There was a time in this country in the not too distant past when there was a difference between illegal immigration and asylum. President Trump is not fond of either. He and his administration have done everything possible, both legal and illegal, to consider and treat them the same, especially if they come from what the president calls “Sh..hole countries” or any other “non-white” country.


In Fiscal Year 2018 the Trump administration capped the number of asylum seekers at 45,000 (the lowest number since 1980) and accepted only 22,491 asylums. That same year (April 6, 2018) former U.S. Attorney General Jeff Sessions announced the Trump administration’s “zero tolerance” policy; namely, that illegal immigrants would be “met with the full prosecutorial powers of the Department of Justice.”


Distinction Between Asylum Seekers and Undocumented Immigrants


Despite the Trump administration’s best efforts to blur the line between the two groups of foreign nationals, there is a distinct difference between the two. Illegal immigration is foreign nationals who have entered the country unlawfully or who have remained in this country beyond the expiration of U.S. visas or parole documents.


Asylum, on the other hand, is a “political protection” offered to foreign nationals who enter this country as refugees after fleeing their home countries.  To qualify for asylum, U.S. law requires the asylum seeker to establish that they cannot or are unwilling to return to their home country for one or more of the five following reasons: race, religion, nationality, membership in a particular social group, or political opinion.


Paths to Asylum


There are two paths to asylum in the United States: the non-adversarial path known as “affirmative asylum” and the adversarial path known as “defensive asylum.”


Affirmative asylum begins when a foreign national has arrived at a port of entry into the U.S. or who is already in this country and declares their application for asylum to the U.S. Citizenship and Immigration Services (“USCIS”) within a year of their arrival in this country. A decision about whether or not to grant asylum will be made by a USCIS officer who is part of the Department of Homeland Security.


If an affirmative asylum seeker’s application is denied by USCIS, they are then referred to the U.S. immigration court system for removal proceedings. They effectively join the defensive asylum seekers who were found to be in the country unlawfully and who made a request for asylum to avoid “forcible removal” from the country. These affirmative applications are made to an immigration judge (“IJ”) at the Executive Office for Immigration Review (“EOIR”) in the U.S. Department of Justice.



Asylum 5X More Likely with Counsel


While EOIR proceedings are adversarial in nature, the asylum seeker does not enjoy the benefit of appointed counsel. They must secure the services of counsel through their own means—and counsel plays a critical role in these proceedings. The chance of securing asylum with an attorney is five times higher than without one. Immigration Forum points out that 90 percent of asylum seekers without an attorney are denied while almost half with legal representation are successful in securing a favorable outcome.


The reason for this disparate outcome was illustrated in a January 4, 2019 Fifth Circuit Court of Appeals decision, Ghotra v. Whitaker.


First, the asylum-seeking applicant (“applicant”) must establish that they have “suffered past persecution” based on one or more of the five core prohibitions barring “forcible removal.” If they hurdle this initial step, it creates what the appeals court described as a “rebuttal presumption” that they have a “well-founded fear of future persecution.”


Second, if the applicant fails to create a rebuttal presumption, then they “must affirmatively establish a well-founded fear of persecution that is both subjectively held and objectively reasonable.”


Third, in deciding whether the applicant has met this subjective/objective burden, the IJ may weigh “credible testimony along with other evidence of record” to reach a determination.


Fourth, immigration law does not extend a “presumption of credibility” to either the witnesses or evidence in removal proceedings. Witness and evidentiary credibility are determined by “the totality of the circumstances, and all relevant factors.”


Fifth, removal proceedings demand that to prevent “forcible removal,” the applicant must clearly establish, as the Ghotra court explained, that “‘it is more likely than not’” that their “‘life or freedom would be threatened’ in the proposed country of removal due to [their] race, religion, nationality, membership in a particular social group, or political opinion, which poses a higher bar than the ‘well-founded fear’ standard for asylum.”


If the applicant fails to meet either the “well-founded fear” standard or the “more likely than not” harm burden, then they will be forcibly removed from this country.


Evidentiary Standards High for Indigent Applicants


These are significant burdens to meet, requiring significant factual and historical investigations relating to the applicant. More often than not, it is too difficult for an indigent applicant without any real resources to conduct such investigations. The Ghotra decision makes it clear that U.S. courts are not kindly disposed toward asylum seeker cases, especially those lacking credible supporting evidence.


And given the hardcore racist policies and prosecutions of the Trump administration in the illegal immigration arena, it is advisable that individuals seeking asylum in the United States secure legal representation. There is no meaningful second bite of the apple in these cases.