Asylum in the United states

  Each year, thousands of people arriving at our border or already in the United States apply for asylum, a form of protection from persecution. Asylum seekers must navigate a difficult and complex process that can involve multiple government agencies. Those granted asylum can apply to live in the United States permanently and gain a path to citizenship and can also apply for their spouse and children to join them in the United States. This fact sheet provides an overview of the asylum system in the United States, including how asylum is defined, eligibility requirements, and the application process  

Washington, DC: American Immigration Council, 2022. 14p.

By The American Immigration Council

For generations, the United States has been a place of safe haven for people seeking freedom and safety. In 1980, Congress passed the Refugee Act, codifying basic refugee protections into law and enshrining a global commitment to asylum which emerged from the tragedy of the Holocaust. In the decades since then, hundreds of thousands of refugees and asylees have been granted status, strengthening communities around the nation, contributing economically, and enriching the national fabric.

But in the 21st century, a global displacement crisis is affecting nearly every country in the world. Multiple nations across the Western Hemisphere have become destabilized due to a wide variety of factors, including rising authoritarianism, political assassinations, natural disasters, powerful transnational criminal organizations, climate change, and the global socioeconomic shocks of the COVID-19 pandemic. The end result is humanitarian migration at levels far above what the 20th-century system can handle.

Presidential administrations of both parties have failed to meet this challenge. Instead of an orderly, humane, and consistent approach to humanitarian protection and border management, we have been left with a dysfunctional system that serves the needs of no one: not the government, border communities, or asylum seekers themselves.

Today, the U.S. government faces an enormous challenge. The number of asylum seekers seeking to enter each day is significantly higher than the number the United States can process at official border crossings. The location and manner of crossings varies widely across the border, often changing unpredictably based on misinformation, rumor, or the demands of powerful transnational criminal organizations which maintain control over many of the migration routes with a bloody fist. The system is constantly at risk of bottlenecks and overcrowding, building the perception of chaos at the border. And inside the United States, underfunding, neglect, and deliberate sabotage have left the adjudicatory process in shambles.

Washington, DC: American Immigration Council, 2023. 60p

By The American Immigration Council

The United States has broad authority to detain certain categories of immigrants, migrants, and others seeking humanitarian protection as their proceedings wind their way through the immigration legal system. This detention is “civil” by definition (as opposed to criminal), meaning that immigration detention should not be punitive in nature. Despite this technical legal distinction, most of the immigration detention infrastructure is indistinguishable from the criminal detention context, in some instances using the same facilities and private corporations to operate detention centers and jails. 

Immigration and Customs Enforcement (ICE) states that the purpose of immigration detention is twofold: 1) to protect the wider community from those noncitizens who may pose a safety risk; and 2) to ensure that the individual will comply with any immigration proceedings (including removal). For the last two decades, there has been increasing interest in the United States and abroad to create and expand alternatives to detention for noncitizens who would otherwise be sent to immigration detention centers. This is due to an increasing understanding that detention is fundamentally harmful and inhumane—especially to immigrants of color— that there are alternatives that can achieve similar objectives to those the government is pursuing, and that there has been very little meaningful reform of immigration detention itself. For example, the current standards that govern the conditions of most immigrant detention centers, the Performance-Based National Detention Standards, were explicitly based on criminal pre-trial detention and were written in 2011, with minor updates made in 2016 and no updates in the years since then. Study after study has shown that alternatives to detention programs are generally more humane and more cost-effective than immigration detention.

Washington, DC: American Immigration Council, 2022. 9p.

By Evan J. Criddle

For generations, the United States has grappled with high levels of illegal immigration across the U.S.-Mexico border. This Article offers a novel theoretical framework to explain why legal order remains elusive at the border. Drawing inspiration from Lon Fuller’s “interactional view of law,” I argue that immigration law cannot attract compliance unless it is general, public, prospective, clear, consistent, and stable; obedience with its rules is feasible; and the law’s enforcement is congruent with the rules as enacted. The flagrant violation of any one of these principles could frustrate the development of a functional legal order. Remarkably, U.S. immigration law violates all of these principles in its treatment of asylum seekers. As the number of asylum seekers pursuing entry to the United States has risen sharply in recent years, these legality deficits have become increasingly salient. No wonder, then, that even the most aggressive deterrent measures — from mass prosecution to family separation to the construction of steel border walls — have failed to solve the United States’ border crisis. The United States faces an urgent dilemma: it may preserve the Immigration and Nationality Act (“INA”) in its current form, denying protection to too many forced migrants and reserving broad discretion to the Executive Branch, or it may establish a functional legal order at the border. It cannot have both.

If lawmakers were serious about establishing legal order at the border, there are measures they could take to strengthen the immigration system’s structural integrity. They could eliminate the Attorney General’s discretionary authority over asylum. They could clarify ambiguities in the INA to promote greater consistency, stability, and congruence in immigration adjudication and enforcement. They could extend protection to all forced migrants who face a serious risk of death, torture, rape, or other serious harm abroad, including victims of gang violence and gender-based violence. In short, they could enact laws that asylum seekers could rationally obey. To the extent that lawmakers are unwilling to take these steps, it is fair to question their commitment to establishing a functional legal order at the border.

UC Davis Law Review, Vol. 53; 2003.

By UNODC

Trafficking in persons is a serious crime and a violation of human rights that severely impacts the lives of its victims and undermines the security and well-being of societies as a whole. As the 2020 UNODC Global Report on Trafficking in Persons confirms, trafficking in persons is widespread around the world. Whilst the crime is mostly registered as a domestic phenomenon, it also has a transnational nature, where countries can be a country of origin, transit or destination, and sometimes all three at once. Given its magnitude, quantification of the crime can be difficult, particularly given that it also affects most industries and sectors and is connected to other forms of organised crime. For this reason, solutions to address the crime can neither be isolated nor merely involving governments. The complexity of trafficking in persons requires a holistic, coordinated and multi-stakeholder effort that spans geographies and sectors. Public agencies’ interventions require a multi- agency approach, but in addition the private sector must actively engage in this fight.

Examples of how public-private partnerships can be effective in sustaining these efforts are multi- pronged. For instance, private sector companies have at their disposal a wide range of technological tools that can be used to support governments’ anti-trafficking efforts. Private companies have the capacity to identify and address cases of trafficking and exploitation in their supply chain. In that regard, the public sector might acquire new skills and additional knowledge on sustainable procurement processes, how companies identify and manage risks and the multiple forms that trafficking can take. Finally, public-private partnerships can significantly facilitate investigations to trace the financial gains or organised criminal activities such as those involving trafficking in persons.

Vienna: UNODC, 2021. 124p.

Edited by Richard C.M. Mole

Europe is a popular destination for LGBTQ people seeking to escape discrimination and persecution. Yet, while European institutions have done much to promote the legal equality of sexual minorities and a number of states pride themselves on their acceptance of sexual diversity, the image of European tolerance and the reality faced by LGBTQ migrants and asylum seekers are often quite different. To engage with these conflicting discourses, Queer Migration and Asylum in Europe brings together scholars from politics, sociology, urban studies, anthropology and law to analyse how and why queer individuals migrate to or seek asylum in Europe, as well as the legal, social and political frameworks they are forced to navigate to feel at home or to regularise their status in the destination societies. The subjects covered include LGBTQ Latino migrants’ relationship with queer and diasporic spaces in London; diasporic consciousness of queer Polish, Russian and Brazilian migrants in Berlin; the role of the Council of Europe in shaping legal and policy frameworks relating to queer migration and asylum; the challenges facing bisexual asylum seekers; queer asylum and homonationalism in the Netherlands; and the role of space, faith and LGBTQ organisations in Germany, Italy, the UK and France in supporting queer asylum seekers.

London: UCL Press, 2021. 279p.

Edited by Nancy Nicol, Adrian Jjuuko, Richard Lusimbo, Nick J. Mulé, Susan Ursel, Amar Wahab and Phyllis Waugh  

Envisioning Global LGBT Human Rights: (Neo)colonialism, Neoliberalism, Resistance and Hope is an outcome of a five-year international collaboration among partners that share a common legacy of British colonial laws that criminalise same-sex intimacy and gender identity/expression. The project sought to facilitate learning from each other and to create outcomes that would advance knowledge and social justice. The project was unique, combining research and writing with participatory documentary filmmaking. This visionary politics infuses the pages of the anthology. The chapters are bursting with invaluable first hand insights from leading activists at the forefront of some of the most fiercely fought battlegrounds of contemporary sexual politics in India, the Caribbean and Africa. As well, authors from Canada, Botswana and Kenya examine key turning points in the advancement of SOGI issues at the United Nations, and provide critical insights on LGBT asylum in Canada. Authors also speak to a need to reorient and decolonise queer studies, and turn a critical gaze northwards from the Global South. It is a book for activists and academics in a range of disciplines from postcolonial and sexualities studies to filmmaking, as well as for policy-makers and practitioners committed to envisioning, and working for, a better future.

London: University of London Press, 2018. 462p.

Edited by Veronica Federico • Simone Baglioni

This open access book discusses how, and to what extent, the legal and institutional regimes and the socio-cultural environments of a range of European countries (the Czech Republic, Denmark, Finland, Greece, Italy, Switzerland and the UK), in the framework of EU laws and policies, have a beneficial or negative impact on the effective capacity of these countries to integrate migrants, refugees and asylum seekers into their labour markets. The analysis builds on the understanding of socio-cultural, institutional and legal factors as “barriers” or “enablers”; elements that may facilitate or obstruct the integration processes. The book examines the two dimensions of integration being access to the labour market (which, translated into a rights language means the right to work) with its corollaries (recognition of qualifications, vocational training, etc.), and non-discriminatory working conditions (which, translated into a rights language means right to both formal and substantial equality) and its corollaries of benefits and duties deriving from joining the labour market. It thereby offers a novel approach to labour market integration and migration/asylum issues given its focus on legal aspects, which includes most recent policy changes and legal decisions (including litigation cases). The robust, evidence-based and comparative research illustrated in the book provides academics and students, but also practitioners and policy makers, with up to date knowledge that will likely impact positively on policy changes needed to better address integration conundrums.

Cham: Springer Nature/Imiscoe, 2021. 264p.

Edited by Carmelo Danisi • Moira Dustin • Nuno Ferreira Nina Held

This two-volume open-access book offers a theoretically and empirically-grounded portrayal of the experiences of people claiming international protection in Europe on the basis of their sexual orientation or gender identity (SOGI). It shows how European asylum systems might and should treat asylum claims based on people’s SOGI in a fairer, more humane way. Through a combined comparative, interdisciplinary (socio-legal), human rights, feminist, queer and intersectional approach, this book examines not only the legal experiences of people claiming asylum on grounds of their SOGI, but also their social experiences outside the asylum decision-making framework. The authors analyse how SOGI-related claims are adjudicated in different European frameworks (European Union, Council of Europe, Germany, Italy and UK) and offer detailed recommendations to adequately address the intersectional experiences of individuals seeking asylum. This unique approach ensures that the book is of interest not only to researchers in migration and refugee studies, law and wider academic communities, but also to policy makers and practitioners in the field of SOGI asylum.

Cham: Springer Nature/Imiscoe, 2021. 497p.

Edited by Marina Gržinić

Border Thinking: Disassembling Histories of Racialized Violence aims to question and provide answers to current border issues in Europe. Central to this investigation is a refugee crisis that is primarily a crisis of global Western capitalism and its components: modernization, nationalism, structural racism, dispossession, and social, political, and economic violence. In this volume, these notions and conditions are connected with the concept of borders, which seems to have disappeared as a function of the global neoliberal economy but is palpably reappearing again and again through deportations, segregations, and war. How can we think about these relations in an open way, beyond borders? Is it possible to develop border thinking for a radical transformation, as a means to revolutionize the state of things? To do this, we must reconsider what is possible for the social and the political as well as for art and culture.

Berlin: Sternberg Press, 2018. 307p.

Edited by Birgit Glorius • Jeroen Doomernik  

This open access book describes how the numerous arrivals of asylum seekers since 2015 shaped reception and integration processes in Europe. It addresses the structuration of asylum and reception systems, and spaces and places of reception on European, national, regional and local level. It also analyses perceptions and discourses on asylum and refugees, their evolvement and the consequences for policy development. Furthermore, it examines practices and policy developments in the field of refugee reception and integration. The volume shows and explains a variety of refugee reception and integration strategies and practices as specific outcome of multilevel governance processes in Europe. By addressing and contextualizing those multiple experiences of asylum seeker reception, the book is a valuable contribution to the literature on migration and integration, societal development and political culture in Europe.

Cham, SWIT: IMISCOE/Springer Open, 2020. 268p.

By Michelle Castañeda 

Michelle Castañeda lays bare the criminalization of race enacted every day in U.S. immigration courts and detention centers in order to reimagine alternatives to the deportation regimes.

Durham, NC: Duke University Press, 2023. 199p.

Edited by Anna Mratschkowski

Asylum and refugees in Europe – who can fix a broken system? In times of increasing waves of migration, collective bodies and their cooperation networks are of particular importance to the European asylum system. But who are those actors and what is their contribution to effecting a change in the situation of those seeking refuge in Europe? While the Common European Asylum System introduced standardised regulations for all EU-member states, the real situation in each country differs greatly from those official declarations, even leading to a humanitarian crisis at times. Using the theory of neo-institutionalism, current data from expert interviews, and website and document analyses from Italy, Spain, Greece, Cyprus, Malta and Germany, this study answers those questions. It illustrates how and if this gap between talk and action can be narrowed, how asylum-related organisations and their networks function and how far they contribute to this process.

Germany: Nomos Verlagsgesellschaft mbH & Co. KG 2017. 225p,

By Bryan L. Sykes, Meghan Ballard, Andrea Giuffre, Rebecca Goodsell, Daniela Kaiser, Vicente Celestino Mata, Justin Sola

Research on punishment and inequality finds that people with criminal records routinely avoid systems of surveillance. Yet scholarship on monetary sanctions shows that many people experiencing poverty with criminal legal system debt are also involved with the state in other domains of social life. How can these literatures be resolved? In this article, we posit that past research can be reconciled through a focus on financial double-dealing—disparate and contradictory economic entanglements that redistribute welfare resources from individuals to the criminal legal system and its institutional affiliates. Drawing on nationally representative survey data, as well as unique data collected on people with monetary sanctions in seven states, we find that individuals and families receiving cash and noncash public assistance are significantly more likely to owe monetary sanctions and are less likely to pay them. We discuss the implications of multiple-system involvement for ongoing surveillance.

RSF: The Russell Sage Foundation Journal of the Social Sciences January 2022, 8 (1) 148-178

By Amairini Sanchez, Michele Cadigan, Dayo Abels-Sullivan, Bryan L. Sykes

 Research on crimmigration—the intersection where criminal and immigration law meet—shows that immigrants are increasingly punished and deported as a consequence of a criminal conviction. We investigate how immigration status shapes the imposition of monetary sanctions. By drawing on interview and court observational data from four states, we demonstrate that the legal opaqueness at the intersection of the crimmigration system often results in crimmigration sanctions—enhanced financial and nonfinancial penalties that are the result of an undocumented immigrant’s liminal legality. Findings show that immigrants are financially exploited through gaps in criminal and immigration law that allow for crimmigration sanctions in the form of bail predation and the exchange of higher financial penalties for reduced or no jail time, lessening an undocumented immigrant’s risk of deportation. The implications of these practices for due process are discussed in detail 

: The Russell Sage Foundation Journal of the Social Sciences January 2022, 8 (2) 76-97;

By  Amal Ali and Hannah Pittaway  

  This ground-breaking project centres on the lived experiences of Black, Asian and minority ethnic women in prison, and comes at a time when there is increased attention on race and gender inequality in the criminal justice system, but the combination of these issues rarely receives any government attention. We received over 300 survey responses from women in prison, prison staff and IMBs, improving our understanding of the double disadvantage that women from minority ethnic backgrounds face. We are very grateful to the women with lived experience who co-designed the survey and all those in custody for their honesty and openness when completing it. Their accounts of direct and indirect racism and poor treatment are shocking and distressing. Even more upsetting is their sense of fatalism - they see it as part of their everyday lives. The women lack confidence in the complaints system, do not trust that they will be treated fairly and are often unaware of how the IMB can help. The impact of the pandemic has made this worse. There is an urgent need to address these issues nationally and locally. IMBs play an important role given their day-to-day presence in prisons. Community scrutiny is a vital tool to hold criminal justice agencies to account. The CJA has focused on improving community scrutiny for several years looking at police powers, police custody and now prison custody. We consistently see the same themes: the need for better and more consistent data collection and analysis, more effective equalities training and support, and for community volunteers to be more representative of the populations in the criminal justice system. The recommendations in these reports map out sensible steps Her Majesty’s Prison and Probation Service (HMPPS), the Ministry of Justice (MoJ) and IMBs can take to make positive change and I hope to see them being implemented with haste.    

London: Criminal Justice Alliance, 2022. 38p.

By The Organization for Security and Co-operation in Europe (OSCE),  Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings

The report provides an analysis of how technology-facilitated trafficking in human beings has been approached from the perspective of policy and legislation across the OSCE participating States. While looking primarily at the accelerating shift toward government-led responses, the report also examines the policies and practices adopted by the private sector and civil society organizations. In addition, the report offers recommendations for policy and legislative responses by OSCE participating States to the misuse of technology to exploit victims.

Vienna, Austria: OSCE, 2022. 69p.

By Gemma Dipoppa,  Guy Grossman and Stephanie Zonszein

Covid-19 caused a significant health and economic crisis, a condition identified as conducive to stigmatization and hateful behavior against minority groups. It is however unclear whether the threat of infection triggers violence in addition to stigmatization, and whether a violent reaction can happen at the onset of an unexpected economic shock before social hierarchies can be disrupted. Using a novel database of hate crimes across Italy, we show that (i) hate crimes against Asians increased substantially at the pandemic onset, and that (ii) the increase was concentrated in cities with higher expected unemployment, but not higher mortality. We then examine individual, local and national mobilization as mechanisms. We find that (iii) local far-right institutions motivate hate crimes, while we find no support for the role of individual prejudice and national discourse. Our study identifies new conditions triggering hateful behavior, advancing our understanding of factors hindering migrant integration

ESOC Working Paper Series: 2021. 70p.

 By Vasanthi Venkatesh  

Arizona has been in the news for the past few years not only for its vituperative, anti-immigrant policies, but also for the impressive immigrant rights movement that continues to spawn new coalitions and new activities. The large numbers of cases that were and continue to be litigated and the innovative use of law to mobilize present a paradox since it is the law that constructs the “illegality” of undocumented immigrants, providing them very limited recourse to rights claims. This paper analyzes the opportunities in existing legal doctrine for claiming rights for the undocumented. I argue that in the almost categorical acceptance of the plenary power of the Congress in immigration and the absence of a clear-cut articulation of rights for undocumented immigrants, immigrant rights advocates are faced with procedural and substantive obstacles to make legal claims. The legal opportunities that exist currently offer partial and ineffective solutions at best. I then explore what compelled legal mobilization strategies despite the lack of entitlements under immigration law and how the costs of legal strategies are mitigated by other advantages that legal mobilization provides. I suggest that activists invoked the law in various ways, not necessarily enamored by rights discourses or by an unbridled expectation in law as a means to achieve justice. The law, even with its limitations and biases, still provided avenues to curb state power and it also functioned as a symbolic, discursive, and mobilizing resource. I show that undocumented immigrants rely on legal action and rights discourse not only because of the expected diffusional effects of movements such as the civil rights and gay  rights movement but also as acts of resistance and as assertions of quasi-citizenship

Harvard Latino Law Review, Vol. 19, pp.165-201 (2016). 38p.

By Gary J. Hale and Jie Ma

U.S. immigration policy remains murky in substance as well as legislatively incomplete. Polarization of the issue by American politicians and legislators has resulted in both punitive and permissive policy pronouncements over the last four U.S. presidential administrations, most of which have done little to deter migrants from crossing through Mexico into the U.S. in search of a better life.

From a policy perspective, the flow of migrants through Mexico to the United States is seemingly unstoppable — with many believing that U.S. government efforts to curtail this activity have failed. If the intent of previous and existing federal immigration laws and reforms was to conduct immigration processing in an orderly manner, the U.S. government has not succeeded. The current situation on the U.S.-Mexico border demonstrates that walls, fences, barricades, bridges, patrols, technology, and laws do not deter illegal entries. Media coverage of the “border crisis” — including reports of individual crossings and the so-called “caravans” moving through Mexico — has added to the perception that there is no end in sight to the swell of migrants at the southern border.

This research paper reviews some of the implications of at least 30 migrant caravan iterations that were detected traversing Mexico en route to the U.S. from 2017 to 2022. The migrant caravan phenomenon is viewed from a broad perspective and distilled down to the individual iterations to assess commonalities between caravan waves and to determine which “push” and “pull” factors were in place when the caravans were formed and mobilized. The individual caravan iterations are also compared against permissive and punitive U.S. and Mexican immigration policies at the time to assess any discernable cause and effect. Our analysis provides evidence that punitive policies may negatively affect the creation and movement of caravans, while permissive immigration policies may create an impetus for migrant movements. Recommendations for future action are included.

Houston, TX: Baker Institute for Public Policy, 2023. 24p.