EFTA02689568.pdf

Order Code RL32621 CRS Report for Congress Received through the CRS Web U.S. Immigration Policy on Asylum Seekers Updated May 5, 2005 Ruth Ellen Wasem Specialist in Immigration Policy Domestic Social Policy Division Congressional Research Service ❖ The Library of Congress EFTA_R1_02029065 EFTA02689568  U.S. Immigration Policy on Asylum Seekers Summary 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. This principle is embodied in several provisions of the Immigration and Nationality Act (INA), most notably in provisions defining refugees and asylees. Aliens 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. Aliens present in the United States may apply for asylum with the United States Citizenship and Immigration Services Bureau (USCIS) in the Department of Homeland Security (DHS) after arrival into the country, or they may seek asylum before a Department of Justice's Executive Office for Immigration Review (EOIR) immigration judge during removal proceedings. Aliens arriving at a U.S. port 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 an USCIS asylum officer and — if found credible — are referred to an EOIR immigration judge for a hearing. In FY2003, there were 42,114 claims for asylum filed with USCIS, and by the close of the fiscal year, there were 262,102 asylum cases pending at USCIS. The USCIS asylum officers approved 11,434 cases in FY2003, and the percentage of cases approved was 29% of cases decided. Generally, over two-thirds of all asylum cases that EOIR received were cases referred to the immigration judges by the asylum officers. The percentage of EOIR asylum cases approved was 37% of cases decided in both FY2002 and FY2003. At the end of FY2003, there were 158,624 cases pending for asylees to adjust to legal permanent resident (LPR) status. A person who receives asylum today would wait about 16 years to become an LPR. Although there are many who would revise U.S. asylum law and policy, those advocating change have divergent perspectives. Some express concern that potential terrorists could use asylum as an avenue for entry into the United States, especially aliens from trouble spots in the Mideast, northern Africa and south Asia. Others argue that — given the religious, ethnic, and political violence in various countries around the world — it is becoming more difficult to differentiate the persecuted from the persecutors. Some assert that asylum has become an alternative pathway for immigration rather than humanitarian protection provided in extraordinary cases. 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. At the crux is the extent an asylum policy forged during the Cold War can adapt to a changing world and the war on terrorism. Thel0r Congress enacted several bills that included asylum provisions, notably P.L. 108-333 and P.L. 108-458. Elimination of the cap on asylee adjustments as well as inclusion of asylum provisions dropped from P.L. 108-458 are now in H.R. 418 and H.R. 1268, both of which passed the House, and a compromise version was retained by the conferees on H.R. 1268. This report will be updated as warranted. EFTA_R1_02029066 EFTA02689569 Contents Introduction 1 Background 1 Current Concerns 2 Legislative History 3 Refugee Act of 1980 3 Immigration Act of 1990 4 1996 Revisions to Asylum Policy 4 Expedited Removal 5 Mandatory Detention 5 Deadlines 5 Safe Third Country 5 Other Limitations 6 Employment Authorization 6 Coercive Family Planning 6 Overview of Current Policy 7 Standards for Asylum 7 Credible Fear 7 Well-Founded Fear 7 Mixed Motives 8 Process of Requesting Asylum 8 Affirmative Applications 8 Defensive Applications 9 Expedited Removal 9 Aliens Arriving by Sea 10 Background Checks 10 Safe Third Country Agreement with Canada 11 Victims of Torture 11 Statistical Trends 12 Asylum Requests and Approvals 12 Asylum Officers 12 Immigration Judges 13 Source Countries l4 Coercive Population Control Cases 16 LPR Adjustment Cases Pending 17 Issues of Debate 18 Terrorist Infiltration and Screening 18 Coordination with Border and Transportation Security 19 Mandatory Detention 19 Numerical Limits 20 Cuban and Haitian Policies 20 Gender-Based Persecution 21 EFTA_R1_02029067 EFTA02689570 Legislation 22 I08th Congress 22 House-passed S. 2845 22 H.R. 4011 23 S. 710 23 109th Congress 23 The Real ID Act (H.R. 418) 23 H.R. 1268 (Emergency Supplemental) 24 List of Figures Figure I. Asylum Cases Filed with and Approved by Asylum Officers, FY1973-FY2003 12 Figure 2. Asylum Cases Filed with and Approved by Immigration Judges, FY1996-FY2003 13 Figure 3. Asylum Seekers by Regions of the World 16 Figure 4. Conditional Asylum Grants on the Basis of Coercive Population Control 17 Figure 5. Pending Cases of Asylee Adjustments to LPR Status, FY1991-FY2003 18 List of Tables Table 1. Top 10 Source Countries of USCIS Asylum Seekers 14 Table 2. Top 10 Source Countries of EOIR Asylum Seekers 15 EFTA_R1_02029068 EFTA02689571  U.S. Immigration Policy on Asylum Seekers Introduction Background 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. This principle is embodied in several provisions of the Immigration and Nationality Act (INA), most notably in provisions defining refugees and asylees.' Aliens 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.' Aliens present in the United States may apply for asylum with the United States Citizenship and Immigration Services Bureau (USCIS) in the Department of Homeland Security after arrival into the country, or may seek asylum before a Department of Justice's Executive Office for Immigration Review (EOIR) immigration judge during removal proceedings. Aliens arriving at a U.S. port 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 an USCIS asylum officer and — if found credible — arc referred to an EOIR immigration judge for a hearing.' The INA makes clear that the Attorney General can exercise discretion in the granting of asylum. Aliens 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 ' 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 andResettlement Policy, by Andorra Bruno. 2 INA §208; 8 U.S.C. §1158. 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 ofthe this convention, see CRS Report RL32276, The U.N. Convention Against Torture: Overview ofU.S. ImplementationPolicy Concerning the Removal ofAliens, by Michael John Garcia. EFTA_R1_02029069 EFTA02689572  CRS-2 national security?' The NA, moreover, has specific grounds for exclusion of all aliens that include criminal and terrorist grounds.' Current Concerns The core concern is the extent an asylum policy forged during the Cold War can adapt to a changing world. Most people who have traditionally received refugee or asylum status were fleeing communist or socialist countries. From 1946 through 2000, the United States gave legal permanent resident (LPR) status to 3.5 million refugees, asylees, and other humanitarian entrants. Over half (53%) of all of these refugees and asylees were from three countries: Vietnam (19%), Cuba (18%), and the former Soviet Union (16%). As one might expect, the collapse of the Soviet Union has altered the makeup of recent humanitarian admissions. During FY2001- FY2002, nationals from four countries comprised more than half (55%) of all the 234,590 refugees, asylees and humanitarian entrants who became LPRs: Bosnia-Herzegovina (20%), Cuba (20%), Ukraine (8%), and the former Yugoslavia (7%) 6 Although there are many who would revise U.S. asylum law and policy, those advocating change have divergent perspectives. Some express concern that potential terrorists could use asylum as an avenue for entry into the United States, especially aliens from trouble spots in the Mideast, northern Africa and south Asia. Others argue that — given the religious, ethnic, and political violence in various countries around the world— it is becoming more difficult to differentiate thepersecuted from the persecutors. Some assert that asylum has become an alternative pathway for immigration rather than humanitarian protection provided in extraordinary cases. 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. This report is organized into four substantive sections. The first section summarizes the legislative history of U.S. asylum policy, highlighting the key provisions of the major immigration laws that established this policy. The second section presents an overview of current policy, discussing the concepts of "credible fear" and "well-founded fear," explaining affirmative and defensive avenues to seek asylum, and describing key procedures such as background checks and expedited removal. The third section analyzes asylum data, exploring trends over time as well as source countries and regions ofthe world. The final section synthesizes the issues of current debate, offering a range of alternative views. INA §208(b)(2); 8 U.S.C. § 1158. CRS Report RL32480,Immigration Consequences ofCriminalActivity, by Michael John Garcia; and CRS ReportRL32564,Immigration: Terrorist GroundsforExclusion ofilliens, by Michael John Garcia and Ruth Ellen Wasem. 6 CRS analysis of data from Table 23, Department of Homeland Security, Office of Immigration Statistics, 2002 Yearbook ofImmigration Statistics, Sept. 2003. For more on Cuban migration in particular, see CRS Report RS20468, Cuban Migration Policy and Issues, by Ruth Ellen Wasem. EFTA_R1_02029070 EFTA02689573  Legislative History Refugee Act of 1980 In 1968, the United States became party to the 1967 United Nations Protocol Relating to the Status of Refugees (hereafter, U.N. Refugee Protocol)! 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 assumed that there was no need to amend the INA and that the withholding of deportation provisions — then §243(h) of INA — would be adequate. In 1974, the INS issued its first asylum regulations as part of 8 C.F.R. §108. Prior to the passage of the Refugee Act of 1980, there was no direct mechanism in the INA for aliens granted asylum to become legal permanent residents (LPRs). The Refugee Act of 1980 codified the U.N. Refugee Protocol's definition of a refugee in the INA, included provisions for asylum (§208 of INA), and instructed the Attorney General to establish uniform procedures for the treatment of asylum claims of aliens within the United States. Under the INA, a refugee is defined as an alien "displaced abroad who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." The law defined asylecs as aliens in the United States or at a port of entry who meet the definition of a refugee. For the first time, the Refugee Act added statutory provisions to INA that enabled those granted refugee and asylee status to become LPRs after certain general requirements were met, The 1980 law specified that up to 5,000 of the refugee admissions numbers, which are set annually by Presidential Determination in consultation with Congress, could be used by the Attorney General to give LPR status to aliens who had received asylum (and their spouses and children), and who have been physically present in the United States for one year after receiving asylum, continue to meet the definition of a refugee, are not firmly resettled in another country, and are otherwise admissible as immigrants. At that time, it appears that Congress and the Administration assumed that the 5,000 ceiling would be more than adequate.10 7 19 U.S.T. 6223. §101(aX42) of INA; 8 U.S.C. §1101. 9 For a full discussion of U.S. refugee admissions and policy, see CRS Report RL31269, Refugee Admissions and Resettlement Policy, by Andorra Bruno. 10 Later that same year, the Mariel boatlift brought approximately 125,000 Cubans and 30,000 Haitians to U.S. shores, and most of these asylum seekers ultimately became LPRs through special laws enacted for Cubans and Haitians. EFTA_R1_02029071 EFTA02689574  CRS-4 Immigration Act of 1990 By 1986, the number of aliens receiving asylum annually was growing, and a backlog in obtaining LPR status developed due to the 5,000 ceiling. Compounding the frustration with the backlog was the worry ofmany of those asylees from Eastern Europe that — as a result of the improved political and human rights conditions in their native countries — they no longer would qualify as refugees under the law. Meanwhile, the number of aliens filing asylum claims surpassed 100,000 in 1989. The Immigration Act of 1990 sought, among other major immigration reforms, to address the backlogs in asylee adjustments to LPR status. Foremost, it doubled the annual limit from 5,000 to 10,000 LPR adjustments. It also allowed those asylees who had filed for LPR adjustments before June 1, 1990, to do so outside of the numerical limits, effectively clearing out the existing backlog. The Immigration Act of 1990 further granted LPR status to those asylees who had qualified for LPR status as ofNovember 29, 1990, but were unable to obtain it because ofthe prior numerical limits and improved country conditions. The crumbling of communism in Eastern Europe and the Arias Peace talks in Central America gave optimism to many that the number of asylum seekers would lessen in the future." 1996 Revisions to Asylum Policy Prior to 1996, aliens arriving at a port of entry to the United States without proper immigration documents were eligible for a hearing before an immigration judge to determine whether the aliens were admissible. Aliens lacking proper documents could request asylum in the United States at that time. If the alien received an unfavorable decision from the immigration judge, he or she also could seek administrative and judicial review of the case. Critics of this policy argued that illegal aliens were arriving without proper documents, filing frivolous asylum claims, and obtaining work authorizations while their asylum cases stalled in lengthy backlogs. In the late 1980s and early 1990s, the mass exodus ofthousands ofasylum seekers from Central America, Cuba, and Haiti prompted further concerns that the then-current policy was unwieldy and prone to abuses because it provided for multiple levels ofhearings, reviews, and appeals. The 1993 bombing of the World Trade Center heightened fears that international terrorists might enter the United States with false documents, file bogus asylum claims, and disappear into the population. Supporters ofthc then-current system asserted that the regulatory reforms begun by the first Bush Administration and expanded by the Clinton Administration had already corrected the bureaucratic problems that had plagued the asylum process. They emphasized that the United States was a signatory to the UN Refugee Protocol and that INA codified the internationally-held legal principle ofnonrefoulement (i.e., that an alien would not be forced to return to a country where his life or freedom " In Feb. 1987, the Presidents ofEl Salvador, Honduras, and Guatemala signed a I 0-point peace plan for Central America that was first offered by Costa Rican President Oscar Arias. Nicaragua joined the peace process later that same year. EFTA_R1_02029072 EFTA02689575  CRS-5 would be threatened). They also pointed out that aliens considered to be terrorists were already excluded by law from entering the United States. Proponents argued that aliens fleeing the most dangerous situations were likely to escape with fraudulent documents to hide their identity, and maintained therefore that even aliens lacking proper documents should be entitled to a full hearing and judicial review to determine if they might be admissible. The Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (IIRIRA,P.L. 104-208) made substantial changes to the asylum process: establishing expedited removal proceedings; codifying many regulatory changes; adding time limits on filing claims; and limiting judicial review in certain circumstances, but it did not alter the numerical limits on asylee adjustments. Expedited Removal. Among the significant modifications of the INA made by the IIRIRA arc the provisions that created the expedited removal policy.' The goal of these provisions was to target the perceived abuses of the asylum process by restricting the hearing, review, and appeal process for aliens at the port of entry. As a result, if an immigration officer determines that an alien arriving without proper documentation does not intend to apply for asylum or does not fear persecution, the immigration officer can deny admission and order the alien summarily removed from the United States. The amendments to INA made by IIRIRA provide very limited circumstances for administrative and judicial review of those aliens who are summarily excluded (including those who are deemed not to have a "credible fear" as discussed below). Mandatory Detention. Foreign nationals arriving without proper documents who express to the immigration officer a fear of being returned home must be kept in detention while their "credible fear" cases are pending." If an asylum officer determines that an alien does not have a "credible fear" of persecution, the alien is removed. If the asylum seeker meets the "credible fear" threshold, they may be released on their own recognizance while an immigration judge considers the case. Deadlines. Mother important change IIRIRA made to the asylum process is the requirement that all applicants must file their asylum applications within one year of their arrival to the U.1°S. Aliens may be exempted from this time requirement if they can show that changed conditions materially affect their eligibility for asylum, or they can present extraordinary circumstances concerning the delay in their application filing." Safe Third Country. IIRIRA amended INA to bar asylum to those aliens who can be returned to a "safe-third country." This provision was aimed at aliens who 12 The IIRIRA provisions amended §235 ofINA. " For background and analysis on detention policy under the Immigration and Nationality Act, see CRS Report RL32369,Immigration-RelatedDetention: CurrenaegislativeIssues, by Alison Siskin. 14 INA §208(a)(2)(B). See 8 C.F.R. §208.4(a)(4) and (5). EFTA_R1_02029073 EFTA02689576  CRS-6 travel through countries that are signatories to the U.N. Refugee Protocol (or otherwise provide relief from deportation for refugees) to request asylum in the United States. In order to return a potential applicant to a safe-third country, the United States must have an existing agreement with that country.' Other Limitations. An additional restriction on the filing of asylum applications includes a bar against those who have been denied asylum in the past, unless changed circumstances materially affect their eligibility." The reforms also established serious consequences for aliens who file frivolous asylum applications. For example, the Attorney General now has the authority to permanently bar an alien from receiving any benefits under the INA if he determines that they have knowingly filed a frivolous asylum application.' Employment Authorization. IIRIRA codified many regulatory revisions of the asylum proccss that the former Bush and Clinton Administrations made. Most notably, aliens arc statutorily prohibited from immediately receiving work authorization at the same time as the filing of their asylum application. Now the asylum applicant is required to wait 150 days after the USCIS receives his/her complete asylum application before applying for work authorization.' The USCIS then has 30 days to grant or deny the request. Coercive Family Planning. HRIRA also added a provision that enabled refugees or asylees to request asylum on the basis of persecution resulting from resistance to coercive population control policies, but the number of aliens eligible to receive asylum under this provision is limited to 1,000 each year.20 16 INA §208(a)(2XA) and (C). The first and only agreement was signed with Canada in 2002. " TNA §208(a)(2)(A) and (C). " INA §208(dX6). 19 8 C.F.R. §208.7. 70 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. EFTA_R1_02029074 EFTA02689577  i<•., - Overview of Current Policy 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. Two concepts — "credible fear" and "well-founded fear" — are fundamental to establishing the standards for asylum. The matter of "mixed motives" for persecuting the alien is also an important concept. Credible Fear. The INA states that "the term credible fear ofpersecution 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."11 Integral to expedited removal, 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 byjudicial decisions, included a notable U.S. Supreme Court case.22 The regulations specify that an asylum seeker has a well-founded fear of persecution if: (A) The applicant has a fear ofpersecution in his or her country ofnationality 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 himselfor herself ofthe protection of, that country because of such fear.27 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...."24 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 singled out individually for persecution if: 21 INA §235(b)(1)(BXv); 8 U.S.C. §1225. 22 /NS v. Cardoza-Fonseca, 480 U.S. 421 (No. 85-782, Mar. 9, 1987). 23 8 C.F.R. §208.13(bX2). 24 Ibid. EFTA_R1_02029075 EFTA02689578  CRS-8 (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, ofpersecution ofa group ofpersons similarly situated to the applicant on account ofrace, 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.' Mixed Motives. The intent of the persecutor is also subjective and may stem from 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.36 A 1997 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."27 Generally, the asylum seeker must demonstrate in mixed motive cases that — even though his/her persecutors were motivated for a non-cognizable reason (e.g., the police's desire to obtain information regarding terrorist activities in the Sikh cases) — the persecutors were also motivated by the asylum seeker's race, religion, nationality, social group, or political opinion? Process of Requesting Asylum An applicant for asylum begins the process either already in the United States or at a port of entry seeking admission. This process differs from a potential refugee who begins a separate process wholly outside of the United States? 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 NA. Affirmative Applications. An asylum seeker who is in the United States and not involved in any removal proceedings files an 1-589, the asylum application form, with the USCIS-Regional Service Center. 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 25 8 C.F.R. §208.13(bX2). Harpinder Singh v. llchert, 63 F.3d 1501 (9th Cir. 1995). 27 Matter of T-M-B-, 21 I. & N. Dec. 775, 777 (B.I.A. 1997). 21 Harpinder Singh v. llchert, 63 F.3d 1501 (9th Cir. 1995). 29 For a full discussion of U.S. refugee admissions and policy, see CRS Report R131269, Refugee Admissions and Resettlement Policy, by Andorra Bruno. EFTA_R1_02029076 EFTA02689579  CRS-9 during the interview, and other potential 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 alien is granted asylum status. The asylum officer does not technically deny asylum claims; rather, the asylum applications of aliens who are not granted asylum by the asylum officer are referred to EOIR immigration judges for formal proceedings. In some respects, these applicants/aliens are allowed a "second bite at the apple." 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? Defensive Applications. Defensive applications for asylum are raised when an alien is in removal proceedings and asserts claim for asylum as a defense to his/her removal. EOIR's immigration judges and the Board of Immigration Appeals (BIA), entities in DOJ separate from the USC1S, have exclusive control over such claims and are under the authority of the Attorney General. 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/alien's removal and asylum application is appealable to the BIA. Applicant/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 their unlawful status in the United States. Expedited Removal. An immigration officer can summarily exclude an alien arriving without proper documentation or an alien present in the United States for less than two years, unless the alien expresses a fear of persecution. According to DHS immigration policy and procedures, Customs and Border Protection (CBP) inspectors, as well as other DHS immigration officers, are required to ask each individual who may be subject to expedited removal (i.e., arriving aliens who lack proper immigration documents) 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? "CRS Report RL31606, Detention ofNoncitizens in the UnitedStates, by Alison M. Siskin and Margaret Mikyung Lee. EFTA_R1_02029077 EFTA02689580  CRS-10 If the alien expresses a fear of return, the alien is supposed to be detained by the Immigration and Customs Enforcement (ICE) Bureau and interviewed by an 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 immigrationjudge, which places the asylum seeker on the defensive path to asylum.' EOIR reports that it completed 91% of the 50,017 expedited removal asylum cases in 180 days or less in FY2003. Miens 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 are to be placed in expedited removal proceedings and detained (subject to humanitarian parole)'' This notice concluded that illegal mass migration by sea threatened national security because it diverts the Coast Guard and other resources from their homeland security duties. The Attorney General expanded on 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." The case involved a Haitian who had come ashore in Biscayne Bay, Florida, 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." Background Checks. All aliens seeking asylum are subject to multiple background checks in the terrorist, immigration, and law enforcement databases, notably the Interagency Border Inspection System (IBIS).35 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?' Those who enter the country illegally 31 For more information, see Obtaining Asylum in the UnitedStates: Two Paths to Asylum, at the USCIS website [http://uscis.gov/graphics/services/asylum/paths.htm#seekers). 32 Federal Register, vol. 67, no. 219, Nov. 13, 2002, pp. 68923-68926. '23 I&N Dec. 572 (A.G. 2003). " CRS Congressional Distribution Memorandum, Policy Implications ofDepartment of Justice Ruling on Bond Determinations for Unauthorized Aliens in Detention, by Alison Siskin, May 1, 2003. " IBIS is a broad system that interfaces with the FBI's National Crime Information Center (NCIC), the Treasury Department's Enforcement and Communications System (TECS II), the former INS's National Automated Immigration Lookout System (NAILS) and Non- immigrant Information System (NUS) and the Department of State's Consular Consolidated Database (CCD), Consular Lookout And Support System (CLASS) and TIPOFF terrorist databases. Because of the numerous systems and databases that interface with IBIS, the system is able to obtain such information as whether an alien is admissible, an alien's criminal information, and whether an alien is wanted by law enforcement. 76 For more information and analysis of alien screening and background checks, see CRS Report RL32564,Immigration: Terrorist GroundsforExclusion ofAliens, by Michael John (continued...) EFTA_R1_02029078 EFTA02689581  CRS-11 are screened by the U.S. Border Patrol or the ICE agents when they are apprehended." 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)." Safe Third Country Agreement with Canada. On August 30, 2002, Canada and the United States signed the final draft text for the "safe third country" agreement regarding asylum claims made at land border ports of entry. The agreement states that any person being removed from Canada in transit through the United States, who makes an asylum claim in the United States, will be returned to Canada to have the claim re-examined by Canada. Further, any person being removed from the United States in transit through Canada, who makes an asylum claim in Canada, and whose asylum claim has been rejected by the United States, will be returned to the country from which the person is being removed. If the person has not had a refugee status or asylum claim determined by the United States, he or she will be returned to the United States to have the claim examined by the United States. Responsibility for determining the asylum claim will rest with the receiving country." On March 8, 2004, DHS published the proposed rule to implement the safe third country agreement with Canada, but has not yet issued the final rule.'0 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 (...continued) Garcia and Ruth Ellen Wasem; CRS Report RL3I512, Visa Issuances: Policy, Issues, and Legislation, by Ruth Ellen Wasem; CRS Report RL32399, Border Security: Inspections Practices, Policies, and Issues, coordinated by Ruth Ellen Wasem with Jennifer Lake, James Monk, Lisa Seghetti, and Stephen Villa; CRS Report RL32366, Terrorist Identification, Screening, and Tracking Under Homeland Security Presidential Directive 6, by William J. Krouse; and CRS Report RL32234, U.S. Visitorand Immigrant Status Indicator Technology Program (US-VISIT), by Lisa M. Seghetti and Stephen Vina. " CRS Report RL32562, Border Security: The Role of the U.S Border Patrol, by Blas Nunez-Neto. "For more information, see U.S. Citizenship and Immigration Services, Affirmative Asylum Procedures Manual, Feb. 2003, pp. 93-I 44; available at [httpJluscis.gov/graphics/lawsregs/ handbook/AffrmAsyManFNL.pdf]. " A copy of this agreement is available on the DHS website at [http://uscis.gov/ graphics/lawsregs/DraftAgree090402.pdf]. 69 Federal Register, pp. 10620-10627, Mar. 8, 2004. EFTA_R1_02029079 EFTA02689582  CRS-I2 burden ofproving 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!' 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." Figure 1. Asylum Cases Filed with and Approved by Asylum Officers, FY1973-FY2 0 0 3 Thousands 160 leApprovals OCases Eik 140 120 7 100 - 80 7. 60 - 40 - 20 — 0 1C) 4) \ 44 4) <lib cl‘ eft% O ss' E # n) 1 e e e no Source: CRS presentation ofUSCIS Office of International Affairs data. Statistical Trends Asylum Requests and Approvals Asylum Officers. As Figure I illustrates, the number of affirmative asylum claims has varied greatly over the past 30 years, shaped by the prevalence of repression, civil unrest and violence around the world, as well as by changes in " 8 C.F.R. §208.16(cX2). 42 8 C.F.R. §208.I 8(c) and § 1208(c). For a full legal analysis ofthe Torture Convention, see CRS Report RL32276, The U.N. Convention Against Torture: Overview of U.S. Implementation Policy concerning the Removal ofAliens, by Michael John Garcia. EFTA_R1_02029080 EFTA02689583  CRS-13 asylum policy. There was a drop in affirmative asylum claims being filed in the late 1990s followed by an upturn in FY2001 and FY2002. In FY2003, the affirmative claims dropped back to 42,114 — a level approaching the low point of 38,013 in FY1999. At the close of FY2003, there were 262,102 affirmative asylum cases pending at USCIS, down from a recent high of 393,699 at the close of FY1997." The number ofaffirmative asylum claims being approved also has fluctuated in recent years. Approvals by the INS asylum corps first surpassed 10,000 in FY1995 when 12,454 cases were approved. In FY2000, INS approved 16,693 asylum cases, and 31,202 cases were approved in FY2002. The number of cases USCIS asylum officers approved dropped to 11,434 cases in FY2003. The percentage ofaffirmative cases approved dropped from 44% of cases in FY2000 and 43% in FY2001 to 36% in FY2002 and 29% in FY2003. The approval rate has ranged historically from a high of 55% in FY 1980 to a low 15% in FY 1990.*' Figure 2. Asylum Cases Filed with and Approved by Immigration Judges, FY1996-FY2003 Thousands 160 OReceipts Approvals 140 - 120 - 100 - 80 - 60 - ao - 20 - 0 1996 1997 1998 1999 2000 2001 2002 2003 Source: CRS presentation of DOJ Executive Office for Immigration Review Office of Planning and Analysis data. Immigration Judges. Recent trends in asylum statistics from EOIR exhibit a similar pattern of an overall decline in cases received in the late 1990s followed by a reversal of the trend in FY2001 and FY2002, as Figure 2 illustrates. Although the number of cases dropped from 74,127 in FY2002 to 65,153 in FY2003, the number "CRS analysis ofdata from U.S. Department ofHomeland Security, Office ofImmigration Statistics, FY2003 Yearbook ofImmigration Statistics, Sept. 2004. " Ibid. EFTA_R1_02029081 EFTA02689584  CRS-14 of cases filed remains higher than the low point of 54,916 in FY2000. Generally, over two-thirds of all asylum cases that EOIR receives are affirmative cases referred to the immigration judges by the asylum officers. Only 18,642 of the EOIR asylum cases were defensive claims in FY2003, making up 28.6% of the caseload.45 The number of EOIR asylum approvals has risen gradually, as Figure 2 depicts. (The Y axis is scaled to be comparable to Figure 1, and as a result the change over time is less apparent). Asylum cases granted by EOIR judges rose from 5,131 in FY1996 to