By Lea Shapiro
In international law there is often a reference to refugees or asylum seekers. These terms are very similar in that they both refer to people who can no longer live in their country due to persecution based on race, religion, nationality, membership in a social group, or a political opinion. However, when it comes to understanding laws, it is important to understand the difference between a refugee and an asylum seeker.
REFUGEE
The word “refugee” was defined in Article 1(A)(2) of the 1951 convention[1]. The United States incorporated the definition of refugee as provided by the UN in its own laws
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 . . . [2]
The United States adopted the 1951 convention definition of a refugee but also added an additional way someone could become a refugee
In such circumstances as the President after appropriate consultation (as defined in section 207(e) of this Act) 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. The term “refugee” does not include any person 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. For purposes of determinations under this Act, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.[3]
Process
Every year the President with congress sets a maximum number of refugees to be allowed into the United States.[4] This sets a maximum number that the country follows when approving refugees entering the country. Refugee status is determined by UNHCR. Once an individual is given refugee status, a referral to USCIS will determine if the refugee may resettle in the United States.[5]
Rights
Refugee status comes with many rights. These rights include the right to remain in the United States indefinitely or as long as the conditions in his/her home country return to normal or known as non-refoulement.[6] Refugees also get the right to a work permit, education, and to receive government support during the first months in the United States.[7] After a year in the United States, the refugee may apply for a green card.[8]
ASYLUM SEEKER
The legal definition of asylum seeker varies based on the state. According to the UN, an asylum seeker is a “person who moves across borders in search of protection, but who may not fulfill the strict criteria laid down by the 1951 Convention.”[9] The United States allows people to apply for asylum under the following conditions
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title 8 U.S. Code § 1158.[10]
Process
There are two possible ways to apply for asylum once present in the United States. Affirmative asylum takes place when an individual is in the U.S. or is at a point of entry.[11] The individual must declare his/her application for asylum by filing Form I-589, Application for Asylum and for Withholding of Removal to the USCIS within one year of one’s arrival into the country.[12] Defensive asylum is when an individual requests asylum as a defense against forcible removal from the United States.[13] This defense is made in front of an immigration judge.
Rights
Once asylum is approved, an asylum seeker may remain in the United States indefinitely, or as long as the conditions in his/her home country return to normal, and apply for a work permit.[14] The United States prohibits working until 150 days after filing an asylum application.[15] Therefore, many are unable to work during the application process, which is unlikely to turn in their favor. Many asylum seekers are detained and deported , as they have little legal rights in the United States.[16]
Executive Order 13780
President Trump, through section 6 of Executive Order 13780, decreased the number of refugees allowed in the United States from 110,000 to 50,000 for 2017. Historically, more than 100,000 refugees have not been allowed into the United States in a year since 1994.[17] While President Obama tried to change that statistic, President Trump renounced the country’s obligation. Protecting the Nation from Foreign Terrorist Entry into the United States also suspends refugees from entering for 120 days.[18] The decrease in the amount of refugees allowed in the United States can already be seen in the Legal Immigration and Adjustment Status Report.[19] While the forth quarter of 2017 has yet to be released, the United States has allowed 49,232 refugees in 2017.[20] Additionally, the number of refugees admitted into the United States has decreased each quarter with 25,668 in quarter one, 13,411 in quarter two, and 10,153 in quarter three.[21] Compared to the other released immigration statistics, the total number of refugees entering the United States in 2013-2015 was around 69,900 annually.[22] Given that President Trump set the maximum yearly limit to 50,000 refugees, very small amounts of refugees will be given the ability to enter the United States in the fourth quarter of 2017.[23] Not only is the limit President Trump set for refugees less than the number set by President Obama, it is now the lowest number of refugees that have been allowed in the United States since 2007.[24] While there is no set limit on the number of asylum seekers allowed to stay in the United States, the current political environment does not create a hopeful sentiment that many asylum seekers will be allowed to stay within United States borders.
The amount of asylum seekers granted legal status in the United States has not been over 30,000 people in a single year since 2002.[25] Therefore, while there is no express ban on asylum seekers in the executive order, it is unlikely that more than 30,000 asylum seekers will be allowed to stay in the United States.
[1] United Nations Convention and Protocol Relating to the Status of Refugees, Apr. 22, 1954, 189 U.N.T.S. 150.
[2] 8 U.S.C. § 1101(a)(42) (2006).
[3] Id.
[4] 8 U.S.C § 1157(a).
[5] U.S. Citizenship and Immigration Services (Oct. 24, 2017), https://www.uscis.gov/humanitarian/refugees-asylum/refugees.
[6] International Justice Resource Center, http://www.ijrcenter.org/refugee-law/ (last visited Dec. 15 2017).
[7] Id.
[8] U.S. Citizenship and Immigration Services (Oct. 24, 2017), https://www.uscis.gov/humanitarian/refugees-asylum/refugees.
[9] United Nations Educational, Scientific and Cultural Organization, http://www.unesco.org/new/en/social-and-human-sciences/themes/international-migration/glossary/asylum-seeker/ (last visited Dec. 15, 2017).
[10] 8 U.S.C. § 1158 (2006).
[11] American Immigration Council (Aug. 2016), https://www.americanimmigrationcouncil.org/research/asylum-united-states
[12] U.S. Citizenship and Immigration Services (May 12, 2017), https://www.uscis.gov/humanitarian/refugees-asylum/asylum.
[13]American Immigration Council (Aug. 2016), https://www.americanimmigrationcouncil.org/research/asylum-united-states.
[14] U.S. Citizenship and Immigration Services (May 12, 2017), https://www.uscis.gov/humanitarian/refugees-asylum/asylum.
[15] Id.
[16] American Immigration Council (Aug. 2016), https://www.americanimmigrationcouncil.org/research/asylum-united-states.
[17] 2015 Yearbook of Immigration Statistics, Table 13. Refugee Arrivals: Fiscal Years 1980 To 2015, Department of Homeland Security (Dec. 15, 2016), https://www.dhs.gov/immigration-statistics/yearbook/2015/table13.
[18] Jie Zong & Jeanne Batalova, Refugees and Asylees in the United States, Migration Policy Institute (June 7, 2017), https://www.migrationpolicy.org/article/refugees-and-asylees-united-states.
[19] Legal Immigration and Adjustment Status Report, FY 2017, Table 2, https://www.dhs.gov/immigration-statistics/special-reports/legal-immigration#File_end
[20] Id.
[21] Id.
[22] 2015 Yearbook of Immigration Statistics, Table 13. Refugee Arrivals: Fiscal Years 1980 To 2015, Department of Homeland Security (Dec. 15, 2016), https://www.dhs.gov/immigration-statistics/yearbook/2015/table13.
[23] Exec. Order No. 13780, 82 Fed. Reg. 13209 (Mar. 6, 2017).
[24] 2015 Yearbook of Immigration Statistics, Table 13. Refugee Arrivals: Fiscal Years 1980 To 2015, Department of Homeland Security (Dec. 15, 2016), https://www.dhs.gov/immigration-statistics/yearbook/2015/table13.
[25] 2015 Yearbook of Immigration Statistics, Table 16. Individuals Granted Asylum Affirmatively or Defensively: Fiscal Years 1990 To 2015, Department of Homeland Security (Dec. 15, 2016), https://www.dhs.gov/immigration-statistics/yearbook/2015/table16.
Law Journal for Social Justice 