	Latest Legislative Developments

Comprehensive refugee reform legislation, the Refugee Protection Act of 2011 ( S. 1202 / H.R. 2185 ), would make significant revisions to asylum policy. Foreign nationals seeking asylum must demonstrate a well-founded fear that if returned home, they will be persecuted based upon one of five characteristics: race, religion, nationality, membership in a particular social group, or political opinion. Foreign nationals arriving or present in the United States may apply for asylum with the United States Citizenship and Immigration Services (USCIS) in the Department of Homeland Security (DHS) after arrival into the country, or they may seek asylum before a Department of Justice Executive Office for Immigration Review (EOIR) immigration judge during removal proceedings. The Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA, P.L. The regulations also state that an asylum seeker "does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant's country.... "
In evaluating whether the asylum seeker has sustained the burden of proving that he or she has a well-founded fear of persecution, the regulations state that the asylum officer or immigration judge shall not require the alien to provide evidence that there is a reasonable possibility he or she would be individually singled out for persecution if
(A) The applicant establishes that there is a pattern or practice in his or her country of nationality or, if stateless, in his or her country of last habitual residence, of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and
(B) The applicant establishes his or her own inclusion in, and identification with, such group of persons such that his or her fear of persecution upon return is reasonable. As Figure 2 depicts, the number of asylum cases approved more than doubled from 13,532 in FY1996 to 31,202 in FY2002, and then fell to the lowest point over the 14-year period—9,614—in FY2009. Since that time, defensive asylum claims have dropped by 53%, to 39,279 in FY2009. The number of asylum cases that EOIR judges have approved, however, has risen by 99% over this 14-year period. Top 10 Source Countries in FY2009

Asylum seekers from the PRC dominated both the affirmative and defensive asylum caseloads in FY2009, as Figure 5 shows. The five were Haiti, Mexico, Guatemala, El Salvador, and Colombia. Ethiopia was the only African nation that was a top 10 source country for asylum seekers in FY2009. This section of the report focuses on six major source countries: the PRC, Colombia, El Salvador, Ethiopia, Haiti, and Mexico. Regardless of the overall decrease in asylum cases since the enactment of IIRIRA in 1996, this data analysis suggests that conditions in the major source countries—whether economic, environmental, political, religious or social—were likely the driving force behind asylum seekers. Analysis of Approvals by Country

Given the sheer number of asylum seekers from the PRC in FY2009, it is not particularly surprising that the PRC led in the number of asylum cases approved by USCIS and EOIR in FY2009 ( Figure 13 ). Refugee Roulette

The example of asylum seekers from the PRC offers striking differences in the percentage of cases approved across regions and jurisdictions, despite national data trends that appeared consistent. A study of 290 asylum officers who decided at least 100 affirmative cases from the PRC from FY1999 through FY2005 found that the approval rate of PRC claimants spanned from zero to over 90% during this period. U.S. Government Accountability Office (GAO)

The U.S. Government Accountability Office (GAO) analyzed the disparity in asylum decisions as well and found that "significant variation existed." GAO performed multivariate statistical analyses on asylum cases from 19 immigration courts that handled almost 90% of the cases from October 1994 through April 2007. Some cite the seemingly inexplicable disparities in asylum approvals rates and urge broad-based administrative reforms. Others argue that given the religious, ethnic, and political violence in various countries around the world, it has become more difficult to differentiate the persecuted from the persecutors . Some express concern that U.S. sympathies for the asylum seekers caught up in the current political uprisings in the Middle East, northern Africa, and South Asia could inadvertently facilitate the entry of terrorists. Others maintain that current law does not offer adequate protections for people fleeing human rights violations or gender-based abuses that occur around the world. Some assert that asylum has become an alternative pathway for immigration rather than humanitarian protection provided in extraordinary cases. At the crux of the issue is the extent to which an asylum policy forged during the Cold War is adapting to the competing priorities and turbulence of the 21 st century.
Foreign nationals seeking asylum must demonstrate a well-founded fear that if returned home, they will be persecuted based upon one of five characteristics: race, religion, nationality, membership in a particular social group, or political opinion. Foreign nationals arriving or present in the United States may apply for asylum affirmatively with the United States Citizenship and Immigration Services (USCIS) in the Department of Homeland Security after arrival into the country, or they may seek asylum defensively before a Department of Justice Executive Office for Immigration Review (EOIR) immigration judge during removal proceedings.
Asylum claims ebbed and flowed in the 1980s and peaked in FY1996. Since FY997, affirmative asylum cases decreased by 79% and defensive asylum claims dropped by 53% by FY2009. Asylum seekers from the People's Republic of China (PRC) dominated both the affirmative and defensive asylum caseload in FY2009. Five of the top 10 source countries of asylum seekers were Western Hemisphere nations in FY2009: Haiti, Mexico, Guatemala, El Salvador, and Colombia. Ethiopia was the only African nation that was a top source country for asylum seekers in FY2009. Despite the general decrease in asylum cases since the enactment of the Illegal Immigrant Reform and Immigrant Responsibility Act (IIRIRA ) in 1996, data analysis of six selected countries (the PRC, Colombia, El Salvador, Ethiopia, Haiti, and Mexico) suggests that conditions in the source countries are likely the driving force behind asylum seekers.
Roughly 30% of all asylum cases that worked through USCIS and EOIR in recent years have been approved. Affirmative asylum cases approved by USCIS more than doubled from 13,532 in FY1996 to 31,202 in FY2002, and then fell to the lowest point over the 14-year period—9,614—in FY2009. The number of defensive asylum cases that EOIR judges have approved has risen by 99% from FY1996 through FY2009. The PRC led in the number of asylum cases approved by USCIS and EOIR over the decade of FY2000-FY2009.
Despite national data trends that appeared to be consistent, approval rates for asylum seekers differ strikingly across regions and jurisdictions. For example, a study of 290 asylum officers who decided at least 100 cases from the PRC from FY1999 through FY2005 found that the approval rate of PRC claimants spanned from zero to over 90% during this period. In a separate study, the U.S. Government Accountability Office (GAO) analyzed asylum decisions from 19 immigration courts that handled almost 90% of the cases from October 1994 through April 2007 and found that "significant variation existed."
At the crux of the issue is the extent to which an asylum policy forged during the Cold War is adapting to the competing priorities and turbulence of the 21st century. Some assert that asylum has become an alternative pathway for immigration rather than humanitarian protection. Others argue that—given the religious, ethnic, and political violence in various countries around the world—it has become more difficult to differentiate the persecuted from the persecutors. Some express concern that U.S. sympathies for the asylum seekers caught up in the democratic political uprisings in the Middle East, northern Africa, and south Asia could inadvertently facilitate the entry of terrorists. Others maintain that current law does not offer adequate protections for people fleeing human rights violations or gender-based abuses that occur around the world. Some cite the disparities in asylum approvals rates and urge broad-based administrative reforms. The Refugee Protection Act of 2011 (S. 1202/H.R. 2185) would make significant revisions to asylum policy.