Political asylum

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Right of asylum (or political asylum) is an ancient judicial notion, under which a person persecuted for political opinions or religious beliefs in his or her country may be protected by another sovereign authority, a foreign country, or Church sanctuaries (as in medieval times). Political asylum should not be mistaken with modern refugee law, which rather deals with massive influx of population, while the right of asylum concerns individuals and is usually delivered in a case-to-case basis.[verification needed] However, the two may somehow overlap, since each refugee may demand to be accorded on an individual basis political asylum. This right has its roots in a longstanding Western tradition—although it was already recognized by the Egyptians, the Greeks and the Hebrews—Descartes went to the Netherlands, Voltaire to England, Hobbes to France (followed by many English nobles during the English Civil War), etc. Each state offered protection to foreign persecuted persons. However, the development in the 20th century of bilateral extradition treaties has endangered the right of asylum, although international law considers that a state has no obligation to surrender an alleged criminal to a foreign state, as one principle of sovereignty is that every state has legal authority over the people within its borders.

Medieval right of asylum

Remains of one of four medieval stone boundary markers for the sanctuary of Saint John of Beverley in the East Riding of Yorkshire

Many ancient peoples, including the Egyptians, the Greeks, and the Hebrews, recognized a religious "right of asylum," protecting criminals (or those accused of crime) from legal action to some extent. This principle was later adopted by the established Christian church, and various rules developed to qualify for protection and just how much protection it was.

According to the Council of Orleans in 511, in the presence of Clovis I, asylum was granted to anyone who took refuge in a church, in its dependences or in the house of a bishop. This protection was given to murderer, thieves or people accused of adultery. It also concerned the fugitive slave, who would however be handed back to his owner if this one swore on the Bible not to be cruel. This Christian right of asylum was confirmed by all following councils.

In England, King Ethelbert made the first laws regulating sanctuary in about 600 C.E. By the Norman era after 1066, there had evolved two kinds of sanctuary: all churches had the lower-level kind (sanctuary within the church proper), but only churches licensed by the king had a broader version (sanctuary in a zone surrounding the church). There were at least twenty-two churches with charters for a broader kind of sanctuary, including Battle Abbey, Beverley (see image, right), Colchester, Durham, Hexham, Norwich, Ripon, Wells, Winchester Cathedral, Westminster Abbey, and York Minster.

Sometimes the criminal had to get to the church itself to be protected, and might have to ring a certain bell there, or hold a certain ring or door-knocker, or sit on a certain chair ("frith-stool"), and some of these items survive at various churches. In other places, there was an area around the church or abbey, sometimes extending as much as a mile and a half, and there would be stone "sanctuary crosses" marking the boundary of the area; some of those still exist as well. Thus it could become a race between the felon and medieval law officers to the nearest sanctuary boundary, and could make the serving of justice a difficult proposition.

Church sanctuaries were regulated by common law. An asylum seeker was to confess his sins, surrender his weapons, and be placed under the supervision of the head of the church or abbey where he had fled. He then had forty days to make one of two choices: surrender to secular authorities and stand trial for the crimes against him, or confess his guilt and be sent into exile (abjure the realm), by the shortest route and never return without the king's permission. Anyone who did come back could be executed by the law and/or excommunicated by the Church.

If the suspect chose to confess his guilt and abjure, he would do so in a public ceremony, usually at the gate of the church grounds. He would surrender his worldly goods to the church, and his landed property to the crown. The coroner, a medieval official, would then choose a port city from which the fugitive should leave England (though the fugitive himself sometimes had this privilege). The fugitive would set out barefooted and bareheaded, carrying a wooden cross-staff as a symbol of his protection under the church. Theoretically he would stay to the main highway, reach the port and take the first ship out of England. In practice, however, the fugitive could get a safe distance away, abandon the cross-staff and take off and start a new life. However, one can safely assume the friends and relatives of the victim knew of this ploy and would do everything in their power to make sure this did not happen; or indeed that the fugitive never reached his intended port of call, becoming a victim of vigilante justice under the pretense of a fugitive who wandered too far off the main highway while trying to "escape."

Knowing the grim options, some fugitives rejected both choices and opted for an escape from the asylum before the forty days were up. Others simply made no choice and did nothing. Since it was illegal for the victim's friends to break into an asylum, the church would deprive the fugitive of food and water until a decision was made.

Henry VIII changed the rules of asylum, reducing to a short list the types of crimes which were allowed to claim asylum. The medieval system of asylum was finally abolished entirely by James 1 in 1623.

During the Wars of the Roses, when the Yorkists or Lancastrians would suddenly get the upper hand by winning a battle, some adherents of the losing side might find themselves surrounded by adherents of the other side and not able to get back to their own side. Upon realizing this situation they would rush to sanctuary at the nearest church until it was safe to come out. A prime example is Queen Elizabeth Woodville, consort of Edward IV of England:

In 1470, when the Lancastrians briefly restored Henry VI to the throne, Edward's queen was living in London with several young daughters. She moved with them into Westminster for sanctuary, living there in royal comfort until Edward was restored to the throne in 1471 and giving birth to their first son Edward during that time. When King Edward died in 1483, Elizabeth (who was highly unpopular with even the Yorkists and probably did need protection) took her five daughters and youngest son (Richard, Duke of York) and again moved into sanctuary at Westminster. To be sure she had all the comforts of home, she brought so much furniture and so many chests that the workmen had to knock holes in some of the walls to get everything in fast enough to suit her.[verification needed]

Modern political asylum

The United Nations 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees guides national legislation concerning political asylum. Under these agreements, a refugee (or for cases where repressing base means has been applied directly or environmentally to the defoule' refugee) is a person who is outside his or her country of nationality's environment (or place of habitual residence if stateless) who, owing to a fear of persecution against his or her account of a protected grounds based by the persecuting state fundamental terms and conditions as a member of that state and is unable or unwilling to avail or grant himself or herself to or of the protection of his or her state. The criteria of the protected grounds of one's own state's accounts include race, nationality, religion, political opinions and membership and/or participation in any particular social group or social activities.

These are the accepted terms and criteria as principles and a fundamental part in the The U.N. 1951 Convention Relating to the Status of Refugees' Non-refoulement order.

Since the 1990s, sexual persecution has come to be accepted in some countries as a legitimate category for asylum claims, when the claimant can prove that the state is unable or unwilling to provide protection.

Right of Asylum in France

Political asylum is recognized in France (droit d'asile) by the 1958 Constitution. It has been restricted due to immigration policies with the December 30, 1993 law, the Debré law of April 24, 1997, the May 11, 1998 law and the December 10, 2003 law. Henceforth, critics, including the Human Rights League (Ligue des droits de l'homme - LDH) have opposed what they see as a practical abandonment of a longstanding European judicial tradition.

Political asylum is also defined in France by the 1951 United Nations (UN) Convention Relating to the Status of Refugees (ratified in 1952), the additional 1967 protocol; articles K1 and K2 of the 1992 Maastricht Treaty as well as the 1985 Schengen Agreement, which defined the European policy on immigration. Finally, right of asylum is defined by article 18 of the Charter of Fundamental Rights of the European Union.

On a purely judicial level, only four conditions may be opposed to the accordance of political asylum to someone who has proven being subject to persecution in his or her country: the presence of the alien represents a serious threat to public order; the request should be addressed by another sovereign state; the request has already been accepted in another state; or the request is an abuse on the system of political asylum.

The December 10, 2003 law has limited political asylum, giving two main restrictions:

  • it invented the notion of "internal asylum": the request may be rejected if the foreigner may benefit from political asylum on a portion of the territory of the state
  • the OFPRA (Office français pour la protection des réfugiés et apatrides - French Office for the Protection of Refugees and Stateless Persons [1]) now makes a list of allegedly "safe countries" which respect political rights and principles of liberty. If the demander comes from such a country, the request is treated in 15 days, and receives no welfare protection. He may contest the decision, but this does not suspend any deportation order. The first list, enacted in July 2005, included as "safe countries" Benin, Cape Verde, Ghana, Mali, Mauritius Island, India, Senegal, Mongolia, Georgia, Ukraine, Bosnia and Croatia. It had the effect of reducing in six months by about 80% the number of applicants from these countries. The second list, passed in July 2006, included Tanzania, Madagascar, Niger, Albania and Macedonia [1].

Thus, although the right of political asylum has been conserved in France in despite of the various anti-immigration laws, it has been severely restricted. Some people claim that, apart from the purely judicial level, the bureaucratic process is also used to slow down and ultimately reject what might be considered as valid requests. According to Le Figaro, France granted 7,000 people the status of political refugee in 2006, out of a total of 35,000 requests; in 2005, the OFPRA in charge of examining the legitimacy of such requests granted less than 10,000 from a total of 50,000 requests [2].

Numerous exiles from South American dictatorships, in particular from Augusto Pinochet's Chile and Argentina, were received in the 1970s-80s. As a current example, since the 2001 invasion of Afghanistan, tens of homeless Afghan refugees waiting to be accorded political asylum have been sleeping in a park in Paris near the Gare de l'Est train station. Although their demands haven't been yet accepted, their presence has been tolerated. However, since the end of 2005, NGOs notes that the police separate Afghans from other migrants during raids, and expel in charters those who have just arrived at Gare de l'Est by train and haven't had time to make the demand for asylum (a May 30, 2005 decree requires them to pay for a translator for helping them in official formalities) [2].

Right of Asylum in the United Kingdom

In the 19th century, the United Kingdom accorded political asylum to various persecuted people, among whom were many members of the socialist movement (including Karl Marx). With the 1894 attempted bombing of the Greenwich Royal Observatory and the 1911 Siege of Sidney Street in the context of the propaganda of the deed anarchist actions, political asylum legislation was restricted.

Right of Asylum in the United States

The United States honors the right of asylum of individuals as specified by international and federal law. A specified number of legally defined refugees, who apply for refugee status overseas and then asylum after arriving in the U.S., are admitted annually. The United States honors the right of asylum of individuals as specified by international and federal law. A specified number of legally defined refugees, who either apply for asylum overseas or after arriving in the U.S., are admitted annually. Refugees compose about one-tenth of the total annual immigration to the United States, though some large refugee populations are very prominent. Since World War II, more refugees have found homes in the U.S. than any other nation and more than two million refugees have arrived in the U.S. since 1980. Of the top ten countries accepting resettled refugees in 2006, the United States accepted more than twice as many as the next nine countries combined.

Character of refugee inflows and resettlement

During the Cold War, and up until the mid-1990s, the majority of refugees resettled in the U.S. were people from the former-Soviet Union and Southeast Asia. The most conspicuous of the latter were the refugees from the Vietnam War, sometimes known as "boat people." Following the end of the Cold War, the largest resettled group were refugees from the Balkans who were fleeing the Yugoslav wars. In the 2000s, the proportion of Africans fleeing various ongoing conflicts in the annual resettled population rose.

Large metropolitan areas have been the destination of most resettlements, with 72% of all resettlements between 1983 and 2004 going to 30 locations. The historical gateways for resettled refugees have been California (specifically Los Angeles, Orange County, San Jose, and Sacramento), the Mid-Atlantic region (New York in particular) and the Midwest (specifically Chicago and Minneapolis-St. Paul). In the last decades of the twentieth century, Washington, D.C.; Seattle, Washington; Portland, Oregon; and Atlanta, Georgia were recognized as new gateways for resettled refugees. Particular cities are also identified with some national groups: metropolitan Los Angeles received almost half of the resettled refugees from Iran, 20% of Iraqi refugees went to Detroit, and nearly one-third of refugees from the former Soviet Union were resettled in New York.

Relevant law and procedures

The United States is obliged to recognize valid claims for asylum under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. As defined by these agreements, a refugee is a person who is outside his or her country of nationality (or place of habitual residence if stateless) who, owing to a fear of persecution on account of a protected ground, is unable or unwilling to avail himself of the protection of the state. Protected grounds include race, nationality, religion, political opinion and membership of a particular social group. The signatories to these agreements are further obliged not to return or "refoul" refugees to the place where they would face persecution.

This commitment was codified and expanded with the passing of the Refugee Act of 1980 by the United States Congress. Besides reiterating the definitions of the 1951 Convention and its Protocol, the Refugee Act provided for the establishment of an Office of Refugee Resettlement (ORR) within the U.S. Department of Health and Human Services (HSS) to help refugees begin their lives in the U.S. The structure and procedures evolved and, by 2004, federal handling of asylum claims and refugee affairs was led by the Bureau of Population, Refugees and Migration (PRM) of the U.S. Department of State, working with the Citizenship and Immigration Services (CIS/DHS) of the Department of Homeland Security and the ORR at HHS.

Refugee quotas

Each year, the President of the United States sends a proposal to the Congress for the maximum number of refugees to admitted into the country for the upcoming fiscal year, as specified under section 207(e) (1)-(7) of the Immigration and Nationality Act. This number, known as the "refugee ceiling," is the target of annual lobbying by both refugee advocates seeking to raise it and anti-immigration groups seeking to lower it. However, once proposed, the ceiling is normally accepted without substantial Congressional debate. The September 11, 2001 attacks resulted in a substantial disruption to the processing of resettlement claims with actual admissions falling to about 26,000 in fiscal year 2002. Claims were doublechecked for any suspicious activity and procedures were put in place to detect any possible terrorist infiltration, though some advocates noted that, given the ease with which foreigners can otherwise legally enter the U.S., entry as a refugee is comparatively unlikely. The actual number of admitted refugees rose in subsequent years with refugee ceiling for 2006 at 70,000. Critics note these levels are still among the lowest in 30 years.

Refugee admissions in fiscal year 2004 and 2005, and FY2006 proposal
Region FY 2004 actual arrivals FY 2005 original ceiling FY 2005 revised ceiling FY 2005 projected arrivals Proposed FY 2006 ceiling
Africa 29,125 20,000 20,000 18,500 20,000
East Asia 8,079 13,000 13,000 12,000 15,000
Europe and Central Asia 9,254 9,500 15,500 14,250 15,000
Latin America/Caribbean 3,556 5,000 7,000 6,500 5,000
Near East/South Asia 2,854 2,500 3,500 2,750 5,000
Unallocated reserve - 20,000 11,000 0 10,000
Total 52,828 70,000 70,000 54,000 70,000
Application for resettlement by refugees abroad

The majority of applications for resettlement to the United States are made to U.S. embassies in foreign countries and are reviewed by employees of the State Department. In these cases, refugee status has normally already been reviewed by the United Nations High Commissioner for Refugees and granted by the host country. For these refugees, the U.S. has stated its preferred order of solutions are: (1) repatriation of refugees to their country of origin, (2) integration of the refugees into their country of asylum and, last, (3) resettlement to a third country, such as the U.S., when the first two options are not viable.

The United States prioritizes valid applications for resettlement into three levels. Priority One consists of:

persons facing compelling security concerns in countries of first asylum; persons in need of legal protection because of the danger of refoulement; those in danger due to threats of armed attack in an area where they are located; or persons who have experienced recent persecution because of their political, religious, or human rights activities (prisoners of conscience); women-at-risk; victims of torture or violence, physically or mentally disabled persons; persons in urgent need of medical treatment not available in the first asylum country; and persons for whom other durable solutions are not feasible and whose status in the place of asylum does not present a satisfactory long-term solution. -UNHCR Resettlement Handbook

Priority Two is composed of groups designated by the U.S. government as being of special concern. These are often identified by an act proposed by a Congressional representative. Priority Two groups in 2006 include: "Jews, Evangelical Christians, and Ukrainian Catholic and Orthodox religious activists in the former Soviet Union, with close family in the United States" (sponsored by Frank Lautenberg (D-N.J.])); a variety of persons persecuted by the government of Cuba; Vietnamese citizens who would have fallen under the Orderly Departure Program (including amendments by John McCain (R-Az)); Burmese in Tham Hin Refugee Camp in Thailand; Iranian religious minorities, primarily those located in Austria; and Meskhetian Turks in Krasnodar Krai, Russia. Groups considered for Priority Two in FY 2006 included Burundians in Tanzania and Bhutanese in Nepal.

Priority Three is reserved for cases of family reunification, in which a refugee abroad is brought to the United States to be reunited with a close family member who also has refugee status. A list of nationalities eligible for Priority Three consideration is developed annually. The countries for FY2006 were Afghanistan, Burma, Burundi, Colombia, Congo (Brazzaville), Cuba, Democratic People’s Republic of Korea (DPRK), Democratic Republic of the Congo (DRC), Eritrea, Ethiopia, Haiti, Iran, Iraq, Ivory Coast, Liberia, Rwanda, Somalia, Sudan, Togo and Uzbekistan.

Application for asylum by persons in the United States

The minority of applications that are made by individuals who have already entered the U.S. are judged solely on if they have a valid claim for asylum. There are two ways to apply for asylum while in the United States. If an asylum seeker has been placed in removal proceedings before an Immigration Judge with the Executive Office for Immigration Review, which is a part of the Department of Justice, the individual may apply for asylum with the Immigration Judge. If an asylum seeker has not been placed in removal proceedings, he or she may file an application with U.S. Citizenship and Immigration Services, regardless of his or her legal status in the United States. However, if the asylum seekers is not in valid immigration status and USCIS does not grant the asylum application, USCIS will place the applicant in removal proceedings and the judge will consider the application anew. Since the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act passed in 1996, an applicant must apply for asylum within one year of entry or be barred from doing so unless the applicant can establish changed circumstances that are material to his or her eligibility for asylum or exceptional circumstances related to the delay.

There is no right to asylum in the United States; however, if an applicant is eligible, he has a procedural right to have the Attorney General exercise his discretion to admit him into the United States as an asylee. The dispute in asylum cases litigated before the Executive Office of Immigration Review and, subsequently, the federal courts centers on whether the immigration courts properly rejected the applicant's claim that he is eligible for asylum.

The applicant has the burden of proving that he is eligible for asylum. To satisfy this burden, the an applicant must show that he has a well-founded fear of persecution in his home country on account of either his race, religion, national origin, political opinion, or membership in a particular social group. The applicant can demonstrate his well-founded fear either by demonstrating that he has suffered persecution in the past or that he has an objective fear of future persecution if he should return to his home country. An applicant's claim for asylum is stronger if he can show past persecution, because then he will receive a presumption that he has a well-founded fear of persecution in his home country. The government can rebut this presumption by demonstrating either that the applicant can relocate to another location within his home country in order to avoid persecution, or that conditions in the applicant's home country have changed such that the applicant's fear of persecution there is no longer objectively reasonable.

The term "well-founded fear" has no precise definition in asylum law. In INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), the Supreme Court avoided attaching a consistent definition to the term, preferring instead to allow the meaning to evolve through case-by-case determinations. However, in Cardoza-Fonseca, the Court did emphasize that a "well-founded" fear is something less than a "clear probability" that the applicant will suffer persecution. Three years earlier, in INS v. Stevic, 467 U.S. 407 (1984), the Court held that the clear probability standard applies in proceedings seeking withholding of deportation, because in such cases the Attorney General must allow the applicant to remain in the United States. With respect to asylum, because the Attorney General retains discretion to admit the applicant, the Court in Cardoza-Fonseca reasoned that the standard for showing a well-founded fear of persecution must necessarily be lower.

An applicant initially presents his claim to an asylum officer, who may either grant asylum or refer the application to an Immigration Judge. If the asylum officer refers the application and the applicant is not legally authorized to remain in the United States, the applicant is placed in removal proceedings. After a hearing, an immigration judge determines whether the applicant is eligible for asylum. The immigration judge's decision is subject to review on two, and possibly three, levels. First, the immigration judge's decision can be appealed to the Board of Immigration Appeals. In 2002, in order to eliminate the backlog of appeals from immigration judges, the Attorney General streamlined review procedures at the BIA. One member of the Board can affirm a decision of an immigration judge without oral argument; traditional review by three-judge panels is restricted to limited categories for which "searching appellate review" is appropriate. If the BIA affirms the decision of the immigration court, then the next level of review is a petition for review in the United States court of appeals for the circuit in which the immigration judge sits. The court of appeals reviews the case to determine if "substantial evidence" supports the immigration judge's (or the BIA's) decision. As the Supreme Court held in INS v. Ventura, 537 U.S. 12 (2002), if the federal appeals court determines that substantial evidence does not support the immigration judge's decision, it must remand the case to the BIA for further proceedings instead of deciding the unresolved legal issue in the first instance. Finally, an applicant aggrieved by a decision of the federal appeals court can petition the U.S. Supreme Court to review the case by a discretionary writ of certiorari. But the Supreme Court has no duty to review an immigration case, and so many applicants for asylum forego this final step.

Notwithstanding his statutory eligibility, an applicant for asylum will be deemed ineligible if:

  1. the applicant participated in persecuting any other person on account of that other person's race, religion, national origin, membership in a particular social group, or political opinion;
  2. the applicant constitutes a danger to the community because he has been convicted in the United States of a particularly serious crime;
  3. the applicant has committed a serious non-political crime outside the United States prior to arrival;
  4. the applicant constitutes a danger to the security of the United States;
  5. the applicant is inadmissible on terrorism-related grounds;
  6. the applicant has been firmly resettled in another country prior to arriving in the United States; or
  7. the applicant has been convicted of an aggravated felony.

Conversely, even if an applicant is eligible for asylum, the Attorney General may decline to extend that protection to the applicant. (The Attorney General does not have this discretion if the applicant has also been granted withholding of deportation.) Frequently the Attorney General will decline to extend an applicant the protection of asylum if he has abused or circumvented the legal procedures for entering the United States and making an asylum claim.

Work permit and permanent residence status

An in-country applicant for asylum is eligible for a work permit (employment authorization) only if his or her application for asylum has been pending for more than 180 days without decision by the U.S. Citizenship and Immigration Services (USCIS) or the Executive Office for Immigration Review. If an asylum seeker is recognized as a refugee, he or she may apply for lawful permanent residence status (a green card) one year after being granted asylum.

Up until 2004, recipients of asylee status faced a wait of approximately fourteen years to receive permanent resident status after receiving their initial status, because of an annual cap of 10,000 green cards for this class of individuals. However, in May 2005, under the terms of a proposed settlement of a class-action lawsuit, Ngwanyia v. Gonzales, brought on behalf of asylees against CIS, the government agreed to make available an additional 31,000 green cards for refugees during the period ending on September 30, 2007. This is in addition to the 10,000 green cards allocated for each year until then and was meant to speed up the green card waiting time considerably for refugees. However, the issue was rendered somewhat moot by the enactment of the REAL ID Act of 2005 (Division B of United States Public Law 109-13 (H.R. 1268)), which eliminated the cap on annual refugee green cards. Currently, a refugee who has continuously resided in the US for more than one year in that status has an immediately available visa number.

References
ISBN links support NWE through referral fees

  • David Weissbrodt and Laura Danielson, Immigration Law and Procedure, 5th ed., West Group Publishing, 2005, ISBN 0314154167


External links


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  1. ↑ Asile politique : la France ajoute cinq Etats à sa liste de pays «sûrs», Le Figaro, April 27, 2006 (French)
  2. ↑ "La porte étroite de l'asile politique," Le Figaro, February 13, 2007, p.20 (French)
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