing asylum seekers in expedited
removal undermines the purpose of expedited removal and creates an avenue for
bogus asylum seekers to enter the United States. They argue that mandatory
detention of asylum seekers is an essential tool in maintaining immigration control
and homeland security. Any loosening of these policies, they allege, would divert the
CBP and ICE officers from their homeland security duties to track down wayward
asylum seekers. Supporters of current law also contend that it sends a clear signal
of deterrence to aliens who consider using asylum claims as a mechanism to enter
illegally.

Numerical Limits

Some maintain that the 10,000 annual limit on asylee adjustments to LPR status
is an arbitrary provision and unfair, particularly because refugees coming from
abroad do not have statutory limits on adjustment of status after a year of conditional
residence. They argue that it serves no policy function and only has created
unnecessary bureaucratic delays, now reaching a 16-year wait for asylees to obtain
the LPR “green card” and even longer delays to become citizens. Some also criticize
the 1,000 cap on asylees who flee coercive population control policies, arguing that
it too is arbitrary and unfair, singling out one group of asylees for differential
treatment.

Supporters of current law express a concern that unlimited asylum adjustments
would have a “magnet effect” that would encourage unauthorized migration, and they
maintain that the current numerical limits dampen this flow of migrants. They point
out that those who obtain asylum are permitted to stay in the United States and thus
have the necessary humanitarian relief from forced return.

Cuban and Haitian Policies

U.S. policy toward asylum seekers from Cuba and Haiti are often discussed in
tandem because there are several key points of comparison. Both nations have a
history of repressive governments with documented human rights violations. Both
countries have a history of sending asylum seekers to the United States by boats.
Finally, although U.S. immigration law is generally applied neutrally without regard
to country of origin, there are special laws and agreements pertaining to Cubans and
Haitians. Despite these points of similarity, the treatment of Cubans fleeing to the
United States differs from that of Haitians. 53

Many observe that Cuban migrants receive more generous treatment under U.S.
law than Haitians or foreign nationals from any other country. 54 As a consequence
of special migration agreements with Cuba, a “wet foot/dry foot” practice toward

53 For fuller discussions and analyses of these issues, see CRS Report RS20468, Cuban
Migration Policy and Issues, by Ruth Ellen Wasem; and CRS Report RS21349, U.S.
Immigration Policy on Haitian Migrants, by Ruth Ellen Wasem.

54 This policy is embodied in the Cuban Adjustment Act (CAA) of 1966 (P.L. 89-73), as
amended, which provides that certain Cubans who have been physically present in the
United States for at least one year may adjust to permanent residence status at the discretion
of the Attorney General.

CRS-21

Cuban migrants has evolved. Put simply, Cubans who do not reach the shore (i.e.,
dry land), are interdicted and returned to Cuba unless they cite fears of persecution.
Those Cubans who successfully reach the shore are inspected for entry by DHS and
generally permitted to stay and adjust under the Cuban Adjustment Act (CAA) the
following year. Despite what some consider generous treatment of Cubans, there are
others who charge that the forced return of Cubans interdicted at sea violates the
spirit, if not the letter, of U.S. asylum and refugee law.

Critics maintain that the Haitians are being singled out for more restrictive
treatment than any other group of asylum seekers. 55 Haitians interdicted at sea are
repatriated, as are Cubans; however, critics charge that Haitians who reach the United
States are more likely to be detained and less likely to be paroled after the credible
fear determination. 56 The Administration maintains that paroling Haitians (as is
typically done for aliens who meet the credible fear threshold) may encourage other
Haitians to embark on the risky sea travel and potentially trigger a mass migration
from Haiti to the United States. The Administration further argues that all migrants
who arrive by sea pose a risk to national security and warns that terrorists may pose
as Haitian asylum seekers.

Gender-Based Persecution

Some advocate amending the INA’s definition of refugee and asylee to
expressly mention gender-based persecution, as was done for resistance to coercive
population control policies. Proponents argue that those aliens fleeing such acts as
female genital mutilation (FMG), rape by military or police forces, “honor killings,”
or domestic violence are not adequately protected by the INA because the alien must
demonstrate that the abuse was based on race, religion, nationality, membership in
a particular social group, or political opinion. They contend that the judicial
decisions thus far have been contradictory and often cite Attorney General John
Ashcroft’s announcement that he is reconsidering the decision of his predecessor
Attorney General Janet Reno to vacate the BIA ruling denying asylum to a
Guatemalan woman who sought asylum based on repeated domestic violence by her
husband. 57 They assert that amending the INA to add gender as a basis would
strengthen the policy, clarify the ambiguities resulting from varied judicial decisions,
and speed up the lengthy asylum adjudication process.

Others maintain that current law affords sufficient protections for aliens fleeing
gender-based violence and persecution. They cite the legal guidance for Asylum
Officers issued in 1995 that stated: “severe sexual abuse does not differ analytically
from beatings, torture, or other forms of physical violence that are commonly held

55 U.S. Senate, Committee on the Judiciary, Subcommittee on Immigration, Hearing on the
Detention and Treatment of Haitian Asylum Seekers, Oct. 1, 2002. (Hereafter cited as
Senate Subcommittee on Immigration, Hearing on Haitian Asylum Seekers.) Available at
[http://www.access.gpo.gov/congress/senate/pdf/107hrg/88613.pdf].

56 Letter from Daniel J. Bryant, Assistant Attorney General, to Sens. Edward Kennedy and
Sam Brownback, dated Sept. 25, 2002.

57 Matter of R-A-, Int. Dec. 3403 (BIA 1999, A.G. 2001).

CRS-22

to amount to persecution.” 58 Supporters of current law point out that the BIA held
In Matter of Kasinga, that a subjective ‘punitive’ or ‘malignant’ intent is not required
for harm to constitute persecution and set the precedent for asylum on the basis of
FMG inl996. 59 They assert that adding gender as basis for asylum would impose
western cultural norms as well as create a migration magnet for women living in
male-dominated cultures and countries.

Legislation

108 th Congress

Among over three dozen bills that include provisions on asylum introduced in
the 108 th Congress, H.R. 4011, S. 710, and House-passed S. 2845 (substituting
language from H.R. 10) received action. The asylum-related provisions of these
three bills are summarized below.

House-passed S. 2845. The Speaker of the House of Representatives
Dennis Hastert introduced H.R. 10, to provide for reform of the intelligence
community, terrorism prevention and prosecution, border security, and international
cooperation and coordination. The House passed H.R. 10 as amended on October 16,
2004 as the substitute language for S. 2845, National Intelligence Reform Act of
2004, which the Senate had passed October 6, 2004. Among its provisions, House-
passed S. 2845 would have expanded authority for expedited removal and revise
asylum law. More specifically, House-passed S. 2845 would have expanded the class
of aliens subject to expedited removal without further hearing or review, by
increasing the prior continuous U.S. physical presence required for exemption from
such removal from two years to five years. It also would have restricted the ability
of those aliens in expedited removal who are seeking asylum to be given an interview
with an asylum officer to those aliens who have been physically present in the United
States for less than a year.

House-passed S. 2845 would have established expressed standards of proof for
asylum seekers, including that the applicant’s race, religion, nationality, social group,
or political opinion was or will be the central motive for his or her persecution. In
addition, H.R. 10 would have codified that the burden of proof is on the asylum
seeker to establish that he or she meets the refugee definition specified in the INA.
As would have been required by § 3007 of House-passed S. 2845: the testimony of
the asylum seeker may be sufficient to sustain such burden without corroboration, but
only if it is credible, is persuasive, and refers to specific facts that demonstrate that
the applicant is a refugee. Where it is reasonable to expect corroborating evidence
for certain alleged facts pertaining to the specifics of the claim, §3007 would have

58 U.S. Department of Justice memorandum to all INS Asylum Officers, Considerations for
Asylum Officers Adjudicating Asylum Claims from Women , from Phyllis Coven, Office of
International Affairs, May 26, 1995.

59 To read this case, see [http://www.usdoj.gov/eoir/library/intdec/id_pdf/3278.pdf]. See
also CRS Report RS21923, Female Genital Mutilation (FGM): Background Information
and Issues for Congress, by Tiajii Salaam, Erin Williams, and Ruth Ellen Wasem.

CRS-23

required that such evidence be provided unless a reasonable explanation is given as
to why such information is not provided. House-passed S. 2845 would have limited
judicial review by barring a court from reversing the decision of the asylum
adjudicator about the availability of corroborating evidence, unless it finds that a
reasonable adjudicator is compelled to conclude that such evidence is unavailable.

H.R. 4011 . The North Korean Human Rights Act of 2004 (P.L. 108-333, H.R.
4011) also included a provision pertaining to asylum. It requires that a national of
the Democratic People’s Republic of Korea (i.e., North Korea) not be considered a
national of the Republic of Korea for purposes of eligibility for refugee or asylum
status.

S. 710. The Senate Judiciary Committee reported S. 710, Anti-Atrocity Alien
Deportation Act, which included a provision that would bar any alien who commits
of acts of torture or extrajudicial killings from obtaining asylum. Language similar
to S. 710 was added to House-passed S. 2845 and was included in the National
Intelligence Reform Act of 2004 (P.L. 108-458).

109 th Congress

The Real ID Act (H.R. 418). Many (but not necessarily all) of the
immigration provisions that the conferees dropped from the National Intelligence
Reform Act of 2004 (P.L. 108-458) have been included in H.R. 418 introduced by
House Committee on the Judiciary Chairman James Sensenbrenner. 60 Some of the
asylum provisions in H.R. 418 are comparable to provisions in the 108 th Congress’s
H.R. 10 as introduced or H.R. 10 as passed by the House. The key asylum provisions
in H.R. 418 are found in § 101 and have several key features.

• It would establish expressed standards of proof for asylum seekers,
including that the applicant’s race, religion, nationality, social group,
or political opinion was or will be the central motive for his or her
persecution.

• It would codify that the burden of proof is on the asylum seeker to
establish that he or she meets the refugee definition specified in the
INA and would require that, where the trier of fact determines that
the asylum seeker should provide evidence which corroborates
otherwise credible testimony, such evidence must be provided
(unless the applicant does not have the evidence or cannot obtain the
evidence without leaving the United States);

• It require an alien applying for withholding of removal to be subject
to the same credibility determinations and burdens as an alien
applying for asylum.

• It would provide that no court shall reverse a determination (as made
by a trier of fact with respect to the availability of corroborating
evidence) in either asylum or withholding of removal cases, unless

60 For a legal analysis of H.R. 418, see CRS Report RL32754, Immigration: Analysis of the
Major Provisions of H.R. 418, the REAL ID Act of 2005, by Michael Garcia, Margaret
Mikyung Lee, and Todd Tatelman.

CRS-24

the court finds that a reasonable trier of fact would be compelled to
conclude that such corroborating evidence is unavailable.

H.R. 418 would also repeal § 5403 of the Intelligence Reform and Terrorism
Prevention Act of 2004, which requires the Comptroller General of the United States
to evaluate the extent to which weaknesses in the United States asylum system and
withholding of removal system have been or could be exploited by aliens “connected
to, charged in connection with, or tied to terrorist activity.”

Among other things, the Manager’s Amendment to H.R. 418 added a provision
to the bill that would eliminate the annual cap of 10,000 on asylee adjustments to
LPR status. H.R. 418 as amended passed the House of Representatives on February
10, 2005, by a vote of 261 to 161.

H.R. 1268 (Emergency Supplemental). The Real ID Act also passed the
House on March 12, 2005 as part of the FY2005 supplemental appropriations for
military operations in Iraq and Afghanistan, reconstruction in Afghanistan and other
foreign aid (H.R. 1268). The conferees for H.R. 1268 modified the asylum
provisions, the most significant revisions from the original language being:

• establishing expressed standards of proof for asylum seekers,
including that the applicant’s race, religion, nationality, social group,
or political opinion was or will be one of the central motives for his
or her persecution;

• requiring the asylum seeker to provide evidence that corroborates
otherwise credible testimony, unless the applicant cannot
reasonably obtain the evidence; and

• eliminating the 10,000 numerical limit on asylee adjustments and the
1,000 cap on asylum based on persecution resulting from coercive
population control policies. 61

Because H.R. 1268 is an emergency supplemental appropriation, it is considered
“must pass” legislation.

61 U.S. Congress, House, Conference Report on H.R. 1268, H.Rept. 109-72, May 3, 2005.