A Complete Guide to U.S. Refugee Jurisprudence, Asylum Law and Policy
Introduction
U.S. refugee and asylum laws are founded upon principles of international law and can be extremely complicated. The origins of modern-day refugee and asylum law have their roots in the years following World war II, when scores of Europeans fled their countries of origin.
The most relevant international treaties relating to Refugees are the 1951 Convention Relating to the Status of Refugees and the 1967 Optional Protocol relating to the Status of Refugees.
Definition of Refugee & Asylee
There are two ways that an individual can come to seek refuge in the United States.
– Refugees
The Immigration and Nationality Act, section 101(a)(42) sets forth the definition of a refugee, and it is as follows, “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and 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, or (B) in such special circumstances as the President after appropriate consultation (as defined in section 1157(e) of this title) may specify, any person who is within the country of such person’s nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” This definition is based on the definition found in the United Nations Convention of 1951 and its 1967 Protocols.
The definition of refugee excludes anyone who “ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.”
- Be outside of the United States;
- Meet the definition above;
- Not be firmly resettled in another country; and
- Be admissible to the United States.
In simple terms, a refugee is an individual who meets the above definition, and who is outside of the United States. They have fled from their country of origin and are waiting in a third country for resettlement to another.
– Asylee
Also known as asylum seekers, are individuals who meet the above definition, but who are already present in the United States or at a port of entry. Asylees can apply for asylum affirmatively, with the U.S. Asylum Office, or defensively, in removal proceedings before the Immigration Court.
– Asylum
Essentially, asylum has two basic conditions. First, an individual must demonstrate that they have been persecuted, or fear persecution from the government in their country of origin. Second, they must show that the persecution would be on account of their race, religion, nationality, political opinion, or particular social group. There are many other intricacies and nuances to asylum law; however, these are the most basic requirements.
Status of Refugees Worldwide
According to the United Nations High Commissioner for Refugees (UNHCR), the number of worldwide refugees and asylum seekers is on the rise. The following are the numbers of refugees and asylum seekers worldwide, from 2013-2018.
In 2017 the top origin countries for new refugees abroad were South Sudan (1,00,100), Syria (745,200), Myanmar (655,500), Central African Republic (110,500), the Democratic Republic of the Congo (94,700), and Burundi (37,200).
For 2017 the top origin countries for total refugees abroad were Syria (6.3 million), Afghanistan (2.6 million), South Sudan (2.4 million), Myanmar (1.2 million), Somalia (986,400), Sudan (694,600), Democratic Republic of the Congo (620,800), Central African Republic (545,500), Eritrea (486,200), and Burundi (439,300).
In 2018 the regions taking in the most refugees were Europe (6,441,542), Africa (6,331,669), Asia and the Pacific (4,160,040), the Middle East, and North Africa (2,649, 792), and the Americas (534,498).
The regions taking in the most asylum seekers in 2018 were Europe (1,247,229), the Americas (1,311,654), Africa (484,224), the Middle East, and North Africa (283,845), and Asia and the Pacific (176,332).
United States Refugee Admissions
The number of refugees admitted every year to the United States varies. The President, in consultation with Congress, determines this number annually. For the Fiscal Year 2020, which runs from October 1, 2019-September 30, 2020, the United States will admit up to 18,000 refugees; this is the lowest ceiling for the United States since 1980. For the fiscal year 2019, the cap was 30,000.
An unlimited number of asylees, or applicants for asylum, from within the United States can be approved each year.
Numbers of Refugee Arrivals: In 2017, a total of 53,691 people were admitted to the U.S. as refugees. The leading countries of origin were the Democratic Republic of Congo (9,377), Iraq (6,886), Syria (6,557), and Somalia (6,130). U.S. refugee ceilings and admissions for 2018-2013 are below.
See:
- 2017 Data Sets: https://www.dhs.gov/immigration-statistics/refugees-asylees
- https://www.dhs.gov/sites/default/files/publications/Refugees_Asylees_2017.pdf
- https://www.pewresearch.org/fact-tank/2019/10/07/key-facts-about-refugees-to-the-u-s/
- https://fas.org/sgp/crs/misc/RL31269.pdf
Number of Asylum Grants: Additionally, 26,568 individuals were granted asylum in 2017. Of that 26,568, 16,045 were granted affirmative asylum, and 10,523 were granted asylum defensively (in immigration court). The leading countries of origin for asylum were China (5,581), El Salvador (3,469), Guatemala (2,963), and Honduras (2,048).
- See: 2017 Data Sets: https://www.dhs.gov/immigration-statistics/refugees-asylees
Refugee Resettlement in the United States
To resettle in the United States as a refugee, one must first receive a referral to the U.S. Refugee Admissions Program, whose mission is to “offer resettlement opportunities to persons overseas who are of special humanitarian concern, while protecting national security and combating fraud.” From start to end many U.S. agencies are involved in the designation, determination, and resettlement of a refugee, including the Department of State (Bureau of Population, Refugees, and Migration), the Department of Health and Human Services, (Office of Refugee Resettlement), and the Department of Homeland Security (United States Citizenship and Immigration Services).
Referral Under a Priority Group
To be considered for classification as a refugee, an individual must fall under one of three categories:
- Priority One: Individuals referred by UNHCR, the U.S. embassy, or specially trained non-governmental organizations (NGOs).
- Priority Two: Specific groups of particular concern, typically from a certain nationality.
- Priority Three: Family members of refugees asylees already lawfully admitted to the United States, including spouses, unmarried children under 21, and parents.
Once a refugee has obtained a referral under one of the priority groups, they are assigned to a Resettlement Support Center (RSC) where the case is processed, and biographic security checks begin.
The United States Citizenship and Immigration Services & Next Steps
Next, USCIS conducts background checks and confirms that the individual meets the definition of a refugee, that they are admissible to the United States, and that they have not firmly resettled in a third country.
Once approved by USCIS, the refugee will have a medical exam and be vaccinated. Additionally, the refugee will receive cultural orientation at an RSC.
Lastly, once all screenings and security processes have been completed, the refugee works with the International Organization for Migration to arrange travel to the United States.
Coming to the United States
- Cost of Travel: All refugees over the age of 18 are offered an interest-free loan to cover the cost of their travel to the United States. If they wish to take out a loan, they sign a promissory note agreeing to repay the cost of their travel within 46 months of arrival.
- Arrival in the United States: Upon arrival to the United States, a refugee will work with an NGO to ensure that they have food, housing, clothing, Medicare, and other necessities. Refugees are eligible for cash and food assistance, health insurance, and job training.
Lawful Permanent Residency
- One Year: After one year of residency in the United States, a refugee may apply for their Lawful Permanent Residency.
Naturalization
- Five Years: After five years as a lawful permanent resident, former refugees may apply for their citizenship.
Refugee Resettlement by States
For Fiscal Year 2019, refugees were dispersed amongst 48 states (Hawaii and Wyoming took in no refugees). Top recipients were Texas (2,500), Washington (1,900), New York (1,800), California (1,800), Kentucky (1,400), Ohio (1,400), North Carolina (1,300), Arizona (1,200), Georgia (1,200), and Michigan (1,100).
