The asylum process to be admitted to the United States is rigorous, multi-layered, and often misunderstood. Here, Thomas O’Boyle Adjunct Professor of Law Fernando Chang-Muy provides a broad overview of the refugee screening and resettlement process, explains the difference between frequently used terms, and outlines how governmental agencies work together in the process.
At the University of Pennsylvania Carey Law School, Chang-Muy teaches “Refugee Law and Policy.” At the Graduate School of Social Policy and Practice, he lectures on Immigration and Social Work, and on Organizational Effectiveness in the Executive Education Program, with a focus on strategic planning, board governance, staff communications, and resource development.
Chang-Muy is former Assistant Dean and Equal Opportunity Officer at Swarthmore College, where he also taught International Human Rights.
Q: Can you provide a basic overview of the process that refugees to the U.S. must go through?
A: The process could differ depending on their current country, but generally at a very high level, individuals outside of the U.S. who wish to enter as refugees need to establish that they fit the United Nations’ and United States’ definition of a refugee; this means that they must prove a “well-founded fear of persecution, based on five grounds: race, religion, nationality, social group, or political opinion.”
Then – again, depending on the country – that first interview may be with a legal officer with the Office of the United National High Commissioner for Refugees (UNCHR). If UNCHR determines that the person is a refugee in need of protection, UNHCR then presents the case to a potential resettlement country, in this case, the U.S.
Then the U.S.’s own government officials (re)interview the person to assess whether the individual meets the refugee definition. If they do, the process is not over; the individual must then be vetted to ensure they are not excludable based on our own immigration laws. For reasons of health, crimes, or security, persons might be refused entry. That is, even though they meet definition of refugee, they might still be barred from admission.
During this assessment process, refugees might be living in refugee camps, e.g., Syrians in the desert Jordan, Eritreans in a refugee camp in Kenya, or they might be living unofficially without status (5 or 10 to an apartment or in the streets) in the country they fled to and awaiting an interview with either UNHCR and then the U.S. at the embassy if there is no refugee camp. If the person completes the process successfully, recognized as a refugee with no reasons to bar their admission, they enter the U.S. as a “refugee.”
For individuals already in the U.S., the process for receiving protection depends on how they entered and where they are in the process. In an “affirmative” process, they file an application with the U.S. Department of Homeland Security and an Asylum Officer will interview them. There are about 10 offices around the country where asylum seekers can file, e.g., Miami, Chicago, Newark (which covers Philadelphia). This application must be filed within one year of entering the US though there are exceptions whereby the government may still accept the application even after a year has elapsed.
If on the other hand, the person is apprehended, they file in a “defensive” process at a hearing before an Immigration Judge. There are Immigration Judge offices all over the U.S., and in Philadelphia it’s located in the Federal Building at 9th and Market. If they win, they are given the legal status of “asylee.”
If the Immigration Judge determines that the person does not meet the legal definition, they can appeal to the Board of Immigration Appeals, and if they lose at that level, they can file an appeal with the Circuit Court. Given the complexity of this process, it increases the chances of winning asylum if the applicant is represented. However, whether inside or outside the U.S., there is no right to government-paid legal representation (as in criminal felony cases with government-funded Public Defenders) since immigration and refugee policy is civil in nature.
Q: What is the difference between a refugee and a migrant?
A: A refugee is someone outside the U.S., who has successfully completed the process and is recognized as someone in need of protection and enters the U.S. with the legal designation of “refugee.”
Someone who is already inside the U.S. and who successfully completes the process is given the legal designation of “asylee.” The legal “test” for both, regardless of whether they are outside or inside the U.S. is the same: applicants must prove that they have a “well-founded fear of persecution on account of one or more of the five grounds – race, religion, national social group, or political opinion.”
A migrant is someone who comes to the U.S., though not for fear of persecution, but due to other reasons such as economic, family, or employment. U.S. policy allows for people to come in and stay permanently based on a family or employment sponsorship. If they are successful in their application, their legal designation is “lawful permanent resident,” and they receive a laminated green card. By the way, a year after entering as a refugee or receiving asylum, individuals can then apply to become lawful permanent residents as well.
Three to five years later if they wish, they can apply to become a citizen through a naturalization process. This process entails taking a test of U.S. civics and English language. Depending on age and disability, there are exceptions to taking portions of the test.
Q: How do federal agencies work together in the refugee resettlement process?
A: Several federal agencies in the Executive Branch work together in the refugee resettlement process:
Interviews to potential refugees might be conducted inside a U.S. Embassy – so the U.S. Department of State is involved. In addition, based on what State Department staff observe abroad, the U.S. Department of State advises the President of the need to resettle refugees which helps the President every year to designate how many individuals and from which regions of the world will be resettled as refugees. As well, the State Department’s Bureau of Population, Refugees, and Migration provides support for refugees while in refugee camps, or for resettlement in the United States.
U.S. government interviewers who determine refugee status, are employees of the Asylum Office, which is part of the U.S. Department of Homeland Security, so that’s another federal agency involved. Asylum Officers “circuit ride” in various continents, e.g., this week in Ethiopia, next week in Tanzania, circuit riding Africa or Asia or Latin America, interviewing individuals to see if they are refugees and eligible for resettlement.
Once refugees arrive in the U.S., the Department of Health and Human Services (HHS), Office of Refugee Resettlement (ORR) provides funds to the 50 states for reception and integration services. Each state has a Refugee Coordinators, who in turn provide grants to non-profits to provide case management to refugees: airport pick up, housing, employment, English language classes, application for public benefits. In Pennsylvania, the Refugee Coordinator is within in the PA Department of Human Services.
Since its founding in 2006, the Law School’s Transnational Law Clinic has allowed students to represent individuals seeking asylum and other forms of immigration relief from across the globe.
Under the guidance of founder and director Practice Professor of Law Sarah Paoletti, Transnational Clinic students have worked alongside and on behalf of international human rights and community-based organizations before regional and international human rights mechanisms on a range of rights-based issues, particularly as they relate to migrants and internally-displaced persons.