Part I of CIR Blog Series: How S.744 Affects the Asylum Process

 Photo courtesy of yashmori, from Flickr Creative Commons

The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (S.744), currently being debated in the Senate, would establish pathways to citizenship for millions of undocumented immigrants, vastly strengthen border security and enforcement, and expand nonimmigrant visa programs for both skilled and unskilled workers. The proposed Act promises to overhaul the U.S. immigration system as it currently stands, and contains a number of provisions that have proven to be highly controversial. While the bill was produced by a bipartisan group of Senators headlined by John McCain of Arizona and Chuck Schumer of New York, it remains to be seen whether it will be able to hurdle both the Senate and the House with all of its core elements intact.

As the Senate deliberates S.744, this blog will begin a three part series that analyzes key components of the bill and the amendments that have been added to it. The first part of the series will highlight some changes to the asylum process that the legislation introduces. The second part will focus on pathways to citizenship. The third part will examine the border security “triggers” mandated by S.744 and its amendments, especially the Hoeven-Corker amendment that is expected to be added to the bill in the next few days.

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The One-Year Filing Deadline

The provisions of S.744 that affect the asylum process are mainly concentrated in Subtitle D under Title III of the bill. In a single sweep, Section 3401, the first section of Subtitle D, does away with the one-year filing deadline that currently bars asylum applicants from filing more than one year after arriving in the United States.[1] While exceptions are available for “changed” or “extraordinary” circumstances that explain the delay,[2]  such as physical or psychological illness, including post-traumatic stress disorder (PTSD), many applicants with genuine claims are nonetheless denied asylum simply because of the deadline. By arbitrarily instituting a short time limit, our asylum laws often fail to protect those who need it the most.

Originally intended to prevent fraudulent claims, the deadline has not only proven to be ineffective towards that end, but has also resulted in the denial of protection for thousands of bona fide asylum seekers. One study, which tracked the effects of the one-year filing deadline on asylum decisions from its inception in 1997 to 2009, found that 18% of all affirmative asylum applicants were rejected simply on account of missing the statutory deadline. The study concluded that if not for the deadline, it is likely that 15,000 more asylum applications would have been granted since 1998.[3]

The one-year filing deadline also disproportionately affects female asylum applicants, many of whom are too traumatized to speak about the horrific violence they suffered in their home countries during their first year here in the United States. Studies have shown that women who apply for asylum are much more likely to apply later on in the process – 12 percent of all female applicants applied three or more years after entry, compared to 8 percent of their male counterparts.

For these reasons, S.744’s elimination of the one-year filing deadline is a long overdue measure that stays true to the humanitarian goals of refugee law. The bill further seeks to rectify past damage by allowing those who were denied asylum and/or granted withholding of removal solely due to the deadline to reapply within two years of the bill’s passage. (Compared to asylum, withholding of removal is a lesser form of protection that does not carry with it the prospects of gaining permanent status.)

Despite the necessity and urgency of the deadline’s repeal, Section 3401 is still at risk of being modified or removed altogether. Two amendments filed by Senator Chuck Grassley of Iowa during the Senate Judiciary Committee deliberations, amendments 27 and 52[4], would have reinstated the deadline or delayed its abolishment, respectively. Although both amendments failed to pass, it is far from certain that similar amendments won’t derail this much-needed reform in the days to come.

It is worth noting that the Hoeven-Corker amendment, set to pass the Senate in the next few days, does not affect Section 3401 or change the asylum provisions of the underlying bill in any significant way.

Designation of Certain Refugee Groups

Section 3403 of S.744 provides the President the authority to designate as a “refugee group” people who “share common characteristics that identify them as targets of persecution on account of race, religion, nationality, membership in a particular social group, or political group.”[5] If one manages to demonstrate one’s membership in such a “refugee group,” one would have successfully established oneself as a refugee. The measure, designed to improve adjudicatory efficiency, also aims to enhance protection for certain high-risk groups of people, such as religious minorities. Since the measure works by granting discretion to the executive branch, its ultimate impact will depend on how the latter chooses to utilize it.

Designation of “Stateless” Persons

The proposed bill advances a definition of “stateless” persons, and allows those who qualify as such to apply for discretionary relief in the form of conditional lawful status, work authorization and eventual adjustment of status to permanent residency. According to the statute, “stateless” persons are people who are “not considered a national under the operation of the law of any country,” and those who have lost their nationality involuntarily. The provision extends much-needed protection to some estimated 4,000 individuals[6] who have until now been largely ignored by U.S. immigration law.

Expansion of the U Visa Program

S.744 also strengthens the U Visa program, which grants legal status and work authorization to victims of certain crimes who cooperate with various government agencies. The legislation expands the number of U Visas from 10,000 per annum to 18,000, and adds several new grounds on which U Visas may be issued.

Extending protection to victims of serious workplace violations and elder abuse,[7] the expansion of the U Visa program will go a long way towards securing the safety of immigrants who may otherwise be forced to endure cruel and unfair treatment.

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–        To read about more ways in which S.744 affects the asylum process, please read Paul O’Dwyer’s excellent analysis on this issue.

–        Please also see this piece by the National Immigrant Justice Center (NJIC) to learn about how the one-year filing deadline has hurt immigrants. The article features numerous cases that the NIJC has handled and is a must read!

–        For more summaries and analysis of the asylum-related provisions in the Senate bill, the National Immigration Law Center (NILC) breaks down the various sections of S.744. It also examines closes the amendments that were added to the original text during Senate Judiciary Committee deliberations.