Feb. 7, 2018 – With millions of people around the world uprooted due to conflict, persecution, or natural disaster, asylum has been a pressing policy area for countries receiving significant numbers of immigrants.

The United States is no exception. In October, Attorney General Jeff Sessions claimed that the U.S. asylum process is subject to “fraud and abuse,” such that the system has become overburdened by baseless claims.¹

Irrespective of the merits of the attorney general’s claims, recent data show that between 2015 and 2016, the number of asylum cases rose by 20 percent, and that since 2013, denials of asylum judges have been rising steadily.² Furthermore, having an attorney significantly increases the likelihood of an applicant’s success in immigration court.³

Given these trends, it is hoped the resources in this article will help attorneys representing noncitizens seeking asylum.

Federal Legislation, Legislative History, and Regulations

The primary statute governing U.S. immigration law is the Immigration and Nationality Act (INA), passed in 1952.

Under the INA, the United States may grant individuals refugee status (if applying from abroad) or asylum (if applying from within the United States or at its border) if they can demonstrate past persecution or a well-founded fear of persecution.⁴

There have been several laws amending the INA, including the Immigration Reform Control Act of 1986, Immigration Act of 1990, and Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

• For a list of all public laws amending the INA, see “Public Law Amending the INA” on the United States Citizen and Immigration Services (USCIS) website.

• Most legislation and regulations involving asylum can be found in Title 8 of the United States Code and Title 8 of the Code of Federal Regulations, which deal with “Aliens and Nationality.”

• For legislative history and tracking new and proposed legislation, see the U.W. Law Library’s guide to Federal Congressional Procedure and Legislative History. Here you will find free and subscription-based resources for accessing congressional documents. See also Hein’s Immigration Law and Policy in the United States, which contains an “Acts and Legislative Histories” section.⁵

• To track new and proposed federal regulations related to asylum law and immigration law in general, see USCIS Federal Register Announcements on the USCIS website.

The Asylum Process

As a preface to the selective list of asylum case law resources that follows, a brief description of the asylum process provides useful context.⁶

The U.S. government can grant asylum via either the affirmative asylum process or the defensive asylum process. Asylum seekers present within U.S. borders who have experienced persecution or expressed a “credible fear” of persecution in their home county can file an affirmative asylum application through the U.S. Citizenship and Immigration Service (USCIS), part of the Department of Homeland Security (DHS), which leads to an interview with an asylum officer. The person then undergoes a non-adversarial interview with an asylum officer.

If the case is denied, it is referred to the Department of Justice’s Executive Office for Immigration Review (EOIR). This referral triggers the defensive asylum process, in which the applicant, who is seeking asylum as a “defense against removal” from the U.S., appears before an immigration judge – a department of justice official who is not a part of the judiciary.⁷

Immigration Court Decisions

An immigration court judge hears the case as an adversarial proceeding, in which the applicant (and/or attorney, if represented) and the opposing government attorney present arguments. While immigration court decisions generally are not published, summaries of these decisions can be located through Interpreter Releases⁷, a weekly publication offering analysis of legislative, administrative, and judicial developments related to immigration law.

Board of Immigration Appeals

An immigration judge’s decision can be appealed by either party to the EOIR’s Board of Immigration Appeals (BIA). The BIA is the highest administrative body for interpreting and applying immigration laws.

The BIA may reverse an immigration judge’s decision that either grants or denies asylum. BIA decisions can be found:

• Via the EOIR’s Virtual Law Library from 1958 to the present. Anyone can subscribe to be notified of recently published BIA decisions with precedential impact.

• By subscription at westlaw.com from 1940 to the present. Contains both precedential and non-precedential cases. In WestlawNext, type “Board of Immigration Appeals Decisions” in the search box at the top of the page.

• By subscription at advance.lexis.com. Contains both precedential and non-precedential cases. In Lexis Advance, type "Immigration Precedent Decisions" or "Immigration Non-Precedent Decisions” at the top of the page.

U.S. Appellate Court Decisions

If the applicant’s asylum is denied by the BIA, he or she may appeal the decision to the appropriate federal appeals court.⁹ A decision by the BIA is binding on the DHS. As such, federal courts only hear those cases where asylum was denied.¹⁰

Two convenient ways to locate federal appellate cases that have reviewed BIA decisions are:

• By subscription at westlaw.com. In WestlawNext, type “Immigration Cases” in the search box at the top of the page.

• By subscription at advance.lexis.com. In Lexis Advance, in the Explore Content box, click on “Immigration>Immigration Law Cases”. This will give you access to all available cases from any federal or state court pertaining to immigration.

Summaries of federal asylum cases can also be located on Westlaw through the Asylum Case Law Sourcebook, edited by Gerald Seipp.¹¹

Guides for Practitioners

There are several useful manuals available online that offer guidance to the attorney practicing in asylum law:

• Affirmative Asylum Procedure Manual, U.S. Citizenship and Immigration Services: A detailed overview of procedures for representing an affirmative asylum applicant within an asylum office.

• Board of Immigration Appeals Practice Manual: A guide for attorneys and representatives on practice before the BIA.

• Procedural Manual for Asylum Representation, National Immigrant Justice Center: An overview of the U.S. asylum process and a guide for attorneys representing asylum seekers.

• Procedural Manual for Attorneys Representing Detained Asylum Seekers, National Immigrant Justice Center: A guide for attorneys of asylum clients detained in the custody of U.S. Immigration and Customs Enforcement.

• Law of Asylum in the United States, Deborah Anker (Westlaw):¹² A treatise on asylum law in the United States and in international law. Also offers a discussion of fundamental issues like the meaning of well-founded fear, persecution, and the five grounds for asylum.

• Pro Bono Asylum Representation Manual: A guide from the Minnesota-based Advocates for Human Rights designed to offer training, support, and resource materials to pro bono attorneys.

Country Conditions, Statistics, and Other Useful Information

Attorneys attempting to demonstrate that their clients have suffered past persecution or have a credible fear of persecution will likely confront the challenge that needed evidence, generally in the form of witnesses, is often thousands of miles away.

The selective list of sources below offers information about conditions in various countries, statistics, and other relevant reports:

• Country Conditions Pages, Executive Office of Immigration Review (EOIR)
  Organized by country. Includes publicly available documents, such as State Department reports and reports made available by other countries.

• Country Reports on Human Rights Practices, U.S. State Department
  Annual Reports dating back to 1999.

• TRAC Immigration, Syracuse University
  Includes a wide range of reports, statistics, and  Immigration Judge Reports, which details how often particular judges have granted asylum.

• Trafficking in Persons Reports, U.S. State Department
  Annual reports containing trafficking information by country, including rankings, and global law enforcement data. Reports available from 2001 to the present.

• Refworld, United Nations High Commissioner for Refugees (UNCHR)
  Contains a wide range of country data, reports, policy documents, legislation, case law, and more related to refugees.

• Asylum Statistics, U.S. Department of Justice
  Provides asylum statistics from immigration courts across the world, organized by country.

• Refugees and Asylees, Department of Homeland Security (DHS)
  Contains data tables and demographic profiles of refugees admitted to the U.S. and non-citizens applying for and granted asylum. Organized by year from 1997 to the present.

• Asylum Division, United States Citizenship and Immigration Services (USCIS)
  Contains information on the asylum process, forms, and other information geared toward asylees and refugees.

An Ever-changing Process

Immigration law is a very complex and ever-changing area of practice, with a need for attorneys to keep up with the changes to best serve their clients. Knowing where to turn for the best resources can help you stay on top of new development.

The Law Librarians Association (LLAW) Public Relations Committee coordinates regular contributions by its members to InsideTrack.

Endnotes

¹ U.S Department of Justice, Justice News, Attorney General Jeff Sessions Delivers Remarks to the Executive Office for Immigration Review.

² TRACImmigration, Continued Rise in Asylum Denial Rates: Impact of Representation and Nationality.

³ Id.

⁴ David S. Weissbrodt, Immigration Law and Procedure in a Nutshell 383 (7^th ed. 2017) See the section in this article on case law for a brief description of the asylum process in the United States.

⁵ Available by subscription at heinonline.org and at U.W. Law Library.

⁶ For a more detailed and complete, description of the affirmative and defensive asylum process, see the USCIS guide to Obtaining Asylum in the United States.

⁷ The defensive asylum process is also triggered if the applicant is arrested by the DHS, or the DHS has initiated an "expedited removal," and the applicant claims "credible fear" of persecution.

⁸ Available by subscription at westlaw.com from 1987 to present. In WestlawNext, select Secondary Sources in the box labeled Browse, then type “Interpreter Releases” in the search box at the top of the page.

⁹ Note that BIA decisions can be overruled or modified by the attorney general. See U.S. Department of Justice Board of Immigration Appeals for more information.

¹⁰ U.S. Department of Justice Fact Sheet, Asylum Variations in Immigration Court.

¹¹ By subscription at westlaw.com dating back to 1980. In WestlawNext, selected Secondary Sources in the box labeled Browse, then type “Asylum Case Law Sourcebook” in the search box at the top of the page.

¹² By subscription at westlaw.com. In WestlawNext, selected Secondary Sources in the box labeled Browse, then type “Law of Asylum in the United States” in the search box at the top of the page.