Syrian Refugee Crisis and U.S. Asylum Laws

    Throughout its history, the United States has been a refuge for oppressed people from around the world. The Pilgrims, the Quakers, the Amish, and countless others came to this country in centuries past; while in the more recent past immigrants have been Cubans, Jews, Southeast Asians, and others. What those diverse people shared was a belief that America could offer them refuge from government oppression.

    Many people worldwide today face similar oppression. They live under governments that forbid them to freely exercise their rights. The Americans know and are concerned that governments around the world oppress their citizens. The United States believes that a government’s oppression of its citizens because of one’s race, religion, political opinion, nationality, or social group is wrong.

    Through its refugee and asylum protection policies, the United States has always been at the forefront of protection issues. Thus, the United States traditionally has granted sanctuary to victims of human rights abuses from around the world. The United States has always condemned the persecution of Christians and other religious minorities in Sudan, Cuba, China, Pakistan, North Korea, and countries that were part of the Soviet Union.

    The government in this country has denounced the practice of genital mutilation of young girls in Africa. The Americans always criticized the People Republic of China’s systematic repression of religious practices and cry when they see the suffering of women and children refugees in Somalia and Rwanda, the mass graves in Bosnia, the persecution of the Kurds in Iraq, and now with escalating civil war in Syria, we see images of human suffering on TV news, read about the horrors of human rights abuses daily in newspapers, and wonder how all that could be happening and what we could do to help.

    There are estimated to be more than four million Syrian refugees who have fled their country to other parts of the world. Amnesty International recently pointed out, the “six Gulf countries – Qatar, United Arab Emirates, Saudi Arabia, Kuwait, Oman and Bahrain – have offered zero resettlement places to Syrian refugees.” This claim was echoed by Kenneth Roth, executive director of Human Rights Watch. (‘The Arab world’s wealthiest nations are doing next to nothing for Syria’s refugees’ By Ishaan Tharoor, The Washington Post 09/04/2015)

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    The reason, for the Gulf Arab states’ aversion to granting refugee status, not just to Syrians but to anybody, is “The Gulf countries are not signatories to the international conventions on refugee rights.” “Their concern would be that if they started recognizing political asylum it could potentially open the doors for a multitude of their temporary workers to stay permanently, and that would raise a lot of quite complex issues.” The number of migrant workers exceeds the native population in every Gulf country. In all of the Gulf countries, the vast majority of the workforce is foreign, ranging from 88.5% in Oman to 99.5% in the United Arab Emirates.

    Refugee Protection and U.S. Asylum Law:

    The law of asylum in the United States derives from international law, from United Nations Convention Relating to the Status of Refugees (the “Refugee Convention” of 1951), and United Nations Protocol Relating to the Status of Refugees (“Refugee Protocol”). The Refugee Convention and Protocol define who is a refugee and protection accorded to such person(s). The Refugee Act requires the president to set the refugee ceiling each year in consultation with Congress. That limit is currently set at 70,000, with Burma, Iraq and Somalia topping the list of 70 countries sending refugees to the United States. The Obama administration is opening the door to the possibility of allowing more Syrian refugees into the United States, marking a subtle but significant change in the White House’s thinking about how best to respond to the mounting humanitarian crisis.

    The U.S. government offers protection to those fleeing persecution under two basic sets of laws   refugee law and asylum law. Though the numbers of asylum seekers granted protection each year are small, the range of beliefs protected is broad. The Immigration and Nationality Act (INA) defines a refugee as: “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 a 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 well founded fear of persecution on account of race, religion, nationality, membership in particular social group, or political opinion.” Neither the Refugee Convention and Protocol nor INA defines persecution. U.S. law recognizes that persecution may be inflicted by government actors, or by non-government actors whom the government of the country is unable or unwilling to control.

    Asylum Procedures:

    In United States, Asylum claims are decided in two different procedural contexts: (1) affirmative applications, whereby the person takes the initiative and applies for asylum after arriving in the United States and before the United States Citizenship and Immigration Service (USCIS) begins any processing, and (2) defensive applications, whereby the application for asylum is made only after the USCIS has begun proceedings to remove the person from the United States. Affirmative claims are the more common. People who have entered the United States, regardless of immigration states, can affirmatively apply for asylum by submitting an asylum application to the USCIS.

    When the USCIS accepts an affirmative application for filing, the applicant’s local USCIS asylum office schedules an interview for the asylum applicant with an asylum officer. During the non adversarial interview, the applicant is questioned about his or her asylum claim. At the conclusion, the applicant is typically asked to return to the asylum office on a certain date to obtain the decision in the case.

    If asylum is granted, the applicant is then authorized to apply for a work permit, and one year after receiving asylum, to apply for permanent residency. After being granted asylum, he or she can apply for asylum for a spouse and children. You may apply for derivative asylum benefits for your spouse or unmarried children under the age of 21 within two years of your grant of asylum. If your spouse or children are already in the United States, they may be eligible for derivative asylum benefits regardless of whether they are in the country legally or illegally.

    The relationship between you and your spouse and children must have existed when you were granted asylum and must continue to exist when you file USCIS Form
    (Refugee/Asylee Relative Petition) and when your spouse and children are admitted to the United States as derivative asylees. If your children are outside the United States and have been approved for derivative asylum benefits, your children will be able to come to the United States as an asylee at any time as long as they are under 21, unmarried, and maintain their relationship with you. If your spouse is outside the United States and has been approved for derivative asylum benefits, your spouse will be able to come to the United States as an asylee at any time as long as your spouse remains married to you.

    You may apply for derivative asylum status for a child who was already conceived, but not yet born, on the day you were granted asylum. You may apply for derivative asylum status for a step-child if the marriage between you and the child’s parent took place before the child’s 18th birthday. You may apply for derivative asylum status for an adopted child if the adoption took place before the child’s 16th birthday and the child has been in your legal custody for at least two years.

    You may not apply for derivative asylum status for your child’s mother unless she was married to you on the date you were granted asylum. After your spouse or children are admitted to the United States as derivative asylees, they must be granted special permission to travel abroad until they adjust to lawful permanent resident status. They cannot forfeit or give up their asylum status and later be re-admitted to the United States as asylees.

    As per the Office of Refugee Resettlement (ORR) guidelines, asylees are eligible for refugee assistance and services beginning on the date that they are granted asylum. Individuals who wish to apply for asylum are generally required to apply for asylum within one year after their arrival in the United States. The INA outlines refugee assistance program that provides benefits “beginning with the first month in which such refugee has entered the United States.

    If, however, asylum is not granted, the applicant is then required to acknowledge receipt of a notice to appear at proceedings to remove him or her from the United States. Such proceedings to return an applicant to the country of nationality begin immediately. Immigration judges in the Executive Office of Immigration Review (within the U.S. Department of Justice) preside over the proceedings. In the proceedings, refugees can renew their application for asylum as a defense to removal, and the application is reviewed again. The proceedings, before an immigration judge, are adversarial; the asylum applicants can be represented by counsel and can present and cross examine witnesses.

    These provisions have been held to require that the asylum applicant be in the United States or at a U.S. port of entry (land border/airport/port). Applicants for refugee status who are not in the U.S. are governed by the overseas refugee resettlement provisions of INA. Those granted such protections abroad are known as “refugees”, while those granted in the U.S. are known as “asylees”.

    (The author works as an attorney with Anand Ahuja Associates, Attorney at Law and
    International Business Consultants. He can be reached at or via phone (516) 502-3262, (718) 850-1952)

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