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These delays work to the advantage of fraudulent and frivolous claimants because, even if they are ultimately denied, if they can at least pass the preliminary credible fear test, they buy themselves many months, often years, living and working legally in the United States while awaiting their formal asylum interview and the subsequent decision.
But in every case, a grant of asylum in the affirmative context is predicated on a key initial finding: A determination by the officer that the fear is not credible usually results in serving of charges alleging that the individual is removable from the United States and requiring that he appear before an immigration judge to adjudicate the charges. The same is true if, ultimately, there is a denial by USCIS officers of the formal asylum claim subsequent to the credible fear finding.
In such cases, the individual may renew his application for asylum with the presiding judge, who will be obliged to adjudicate the request for asylum in tandem with the charges alleging inadmissibility to the United States some of which could conceivably also act as a bar to asylum depending on their severity, such as in the case of conviction for particularly serious crimes. In port-of-entry cases, the CBP inspector will defer admitting the individual to the United States once an asylum request is made and initiate contact with USCIS so that a credible fear claim may be reviewed by asylum officers.
If the asylum officer determines that the claim is not credible, the individual may be permitted to withdraw his application for admission and depart. If he wishes to pursue the request for asylum, it becomes a defensive case because it can only be reviewed in the context of a removal hearing in immigration court. Exclusion charges will be prepared and the individual served with notice to appear before an immigration judge, just as with an alien who sought the benefit unsuccessfully with USCIS.
In these cases, as in the affirmative cases described earlier, the individual may renew his application for asylum with the presiding judge, who will be obliged to adjudicate the request for asylum in tandem with the charges alleging inadmissibility to, or deportability from, the United States. Even interdiction of intended migrants in international waters by the U.
A description of the affirmative and defensive processes, and a table contrasting them, can be found on the USCIS website although, as can be seen from the examples given, there is an elasticity between the two that defies easy categorization of either one. But credible fear alone is not the full litmus test.
Establishing well-founded fear imposes a higher burden of proof on the applicant than credible fear, but establishing credible fear is a good first step. Some scholars believe that a one-in chance of persecution is adequate to establish a well-founded fear. Because in many, perhaps even most, cases, an individual cannot prove with direct evidence that he has been a victim of past persecution or that he will be subject to future persecution sufficient to meet the well-founded fear standard, great weight is given to his testimony, demeanor, factual representations, etc.
Applying what is known of country conditions to individual cases has become so important that, in addition to yearly publications by the UN High Commissioner for Human Rights and the U. Department of State, there are a plethora of publications of varying degrees of use and, frankly, accuracy that are promulgated by various nongovernmental organizations and immigrant advocacy groups. Some of those interpretations appear to stand logic on its head in carving out exceptions to the legal bars that have resulted, or will likely result, in grants of asylum to individuals whose presence in the United States is not in the public interest.
In a March report, the UNHCR stated that in , for the seventh year in a row, the United States led a list of 44 nations in receipt of asylum requests, accounting for one out of every six claims filed. Figure 1, whose data were taken directly from the report, shows the relative rankings among the top 10 receiving nations. An estimated 83, individuals submitted an application for asylum, 7, claims more than the year before. Almost half of all asylum claims in the country were lodged by China 24 percent , Mexico 17 percent , or El Salvador 7 percent.
Calculated as a percentage, the 7, increase from to that is cited above constitutes a rise of almost 10 percent in the number of applications filed in a one-year span. Congress and the executive branch, recognizing not only the potential, but the reality, of abuses in the past have over the years attempted to minimize those opportunities for abuse by amending various statutory and regulatory provisions, including:.
They were designed to restore integrity to a system that was badly abused in the early s, when innumerable aliens flushed their travel documents down airplane toilets while en route to the United States, only to make fraudulent claims at their port of arrival often Kennedy Airport in New York and walk out the doors of the international arrivals area and disappear, having successfully accomplished their aim of achieving a de facto legal status regardless of the ultimate outcome of the asylum claim.
Among those who availed themselves of the lax asylum policies of that era were Mir Aimal Kasi a.
While the checks and balances established by the asylum amendments would appear robust, the fact remains that they act as deterrents to fraudulent or frivolous claims only to the extent that they are used and viable, and there is significant reason to believe that they are increasingly less viable, as memories have faded about the abuses of two decades ago. However, an exception to this rule was carved out that can open the door to abuse or dilatory tactics, in that it simply requires an assertion of changed or extraordinary circumstances.
There is also cause for worry about the present upward trend with regard to the sheer numbers of individuals making credible fear of persecution claims, particularly since, as Rep.
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Goodlatte observed at a committee hearing in December, DHS data show that in recent years 92 percent of claims have resulted in a finding of credible fear. An approval rate that high suggests a bureaucracy within USCIS that is philosophically unwilling to, operationally incapable of, or politically fettered from wise exercise of its responsibility to mitigate abuse of a system extremely susceptible to fraud and false claims.
Such findings effectively nullify the point of a credible fear test, and significantly undercut public and political confidence in the asylum program. One cannot conclude that the world has become so much more unstable in the course of a year. It is no wonder that there are deep concerns that the program is rife with opportunism and fraud. Even as this report was being written, an article appeared in the Washington Times , which, like the Los Angeles Times , carried a shocking lede:.
At least 70 percent of asylum applications showed signs of fraud, according to a secret internal government audit that found many of those cases had been approved anyway. Crocetti, who, as head of the Fraud Detection and National Security FDNS unit, oversaw preparation of the asylum fraud report cited by the Washington Times , testified that the report — unlike many others his unit prepared — never received agency leadership approval for finalization or publication, despite his belief that it should have.
Detention as a Deterrent. Detention of asylum seekers as a deterrent to false or frivolous claims is only as viable as its responsible use. Congressional interest in the fair but effective use of detention has been underscored by a provision of the Haitian Refugee Immigration Fairness Act of HRIFA , which requires yearly reporting by ICE of statistical data relating to those aliens who have been detained after making a claim to asylum. Thus, when nearly every fear is deemed credible, the credibility of detention itself as a preventive to fraud and abuse plummets.
But what if there is no detention of an asylum-seeking alien? Table 1 shows the number of detained vs. Readers will note that the data from FY are missing. This is because, despite the statutory mandate, it appears that there have been years in which ICE has not complied, one of them being Readers will readily see in Figure 2 that the number of asylum applicants who are not detained far outweighs those who are detained.
If detention no longer forms a part of the DHS strategy to control abusive asylum claims, then it must follow that aliens will have no fear of detention as a preventative against making fraudulent assertions. And it is clear that has been the case for several years. Hipolito Acosta, a highly decorated retired DHS official with significant experience in both the immigration law enforcement and benefits adjudication arenas, testified at a second House of Representatives hearing on asylum, on February 11, that:.
ICE, the DHS agency charged with ensuring the integrity of the asylum system through legally mandated detention, has compromised that integrity through policies that actively discourage the detention of the majority of asylum seekers, and open the doors wide to abuse through fraud and frivolous claims. Once an alien is released from detention if indeed he is ever detained , he must of course wait the required period days while his actual asylum application is pending before seeking an Employment Authorization Document and a further 30 days before receiving work authorization.
But the reality is, of course, far different: And so the withholding of work authorization as a deterrent to fraud and abuse is also an empty threat. As can be seen, credible fear determinations are the thread holding the entire fabric of asylum checks and balances together.
Failing that thread, the fabric falls apart. The illegal alien driver, Roberto Martinez-Ruiz, was eventually apprehended. For eight years, he had used six different aliases.
Asylum in the United States How a finely tuned system of checks and balances has been effectively dismantled By Dan Cadman on March 26, She eventually lost her job and her home as a result of the accident. Why is our generous nation so determined to grant asylum and other protections to individuals who have actively supported the victimization of others through membership or participation in the terrorist organizations-cum-gangs-cum-rebel groups-cum-pirate bands they have belonged to? As can be seen, credible fear determinations are the thread holding the entire fabric of asylum checks and balances together. Finally, and most troubling, even as the Board of Immigration Appeals BIA , the administrative appellate tribunal with jurisdiction over appeals from decisions of the immigration courts, has tried to hold the line on interpretations of protected classes from being extended to former gang members, it has been overruled by some of the federal circuit courts, most notably the Sixth, Seventh, and, most recently, Eighth and Fourth Circuit Courts of Appeal. Figure 1, whose data were taken directly from the report, shows the relative rankings among the top 10 receiving nations.
His rap sheet included driving under the influence, failure to appear in court, driving with a revoked license, and hit and run. Even though he had spent time in jail, no local law enforcement agency, judge or prosecutor had ever contacted immigration officials. Greeley, Colorado is home to a large number of illegal aliens who work in the local meat packing industry. However, the liberal mainstream media goes to great lengths to avoid revealing such sensitive matters as race and legal status. An illegal alien struck Sandy Ross and her son while they were driving home from church in Greeley in September She eventually lost her job and her home as a result of the accident.
Law enforcement officials noted that this increase has proportionately driven up crime by illegal aliens.
Her body was found in a field eleven days later with broken ribs, a broken spine, and a crushed skull. The driver, Gloria Mercado, was killed in the accident. He was on probation from a prior DUI conviction, but was never deported. Illegal-on-illegal crime is prevalent and violent. Valdez was convicted of raping his former girlfriend at knifepoint in Eagle, near Vail, in after learning that she had dated other men. Although it took a year to complete the extradition process, he was sentenced in to the maximum of 60 years.
He was found with the children in Mexico and arrested. After Gaspar obtained a restraining order, her boyfriend was deported to his home country of Guatemala. Several years later, Gaspar was also deported back home to Guatemala, where her ex-boyfriend found her and began again to beat her. Gaspar is trying to obtain a new visa called the U Visa, which is issued to non-citizen victims of serious crime. Weld County District Attorney Ken Buck quite reasonably questioned why an illegal alien, now back in their home country, should be rewarded for helping law enforcement and as a result obtaining law enforcement protection.
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