In countries in the Global North, the process of obtaining asylum is a long and difficult one. In the United States, when persons are found to have entered the country without the proper documents, they are supposed to be asked if they fear being sent home. Those who say yes are to be given a hearing before a judge to assess if this is a credible fear that would qualify that person for asylum. However, “expedited removal” is typical, where those who do not evidence fear are immediately returned and those who do are housed in detention facilities. Additionally, the UNHCR (2013 c) states that who is determined to be a “member of a particular social group” is inconsistent throughout the country and the government has not issued any guidelines to correct this.
A 2005 federal study found extreme variation in the treatment of asylum seekers between US airports and concluded that a person’s chance of obtaining asylum may depend on where he or she entered the country. Kennedy Airport was the most difficult; personal interviews assessing fear of return were typically conducted at public counters (inhibiting disclosure) and shackles were routinely used on asylum seekers. The study found that in general the question-and-answer forms used during these preliminary interviews were “unreliable and incomplete” and were later used by immigration judges to impeach the testimony of the asylum seeker. In some cases, although the person stated he or she had a fear of returning to his or her country, the immigration officer recorded on the interview form that the person stated no fear. In approximately half of all cases, the officers did not inform the person of the protections afforded them by US law, although it is mandatory to do so. The study found that asylum seekers were typically treated in the same manner as criminals: being strip-searched, shackled, and put in detention centers while their claims were evaluated was common (United States Commission on International Religious Freedom, 2005).
The commission made five recommendations to improve the process, but while improvements have been made, they have yet to be fully implemented. Even when an asylum seeker is granted a hearing before a judge, there is no guarantee of a fair hearing. Federal appeals judges, who review the asylum decisions upon appeal, state there is a pattern of biased and incoherent decisions in asylum cases (Liptak, 2005). The courts are regarded as swamped, with each judge having up to 70 cases scheduled at a time without law clerks, stenographers, or sufficient competent lawyers (Bernstein, 2006; Wasem, 2011).
Approval rates of asylum claims have been found to vary markedly between asylum officers, between judges, and between regions. For example, in Atlanta, only 7% of asylum seekers from China received asylum, but in Orlando, the rate was 76% (Wasem, 2011). The US Government Accountability Office stated that applicants in San Francisco were 12 times more likely to be granted asylum than in Atlanta Wasem, 2011). A 2008 study found that the majority of judges appointed under the Bush administration’s illegal political litmus test were much more likely to reject asylum claims than their peers. This litmus test, conducted from 2004 to 2007, was designed to assure that judges were sufficiently conservative and screened out Democrats and those deemed too liberal. Of the 31 immigration judges appointed, 16 had a sufficient record for analysis. Nine were significantly more likely to reject claims, three were more likely to accept them, and four were in line with their peers (Savage, 2008). Thus, there are significant legal barriers to being granted asylum within the United States as demonstrated by the following case study:
Joseph is an Egyptian man, but does not follow the religion of the majority in Egypt; rather, he is Christian. Muslim fundamentalists, with the full cooperation of Egypt's secret police, tried to forcefully convert him and members of his family, including trying to force him to marry a Muslim woman. Due to his refusal to convert and accept the forced marriage, he was detained and tortured. Due to the injuries sustained during the torture, they had to seek treatment for him at a hospital. At this time, Joseph was able to escape from them and flee the country. However, upon landing in the United States, he found that Egyptian authorities had declared him wanted for murder and he was detained upon arrival. During his detention, he came to the attention of Kathleen Lucas, founder of CIRCLE, an agency to assist refugees and asylum seekers. Kathleen helped lead an effort to prevent him from being deported and to obtain his release from prison, including research missions which found the woman Joseph was accused of murdering to be alive. Yet despite this evidence, Joseph remained detained. They secretly flew Joseph’s mother to the United States so that she could testify as to the persecution they had faced in Egypt due to their religion at a hearing under the Convention Against Torture. Joseph was granted relief under the Convention Against Torture and his mother was granted asylum due to her testimony, yet still Joseph remained in prison. Finally, after over 8 years of detention, Joseph was allowed to move into the community. However, he remains ineligible for permanent residency due to the false murder accusation, even after his marriage to a US citizen.
The conditions under which most asylum seekers are held continue to be jail-like, although some improvements have been made. The controversial Hutto Family Detention Center in Texas has been closed. This was a former state prison run by a for-profit correctional company to house families of asylum seekers. Children were housed there with their families in a cell with an open toilet. They received only an hour of schooling each day and were threatened by guards with separation from their families. Only judicial intervention permitted them such freedoms as changing into pajamas at night and taking crayons into their cell (Bernstein, 2009).
Those held in detention had great difficulty accessing legal representation because even if they located a person to defend them, they could be transferred to a facility across the country with no warning and were unable to be tracked. To reduce this issue, in 2010, the Immigration and Customs Enforcement agency (ICE) established a locater system on the Internet to allow detainees to be located and, in 2012, issued a new policy establishing criteria for transfers in order to reduce arbitrary decisions (ICE, 2012).
However, conditions for those held in immigration detention remain controversial. The number of those held in immigration detention has exploded to 400,000 in 2012; the majority of them are undocumented immigrants but include asylum seekers as well. More than half of them are held in private, for-profit facilities, increased from 10% only a decade previously. These for-profit facilities are not bound to follow the ICE standards and do not have the same transparency of reporting as is required in the governmental facilities (“Private prisons,” 2012). These private companies, also located in Britain and Australia, have been found to commit abuse, as well as lethal neglect, but do not lose their contracts, worth billions of dollars (Bernstein, 2011).