To get asylum, immigrants must prove that they have been persecuted or fear future persecution on the basis of race, nationality, religion, political opinion or a membership in a particular social group, and that they can’t be protected in their country.
Some asylum seekers fled countries known for corruption, brutality and the violation of human rights. This improves their chances of getting asylum, though it is not guaranteed. Of the 23 countries from which more than 500 people applied for asylum in 2003, those from Egypt , Ethiopia and China were the most successful, though only about 40 percent of them received asylum.
However, the situations for many others are more ambiguous, such as for members of tiny religious sects in countries that are for the most part humane, or for those from far flung places whose current conditions are not well-known.
Asylum seekers typically tell their story first to an immigration officer, who can grant the request on the spot. These officers work for the U.S. Bureau of Customs and Border Protection, under the Department of Homeland Security. Nationwide, about 29 percent of asylum seekers got approved at this level in 2003, according to the bureau.
The rest are referred to immigration court. Immigration judges then weigh their credibility by checking their story against what is known about the country.
Immigration lawyers and advocates say that convincing a judge is often a difficult task, and success can vary depending on which court takes up the case and whether an asylum seeker has an attorney.
Nationwide, immigration judges granted asylum to only 37 percent of the 35,775 applicants, according to the Executive Office for Immigration Review. But, in the courthouse in Eloy , Ariz., the grant rate stood at 2 percent, while it was 59 percent in Orlando , Fla. The immigration judges in Chicago granted asylum in 31 percent of the 898 cases they heard.
Immigration courts do not provide immigrants with attorneys, and only about half show up with one. That has a considerable impact on their cases. Those with lawyers are two and a half times more likely to win their cases than those without, according to David Berten, a Chicago immigration attorney, who is also a chief executive officer of asylumlaw.org, an information resource for asylum lawyers.
Gena Lewis, a former immigration officer and now an attorney for World Relief-Chicago, said it is already too difficult to get asylum. Added to that, some immigration officers and judges have law enforcement backgrounds and tend to focus solely on preventing fraud.
Getting asylum was made trickier after Sept. 11. Craig B. Mousin, a DePaul University professor who teaches immigration law, said judges have become more fastidious about identification issues. “Everyone is fearful that they will let in the next terrorist,” Mousin said.
Omar Abdel-Rahman, a blind sheik whose followers bombed the World Trade Center in 1993, had applied for asylum to avoid deportation. Lawmakers in Congress are using this case to push the Real ID Act, which includes provisions that would make it harder to gain asylum. On Feb. 10, the U.S. House of Representatives passed the bill. Advocates say the bill would not have had enough support in the U.S. Senate, but in mid-March House Republicans attached the provisions to a must-pass military spending bill.
“We are terrified,” said Oak Park attorney Larry J. Hagen, who has worked in the Chicago immigration court for more than 25 years. “Lawmakers are spreading the net so wide that they are going to hurt many people who legitimately should get asylum.”
Dori Dinsmore, executive director of World Relief-Chicago, which receives federal funding to help resettle refugees, said terrorists are unlikely to exploit the asylum system. She points out that it’s not easy to win an asylum bid, and the government subjects applicants to a lot of scrutiny. “It is not the way that someone would want to slip into the country,” she said. “Why would you want to draw attention to yourself?”
Fred Tsao, policy director for the Illinois Coalition for Immigrant and Refugee Rights, said many of the measures included in the Real ID Act look innocuous on the surface, “but, if you read it with an eye toward asylum-related cases, it can be pretty devastating.”
For example, one provision would require asylum seekers to identify the main reason they were persecuted. But Tsao said this can be difficult, as people are often persecuted for a combination of reasons, and they can’t possibly know what is going on in the mind of their tormentor.
Another measure would give judges more discretion in determining credibility. But Tsao and other advocates say that could lead more judges to make snap decisions based perhaps on the inflection in immigrants’ voices or the way they phrase things. “The way one carries himself may change based on culture or on whether or not they have been tortured,” Tsao said.
Some recent cases pending at the federal appellate court in Chicago will be made moot if the Real ID Act becomes law, said Elissa Steglich, an attorney at the Midwest Immigrant and Human Rights Center, which provides pro bono legal assistance to immigrants.
For example, in a recent case that the Midwest Immigrant and Human Rights Center won in the appellate court, judges ruled that a lack of corroborating evidence can’t be a basis for denying asylum. But the Real ID Act directs judges to require documentation.
“I just see this law as very damaging,” Steglich said. “It is being pressed forward because immigrants have no political capital, and lawmakers want to make people think they are doing something to improve security. But it will do nothing to make people safer.”