Inaccessible Protection: Assessing the Impact of the New Asylum Rule
As part of the Make Our Voices Heard campaign granted by the New York Community Trust, Immigrant ARC curated guest blog posts, each written by one of our members. These insightful and informative pieces highlight their insights, learnings, and recommendations around the current issues in immigration and immigration legal services. The posts reflect only the views of the member organization authoring them, and don't necessarily reflect the views of I-ARC, or our coalition as a whole.
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By Cleo J. Kung, Senior Staff Attorney, Sanctuary for Families
Where We Were
For decades, the United States (U.S.) was the world’s largest resettlement country for refugees fleeing persecution abroad and for those seeking asylum within the U.S. U.S. law in accordance with international protocols protects those who suffered past persecution or have a “well-founded fear of persecution” on account of their race, religion, nationality, political opinion, or membership in a particular social group. After a year, asylees and refugees are additionally permitted to obtain legal permanent residency (“green card”), a necessary step before eventually applying for U.S. citizenship.
While the protections and advantages granted asylees and refugees can be generous, the processing times and procedural hurdles to obtain asylum are lengthy and onerous. It can take several months to years for an asylum application to be decided depending on when and where it is filed.
In addition to these long processing times, procedural and legal hurdles, the asylum process can be exacting for individuals who have already experienced trauma and abuse. And while navigating the asylum process with the support of an experienced attorney is arduous, it is nearly impossible without legal counsel. U.S. law does not provide asylum seekers with court-appointed counsel and non-profit legal assistance organizations are chronically understaffed and unable to meet the overwhelming need for representation.
Sanctuary for Families represents hundreds of asylum seekers who have survived gender-based violence and other forms of persecution. Here are a few of their stories. Our clients’ names have been changed to protect their identities.
While living in Russia, Sergei suffered various forms of persecution based on his gender identity and sexual orientation, including “corrective rapes,” domestic violence by his first spouse (a man), firing from a job, and beatings. He entered the U.S. on March 24, 2022 on a tourist visa and applied for asylum last August. His asylum application remains pending.
Alvita’s husband in Jamaica punched and hit her with objects during arguments, beating her whenever she voiced opinions different from his. He would also beat Alvita when she said she wanted to leave him. In other efforts to control Alvita, her husband would slash her tires, bring her electronics with him to work so she could not use them, and beat her when she wanted to take her children away. He threatened to kill her numerous times with a knife or a gun. He called her hurtful and misogynistic names such as useless, a waste of human resources, dashwehbelly (derogatory term shaming women for abortions), and big ole (derogatory term for vagina). He also threatened her with his connections to gangs. Alvita called the police over five times, but they never protected her from her husband. Eventually Alvita fled to the U.S. through Mexico and her asylum application remains pending.
Mei was a Buddhist nun in China where she founded a care facility for elderly and disabled residents of her village. When she refused to give the facility to the Chinese Government to use as a leisure retreat for retired government officials, she was falsely accused of being a Falun Gong practitioner who spread lies poisoning the morality of the villagers. Mei was beaten by government workers and repeatedly hospitalized. Mei, her adopted daughter, and her family were repeatedly threatened by the Government until Mei’s shifu and Buddhist friends helped her flee China. Mei crossed the border from Mexico to the U.S. where she was granted asylum in March of this year.
Bee is a trans gender woman who was raped, abused, and persecuted for years from the time she was a child and began to dress as a girl. Fleeing a powerful gang member who terrified and raped her, Bee sought safety in the U.S., but was subsequently subjected to sex trafficking by an abusive intimate partner. Years later, a friend connected her with a non-profit organization that referred her to Sanctuary for Families. Her asylum application remains pending.
Alvita, Bee, Mei, and Sergei all faced nearly insurmountable barriers to apply for asylum and were fortunate to obtain legal counsel. If Alvita, Bee, and Mei had entered the U.S. on or after May 11, 2023, they would likely have been unable to even apply for asylum. Under recent changes to the asylum rules, thousands of noncitizens fleeing persecution will be barred from applying for asylum in the U.S.
Where We Are
While the legal standard to establish asylum eligibility has not changed, the Biden Administration in May of 2023 published a new asylum rule which significantly heightened the procedural hurdles an asylum seeker must overcome to even state a claim for asylum, let alone prevail on their case. The new rule technically only applies to those who enter or attempt to enter the U.S. from Mexico at the land border or adjacent coastal waters between May 11, 2023 and May 11, 2025 without a valid visa or other entry document. However, given the backlogs in asylum adjudications, its restrictive effects may endure for many years to come. Under the new asylum regulation, individuals who do not enter the U.S. with a valid visa or through other “lawful pathways” are presumed to be ineligible to apply for asylum unless an exception applies to them. These exceptions include unaccompanied children, Mexican citizens, parolees, people who secure an appoint on the Customs and Border Protection (CBP) One App, or those who establish “exceptionally compelling circumstances” such as medical emergencies, imminent and extreme threats to life or safety, and subjection to a severe form of trafficking in persons. The standard to rebut the presumption of ineligibility for asylum is a “significant possibility.” Those who do not enter the U.S. through a “lawful pathway” or meet an exception will be subjected to expedited removal from the U.S. or barred from entry.
The Biden Administration’s stated intent in imposing these restrictions is to encourage asylum seekers to use “lawful, safe and orderly pathways” into the U.S. However, those legal pathways are narrow and inaccessible to many individuals fleeing persecution and violence, and who would otherwise qualify for asylum. Two of the main “legal pathways,” humanitarian parole of individuals into the U.S. and Temporary Protected Status (TPS) for people from certain countries already present in the U.S., are time-limited benefits available to only certain individuals from 17 countries, only 3 of which are within the top 10 countries of origin of people granted asylum in 2021. While they provide a way to enter the U.S. lawfully, parole and TPS provide only two years of temporary lawful status which may not always be renewed, and no path to permanent residency. In addition, the current parole programs for individuals from Cuba, Haiti, Nicaragua, and Venezuela require a financial sponsor in the U.S.
Widespread media reports have also detailed the numerous difficulties in using CBP’s One App. The One App is available in only three languages: English, Spanish, and Haitian Creole, although asylum seekers come from over 200 countries and speak over 400 languages. Even if asylum seekers speak one of these three languages or find someone to assist them, the chances of actually obtaining an appointment through One App are slim. While CBP recently increased the number of slots available each day, One App currently only provides up to 1,000 appointments each day, which are frequently filled within minutes of release. The presumption of ineligibility to apply for asylum may be rebutted if individuals present themselves at a port of entry and demonstrate that it was not possible for them to access or use the CBP One App, but advocates at the border report that both U.S. and Mexican officials block access to ports of entry to anyone without a CBP One App appointment.
These procedural barriers effectively deny access to protection that was already exceedingly difficult to obtain. Since 1980, the number of asylum applications granted by USCIS and its predecessor agency, the Immigration and Naturalization Service (INS), peaked at 39,148 in 2001 and 46,203 in 2019. In 2021, the number of asylum approvals dropped to 17,692. The percentage of asylum cases granted in Immigration Courts was 37% (15,076) in Fiscal Year 2021, a slight increase from 29% (8,349) in Fiscal Year 2020. In Fiscal Year 2023 through April, out of 419,860 pending cases in removal proceedings before the Immigration Courts, only 34,088 (or 8%) were granted relief from removal (which includes asylum, withholding of removal, or restriction on removal under the Convention Against Torture).
Legal representation greatly increases the chances of noncitizens being granted asylum or other protection from removal or deportation. Sanctuary for Families and other non-profit organizations do not have the resources to represent all indigent asylum seekers in need of legal aid. While there was an increase of attorneys providing pro bono representation to undocumented noncitizens during the COVID-19 pandemic, that trend has slowed. In Fiscal Year 2021, 47% of individuals ordered removed by Immigration Judges were represented, and only four percent, or 1,515, of those individuals had pro bono (volunteer) representation. In Fiscal Year 2022, these percentages dropped to 33 and 1.4, and in Fiscal Year 2023 through April, they dropped further to 23 and 0.8 percent.
Where We Want To Be
Many of our clients report harrowing accounts of their journeys to the U.S., including forced labor, trafficking, and sexual assault at the hands of criminal smuggling and trafficking enterprises. For those able to enter the U.S., many are forced to live in unsafe, overcrowded apartments or shelters, or remain unhoused. Those able to find work are vulnerable to exploitation by unscrupulous employers, and injury in unsafe worksites without knowledge or access to workplace protections. If they are injured, they are frequently unable to obtain adequate medical care without health insurance or the financial means to pay out-of-pocket. Even in a “Sanctuary City” like New York, many of our clients still fear that any interaction with the police may result in their apprehension and deportation.
Timely adjudication of asylum applications would greatly ease these burdens for thousands of asylum seekers in the U.S. We are heartened by the Biden Administration’s recent proposed fee schedule imposing additional charges to certain employment-based immigration applications and citing other measures to ensure the asylum and other humanitarian programs are adequately funded. But without equal access to the asylum program, thousands of individuals will remain barred from entering the U.S. every day and will remain at risk of trafficking, further abuse, and other serious harm; or they will struggle to survive in the U.S. without the protections afforded asylees; or be deported to countries where they face persecution.
Public debates over the refugee and asylum programs, let alone immigration policy in general, have become increasingly polarized and political. In the haze of political rancor, social media, and disinformation campaigns, the compelling stories of our clients and thousands of other asylum seekers have been lost. Giving voice to their stories may help. Providing compensated opportunities for survivors to become advocates may help. Funding non-profit organizations helping people navigate the asylum process may help. Impact litigation to challenge these restrictions may help. Yet for social issues as complex as immigration and human rights, the solution is never one-size-fits-all. For the sake of our clients, their families, and all the other people fleeing persecution, we urge readers to advocate for the expansion of asylum protections to those seeking the safety we so often take for granted. As Bee explained to me, “For so many years I thought there was something wrong with me, that I somehow deserved all the violence and shame. In the U.S. I learned that it was not my fault and I finally felt safe to be myself.”
