Posted by: emilyrfischer | February 5, 2015

A few differences between Australian and US asylum law…

One of the most interesting and challenging things about my internship with Human Rights First has been learning about the differences between US and Australian asylum law. Having a basic knowledge of Australian refugee law has definitely helped, but it did take a bit of time to get my head around certain aspects of the US system.

The first substantive difference that I noticed was the level of importance attached to entering a host state with a visa. In Australia, visas are critical. Under the Migration Act, an individual can only apply for asylum if s/he enters Australia with a valid visa (unless the Minister exercises his discretion and ‘lifts the bar’). This effectively means that boat arrivals are precluded from applying for asylum, as non-citizens who arrive by plane will almost always be entering Australia on a valid visa.

In the US, visas are not so determinative of an individual’s ability to apply for asylum; people who are physically present in the US but have no visa may still apply. The key issue is whether or not they seek asylum through the ‘affirmative’ or ‘defensive’ process. If an asylum seeker voluntarily surrenders to US immigration authorities and applies for asylum before being placed in removal proceedings (i.e. before the authorities try to deport them), then their application will be ‘affirmative’. Asylum seekers may lodge an affirmative application regardless of how they got to the US and whether or not they have a visa. Affirmative applicants will meet with an Asylum Officer for an interview, where they will be given the chance to present their claim.

‘Defensive’ asylum applications are different. If an asylum seeker without immigration status encounters US Customs and Immigration Services (USCIS) before applying for asylum, then s/he will be placed in removal proceedings. Many asylum seekers who cross the southern border fall in to this category. Once in removal proceedings, they may still apply for asylum, but they will do so as a defence against deportation. An Immigration Judge hears their case in an adversarial proceeding, and if the judge finds that an applicant is ineligible for asylum and all other applicable forms of protection, then the asylum seeker will be deported. Applicants do, however, have the right to appeal an Immigration Judge’s decision.

Clearly, asylum seekers in the US are better off applying for asylum affirmatively rather than defensively. But unlike in Australia, asylum seekers without a visa at least have the ability to apply for asylum and have their claim determined by a judge. The fact that asylum seekers even have access to the courts increases the chances of them obtaining legal representation. In my last blog post I mentioned that one of the ways Human Rights First (and other non-profit organisations) find potential clients is by going to the Immigration Court and interviewing asylum seekers, many of whom are already in removal proceedings. Any asylum seekers who arrive without a visa in Australia, however, are effectively precluded from even applying for a Protection visa. If they arrive by boat, they will be sent to Nauru or Manus Island, with no chance of being resettled in Australia and no access to the courts or legal representation.

The US system is far from perfect, though. Something Human Rights First has really focussed its advocacy work on is the one-year-from arrival filing deadline. There is no Australian equivalent of the deadline, and Human Rights First has repeatedly argued that it should be repealed in the US, as it is a technical requirement that bars even legitimate refugees from accessing protection. Essentially, the filing deadline requires an asylum seeker to establish by “clear and convincing” evidence that s/he filed an asylum application within one year of arrival in the United States. The burden is on the applicant to show this. It is a common stumbling block for asylum seekers here, especially where they have entered the US “without inspection” (without being detected by immigration officials) or with travel documents that aren’t actually theirs.

If asylum seekers do miss the one-year deadline, they must prove that one of two exceptions applies in order to seek asylum in the US. The first exception requires an applicant to demonstrate “changed circumstances which materially affect the applicant’s eligibility for asylum.” The second requires an asylum seeker to show “extraordinary circumstances relating to the delay in filing.” If an exception does apply, the applicant must apply for asylum within a “reasonable period.”

If asylum seekers miss the filing deadline and fail to make out one of the narrow exceptions, they are barred from accessing asylum protection and face deportation to their country of origin, even if they are refugees with a well-founded fear of persecution. As such, a potential client’s one year filing deadline is something that the attorneys at Human Rights First pay extremely close attention to; overlooking it even slightly may be fatal to an applicant’s case. Some of the strongest types of asylum claims have been denied simply because they were filed too late. A woman from China, for example, who faced persecution and torture in China because of the help that she provided to North Korean refugees, was denied asylum because she missed her one-year deadline. The US Board of Immigration Appeals ordered that she be deported. In another case, a Burmese student who was jailed by the military for his pro-democracy activities was denied asylum because he applied after the deadline, even though he spoke limited English and had very few support networks in the US.

The effects of imposing such a strict and technical requirement on refugees are far-reaching; one in five bona fide refugees seeking protection in the US is denied asylum purely on the basis that they failed to apply within the first 12 months of being here. As Human Rights First has highlighted in multiple reports, the one-year deadline clearly operates to undermine the US’ adherence to its international obligations.

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