The US asylum system is complex and requires extensive legal experience to fully use and understand. Currently, asylees are defined as people fleeing their country of origin due to fear of persecution because of their “race, religion, nationality, membership in a particular social group, or political opinion.” This is quite broad, which means it is up to the adjudicator to determine whether an individual is under significant enough threat to be granted asylum status in the United States.
Beyond the unclear nature of asylum, the process itself is complicated. First, a potential asylee must be physically present in the United States to begin the asylum process. This is a major issue for individuals because people can spend their life savings trying to get to the border or fly into the USA, only to be immediately turned away at the border or sent back to their country of origin. Once physically in the United States, they are eligible to submit their Form I-589, Application for Asylum and for Withholding of Removal. This twelve-page form requires information such as your passport, all past entries into the United States, family information, employment history, address history, and education. While this is standard to many USCIS forms such as the I-129, Petition for a Nonimmigrant Worker, and Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, there is a key difference. Unlike the forms mentioned above, there is no section to include if a translator or preparer assisted with the application. Instead, there is one checkbox on page one, item 24, asking if the individual is fluent in English. The main reason this complicates the application process is that it precludes individuals who do not speak English fluently enough to fill out a complicated legal form from adequately responding to the questions, which creates a case for an adjudicator to deny asylum. Given that the United States has no official language, despite Congress’s effort to create one in 2017, it is discriminatory to preclude individuals the ability to transparently use assistance to complete their I-589, since it is included on almost all other immigration forms. Furthermore, applicants are expected to provide their own translators should they be granted an interview, burdening the potential victims even more and making the process difficult for those with limited access to resources like the people detained at border camps.
If applicants are able to correctly fill out their information at the top of the form, they then reach part B on page 5, where they are asked a series of questions to determine if they are eligible for asylum. Potential applicants are asked about the torture they may have experienced, threats, and other implications that harm may come to them if they continue to reside in their country of origin. For example, if someone has threats on their life by the government of their home country, it is reasonable to assume that they would be harmed if they stayed in that country. Another example would be if a homosexual individual was in a country where homosexuality was punishable by death. In this case, it would be reasonable to assume that harm would come to them if they stayed in their country of origin as a homosexual. Again, this is made difficult by the language barrier.
If applicants are granted an interview, they then have to attempt to navigate the legal system while not being provided counsel. Many law firms offer pro bono counsel for asylees, but due to the massive backlog of about 800,000 cases, the need for counsel is greater than the amount of pro bono lawyers currently doing asylum cases. However, the denial rates for unrepresented asylum seekers are much higher than for those who are represented. Only eighteen percent of unrepresented asylum seekers are granted asylum, whereas thirty-one percent of represented asylum applications are granted. Furthermore, the number of unrepresented applicants is increasing, up to 20% unrepresented from 16% in 2019. An example of this is Valerie Sanchez, a transgender woman fleeing Honduras due to persecution for being transgender, who has struggled to get her case heard while she waits in a detention facility.
Applicants are also subject to some degree of luck. Denial rates vary wildly between judges due to the high degree of discretion and lack of specific criteria in the I-589, unlike other visas like the H-1B which have extremely specific criteria. This causes districts to have varying rates between judges, such as in Newark, where granted rates vary from 6.9% to 79.3%, depending on which judge happens to be in court when an asylee presents their case. This lack of standardization is a key reason why applicants are often uncertain if they qualify for asylum, and struggle to present their case.
There are many other issues with the asylum procedures, such as the detention of asylees through the process and the large wait times for cases to be heard, but the application process itself is also flawed. If the forms had more specific criteria, more resources for people who struggle with English, and an outline of eligibility requirements for the judges who hear the cases, the asylum process could be more streamlined and allow for more deserving applicants to be granted asylum in the land of the free.