Statutes of Liberty: Asylum — Let’s Get Political

This sponsored column is by James Montana, Esq., the principal of Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact him for an appointment.

By James Montana, Esq.

The law of asylum is one of the most complex and misunderstood areas of our laws. What follows here is a basic overview, intended to answer the following question: Why do some people get asylum, but not others?

To apply for asylum, a foreigner must be physically present in the United States, and must complete an application for asylum. (Read it if you like, here.) The application is twelve pages long. The instructions are fourteen pages long and are written in fragrant legalese.

Applicants for asylum do not have the right to counsel. If you can’t afford a lawyer, one will not be appointed for you. This is a generally true fact about our immigration system, but it is especially significant for asylum applicants, most of whom are recent arrivals who do not speak English well. And they’re on the clock. If you don’t apply for asylum within one year of your arrival in the United States, your asylum application is blocked by a rule called the One Year Deadline. (The government is not subject to any penalties to delay; one of my clients recently had his asylum hearing delayed by two years, just a month before the trial.)

Let’s say that you manage to get through the entire Form I-589, complete it properly, send it to the right address (there are five possible addresses) and go to your asylum interview. Will you win?

You should win, so long as the following statement is true: You either demonstrate past persecution on account of a protected ground, or you demonstrate a subjectively genuine, objectively reasonable fear of persecution on account of a protected ground, and you must demonstrate that you merit a grant of asylum as a matter of discretion. I have highlighted the terms of art here. I will unpack the most important ones briefly.

Persecution means more than harassment or legal prosecution. It means, typically, beatings, imprisonment without trial and death threats.

On account of a protected ground means: Race, religion, political opinion, nationality or membership in a particular social group. Brevity precludes a full description of what each of those terms of art means, but let me just tell you what isn’t included: poverty, starvation, civil war, endemic crime, social chaos or endemic disease. Our asylum system is good at protecting people from particular species of harm of harm (Nelson Mandela) and bad at protecting people from other species of harm (gang violence, plague, anything that happens in Haiti).

The chances of winning an asylum case vary enormously both by location and by individual judge. Here are the denial rates by judge for every judge in the country; as a quick scan will show you, some judges grant almost all applications and other judges grant almost none. This is true even within individual courthouses. In San Antonio, Judge Miles grants 97.7% of asylum applications, and Judge Burkhart grants 24.9%. You are assigned randomly to Judge Miles or Judge Burkhart, or to one of the others in the middle.

Thoughtful people disagree on what sort of immigration policy we ought to have. It may be that our national interest demands that we be less generous. Perhaps we should be more generous. All sides should understand, though, the facts about our asylum system. Our asylum system is slow, bureaucratic, unpredictable and legalistic. It is not an open door.