Asylum and “Credible Fear” Issues in
U.S. Immigration Policy
Ruth Ellen Wasem
Specialist in Immigration Policy
April 6, 2011
Congressional Research Service
7-5700
www.crs.gov
R41753
CRS Report for Congress
P
repared for Members and Committees of Congress
Asylum and “Credible Fear” Issues in U.S. Immigration Policy
Summary
Foreign nationals seeking asylum must demonstrate a well-founded fear that if returned home,
they will be persecuted based upon one of five characteristics: race, religion, nationality,
membership in a particular social group, or political opinion. Foreign nationals arriving or present
in the United States may apply for asylum affirmatively with the United States Citizenship and
Immigration Services (USCIS) in the Department of Homeland Security after arrival into the
country, or they may seek asylum defensively before a Department of Justice Executive Office for
Immigration Review (EOIR) immigration judge during removal proceedings.
Asylum claims ebbed and flowed in the 1980s and peaked in FY1996. Since FY997, affirmative
asylum cases decreased by 79% and defensive asylum claims dropped by 53% by FY2009.
Asylum seekers from the People’s Republic of China (PRC) dominated both the affirmative and
defensive asylum caseload in FY2009. Five of the top 10 source countries of asylum seekers were
Western Hemisphere nations in FY2009: Haiti, Mexico, Guatemala, El Salvador, and Colombia.
Ethiopia was the only African nation that was a top source country for asylum seekers in FY2009.
Despite the general decrease in asylum cases since the enactment of the Illegal Immigrant Reform
and Immigrant Responsibility Act (IIRIRA ) in 1996, data analysis of six selected countries (the
PRC, Colombia, El Salvador, Ethiopia, Haiti, and Mexico) suggests that conditions in the source
countries are likely the driving force behind asylum seekers.
Roughly 30% of all asylum cases that worked through USCIS and EOIR in recent years have
been approved. Affirmative asylum cases approved by USCIS more than doubled from 13,532 in
FY1996 to 31,202 in FY2002, and then fell to the lowest point over the 14-year period—9,614—
in FY2009. The number of defensive asylum cases that EOIR judges have approved has risen by
99% from FY1996 through FY2009. The PRC led in the number of asylum cases approved by
USCIS and EOIR over the decade of FY2000-FY2009.
Despite national data trends that appeared to be consistent, approval rates for asylum seekers
differ strikingly across regions and jurisdictions. For example, a study of 290 asylum officers who
decided at least 100 cases from the PRC from FY1999 through FY2005 found that the approval
rate of PRC claimants spanned from zero to over 90% during this period. In a separate study, the
U.S. Government Accountability Office (GAO) analyzed asylum decisions from 19 immigration
courts that handled almost 90% of the cases from October 1994 through April 2007 and found
that “significant variation existed.”
Those advocating revisions of asylum policy have divergent perspectives. Some assert that
asylum has become an alternative pathway for immigration rather than humanitarian protection.
Others argue that—given the religious, ethnic, and political violence in various countries around
the world—it has become more difficult to differentiate the persecuted from the persecutors.
Some express concern that U.S. sympathies for the asylum seekers caught up in the democratic
political uprisings in Libya and other parts of the Middle East, northern Africa, and south Asia
could inadvertently facilitate the entry of terrorists. Others maintain that current law does not
offer adequate protections for people fleeing human rights violations or gender-based abuses that
occur around the world. Some cite the disparities in asylum approvals rates and urge broad-based
administrative reforms. At the crux of the issue is the extent to which an asylum policy forged
during the Cold War is adapting to the competing priorities and turbulence of the 21st century.
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Asylum and “Credible Fear” Issues in U.S. Immigration Policy
Contents
Overview of Current Policy......................................................................................................... 1
Introduction .......................................................................................................................... 1
Recent History of U.S. Asylum Policy................................................................................... 2
Standards for Asylum ............................................................................................................ 4
Credible Fear .................................................................................................................. 4
Well-Founded Fear.......................................................................................................... 4
Mixed Motives................................................................................................................ 5
Process of Requesting Asylum .............................................................................................. 6
Affirmative Claims ......................................................................................................... 6
Defensive Claims ............................................................................................................ 7
Expedited Removal Claims ............................................................................................. 9
Background Checks ...................................................................................................... 11
Victims of Torture ......................................................................................................... 11
Source Countries for Asylum Seekers........................................................................................ 12
Top 10 Source Countries in FY2009.................................................................................... 12
Trends for Six Selected Countries........................................................................................ 14
People’s Republic of China ........................................................................................... 15
Colombia ...................................................................................................................... 16
El Salvador ................................................................................................................... 17
Ethiopia ........................................................................................................................ 18
Haiti ............................................................................................................................. 19
Mexico ......................................................................................................................... 20
Approvals of Asylum Cases ...................................................................................................... 21
Analysis of Approvals by Country....................................................................................... 21
Approvals by Regional Office and Immigration Court ......................................................... 24
Refugee Roulette........................................................................................................... 24
U.S. Government Accountability Office (GAO) .................................................................. 26
Transactional Records Access Clearinghouse (TRAC)................................................... 26
Selected Issues .......................................................................................................................... 28
U.S. National Interests ........................................................................................................ 28
Disparity in Decisions ......................................................................................................... 29
Access to Counsel ............................................................................................................... 30
Time Limit on Filing........................................................................................................... 30
Mandatory Detention .......................................................................................................... 31
Terrorist Infiltration and Material Support ........................................................................... 31
Concluding Observations .......................................................................................................... 32
Figures
Figure 1. Asylum Cases Filed with INS/USCIS ........................................................................... 3
Figure 2. Affirmative Asylum Cases Filed and Approved............................................................. 7
Figure 3. Defensive Asylum Cases Filed and Approved ............................................................... 8
Figure 4. “Credible Fear” Claims Received by USCIS and EOIR .............................................. 10
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Asylum and “Credible Fear” Issues in U.S. Immigration Policy
Figure 5. Top 10 Source Countries of Asylum Seekers............................................................... 13
Figure 6. USCIS “Credible Fear” Claimants by Top 10 Countries of Origin............................... 14
Figure 7. Asylum Seekers from China ....................................................................................... 15
Figure 8. Asylum Seekers from Colombia ................................................................................. 16
Figure 9. Asylum Seekers from El Salvador .............................................................................. 17
Figure 10. Asylum Seekers from Ethiopia ................................................................................. 18
Figure 11. Asylum Seekers from Haiti ....................................................................................... 19
Figure 12. Asylum Seekers from Mexico................................................................................... 20
Figure 13. Top 10 Source Countries of Asylum Cases Approved by USCIS and EOIR............... 22
Figure 14. High and Low Average Grant Rates for Asylum Seekers in
High-Volume Immigration Courts .......................................................................................... 25
Tables
Table 1. Top 20 Source Countries for Asylee Approvals, FY2000-FY2009 ................................ 23
Table 2. Selected Nationality and Court-by-Court Asylum Denial Rates .................................... 27
Table A-1. Number of Approved Affirmative Asylum Cases for Top 20 Source Countries,
FY2000-FY2009.................................................................................................................... 33
Table A-2. Number of Approved Defensive Asylum Cases for Top 20 Source Countries,
FY2000-FY2009.................................................................................................................... 34
Appendixes
Appendix. Approved Asylum Cases for Top 20 Countries, FY2000-FY2009 ............................. 33
Contacts
Author Contact Information ...................................................................................................... 35
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Asylum and “Credible Fear” Issues in U.S. Immigration Policy
Overview of Current Policy
Introduction
The United States has long held to the principle that it will not return a foreign national to a
country where his life or freedom would be threatened.1 This principle is embodied in several
provisions of the Immigration and Nationality Act (INA), most notably in provisions defining
refugees and asylees. 2 Foreign nationals seeking asylum must demonstrate a well-founded fear
that if returned home, they will be persecuted based upon one of five characteristics: race,
religion, nationality, membership in a particular social group, or political opinion.3
Foreign nationals arriving or present in the United States may apply for asylum with the United
States Citizenship and Immigration Services (USCIS) in the Department of Homeland Security
(DHS) after arrival into the country, or they may seek asylum before a Department of Justice
Executive Office for Immigration Review (EOIR) immigration judge during removal
proceedings. Foreign nationals arriving at a U.S. port of entry who lack proper immigration
documents or who engage in fraud or misrepresentation are placed in expedited removal;
however, if they express a fear of persecution, they receive a “credible fear” hearing with a
USCIS asylum officer and—if found credible—they are referred to an EOIR immigration judge
for a hearing.4
The INA makes it clear that the Attorney General and Secretary of Homeland Security can
exercise discretion in the granting of asylum. Foreign nationals who participated in the
persecution of other people are excluded from receiving asylum. The law states other conditions
for mandatory denials of asylum claims, including when the alien has been convicted of a serious
crime and is a danger to the community; the alien has been firmly resettled in another country; or
there are reasonable grounds for regarding the alien as a danger to national security.5 The INA,
moreover, has specific grounds for exclusion of all aliens that include criminal and terrorist
grounds.6
This report opens with an overview of current policy, discussing the threshold of what constitutes
asylum and the procedures for obtaining it. The second portion of the report identifies the top
sending countries and includes a time series analysis of six selected source countries for asylum
1 The term “foreign national” is synonymous with “alien,” which is the term the Immigration and Nationality Act
§101(a)(3) defines as a person who is not a citizen or national of the United States.
2 Refugees are aliens displaced abroad and their cases are considered overseas. For a full discussion of U.S. refugee
admissions and policy, see CRS Report RL31269, Refugee Admissions and Resettlement Policy, by Andorra Bruno.
3 INA §208; 8 U.S.C. §1158.
4 Distinct from asylum law and policy, aliens claiming relief from removal due to torture may be treated separately
under regulations implementing the United Nations Convention Against Torture. For a full legal analysis of this
convention, see CRS Report RL32276, The U.N. Convention Against Torture: Overview of U.S. Implementation Policy
Concerning the Removal of Aliens, by Michael John Garcia.
5 INA §208(b)(2); 8 U.S.C. §1158.
6 CRS Report RL32480, Immigration Consequences of Criminal Activity, by Michael John Garcia; and CRS Report
RL32564, Immigration: Terrorist Grounds for Exclusion and Removal of Aliens, by Michael John Garcia and Ruth
Ellen Wasem.
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Asylum and “Credible Fear” Issues in U.S. Immigration Policy
seekers.7 The third section of the report analyzes asylum approvals by country of origin. The
report rounds out with a discussion of selected legislative policy issues.
Recent History of U.S. Asylum Policy
In 1968, the United States became party to the 1967 United Nations Protocol Relating to the
Status of Refugees (hereafter referred to as the U.N. Refugee Protocol), agreeing to the principle
of nonrefoulement. Nonrefoulement means that an alien will not be returned to a country where
his life or freedom would be threatened, and it is embodied in several provisions of U.S.
immigration law. 8 The U.N. Refugee Protocol does not require that a signatory accept refugees,
but it does ensure that signatory nations afford certain rights and protections to aliens who meet
the definition of refugee. At the time the United States signed the U.N. Refugee Protocol,
Congress and the Administration thought that there was no need to amend the INA, assuming that
the provisions to withhold deportation9 would be adequate. In 1974, the former Immigration and
Naturalization Service (INS)10 issued its first asylum regulations.11 The Refugee Act of 1980
codified the U.N. Refugee Protocol=s definition of a refugee in the INA and included provisions
for asylum in INA '208. The law defined asylees as aliens in the United States or at a port of
entry who meet the definition of a refugee.
As Figure 1 illustrates, asylum claims spiked immediately after passage of the Refugee Act in
1980, when over 120,000 Cubans and about 25,000 Haitians set sail for Florida. Known as the
Mariel Boatlift, this mass exodus of asylum seekers put the new law to the test. 12 In the 1980s,
political violence and civil wars in Central America prompted mass migration of asylum seekers
from El Salvador, Guatemala, and Nicaragua. Asylum cases filed with the INS surpassed 100,000
for the first time in 1988. The Tiananmen Square massacre of Chinese protesters in 1989
symbolized events that triggered asylum seekers from China, who contributed, along with
conditions in Central America, to the second spike depicted in Figure 1.
7 Each of the six selected countries were among the major source countries of asylum seekers from FY1997 through
FY2009.
8 §208 of INA (8 U.S.C. §1158); §241(b)(3) of INA (8 U.S.C. §1231); and §101(a) of INA (8 U.S.C. §1101(a)(42)).
9 Now known as withholding of removal, it prohibits an alien’s removal to the country where his or her life or freedom
would be threatened, but it allows removal to a third country where his or her life or freedom would not be threatened.
The law states that aliens must establish that it is more likely than not that their life or freedom would be threatened on
account of race, religion, nationality, membership in a particular social group, or political opinion in the proposed
country of removal. INA §241(b)(3).
10 Prior to the enactment of the Homeland Security Act of 2002 (P.L. 107-296), most federal responsibilities and
functions pertaining to immigration were handled by the Immigration and Naturalization Service (INS) in the U.S.
Department of Justice. P.L. 107-296 abolished the INS and transferred its various immigration components to several
new agencies within the newly created Department of Homeland Security.
11 CFR 8, '108
12 In 1981, then-Attorney General William French Smith opined that most Cuban asylum seekers were permitted to
forego the asylum process because of the Cuban Adjustment Act of 1966, and this legal analysis has stood. For further
background on Cuban asylees and refugees, see CRS Report R40566, Cuban Migration to the United States:
Policy and Trends, by Ruth Ellen Wasem.
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Asylum and “Credible Fear” Issues in U.S. Immigration Policy
Figure 1. Asylum Cases Filed with INS/USCIS
FY1973-FY2009
Source: CRS presentation of data from the DHS Office of Immigration Statistics.
The December 1991 military coup d’etat deposing Haiti’s first democratically elected president,
Jean Bertrand Aristide, led thousands of Haitians to flee by boat to the United States in FY1992.
The following year, 285 Chinese came ashore in New York on the “Golden Venture” and a total
of 683 Chinese came ashore in three different ocean-going vessels along the coast of California in
the summer of 1993.13 Asylum claims with the INS peaked at 149,566 in FY1995 (Figure 1).
Almost half of those cases, however, resulted from the 1990 settlement of the American Baptist
Church (ABC) case that allowed Salvadorans and Guatemalans living in the United States who
had not obtained asylum in the past to apply for asylum.14 By the end of FY1995, there were
457,670 asylum cases in the backlog, as the INS asylum corps was unable to keep pace.
The Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA, P.L. 104-208) of 1996
made substantial changes to the asylum process, most notably by establishing summary exclusion
provisions (now known as expedited removal), adding time limits on filing claims, and limiting
judicial review in certain circumstances. IIRIRA also added a provision enabling refugees or
asylees to request asylum on the basis of persecution resulting from resistance to coercive
13 CRS Report 93-727, Chinese Migration to the United States: Trends and Issues, by Ruth Ellen Wasem. (Archived,
available upon request)
14 For a full discussion, see CRS Report 97-810, Central American Asylum Seekers: Impact Of 1996 Immigration Law,
by Ruth Ellen Wasem. (Archived, available upon request)
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Asylum and “Credible Fear” Issues in U.S. Immigration Policy
population control policies.15 Asylum claims with the INS dropped in the years following the
passage of IIRIRA, as Figure 1 depicts. It remains difficult to assess the extent to which the
IIRIRA revisions to asylum policy affected this decline.
The Real ID Act of 2005 (P.L. 109-13) further revised asylum law. Foremost, it established
expressed standards of proof for asylum seekers, including that the applicant’s race, religion,
nationality, social group, or political opinion was or will be one of the central motives for his or
her persecution. It also required that the asylum seeker provide evidence which corroborates
otherwise credible testimony; such evidence must be provided unless the applicant cannot
reasonably obtain it.16
Standards for Asylum
Because “fear” is a subjective state of mind, assessing the merits of an asylum case rests in large
part on the credibility of the claim and the likelihood that persecution would occur if the alien is
returned home. These two distinct concepts—the credibility of the claim, or “credible fear,” and
the likelihood that persecution would occur, or “well-founded fear”—are fundamental to
establishing the standards for asylum. A third dimension that overlays these concepts is the matter
of “mixed motives” for persecuting the alien. Each of these standards are discussed below.
Credible Fear
The INA states that “the term credible fear of persecution means that there is a significant
possibility, taking into account the credibility of the statements made by the alien in support of
the alien’s claim and such other facts as are known to the officer, that the alien could establish
eligibility for asylum under §208.”17 Integral to expedited removal, which is discussed below, the
credible fear concept also functions as a pre-screening standard that is broader—and the burden
of proof easier to meet—than the well-founded fear of persecution standard required to obtain
asylum.
Well-Founded Fear
The standards for “well-founded fear” have evolved over the years and been guided significantly
by judicial decisions, including a notable U.S. Supreme Court case.18 The regulations specify that
an asylum seeker has a well-founded fear of persecution if
15 This coercive family planning provision was added by §601. It states
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.
16 CRS Report RL32621, U.S. Immigration Policy on Asylum Seekers, by Ruth Ellen Wasem.
17 INA §235(b)(1)(B)(v); 8 U.S.C. §1225.
18 INS v. Cardoza-Fonseca, 480 U.S.C. 421 (No. 85-782, March 9, 1987).
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Asylum and “Credible Fear” Issues in U.S. Immigration Policy
(A) The applicant has a fear of persecution in his or her country of nationality or, if stateless,
in his or her country of last habitual residence, on account of race, religion, nationality,
membership in a particular social group, or political opinion;
(B) There is a reasonable possibility of suffering such persecution if he or she were to return
to that country; and
(C) He or she is unable or unwilling to return to, or avail himself or herself of the protection
of, that country because of such fear.19
The regulations also state that an asylum seeker “does not have a well-founded fear of
persecution if the applicant could avoid persecution by relocating to another part of the
applicant’s country.... ”20
In evaluating whether the asylum seeker has sustained the burden of proving that he or she has a
well-founded fear of persecution, the regulations state that the asylum officer or immigration
judge shall not require the alien to provide evidence that there is a reasonable possibility he or she
would be individually singled out for persecution if
(A) The applicant establishes that there is a pattern or practice in his or her country of
nationality or, if stateless, in his or her country of last habitual residence, of persecution of a
group of persons similarly situated to the applicant on account of race, religion, nationality,
membership in a particular social group, or political opinion; and
(B) The applicant establishes his or her own inclusion in, and identification with, such group
of persons such that his or her fear of persecution upon return is reasonable.21
Mixed Motives
The intent of the persecutor is subjective and may stem from mixed or multiple motives. The
courts have ruled that the persecution may have more than one motive, and so long as one motive
is one of the statutorily enumerated grounds, the requirements have been satisfied.22 A 1997
Board of Immigration Appeals (BIA) decision concluded “an applicant for asylum need not show
conclusively why persecution occurred in the past or is likely to occur in the future, [but must]
produce evidence from which it is reasonable to believe that the harm was motivated, at least in
part, by an actual or imputed protected ground.”23 Generally, the asylum seeker must demonstrate
in mixed motive cases that even though his/her persecutors were motivated for a non-cognizable
19 8 C.F.R. §208.13(b)(2).
20 Ibid.
21 8 C.F.R. §208.13(b)(2).
22 For example, the Indian police’s desire to obtain information regarding terrorist activities in the Sikh cases was seen
as the main motive for torturing a Sikh named Surinder Pal Singh when he was initially denied asylum. The court did
not dispute the facts: “The Indian police learned of the apparent support of the Singh family for the separatists and
arrested Singh on June 15, 1989. Despite Singh’s assurances that he did not support the separatists, the police
interrogated and beat Singh for two-and-a-half hours, until he lost consciousness. The police then revived him with
water and resumed the beatings. They kept Singh detained for two days.” The court ruled Singh had shown past
persecution. Harpinder Singh v. Ilchert, 63 F.3d 1501 (9th Cir. 1995).
23 Matter of T-M-B-, 21 I. & N. Dec. 775, 777 (B.I.A. 1997).
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reason, one of the persecutor’s central motives was the asylum seeker’s race, religion, nationality,
social group, or political opinion.24
Process of Requesting Asylum
An applicant for asylum begins the process either in the United States, if he or she is already
present, or at a port of entry while seeking admission. This process differs from a potential
refugee who begins a separate process wholly outside of the United States.25 Depending on
whether or not the applicant is currently in removal proceedings, two avenues exist to seek
asylum: “affirmative applications” and “defensive applications.” The affirmative and defensive
applications follow different procedural paths but draw on the same legal standards. In both
processes, the burden of proof is on the asylum seeker to establish that he or she meets the
refugee definition specified in the INA.
Affirmative Claims
An asylum seeker who is in the United States and not involved in any removal proceedings files
an I-589, the asylum application form, with the USCIS. The USCIS schedules a non-adversarial
interview with a member of the Asylum Officer Corps. There are eight asylum offices located
throughout the country. The asylum officers either grant asylum to successful applicants or refer
to the immigration judges those applicants who fail to meet the definition. The asylum officers
make their determinations regarding the affirmative applications based upon the application form,
the information received during the interview, and other information related to the specific case
(e.g., information about country conditions). If the asylum officer approves the application and
the alien passes the identification and background checks, then the foreign national is granted
asylum status.
There has been a 79% decrease in affirmative asylum cases filed since the enactment of IIRIRA
in 1996, falling from 116,877 in FY1996 to 24,550 in FY2009, with a modest rebound in FY2000
and FY2001. As Figure 2 depicts, the number of asylum cases approved more than doubled from
13,532 in FY1996 to 31,202 in FY2002, and then fell to the lowest point over the 14-year
period—9,614—in FY2009. This decline in cases approved represents a 29% change over the
period.
24 Acts directed at women such as female genital mutilation (FMG), rape by military or police forces, “honor killings,”
or domestic violence are especially problematic, because the woman must demonstrate that the abuse was based on
race, religion, nationality, membership in a particular social group, or political opinion. Although the Guatemalan
woman who fled to the United States because of repeated abuse by her husband (Matter of R-A-, Int. Dec. 3403, BIA
1999, A.G. 2001) was ultimately granted asylum in 2009, her case did not necessarily set a precedent for other women
seeking asylum from domestic violence. For legal brief, see Joe D. Whitley, U.S. Department of Homeland Security
General Counsel, Victor Cerda, DHS Customs and Immigration Enforcement Acting Principal Legal Advisor, and Dea
Carpenter, DHS Citizenship and Immigration Services Acting Principal Legal Advisor, to U.S. Attorney General,
February 19, 2004, http://cgrs.uchastings.edu/documents/legal/dhs_brief_ra.pdf.
25 For a full discussion of U.S. refugee admissions and policy, see CRS Report RL31269, Refugee Admissions and
Resettlement Policy, by Andorra Bruno.
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Asylum and “Credible Fear” Issues in U.S. Immigration Policy
Figure 2. Affirmative Asylum Cases Filed and Approved
FY1996-FY2009
Thous
Thous a
a nds
nds
140
Approvals
Cases Filed
120
100
80
60
40
20
0
1996 1997 1998 1999 2000 2001 2002 2003 2004 2005
2006 2007 2008 2009
Fiscal Year
Source: CRS presentation of data from the USCIS Directorate of Refugee, Asylum, and International
Operations.
Notes: Data represent cases not individuals.
The asylum officer does not technically deny asylum claims; rather, the asylum applications of
aliens who are not granted asylum by asylum officers are referred to EOIR immigration judges
for formal proceedings. In some respects, these applicants/aliens are allowed a “second bite at the
apple.”26 Asylum applicants in the affirmative process are not subject to the mandatory detention
requirements while their applications are being adjudicated, though there is broader authority
under the INA to detain aliens for other grounds.27
Defensive Claims
Defensive applications for asylum are raised when a foreign national is in removal proceedings
and asserts claim for asylum as a defense to his/her removal. EOIR’s immigration judges and the
26 This expression is sometimes used in the context of asylum law. For example, see “Judge Denies Class Certification
for PRC Nationals Denied Asylum,” Interpreter Releases, vol. 71, no. 4 (January 24, 1994).
27 INA §287(a).
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BIA, entities in DOJ separate from the USCIS, have exclusive control over such claims and are
under the authority of the Attorney General.28 Generally, the alien raises the issue of asylum
during the beginning of the removal process. The matter is then litigated in immigration court,
using formal procedures such as the presentation of evidence and direct and cross examination. If
the alien fails to raise the issue at the beginning of the process, the claim for asylum may be
raised only after a successful motion to reopen is filed with the court. The immigration judge’s
ultimate decision regarding both the applicant’s/alien’s removal and asylum application is
appealable to the BIA. Applicants/aliens seeking asylum via the defensive application method
may be detained until an immigration judge rules on their application. The applicant/alien is not
detained due to their asylum claim, but rather because of the broader authority in the INA to
detain aliens.29
Figure 3. Defensive Asylum Cases Filed and Approved
FY1996-FY2009
Thousands
140
Approvals
Receipts
120
100
80
60
40
20
0
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
Fiscal Year
Source: CRS presentation of data from the Office of Planning, Analysis and Technology in the Executive Office
for Immigration Review.
Notes: Data represent cases not individuals.
28 For background on the role and structure of EOIR and BIA, see CRS Report RL33410, Immigration Litigation
Reform, by Margaret Mikyung Lee.
29 INA §287(a).
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Defensive asylum claims made during EOIR proceedings started at a lower level in FY1996
(84,293) than affirmative USCIS claims (116,877). Since that time, defensive asylum claims have
dropped by 53%, to 39,279 in FY2009. The number of asylum cases that EOIR judges have
approved, however, has risen by 99% over this 14-year period. EOIR approved 5,131 in FY1996
and 10,186 in FY2009, as shown in Figure 3.
Expedited Removal Claims
DHS’ Customs and Border Protection (CBP) officer must summarily exclude a foreign national
arriving without proper documentation, unless the alien expresses a fear of persecution if
repatriated. Absent a stated fear, the CBP officer is allowed to exclude aliens without proper
documentation from the United States without placing them in removal proceedings.30 This
procedure is known as expedited removal.31 According to DHS immigration policy and
procedures, CBP inspectors, as well as other DHS immigration officers, are required to ask each
individual who may be subject to expedited removal the following series of “protection
questions” to identify anyone who is afraid of return:
• Why did you leave your home country or country of last residence?
• Do you have any fear or concern about being returned to your home country or
being removed from the United States?
• Would you be harmed if you were returned to your home country or country of
last residence?
• Do you have any questions or is there anything else you would like to add?
If the foreign national expresses a fear of return, the alien is supposed to be detained by
Immigration and Customs Enforcement (ICE) and interviewed by a USCIS asylum officer. The
asylum officer then makes the “credible fear” determination of the alien’s claim. Those found to
have a “credible fear” are referred to an EOIR immigration judge, which places the asylum seeker
on the defensive path to asylum. If the USCIS asylum officer finds that an alien does not have a
credible fear, the alien may request that an EOIR immigration judge review that finding.32
30 Executive Office for Immigration Review, Asylum and Withholding of Removal Relief, U.S. Department of Justice,
Fact Sheet, January 15, 2009, http://www.justice.gov/eoir/press/09/AsylumWithholdingCATProtections.pdf.
31 CRS Report RL33109, Immigration Policy on Expedited Removal of Aliens, by Alison Siskin and Ruth Ellen
Wasem.
32 The immigration judge’s credible fear review must be done within 24 hours whenever possible, but no later than
seven days after the initial determination by an asylum officer, and is limited strictly to whether an alien has a credible
fear of persecution or torture. Executive Office for Immigration Review, Asylum and Withholding of Removal Relief,
U.S. Department of Justice, Fact Sheet, January 15, 2009.
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Figure 4. “Credible Fear” Claims Received by USCIS and EOIR
FY2005-FY2009
Thousands
6
EOIR
USCIS
5
4
3
2
1
0
2005
2006
2007
2008
2009
Fiscal Year
Source: CRS presentation of USCIS Refugees, Asylum and Parole System data.
Notes: Data represent cases not individuals.
The number of “credible fear” claims that USCIS has considered has steadily increased from
4,712 in FY2005 to 5,454 in FY2009—a 16% increase. The number of “credible fear” reviews by
EOIR is much lower overall than it is for USCIS, as one would expect. Nonetheless, EOIR
numbers have seen a notable rise from 114 in FY2005 to 887 in FY2009. Consistent time series
data on “credible fear” claims are not available before FY2005.
Aliens Arriving by Sea
On November 13, 2002, the former INS published a notice clarifying that certain aliens arriving
by sea who are not admitted or paroled into the United States are to be placed in expedited
removal proceedings and detained (subject to humanitarian parole).33 This notice concluded that
illegal mass migration by sea threatened national security because it diverts the U.S. Coast Guard
and other resources from their homeland security duties. 34 The Attorney General expanded on
33 “Parole” is a term in immigration law which means that the alien has been granted temporary permission to be
present in the United States. Parole does not constitute formal admission to the United States and parolees are required
to leave when the terms of their parole expire, or, if otherwise eligible, to be admitted in a lawful status.
34 67 Federal Register 68923-68926, November 13, 2002.
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this rationale in his April 17, 2003, ruling that instructs EOIR immigration judges to consider
“national security interests implicated by the encouragement of further unlawful mass migrations
...” in making bond determinations regarding release from detention of unauthorized migrants
who arrive in “the United States by sea seeking to evade inspection.”35 The case involved a
Haitian who had come ashore in Biscayne Bay, FL, on October 29, 2002, and had been released
on bond by an immigration judge. The BIA had upheld his release, but the Attorney General
vacated the BIA decision.36
Background Checks
All foreign nationals seeking asylum are subject to multiple background checks in the terrorist,
immigration, and law enforcement databases. Those who enter the country legally on
nonimmigrant visas are screened by the consular officers at the Department of State when they
apply for a visa, and all foreign nationals are inspected by CBP officers at ports of entry.37 Those
who enter the country illegally are screened by the U.S. Border Patrol or the ICE agents when
they are apprehended.38 When aliens formally request asylum, they are sent to the nearest USCIS-
authorized fingerprint site. They have all 10 fingers scanned and are subject to a full background
check by the Federal Bureau of Investigation (FBI).39
Victims of Torture
Distinct from asylum law and policy, aliens claiming relief from removal due to torture may be
treated separately under regulations implementing the United Nations Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter, Torture
Convention). Article 3 of the Torture Convention prohibits the return of any person to a country
where there are “substantial grounds” for believing that he or she would be in danger of being
tortured. The alien must meet the three elements necessary to establish torture:
1. the torture must involve the infliction of severe pain or suffering, either physical
or mental;
2. the torture must be intentionally inflicted; and
3. the torture must be committed by or at the acquiescence of a public official or
person acting in an official capacity.
Generally, an applicant for non-removal under Article 3 has the burden of proving that it is more
likely than not that he would be tortured if removed to the proposed country. If credible, the
applicant’s testimony may be sufficient to sustain this burden without additional corroboration.40
35 23 I&N Dec. 572 (A.G. 2003).
36 CRS Report RS21349, U.S. Immigration Policy on Haitian Migrants, by Ruth Ellen Wasem.
37 For more information and analysis of alien screening and background checks, see CRS Report RL32564,
Immigration: Terrorist Grounds for Exclusion and Removal of Aliens, by Michael John Garcia and Ruth Ellen Wasem;
and CRS Report R41104, Immigration Visa Issuances and Grounds for Exclusion: Policy and Trends, by Ruth Ellen
Wasem.
38 CRS Report RL32562, Border Security: The Role of the U.S. Border Patrol, by Chad C. Haddal.
39 For more information, see U.S. Citizenship and Immigration Services, Affirmative Asylum Procedures Manual,
February 2003, pp. 93-144.
40 8 C.F.R. §208.16(c)(2).
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In assessing whether it is “more likely than not” that an applicant would be tortured if removed to
the proposed country, all evidence relevant to the possibility of future torture is required to be
considered. However, if a diplomatic assurance (deemed sufficiently reliable by the Attorney
General or Secretary of State) that the alien will not be tortured is obtained from the government
of the country to which the alien would be repatriated, the alien’s claim for protection will not be
considered further and the alien may be removed.41
Source Countries for Asylum Seekers
For many years, most foreign nationals who sought asylum in the United States were from the
Western Hemisphere, notably Central America and the Caribbean. From October 1981 through
March 1991, for example, Salvadoran and Nicaraguan asylum applicants totaled over 252,000
and made up half of all foreign nationals who applied for asylum with the INS.42 In FY1995,
more than three-fourths of asylum cases filed annually came from the Western Hemisphere.43
In FY1999, the People’s Republic of China (PRC) moved to the top of the source countries for
affirmative asylum claims, with 4,209 new cases. Somalia followed as a leading source country
with 3,125 cases in FY1999. As the overall number of asylum seekers fell in the late 1990s, the
shrinking numbers from Central America contributed to the decline. Simultaneously, the number
of asylum seekers from the PRC began rising and reached 10,522 affirmative cases in FY2002.
The PRC remained the leading source country throughout the 2000s.
Top 10 Source Countries in FY2009
Asylum seekers from the PRC dominated both the affirmative and defensive asylum caseloads in
FY2009, as Figure 5 shows. They comprised 36% of the 24,550 affirmative cases filed with
USCIS and 24% of the 39,279 defensive cases filed with EOIR. Five of the top 10 source
countries of asylum seekers were Western Hemisphere nations in FY2009. The five were Haiti,
Mexico, Guatemala, El Salvador, and Colombia. Ethiopia was the only African nation that was a
top 10 source country for asylum seekers in FY2009.
41 8 C.F.R. §208.18(c) and §1208(c). For a full legal analysis of the Torture Convention, see CRS Report RL32276, The
U.N. Convention Against Torture: Overview of U.S. Implementation Policy Concerning the Removal of Aliens, by
Michael John Garcia.
42 CRS Report 93-233, Asylum Seekers: Haitians In Comparative Context, by Ruth Ellen Wasem, (Archived, available
on request).
43 CRS Report 94-314, Asylum Facts And Issues, by Ruth Ellen Wasem, (Archived, available on request).
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Figure 5. Top 10 Source Countries of Asylum Seekers
FY2009
USCIS
EOIR
El Salvador 8.8%
Guatemala 8.3%
Mexico 5.7%
Mexico 7.2%
Haiti 4.5%
Ethiopia 4.2%
China 35.7%
China 23.8%
Nepal 4.0%
Haiti 4.6%
Russia 2.8%
India 2.7%
Guatemala 2.4%
India 2.1%
Colombia 2.3%
El Salvador 1.8%
Colombia 1.5%
Nepal 1.9%
Ethiopia 1.9%
Russia 1.8%
All Other 35.3%
All Other 36.9%
24,550
39,279
Source: CRS presentation of data from the USCIS Directorate of Refugee, Asylum, and International
Operations and the Office of Planning, Analysis and Technology in the Executive Office for Immigration Review.
Notes: Data represent cases not individuals.
As evident in Figure 6, “credible fear” claims are much smaller in overall numbers—5,454 in
FY2009—than the affirmative and defensive asylum caseloads, and the top 10 source countries
exhibit a somewhat different pattern as well. The PRC (18%) was still the leading source country,
but El Salvador (17%) sent a comparable number of “credible fear” claimants in FY2009, as
Figure 6 illustrates. Indeed, more Western Hemisphere nations are among the top 10 source
countries for “credible fear” claimants than among the EOIR and USCIS asylum caseloads. As
discussed above, “credible fear” typically comes up when an alien arrives without proper
documentation and is put into expedited removal proceedings. Those deemed to have a credible
fear proceed to a defensive asylum hearing with EOIR.
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Figure 6. USCIS “Credible Fear” Claimants by Top 10 Countries of Origin
FY2009
Honduras 10.8%
Guatemala 8.4%
El Salvador 17.3%
Mexico 6.2%
Somalia 4.0%
Eriteria 3.3%
China 17.6%
Haiti 3.0%
Equador 2.5%
Dominican Rep 2.4%
Other 24.4%
5,454
Source: CRS presentation of USCIS Refugees, Asylum and Parole System data.
Notes: Data represent cases not individuals.
Trends for Six Selected Countries
Given the ebbs and flows of asylum seekers over time that Figure 1, Figure 2, and Figure 3
depict, the representativeness for policy analysis of FY2009 data—or any single year’s data—
comes into question. One approach that refines the policy study is the analysis of a subset of
source countries’ trends in asylum seekers. This section of the report focuses on six major source
countries: the PRC, Colombia, El Salvador, Ethiopia, Haiti, and Mexico. Each of the six selected
countries were among the major source countries of asylum seekers from FY1997 through
FY2009.
The analysis presents data on the three asylum gateways of affirmative, defensive, and “credible
fear” claims for each of these source countries from FY1997 through FY2009. As noted above,
time series data on “credible fear” claims were available only since FY2005. Bear in mind that
EOIR defensive cases included many asylum claimants that first appeared as “credible fear” or
affirmative cases with USCIS. As a consequence, defensive claims display an echo effect of the
spikes and valleys in “credible fear” and affirmative cases.
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People’s Republic of China44
PRC asylum cases peaked in FY2002 for both affirmative and defensive claims—10,522 and
11,499, respectively (Figure 7). The ebbs and flows of PRC asylum seekers over the 13-year
period, however, exhibit different patterns depending on the asylum gateway. Affirmative claims
rose by 268.4%, from 2,377 cases in FY1997 to 8,758 cases in FY2009. The 13-year average for
affirmative claims was 5,607. In contrast, defensive claims increased by only 11.4%, from 8,381
cases in FY1997 to 9,336 cases in FY2009. However, the year-to-year fluctuations in defensive
claims were substantial, going from a low of 4,913 in FY1998 to a high of 11,499 in FY2002.
The 13-year average for defensive claims (8,581) was higher than the average for the affirmative
claims. The “credible fear” claims dropped from a high of 1,711 in FY2005 to 602 in FY2008,
and then rose to 962 in FY2009.
Figure 7. Asylum Seekers from China
Thousands
12
Credible Fear
Affirmative
Defensive
10
8
6
4
2
0
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
Fiscal Year
Source: CRS presentation of data from the USCIS Directorate of Refugee, Asylum, and International
Operations and the Office of Planning, Analysis and Technology in the Executive Office for Immigration Review.
Notes: Data represent cases not individuals.
44 For background on country conditions, see CRS Report RL34729, Human Rights in China: Trends and Policy
Implications, by Thomas Lum and Hannah Fischer.
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Colombia45
Colombian asylum cases exhibit a classic bell curve in Figure 8, peaking in FY2002 at 7,967
(affirmative) and 9,526 (defensive). Although both gateways of affirmative and defensive claims
have decreased since FY2002, the overall trends of Colombian asylum seekers from FY1997
through FY2009 are up by 48.2% and 53.6%, respectively. The 13-year average for affirmative
claims was 2,351, and for defensive claims it was 3,072. The “credible fear” claims have dipped
by 54.6%, from 185 in FY2005 to 84 in FY2009.
Figure 8. Asylum Seekers from Colombia
Thousands
12
Credible Fear
Affirmative
Defensive
10
8
6
4
2
0
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
Fiscal Year
Source: CRS presentation of data from the USCIS Directorate of Refugee, Asylum, and International
Operations and the Office of Planning, Analysis and Technology in the Executive Office for Immigration Review.
Notes: Data represent cases not individuals.
45 For background on country conditions, see CRS Report RL32250, Colombia: Issues for Congress, by June S. Beittel.
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El Salvador46
Affirmative asylum claims from El Salvador have steadily declined by 90.4%, from a high of
4,706 in FY1997 to 453 in FY2009. The 13-year average of affirmative claims is 1,289.
Salvadoran defensive claims exhibit more of a u-shaped distribution in Figure 9, with spikes of
8,126 in FY1998 and 9,955 in FY2007. The 13-year average of defensive claims is 4,908.
Overall, defensive asylum claims are down by 53.2% for Salvadorans, despite peaking at 9,955 in
FY2007. Furthermore, the number of “credible fear” claims during expedited removal has risen
sharply from 73 in FY2005 to 945 in FY2009, and the number of these “credible fear” claims
have surpassed the number of affirmative cases for FY2007 through FY2009.
Figure 9. Asylum Seekers from El Salvador
Thousands
12
Credible Fear
Affirmative
Defensive
10
8
6
4
2
0
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
Fiscal Year
Source: CRS presentation of data from the USCIS Directorate of Refugee, Asylum, and International
Operations and the Office of Planning, Analysis and Technology in the Executive Office for Immigration Review.
Notes: Data represent cases not individuals.
46 For background on country conditions, see CRS Report RS21655, El Salvador: Political, Economic, and Social
Conditions and U.S. Relations, by Clare Ribando Seelke.
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Ethiopia47
Asylum seekers from Ethiopia comprise the smallest number of cases among the six source
countries studied. The 13-year average was 972 for affirmative claims and 689 for defensive
claims, with only modest variations from year to year. Ethiopian asylum seekers were also
noteworthy among the six source countries because each year from FY1997 through FY2009 they
filed more affirmative cases than defensive cases (Figure 10). Although small, the number of
Ethiopian “credible fear” claims during expedited removal has risen markedly from 13 in FY2005
to 107 in FY2009.
Figure 10. Asylum Seekers from Ethiopia
Thousands
12
Credible Fear
Affirmative
Defensive
10
8
6
4
2
0
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
Fiscal Year
Source: CRS presentation of data from the USCIS Directorate of Refugee, Asylum, and International
Operations and the Office of Planning, Analysis and Technology in the Executive Office for Immigration Review.
Notes: Data represent cases not individuals.
47 For background on country conditions, see Bureau of African Affairs, Background Note: Ethiopia, U.S. Department
of State, November 2010, http://www.state.gov/r/pa/ei/bgn/2859.htm.
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Haiti48
Many Haitians who flee Haiti are interdicted by the U.S. Coast Guard and do not appear among
those who claim asylum in the United States.49 The number of asylum seekers from Haiti who do
reach the United States has not fluctuated greatly over the 13-year period. All three asylum
gateways of affirmative, defensive, and “credible fear” claims, however, have each evidenced a
drop since FY2006, when defensive claims peaked at 6,056. The 13-year average was 3,162 for
affirmative claims and 4,324 for defensive claims. Affirmative claims hit 4,938 in FY2001 and
surpassed the number of defensive claims that year, as Figure 11 illustrates. Overall, the number
of Haitian asylum seekers filing affirmative claims fell by 74.5%, defensive claims fell by 65.3%,
and “credible fear” claims fell by 57.4%.
Figure 11. Asylum Seekers from Haiti
Thousands
12
Credible Fear
Affirmative
Defensive
10
8
6
4
2
0
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
Fiscal Year
Source: CRS presentation of data from the USCIS Directorate of Refugee, Asylum, and International
Operations and the Office of Planning, Analysis and Technology in the Executive Office for Immigration Review.
Notes: Data represent cases not individuals.
48 For background on country conditions, see CRS Report R40507, Haiti: Current Conditions and Congressional
Concerns, by Maureen Taft-Morales.
49 Since FY1998, the Coast Guard had interdicted over 1,000 Haitians annually, reaching 1,782 in FY2009. For further
discussion of Haitian interdiction, see CRS Report RS21349, U.S. Immigration Policy on Haitian Migrants, by Ruth
Ellen Wasem.
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Mexico50
Asylum seekers from Mexico reached a 13-year high point in the late 1990s. As Figure 12 shows,
defensive claims reached 18,389 and affirmative claims hit 13,663 in FY1997. Mexican
affirmative cases evidenced a moderate surge in FY2001 (8,747) and FY2002 (8,977), but the
overall trend line has declined by 89.8% from FY1997 through FY2009. The number of defensive
claims has decreased as well, by 84.7% from FY1997 through FY2009. The 13-year average was
4,258 for affirmative claims and 5,797 for defensive claims. Mexican “credible fear” claims
during expedited removal have risen from 107 in FY2005 to 338 in FY2009, but they have not
reach the numbers that the PRC and El Salvador claims have.
Figure 12. Asylum Seekers from Mexico
Thousands
20
Credible Fear
Affirmative
Defensive
15
12
10
5
0
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
Fiscal Year
Source: CRS presentation of data from the USCIS Directorate of Refugee, Asylum, and International
Operations and the Office of Planning, Analysis and Technology in the Executive Office for Immigration Review.
Notes: Data represent cases not individuals. The Y axis is larger—spanning to 20,000—in this figure than in the
comparable figures, which have the Y axis set at 12,000.
50 For background on country conditions, see CRS Report RL32724, Mexico-U.S. Relations: Issues for Congress, by
Clare Ribando Seelke.
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The asylum patterns of these six selected source countries over the 13-year period varied
considerably. Asylum seekers from Colombia, for example, were peaking in the early 2000s while
the asylum seekers from El Salvador were dipping. Ethiopians and Haitians tracked steadily and
revealed similar levels of affirmative versus defensive asylum claims (albeit Haiti’s levels were
higher overall). In contrast, Chinese, Salvadoran and Mexican levels of affirmative versus
defensive asylum claims each yielded unique fluctuations over time. Regardless of the overall
decrease in asylum cases since the enactment of IIRIRA in 1996, this data analysis suggests that
conditions in the major source countries—whether economic, environmental, political, religious
or social—were likely the driving force behind asylum seekers.51
Approvals of Asylum Cases
Country conditions lie at the core of the principle that the United States will not return a foreign
national to a country where his life or freedom would be threatened on account of race, religion,
nationality, membership in a particular social group, or political opinion. As discussed more fully
above, individualized persecution or persecution resulting from group identity may form the basis
of the asylum claim. In the individualized instance, if the asylum seeker demonstrates that there is
a reasonable possibility of suffering such persecution as an individual if he or she were to return
to that country; and he or she is unable or unwilling to return to, or avail himself or herself of the
protection of, that country because of such fear; then the fear of persecution is deemed
reasonable. In the group identity instance, if the asylum seeker establishes that there is a pattern
or practice in his or her home country of persecution of a group of persons similarly situated to
the applicant on account of race, religion, nationality, membership in a particular social group, or
political opinion; and establishes his or her own inclusion in and identification with such group of
persons; then the fear of persecution is deemed reasonable.52
Analysis of Approvals by Country
Given the sheer number of asylum seekers from the PRC in FY2009, it is not particularly
surprising that the PRC led in the number of asylum cases approved by USCIS and EOIR in
FY2009 (Figure 13). Moreover, abuse of human rights in the PRC has been a principal area of
concern in the United States for many years.53 Presumably, PRC asylum seekers are also
benefiting from the provision enabling aliens to claim asylum on the basis of persecution
resulting from resistance to coercive population control policies, given the well-known population
control policies of the PRC.
The portion of approved asylum cases from Haiti was consistent with its portion of asylum
seekers in FY2009. Specifically, Haiti represented shares of asylum cases that USCIS and EOIR
approved—4.8% and 4.0%, respectively (Figure 13)—that were comparable to the portion of
asylum cased filed with USCIS and EOIR in FY2009—4.5% and 4.6%, respectively (Figure 5).
51 For further background, see the “Country Reports on Human Rights Practices,” which DOS submits annually to the
U.S. Congress in compliance with §116(d) and §502B(b) of the Foreign Assistance Act of 1961, as amended, and §504
of the Trade Act of 1974, as amended. Reports from 1999 through 2009 are available at http://www.state.gov/g/drl/rls/
hrrpt/.
52 8 C.F.R. §208.13(b)(2).
53 CRS Report RL34729, Human Rights in China: Trends and Policy Implications, by Thomas Lum and Hannah
Fischer.
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As noted above, the U.S. Coast Guard interdiction of Haitians has undoubtedly suppressed the
number of asylum seekers from that nation.
Although the continent of Africa was not home to many of the asylum seekers from the top
source countries discussed above, the African nations of Cameroon and Eritrea, as well as
Ethiopia, appear in the top 10 source countries for asylum cases approved by USCIS and EOIR in
FY2009 (Figure 13). 54
Figure 13. Top 10 Source Countries of Asylum Cases Approved by USCIS and EOIR
FY2009
USCIS
EOIR
China 25.3%
China 33.6%
Ethiopia 6.4%
Ethiopia 4.0%
Haiti 4.0%
Haiti 4.8%
Iraq 3.6%
Nepal 4.1%
Colombia 3.5%
Iraq 4.0%
India 2.6%
Colombia 3.5%
Albania 2.1%
Cameroon 2.0%
Guatemala 2.8%
Armenia 1.9%
Russia 2.7%
Eritera 1.9%
Eritera 2.3%
Cameroon 2.2%
Other 41.8%
Other 40.9%
9,614
10,186
Source: CRS presentation of data from the DHS Office of Immigration Statistics.
Notes: Data represent cases not individuals.
The emergence of the African nations in the top source countries for approved asylum cases is
revealed in Table 1, which presents the top 20 sources countries over the past decade for
approved affirmative and defensive asylum cases. Ethiopia, Somalia, Cameroon, Liberia, Egypt,
and Sudan were among those countries.
54 Among the “other countries,” the following had more than 100 but less than 200 approved cases in FY2009: Guinea,
Venezuela, Egypt, Nepal, Somalia, Guatemala, Indonesia, former Soviet Union, Serbia and Montenegro, Russia, El
Salvador, Sri Lanka, and Burma.
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Although they were not top 10 source countries for asylum seekers, Middle Eastern and South
Asian nations do appear in the top 20 source countries over the past decade for approved
affirmative and defensive asylum cases. Iran, Iraq, Indonesia, and Pakistan were top 20 source
countries for those who received asylum from FY2000 through FY2009, as were Indonesia, India,
and Burma. Iraq and India were the only ones among these countries (along with Nepal) to be
among the top 10 in FY2009.
Several top sending countries were also among the decade’s top 20 approved affirmative and
defensive asylum cases: Colombia, Haiti, Guatemala, and, of course, the PRC. For year-by-year
data on the top 20 source countries for approved asylum cases, see the Appendix.
Table 1. Top 20 Source Countries for Asylee Approvals, FY2000-FY2009
USCIS Affirmative
EOIR Defensive
Decade Total,
Decade Total,
Country
2000-2009
Country
2000-2009
China, People’s Republic
27,810
China, People's Republic
33,762
Colombia
26,543
Colombia
8,164
Haiti
13,036
Albania
4,929
Ethiopia
7,677
Haiti
4,880
Venezuela
5,664
India
4,211
Armenia
5,002
Ethiopia
2,863
Somalia
4,341
Russia
2,768
Cameroon
4,199
Indonesia
2,663
Iran
4,040
Armenia
2,401
Iraq
3,986
Egypt
2,205
Indonesia
3,982
Iraq
2,195
Russia
3,587
Cameroon
1,988
India
3,485
Guinea
1,981
Liberia
3,065
Somalia
1,817
Guatemala
2,986
Pakistan
1,603
Burma
2,975
Iran
1,558
Egypt
2,869
Guatemala
1,531
Pakistan
2,473
Mauritania
1,479
El Salvador
2,231
Venezuela
1,355
Sudan
2,025
Burma
1,278
Al other
38,767
Al other
29,826
Total
170,743
Total
115,457
Source: CRS presentation of data from the DHS Office of Immigration Statistics.
Notes: Data represent cases not individuals.
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Approvals by Regional Office and Immigration Court
Research studies of the approval rates of cases filed by asylum seekers consistently reveal
disparities by USCIS regional asylum offices and EOIR immigration courts. Fredric N. Tulsky of
the San Jose Mercury News was a finalist for the Pulitzer Prize for investigative reporting in 2001
“for his illuminating reporting on the arbitrary and inconsistent administration of the federal
system that grants political asylum.”55 In 2006, researchers at Syracuse University’s Transactional
Records Access Clearinghouse (TRAC) found “a surprising lack of consistency” among similarly
situated asylum cases considered by EOIR from FY1994 to the early months of FY2005.56 The
Stanford Law Review published “Refugee Roulette: Disparities in Asylum Adjudication” in 2007,
which analyzed decisions of USCIS asylum officers as well as EOIR immigration judges. 57
Refugee Roulette
The example of asylum seekers from the PRC offers striking differences in the percentage of
cases approved across regions and jurisdictions, despite national data trends that appeared
consistent. A study of 290 asylum officers who decided at least 100 affirmative cases from the
PRC from FY1999 through FY2005 found that the approval rate of PRC claimants spanned from
zero to over 90% during this period. In one regional asylum office, the grant rates for affirmative
applications from the PRC varied from zero to 68%. Sixty percent of the officers in that regional
office deviated from their office’s average PRC asylum approval rates by more than 50%.58
Nationwide, immigration judges granted asylum to 47% percent of defensive cases of PRC
claimants from January 1, 2000, through August 31, 2004, but exhibited a pattern of variation
similar to the USCIS asylum officers when the cases were broken down by court. The
immigration court in Atlanta approved 7% of defensive PRC cases; however, the court in
Orlando, FL, approved 76% of defensive cases from PRC claimants. The disparity continued if
the applicant lost at the Board of Immigration Appeals and petitioned for review in the U.S. Court
of Appeals. From FY2003 to FY2005, the Fourth Circuit did not remand a single case from the
PRC (i.e., the court never decided in favor of the applicant), while the Ninth Circuit remanded in
37% of the PRC cases.59
The authors of this extensive study of affirmative and defensive decisions, “Refugee Roulette:
Disparities in Asylum Adjudication,” offered the following observations:
Asylum seekers from three of these countries faced a grant rate in at least one court that was
more than 50% below the national average, and applicants from four of these countries
enjoyed a grant rate in at least one court that was more than 50% above the national
average.... For one of these countries, China, the high grant rate and the low grant rate
deviated by more than 50% from the national average.... Colombian asylum seekers also
faced major disparities: those who appeared before the Orlando Immigration Court had a
55 The Pulitzer Prizes, “2001 Finalists Journalism,” press release, 2001, http://www.pulitzer.org/finalists/2001.
56 Transactional Records Access Clearinghouse, Immigration Judges: Asylum Seekers and the Role of the Immigration
Court, Syracuse University, July 2006, http://trac.syr.edu/immigration/reports/160/.
57 Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Phillip G. Schrag, “Refugee Roulette: Disparities in Asylum
Adjudication,” Stanford Law Review, vol. 60, no. 2 (November 2007).
58 Ibid.
59 Ibid.
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63% grant rate, while those heard by the Atlanta Immigration Court faced a grant rate of
19%. The average national grant rate for Colombian asylum seekers is 36%.60
Figure 14 presents the data for the asylee producing countries in the high-volume immigration
courts from which these conclusions are drawn. 61
Figure 14. High and Low Average Grant Rates for Asylum Seekers in
High-Volume Immigration Courts
Asylum seekers from high asylum countries, January 2000 through August 2004
65
Albania
17
54
Armenia
39
51
Cameroon
39
76
China
7
63
Colombia
19
79
Ethiopia
35
60
High Grant Rate
Guinea
24
Low Grant Rate
27
Haiti
15
52
India
25
72
Liberia
58
49
Mauritania
12
57
Pakistan
28
71
Russia
53
0
20
40
60
80
100
Percent
Source: CRS presentation of data from, “Refugee Roulette: Disparities in Asylum Adjudication,” Stanford Law
Review, vol. 60, no. 2 (November 2007).
Notes: “Refugee Roulette” authors excluded detained asylum seekers from their analysis. High-volume
immigration courts in this study were located in Arlington, Atlanta, Baltimore, Boston, Chicago, Dallas, Detroit,
Houston, Los Angeles, Memphis, Miami, Newark, New York City, Orlando, Philadelphia, San Diego, and San
Francisco.
60 Ibid.
61 The authors of this study defined asylee producing countries as those that had at least five hundred asylum claims
before the asylum offices or immigration courts in FY2004, and a national grant rate of at least 30% before either the
asylum office or the immigration court. The authors stated that they excluded Mexicans from the database because they
presumed the vast majority entered the affirmative asylum system for purposes other than to obtain asylum. Ibid.
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U.S. Government Accountability Office (GAO)
The U.S. Government Accountability Office (GAO) analyzed the disparity in asylum decisions as
well and found that “significant variation existed.” GAO performed multivariate statistical
analyses on asylum cases from 19 immigration courts that handled almost 90% of the cases from
October 1994 through April 2007. GAO identified nine factors that affected these outcomes:
(1) filed affirmatively (originally with DHS at his/her own initiative) or defensively (with
DOJ, if in removal proceedings); (2) applicant’s nationality; (3) time period of the asylum
decision; (4) representation; (5) applied within 1 year of entry to the United States; (6)
claimed dependents on the application; (7) had ever been detained (defensive cases only); (8)
gender of the immigration judge; and (9) length of experience as an immigration judge.62
GAO then statistically controlled for these nine factors and found disparities across immigration
courts and judges: “For example, affirmative applicants in San Francisco were still 12 times more
likely than those in Atlanta to be granted asylum. Further, in 14 of 19 immigration courts for
affirmative cases, and 13 of 19 for defensive cases, applicants were at least 4 times more likely to
be granted asylum if their cases were decided by the judge with the highest versus the lowest
likelihood of granting asylum in that court.”63
GAO also found that the grant rate for affirmative cases exceeded 50% for asylum seekers from
countries such as Albania, the PRC, Ethiopia, Iran, Russia, Somalia, and the former Yugoslavia.
In contrast, GAO found that the grant rate for affirmative cases was lower than 10% for asylum
seekers from El Salvador, Guatemala, Honduras, and Mexico. In terms of defensive cases, GAO
observed that about 50% of asylum seekers from Iran and Ethiopia were granted asylum and
almost 60% of such cases from Somalia were granted asylum. However, this outcome occurred
for 13% or less of the defensive asylum cases from El Salvador, Honduras, and Indonesia.64 GAO
also offered the following important caveat:
Because data were not available on the facts, evidence, and testimony presented in each
asylum case, nor on immigration judges’ rationale for deciding whether to grant or deny a
case, we could not measure the effect of case merits on case outcomes. However, the size of
the disparities in asylum grant rates creates a perception of unfairness in the asylum
adjudication process within the immigration court system.65
Transactional Records Access Clearinghouse (TRAC)
Researchers at Syracuse University’s TRAC have been conducting analyses of the immigration
courts for several years and were among the earliest to identify wide variations in asylum
outcomes that were dependent on the immigration judge. “The typical judge-by-judge denial
rate—half denied more and half denied less—was 65% . There were, however, eight judges who
62 U.S. Government Accountability Office (GAO), U.S. Asylum System: Significant Variation Existed in Asylum
Outcomes across Immigration Courts and Judges, GAO-08-940, September 2008, http://www.gao.gov/new.items/
d08940.pdf.
63 Ibid.
64 Ibid.
65 Ibid.
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denied asylum to nine out of ten of the applicants who came before them and two judges who
granted asylum to nine out of ten of theirs.” 66
Most recently, analysis performed by TRAC has continued to find disparities in asylum approvals
that are similar to their earlier research. TRAC’s latest study of the FY2008-FY2010 period found
that judge-to-judge disparities in asylum decisions have moderated since their earlier studies, but
it concluded that the disparities remained substantial. In the New York immigration court, for
example, one judge denied only 6% of the asylum cases, while another denied 70% of the asylum
cases. The judge-to-judge range in the San Francisco immigration court was from 32% to 92%.67
Table 2. Selected Nationality and Court-by-Court Asylum Denial Rates
Courts with the largest disparities in denial rates, FY2008-FY2010
Percentage Denial Rates
Nationality Immigration
Court
Decisions
Judges
Lowest
Highest
Range
China
Los Angeles
854
12
16.7
74.4
57.7
New York
9,110
27
4.0
73.9
69.9
Newark
709
7
35.7
69.9
34.2
Colombia
Miami
541
7
40.2
88.2
48.0
Orlando
742
5
41.2
88.1
46.9
El Salvador
Los Angeles
400
7
90.2
98.1
7.9
Ethiopia
Arlington
452
6
6.0
40.0
34.0
Baltimore
357
5
17.4
44.4
27.1
Haiti
Miami
2,542
18
51.6
97.1
45.6
Orlando
1,360
6
60.8
93.2
32.4
India
San Francisco
292
5
38.3
62.1
23.8
Iraq
San Diego
265
4
0.0
3.5
3.5
Venezuela
Miami
289
4
48.1
72.2
24.1
Orlando
349
4
24.4
80.3
55.9
Source: Transactional Records Access Clearinghouse (TRAC), Syracuse University, 2010.
66 Transactional Records Access Clearinghouse, Immigration Judges: Asylum Seekers and the Role of the Immigration
Court, Syracuse University, July 2006, http://trac.syr.edu/immigration/reports/160/.
67 Transactional Records Access Clearinghouse, The Persistence of Disparity: Did Recent Reforms Help?, Syracuse
University, September 2, 2010, http://trac.syr.edu/immigration/reports/240/.
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Notes: In order to be included in this TRAC analysis, the court had to have at least four judges who made 50 or
more asylum decisions in each time period.
The disparities were also evident when immigration court decisions were analyzed by the asylum
seeker’s country of origin. As Table 2 indicates, TRAC analysis of decisions on PRC asylum
seekers continued to show wide disparities in the New York court, ranging from 4% to 74%
denial rates. The denial rates of Iraq asylum seekers were the lowest, spanning from zero to 4%,
and their variation was also the lowest at 4%. In contrast, the denial rates of Salvadoran asylum
seekers were the highest, spanning 90% to 98%, with only a 8% variation.68
Selected Issues
Although there are many who would revise U.S. asylum law, those advocating change have
divergent perspectives. Some cite the seemingly inexplicable disparities in asylum approvals rates
and urge broad-based administrative reforms. Others argue that given the religious, ethnic, and
political violence in various countries around the world, it has become more difficult to
differentiate the persecuted from the persecutors. Some express concern that U.S. sympathies for
the asylum seekers caught up in the current political uprisings in the Middle East, northern Africa,
and South Asia could inadvertently facilitate the entry of terrorists. Others maintain that current
law does not offer adequate protections for people fleeing human rights violations or gender-
based abuses that occur around the world. Some assert that asylum has become an alternative
pathway for immigration rather than humanitarian protection provided in extraordinary cases. At
the crux of the issue is the extent to which an asylum policy forged during the Cold War is
adapting to the competing priorities and turbulence of the 21st century. Some of these issues are
highlighted below.
U.S. National Interests
Some have asserted that U.S. asylum policy attracts asylum seekers who have weak or bogus
claims and that additional safeguards are needed to curb abuses and protect U.S. national
interests. One critic has concluded that the “U.S. asylum system has become the hole in the fence
for millions of dubious claimants—and a major immigration magnet in itself.” Others have
maintained that migration “push” factors, such as rapid population growth, poverty, and political
instability in the sending countries of asylum seekers, are factors over which the United States has
little control. Some have warned of “the ongoing separation of asylum from any grounding in the
national interest” and argued for a serious examination of the forces that propel asylum seekers.69
In contrast, others have asserted that the United States should re-calibrate asylum policy to
provide more protections for asylum seekers, maintaining that it is in the United States’ national
interest to set an example. These proponents have expressed a desire for the United States to
reaffirm its welcome to those who have fled persecution as well as its commitment to
humanitarian efforts. They have argued that some of the statutory revisions in 1996 and 2005
68 Ibid.
69 David Simcox, Humanitarian Immigration: Third World “Persecution” Swamps the West, Negative Population
Growth, NPG Forum Paper, 2004, http://www.npg.org/forum_series/spring04fp.html; and Don Barnett, The Coming
Conflict Over Asylum: Does America Need a New Asylum Policy?, Center for Immigration Studies, March 2002,
http://www.cis.org/articles/2002/back102.html.
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Asylum and “Credible Fear” Issues in U.S. Immigration Policy
created unnecessary barriers for genuine asylees and that these provisions can be reformed
without making the United States more vulnerable to unauthorized migrants, criminals, or
terrorists. 70
Disparity in Decisions
The body of research that has revealed disparities in asylum decisions has led many to call for
greater congressional oversight of the immigration courts. According to a number of observers,
while the immigration courts have experienced a substantial increase in caseload, EOIR has not
received a commensurate increase in resources. Some are pushing for an increase in funding for
immigration judges and law clerks, which they assert would improve the quality of judicial
hearings.71
Others, however, contend that the problems related to disparities in asylum decisions lie less in
the funding shortages and more in the quality of immigration judges. Some are recommending
higher recruitment standards for immigration judges and more training, particularly training in the
culture of asylum seekers' homelands. 72 Some further recommend a requirement of written
opinions in asylum cases. 73
Still others maintain that the USCIS asylum officers also display disparate outcomes among
similarly situated asylum cases, and that enhanced training and research support should be
available for the asylum corps and the immigration judges. Establishing mechanisms to foster
communication among asylum offices is offered as an option to improve consistency. A further
recommendation is to consider cases in pairs or panels of three asylum offers.74
Despite concern over the disparate decisions, there is an argument that greater congressional
oversight might politicize the process. Legislative intervention to promote more consistent
decisions presumably might undermine the independence of the asylum adjudicators and
immigration judges. Because none of the studies that documented the disparities had access to the
case facts and evidence, the rationale for decisions remains unknown and thus may indeed be
justified.
70 U.S. Congress, Senate Committee on the Judiciary, Renewing America’s Commitment to the Refugee Convention:
The Refugee Protection Act of 2010, 111th Cong., 2nd sess., May 19, 2010.
71 For a discussion of these arguments, see Stephanie Potter, “Study eyes disparities in asylum outcomes,” Law
Bulletin, vol. 55, no. 77 (April 21, 2009).
72 In a study of 96 immigration judges, researchers found that the occupational hazards of the immigration judges may
include “compassion fatigue” and “secondary traumatic stress” and that immigration judges’ burnout levels were higher
than those suffered by hospital physicians and prison wardens. Stuart L. Lustig, M.D., MPH, Niranjan Karnik, M.D.,
PhD, and Kevin Delucchi, PhD, et al., “Inside the Judges’ Chambers: Narrative Responses from the National
Association of Immigration Judges Stress and Burnout Survey,” Georgetown Immigration Law Journal, vol. 23, no. 1
(Fall 2008).
73 Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Phillip G. Schrag, “Refugee Roulette: Disparities in Asylum
Adjudication,” Stanford Law Review, vol. 60, no. 2 (November 2007); and Stephanie Potter, “Study eyes disparities in
asylum outcomes,” Law Bulletin, vol. 55, no. 77 (April 21, 2009).
74 Ibid.
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Access to Counsel
Immigration removal proceedings are civil in nature and, thus, do not entail the right to legal
counsel that criminal proceedings do.75 Foreign nationals can be represented by counsel when
they appear in immigration court, but according to the statute, “at no expense to the
Government.” A list of available pro bono counsel must be provided to aliens in removal
proceedings.
The issue of asylum seekers’ access to counsel, especially during removal proceedings, has arisen
in recent years. Many maintain that few can adequately represent themselves and that charitable
and pro bono legal projects cannot afford to serve all asylum seekers. Some offer that providing
legal counsel is an option for addressing the disparities in outcome.76 Many cite the GAO study,
which found that asylum seekers were three times as likely to obtain asylum if they had legal
representation, to emphasize the need for legal counsel.77 Some further argue that lack of counsel
for a bona fide asylum seeker might result in deportation to a country where the person’s life and
liberty are threatened.78
Time Limit on Filing
Under current law, a foreign national has one year after the date of arrival to apply affirmatively
for asylum, unless there are changed circumstances or extraordinary circumstances related to the
delay in filing the application. Supporters of current law maintain that the one-year rule prevents
abuses of the asylum system and cite the drop in asylum applicants after the 1996 revisions to the
law that added the one-year rule. They point out that foreign nationals have the option of seeking
asylum defensively during removal proceedings.79
Others have observed that many asylum seekers who fail to file within one year of arrival
subsequently receive withholding of removal or relief under the United Nations Convention
Against Torture. Since both of these forms of relief have a higher burden of proof than asylum,
they assert such people would have qualified for asylum but for the one-year deadline. They
advocate for a Agood cause@ exemption to the time rule.80
75 U.S. Department of Justice, The Immigration Judge Benchbook, Executive Office of Immigration Review,
http://www.justice.gov/eoir/vll/benchbook/.
76 Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Phillip G. Schrag, “Refugee Roulette: Disparities in Asylum
Adjudication,” Stanford Law Review, vol. 60, no. 2 (November 2007); and Stephanie Potter, “Study eyes disparities in
asylum outcomes,” Law Bulletin, vol. 55, no. 77 (April 21, 2009).
77 U.S. Government Accountability Office, U.S. Asylum System: Significant Variation Existed in Asylum Outcomes
across Immigration Courts and Judges, GAO-08-940, September 2008, http://www.gao.gov/new.items/d08940.pdf.
78 Donald Kerwin, Revisiting the Need for Appointed Counsel, Migration Policy Institute, Insight, April 2005,
http://www.migrationpolicy.org/insight/Insight_Kerwin.pdf.
79 These arguments were raised in support of the revisions that IIRIRA made to asylum in 1996 and are expressed in
the testimony of Dan Stein, Executive Director of the Federation for American Immigration Reform; U.S. Congress,
Senate Committee on the Judiciary, Subcommittee on Immigration, An Overview Of Asylum Policy, 107th Cong., 1st
sess., May 3, 2001.
80 U.S. Congress, Senate Committee on the Judiciary, Renewing America’s Commitment to the Refugee Convention:
The Refugee Protection Act of 2010, 111th Cong., 2nd sess., May 19, 2010.
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Asylum and “Credible Fear” Issues in U.S. Immigration Policy
Mandatory Detention
Opponents to the mandatory detention of asylum seekers in expedited removal usually cite the
United Nations High Commissioner on Refugees, who maintains that detention of asylum seekers
is “inherently undesirable.”81 Detention is psychologically damaging, some further argue, to an
already fragile population that includes aliens who are escaping from imprisonment and torture in
their countries. Asylum seekers are often detained with criminal aliens, a practice that many
consider inappropriate and unwarranted. Some contend that Congress should provide for
alternatives to detention (e.g., electronic monitoring) for asylum seekers in expedited removal.
Others argue that the mandatory detention of asylum seekers provision should be deleted,
maintaining that there is adequate authority in the INA to detain any alien who poses a criminal or
national security risk.
Proponents for current law warn that releasing asylum seekers in expedited removal undermines
the purpose of expedited removal and creates an avenue for bogus asylum seekers to enter the
United States. They argue that mandatory detention of asylum seekers is an essential tool in
maintaining immigration control and homeland security. Any loosening of these policies, they
allege, would divert the CBP and ICE officers from their homeland security duties to track down
wayward asylum seekers. Supporters of current law also contend that it sends a clear signal of
deterrence to aliens who consider using asylum claims as a mechanism to enter illegally.82
Terrorist Infiltration and Material Support83
Some have long been concerned that terrorists would seek asylum in the United States, hoping to
remain hidden among the hundreds of thousands of pending asylum cases. Critics point to asylum
seekers from countries of “special concern” (i.e., Saudi Arabia, Syria, Iran, North Korea, China,
Pakistan, Egypt, Lebanon, Jordan, Afghanistan, Yemen, and Somalia) as potential national
security risks. Some argue further that because asylum is a discretionary form of immigration
relief, national security risks should outweigh humanitarian concerns, and thus, asylum relief
should be restricted and judicial review of asylum cases more limited.
Others point out that asylum seekers are subject to multiple national security screenings and that
if an asylum seeker is a suspected or known terrorist, the law already bars alien terrorists from
entering the United States. They argue that to the extent to which security risks had existed, those
risks resulted more from the limits of intelligence data on terrorists in the past rather than the
expansiveness of asylum policy.84 Some further assert that asylees from countries of “special
concern” may be beneficial to U.S. national security because they may have useful information
that assists in the war on terrorism, much like the assistance provided by communist defectors
during the Cold War. Opponents of limiting the judicial review of asylum cases contend that it
81 Office of the United Nations High Commissioner for Refugees, UNHCR Revised Guidelines on Applicable Criteria
and Standards Relating to the Detention of Asylum Seekers, February 1999.
82 For further analysis of detention policy, see CRS Report RL32369, Immigration-Related Detention: Current
Legislative Issues, by Alison Siskin.
83 For broader analysis, see CRS Report RL32564, Immigration: Terrorist Grounds for Exclusion and Removal of
Aliens, by Michael John Garcia and Ruth Ellen Wasem.
84 For examples of this argument, see Muzaffar A. Chishti, Doris Meissner, and Demetrios G. Papademetriou, et al.,
America’s Challenge: Domestic Security, Civil Liberties and National Unity After September 11 , Migration Policy
Institute, June 2003.
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would erode two traditional values of U.S. polity—the right to due process and freedom from
repression and persecution.85
Some argue that the law should be amended to provide an exception for people who have been
forced by terrorists to provide support.86 The law states that an alien who commits an act that he
“knows, or reasonably should know, affords material support” to a terrorist organization is
inadmissible.87 It makes no exception for instances where the alien has been coerced into
providing support, and whether it should do so is an issue.88
Concluding Observations
Over the past decade, the United States has admitted or adjusted about 1 million foreign nationals
to legal permanent resident (LPR) status each year, and annual asylee adjustments have ranged
from 1% to 9% of the total. Overall, asylee adjustments comprised only 4% (411,972) of the 10.3
million LPRs admitted or adjusted from FY2000 through FY2009.89 Unlike other facets of U.S.
immigration policy, asylum issues are less about the number of foreign nationals involved and
more about the qualities of the policies and the efficacy of the procedures. Asylum is an
adjudication of a person based upon facts, evidence, beliefs, and circumstances that might be
clear at some times yet nebulous at other times.
The policy tensions of asylum often pit the promotion of our humanitarian values against the
prevention of fraudulent abuses; the protection of the persecuted against the security of our
borders; and the obligations of our moral responsibilities internationally against the commitments
of our social priorities domestically. The balance of these competing concerns may be shaken by
a crisis in a neighboring nation or by larger world events. The U.S. Congress plays the key role in
considering when and whether revision or re-calibration of asylum law and policies is warranted.
85 U.S. Congress, Senate Committee on the Judiciary, Renewing America’s Commitment to the Refugee Convention:
The Refugee Protection Act of 2010, 111th Cong., 2nd sess., May 19, 2010.
86 Jason Dzubow, “A Short ‘Wish List’ for the Refugee Protection Act,” Immigration Law Daily, May 31, 2010,
http://blogs.ilw.com/politicalasylum/2010/05/index.html; and U.S. Congress, Senate Committee on the Judiciary,
Renewing America’s Commitment to the Refugee Convention: The Refugee Protection Act of 2010, 111th Cong., 2nd
sess., May 19, 2010.
87 INA §212(a)(3)(B)(iv)(VI).
88 U.S. Congress, Senate Committee on the Judiciary, Subcommittee on Human Rights and the Law, The “Material
Support” Bar: Denying Refuge to the Persecuted?, 110th Cong., 1st sess., September 19, 2007.
89 Randol Monger, U.S. Legal Permanent Residents: 2009, DHS Office of Immigration Statistics, Annual Flow
Reports, April 2010, http://www.dhs.gov/xlibrary/assets/statistics/publications/lpr_fr_2009.pdf.
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Appendix. Approved Asylum Cases for Top 20 Countries, FY2000-FY2009
Table A-1. Number of Approved Affirmative Asylum Cases for Top 20 Source Countries, FY2000-FY2009
Country
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
China, People's Republic
3,409
4,937
5,789
2,411
926
2,237
1,546
1,824
2,040
2,691
Colombia
2,449
5,660
4,940
2,966
2,898
2,212
2,178
1,490
1,113
637
Haiti
782
1,230
999
1,166
1,779
2,282
2,425
1,055
726
592
Ethiopia
1,444
1,172
1,049
573
753
464
435
497
586
704
Venezuela
23
41
71
315
1,198
951
1,080
835
758
392
Armenia
1,155
1,448
975
467
250
160
154
202
105
86
Somalia
1,994
1,279
431
142
146
74
48
71
69
87
Cameroon
349
324
710
814
597
385
224
294
282
220
Iran
887
883
699
327
203
145
139
170
331
256
Iraq
397
645
563
325
161
192
179
392
588
544
Indonesia
938
610
474
207
100
97
428
567
385
176
Russia
632
552
392
287
233
236
228
287
373
367
India
694
863
1,058
275
142
70
51
75
103
154
Liberia
690
769
608
352
309
122
61
48
61
45
Guatemala
288
151
187
157
206
248
471
542
378
358
Burma
330
1,309
325
191
188
96
93
124
151
168
Egypt
471
471
490
242
143
142
175
193
234
308
Pakistan
378
431
503
272
182
122
91
132
162
200
El Salvador
160
160
76
91
120
181
500
417
319
207
Sudan
512
520
446
110
84
56
52
84
86
75
Al
other
5,262 5,705 5,163 3,671 3,676 2,992 2,362 3,025 3,245 3,666
Source: CRS presentation of data from the Department of Homeland Security (DHS), Office of Immigration Statistics.
Notes: Data represent cases not individuals. “Top 20” is determined by the total number of approved asylum cases for the entire period.
CRS-33
Table A-2. Number of Approved Defensive Asylum Cases for Top 20 Source Countries, FY2000-FY2009
Country
2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
China,
People's
Republic
2,500 2,677 3,113 3,601 3,419 3,014 4,061 4,540 3,419 3,418
Colombia
186 396
1,019
1,590
1,473
1,151 779 683 531 356
Albania
393 513 515 717 724 610 506 420 320 211
Haiti
205 369 479 566 535 653 570 587 510 406
India
514 506 494 595 452 311 450 357 272 260
Ethiopia
235 218 232 239 260 266 344 349 311 409
Russia
417 351 312 381 320 251 203 208 198 127
Indonesia
157 181 283 366 427 375 314 210 195 155
Armenia
85 203 323 412 305 268 289 179 141 196
Egypt
218 194 228 277 268 194 240 231 182 173
Iraq
82 188 280 197 115 94 191 276 408 364
Cameroon
89 135 116 186 273 263 359 203 161 203
Guinea
40 64 94 155 258 257 358 324 238 193
Somalia
410 354 236 149 89 88 115 109 100 167
Pakistan
178 155 180 227 164 140 178 140 142 99
Iran
171 232 210 212 203 143 118 108 70 91
Guatemala
187 140 113 162 177 140 160 134 163 155
Mauritania
98 90 118 181 220 193 218 173 94 94
Venezuela
D 5 24 35 59 153 279 315 294 191
Burma
81 124 126 118 138 166 163 129 125 108
Al
other
2,990 2,906 2482 3,010 3,143 3,027 3,457 3,132 2,869 2,810
Source: CRS presentation of data from the Department of Homeland Security (DHS), Office of Immigration Statistics.
Notes: Data represent cases not individuals. “Top 20” is determined by the total number of approved asylum cases for the entire period.
CRS-34
Asylum and “Credible Fear” Issues in U.S. Immigration Policy
Author Contact Information
Ruth Ellen Wasem
Specialist in Immigration Policy
rwasem@crs.loc.gov, 7-7342
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