Asylum and “Credible Fear” Issues in U.S. Immigration Policy Report

Foreign nationals 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. Foreign nationals arriving or presenting the United States may apply for asylum affirmatively with the United States Citizenship and Immigration Services (USCIS) in the Department of Homeland Security after arrival into the country, or they may seek asylum defensively before a Department of Justice Executive Office for Immigration Review (EOIR) immigration judge during removal proceedings.Asylum claims ebbed and flowed in the 1980s and peaked in FY1996.

Since FY997, affirmativeasylum cases decreased by 79% and defensive asylum claims dropped by 53% by FY2009.Asylum seekers from the People’s Republic of China (PRC) dominated both the affirmative and defensive asylum caseload in FY2009. Five of the top 10 source countries of asylum seekers were Western Hemisphere nations in FY2009: Haiti, Mexico, Guatemala, El Salvador, and Colombia. Ethiopia was the only African nation that was a top source country for asylum seekers in FY2009. Despite the general decrease in asylum cases since the enactment of the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA ) in 1996, data analysis of six selected countries (thePRC, Colombia, El Salvador, Ethiopia, Haiti, and Mexico) suggests that conditions in the source countries are likely the driving force behind asylum seekers.

Roughly 30% of all asylum cases that worked through USCIS and EOIR in recent years have been approved. Affirmative asylum cases approved by USCIS more than doubled from 13,532 in FY1996 to 31,202 in FY2002, and then fell to the lowest point over the 14-year period—9,614—in FY2009. The number of defensive asylum cases that EOIR judges have approved has risen by99% from FY1996 through FY2009. The PRC led in the number of asylum cases approved byUSCIS and EOIR over the decade of FY2000-FY2009. Despite national data trends that appeared to be consistent, approval rates for asylum seekersdiffer strikingly across regions and jurisdictions. For example, a study of 290 asylum officers whodecided at least 100 cases from the PRC from FY1999 through FY2005 found that the approvalrate of PRC claimants spanned from zero to over 90% during this period. In a separate study, the U.S. Government Accountability Office (GAO) analyzed asylum decisions from 19 immigrationcourts that handled almost 90% of the cases from October 1994 through April 2007 and foundthat “significant variation existed.”

Those advocating revisions of asylum policy have divergent perspectives. Some assert thatasylum has become an alternative pathway for immigration rather than humanitarian protection.Others argue that—given the religious, ethnic, and political violence in various countries aroundthe world—it has become more difficult to differentiate the persecuted from the persecutors

.Some express concern that U.S. sympathies for the asylum seekers caught up in the democraticpolitical uprisings in Libya and other parts of the Middle East, northern Africa, and south Asiacould inadvertently facilitate the entry of terrorists. Others maintain that current law does notoffer adequate protections for people fleeing human rights violations or gender-based abuses thatoccur around the world. Some cite the disparities in asylum approvals rates and urge broad-basedadministrative reforms. At the crux of the issue is the extent to which an asylum policy forgedduring the Cold War is adapting to the competing priorities and turbulence of the 21
st century

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Asylum and “Credible Fear” Issues in US Immigration Policy