ARRIVING TO THE U.S.A—INFORMATION FOR ASYLUM SEEKERS AND IMMIGRANTS
The following definitions are provided to the best of our ability in terms of accuracy and recent changes in policies.
This information is the first of Nosapo’s installment for people arriving to the United States to seek asylum. The information we are sharing should not be considered legal advice; detained immigrants and their loved ones are encouraged to seek qualified legal advice from the American Civil Liberties Union, National Immigrant Justice Center or another credible organization.
Alternatives to Detention (ATDs)
Any legislation, policy or practice, formal or informal, that ensures people are not detained for reasons relating to their migration status.
Under international law, immigration detention must only ever be used as a last resort. As a result, states must first seek to implement ATD which allow individuals at risk of immigration detention to live in non-custodial, community-based settings while their immigration status is being resolved. (1)
Asylum is a protection given to people who are not safe in their home countries based on race, membership in a particular social group, political opinion, nationality or religion. If you are granted asylum, you can stay in the United States legally. (2)
Identifying a person by unique biological features, such as fingerprints or eye scans.
Board of Immigration Appeals (BIA)
The highest administrative body within the Department of Justice working to understand and apply immigration law. The BIA hears appeals of decisions made by Immigration Judges (IJs). These decisions are binding unless overturned by the Attorney General or a federal circuit court. (3)
Legal status in United States for those who may be born a citizen or may obtain citizenship through the naturalization process.
Civil Procedure & Criminal Procedure
A civil procedure is a process that is issued in a civil lawsuit-one action that is brought to enforce, redress or protect a private or civil right. A civil procedure is a non-criminal litigation, and therefore the U.S. government is not required to provide legal representation. In a civil procedure, the repercussion is often a sum payment, but in immigration circumstances can also involve expedited removal.
In criminal procedures, action is taken by the "state" (a federal, state or local government agency) against an individual or an organization (like a group of individuals, "business" or other entity) for violation of law.
Chain Migration / Family Reunification
The visa program through which immigrants already residing here can bring their family members to meet them once they receive a visa. When a visa is granted, green card holders or legal residents can petition the Immigration Service to bring their spouses and/or their minor children from their former country. And once those individuals that petitioned receive citizenship, they can apply to bring over parents, married children and adult siblings.
Citizenship and Immigration Services (CIS, or USCIS)
The bureau within DHS that administers applications for immigration benefits such as visas, adjustment of status, and naturalization. The USCIS Asylum Officer Corps makes decisions on affirmative asylum claims.
Convention Against Torture (CAT) Treaty Relief
If you are physically present in the U.S., and are applying for asylum, you should also apply for protection under the United Nations Convention Against Torture (“CAT”) if you fear torture in your country of origin. CAT protection prohibits the U.S. government from returning you to any country where substantial grounds exist for believing that you would be in danger of being tortured.
Although the requirements to be granted CAT protection are higher than those for asylum (you need to prove that it is more likely than not that you would be tortured), and this form of relief provides more limited benefits than asylum does, there are advantages to applying for it:
It is mandatory (that is, the U.S. must grant CAT if you’re eligible), and
Circumstances that prevent you from obtaining asylum do not prevent you from being granted CAT protection. (4)
Corrections Corporation of America (CCA)/CoreCivic
One of the private corrections contractors that work with the FBI, ICE, and the U.S. Marshal Service. CCA has over 60 facilities and incarcerates more than 80,000 people in immigration detention and in other forms of confinement. Similar contracts are given to GEO Group, Emerald Correctional Management, and Management & Training Corp, among others. Corrections Corporation of America (CCA) is the oldest prison corporation in the world. It rebranded itself as CORECIVIC in October 2015.
How people must demonstrate they fear returning home until their asylum case is processed.
Credible fear can be based on five categories: race, religion, nationality, political opinion, or membership in a particular social group. Poverty is not considered credible fear.
Customs and Border Protection (Separate from ICE), the parent agency for the Border Patrol, is responsible for patrolling, monitoring and securing the United States’ borders with Mexico.
DACA (Differed Action for Childhood Arrivals)
Criteria for Deferred Action eligibility:
Under the age of 31 as of June 15, 2012
Entered the U.S. before 16th birthday
Resided in U.S. continuously since June 15, 2007, up to present
Physically present in U.S. on June 15, 2012, and at time of application
Entered U.S. without inspection before June 15, 2012, or lawful immigration status expired as of June 15, 2012
Currently enrolled in school, graduated or obtained a certificate of high school completion, obtained GED or were honorably discharged from U.S. Armed Forces
Not convicted of a felony, a "significant misdemeanor" or three or more other misdemeanors, or do not otherwise pose a threat to national security or public safety
The application consists of three different and complex forms (I-821D, I-765, I-765WS), and applicants must pass a background check. If you have a juvenile criminal record or other criminal convictions, you should consult with a Deferred Action lawyer in Houston.
Department of Homeland Security (DHS)
DHS “protects” the United States. The Department of Defense distinguishes between "homeland security," a national effort to prevent or reduce United States vulnerability to terrorist attacks, or to assist in the recovery from such an attack, and "homeland defense," the military protection of United States territory, population, and infrastructure against external threats and aggression. (17)
DHS has divided immigration-related duties among three separate agencies: (CIS) - Citizenship and Immigration Services, (ICE) - Immigration and Customs Enforcement, and (CBP) - Customs and Border Protection.
When a non-United States citizen is forced to leave the country. People who can be deported include non-citizens (including lawful permanent residents) with criminal convictions; visa overstays; refugee/asylum seekers; and those who entered without inspection (for example, by crossing the border unlawfully). Once removed, a noncitizen faces legal bars for a time period that prevent his or her return or sometimes they are permanently expelled.
“Detainee” is used to describe someone who is currently detained, “detained immigrant/person” or “person in immigration detention” are the best terms, insofar as the discussion is actually related to their detention.
The immigration detainer serves to advise the agency holding the person that the Department of Homeland Security (DHS) “seeks custody of an alien presently in the custody of that agency, for the purpose of arresting and removing the alien.” An immigration detainer is a request by ICE to state or local jails to detain an individual after he or she is eligible for release to enable ICE to assume custody. An immigration detainer is not a warrant of arrest, is not authorization for ICE custody, does not mean that a person is presently in ICE custody, is not evidence that a person is deportable from the United States, and it is not a criminal detainer. Detainers permit state and local jails to maintain custody of individuals for not more than 48 hours after the time the criminal justice authorities would otherwise release a person, excluding weekends and holidays. 8 C.F.R. § 287.7(g). The moment a person in custody posts bail is one illustration of when the 48 hour period would begin because the authorities would otherwise release someone who posts bail. (5)
Executive Office for Immigration Review (EOIR)
The agency within the Department of Justice that administers all Immigration Courts, including those inside the detention centers, and the BIA. It is a separate agency from ICE, which is in the Department of Homeland Security. EOIR judges determine defensive asylum claims and other claims for relief from removal during removal proceedings.
A section of 1996 laws used to deport many noncitizens without a hearing before an Immigration Judge. Expedited removal can be imposed on people the government finds “inadmissible” at any border entry point. Under expedited removal, individuals can be removed on an order issued by an immigration officer. (Footnote, 1)
Family Separation: The systematic practice of adults being sent into the custody for criminal prosecution separated families because their children cannot be held in custody and thus were considered unaccompanied. When separated from the parent, immigration authorities send children to the Health and Human Services Department.
Federal courts are courts of limited jurisdiction, and can only hear certain claims related to an immigration matter. Immigration-related federal court litigation is drastically different from litigation in the immigration courts, proceedings before the USCIS, or practice before the Board of Immigration Appeals.
In addition to challenging the final agency decision of the BIA, federal courts can be used to challenge:
the USCIS’ unreasonable delay in adjudicating an application or petition
the USCIS’ denial of an application for naturalization
the unlawful detention of someone in immigration custody
a removal order on legal or constitutional grounds (6)
Form I-589: Application for Asylum and for Withholding of Removal formerly called "withholding of deportation"). You may file for asylum if you are physically in the United States and you are not a United States citizen.
Form I-9: the Employment Eligibility Verification, is used to verify the identity and legal authorization to work of all paid employees in the United States.
The official immigration document granting lawful and permanent residency status in the U.S to a person foreign to the U.S.
Immigration and Customs Enforcement (ICE)
The bureau within the U.S. Department of Homeland Security (DHS) that enforces immigration laws and conducts the apprehension, detention and deportation of immigrants. ICE has three major offices:
Enforcement and Removal Operations: arrests, detains and deports unauthorized immigrants already inside the United States.
Homeland Security Investigations: pursues criminals and terrorists involved in drug trafficking, weapons smuggling, human trafficking, cybercrime, financial crimes and identity fraud.
The Office of the Principal Legal Adviser: provides legal support to other employees and represent the government in immigration courts. (7)
ICE Enforcement Operation
A strategy which is used to arrest multiple individuals in one area at one time; usually an ICE enforcement operation will target individuals suspected of illegal behavior in attempt to deport numerous individuals via expedited removal.
A term wrongly used to describe a person from another country who is in the U.S. without a valid visa or any other proper authority. A person who stays in the United States after the expiration of a visa or passport may be considered an illegal alien, as will someone who entered the country without proper documentation. No person is illegal as an international human right.
“Alien” is a term used in the Immigration and Nationality Act to refer to non-citizens, but it should be avoided unless used in a quote. The term “illegal immigrant” stereotypes undocumented persons who are in the United States and suggests that they have all committed crimes.
Under current U.S. immigration law, entering the United States without inspection or overstaying a visa is not a crime; it is a civil violation.
Someone who has already come to live permanently in a country. In the United States, as is the case in most countries, an "immigrant" is someone who has been granted legal status to stay in a country. An "immigrant" can be considered a "non-immigrant," as defined above, if they have only been granted status to stay in the country for a limited time.
In the United States, the term "undocumented immigrant" refers to individuals present in the country without authorization.
Across the world, the term "immigration detention" is used to refer to a government’s practice of incarcerating people while they await the result of their immigration case.
In the U.S. context, most facilities are either prisons run by private companies, county jails that contract with ICE, or government-run facilities.
Intensive Supervision Assistance Program (ISAP) and the Electronic Monitoring Program (EMP)
Alternative forms of detention with supervised release. Those enrolled in these programs typically must make regular visits to an ICE officer or subcontractor and check in through telephone calls. Many people are also required to wear electronic ankle bracelets, and are subject to curfew and other reporting requirements.
These programs are frequently utilized for people who have final orders of removal but whom ICE cannot deport (for example, because of lack of travel documents, or a country’s refusal or inability to accept an immigrant).
Lawful Permanent Resident (LPR): An immigrant with a “green card” who has been lawfully admitted to the United States for permanent residence. An immigrant can become a permanent resident in several different ways. Most individuals are sponsored by a family member or employer in the United States. Other individuals may become LPRs through refugee or asylee status, or other humanitarian programs. After five years as an LPR (three years in certain circumstances), an LPR can apply for U.S. citizenship.
LPRs have essentially the same rights and obligations as U.S. citizens with the exceptions of voting and holding certain public offices and civil service positions. However, LPRs can be detained or deported for certain offenses, including misdemeanors punishable by one or more years in jail.
The system of granting green cards to immigrants based on a totality of points. These points are rewarded based on the foreign immigrant's educations, work history, skills, English language skills and ties to U.S. citizens. Priority is given to applicants whose total points go beyond a certain threshold. (8)
The United Nations (UN) defines the term migrant as "any person who lives temporarily or permanently in a country where he or she was not born, and has acquired some significant social ties to this country." (Footnote, 2)
The process for a foreign national to acquire U.S. citizenship. The process involves specific requirements, including continuous U.S. residence and certain knowledge-based tests.
A foreign national seeking to enter the U.S. for a specific purpose and a limited period of time. A non-immigrant will usually be issued a temporary visa.
A non-citizen to whom the Attorney General has granted a temporary stay (usually for humanitarian purposes) and who can be detained at any time. Parolee status expires after one year (renewable at the U.S. government’s discretion), and most parolees are prohibited from applying for lawful permanent residency (LPR) “green card” or citizenship.
The authority of the Departments of Justice and Homeland Security to refrain from placing a potentially deportable person in deportation proceedings; suspend or even terminate a deportation proceeding; postpone a deportation; release someone from detention; or de-prioritize the enforcement of immigration laws against someone because it does not serve enforcement interests. (Footnote, 3)
An alien who enters the U.S. because of his or her home country’s persecution or a well-founded fear of persecution based on race, religion, nationality, social affiliation or political opinion. To be a refugee, once must apply for refugee status and be accepted before entering the United States.
Customarily, a refugee will seek asylum in the United States once they have arrived. One year after arriving in the United States, a refugee can apply to become a lawful permanent resident (LPR), and after five more years, can apply for U.S. citizenship.
The process of a person returning to their place of origin or citizenship.
Statute of limitations
Laws prescribing time limits for legal action
A T visa is a type of visa allowing certain victims of human trafficking and immediate family members to remain and work temporarily in the United States, typically if they agree to assist law enforcement in testifying against the perpetrators.
Temporary Protection Status
An immigration status granted to those who temporarily cannot safely return to their home country because of violence, a natural disaster or another unusual condition.
The intentional infliction of severe mental or physical suffering by a public official, who is directly or indirectly involved for a specific purpose. (9) (Footnote, 4)
Travel Freeze (Travel Ban) (Executive Order 13769)
Executive Order 13769 lowering the number of refugees admitted into the United States, suspending the U.S. Refugee Admissions Program (USRAP) for 120 days in 2017, and suspending the entry of Syrian refugees indefinitely. Also under this Executive Order, individuals from the following countries (as listed by Homeland Security) are not allowed entry to the United States Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen; there are few exceptions.
On June 26, 2018, the U.S. Supreme Court upheld the third executive order (Presidential Proclamation 9645).
The U nonimmigrant status (U visa) is set aside for victims of certain crimes who have suffered mental or physical abuse and are helpful to law enforcement or government officials in the investigation or prosecution of criminal activity.
U.S. immigration law allows foreign nationals who have been victims of certain crimes and granted U nonimmigrant status (U visa) to become lawful permanent residents (get a Green Card). (10)
Children who arrive in the United States alone or who are required to appear in immigration court on their own often are referred to as unaccompanied children or unaccompanied minors. “Unaccompanied alien child” (UAC) is a technical term defined by law as a child who: Has no lawful immigration status in the United States; has not attained 18 years of age; and with them there is no parent or legal guardian in the United States, or no parent or legal guardian in the United States is available to provide care and physical custody.” (11)
The Violence Against Women Act (VAWA) allows battered immigrants to petition for legal status in the United States without relying on abusive U.S.citizen or legal permanent resident spouses, parents or children to sponsor their Adjustment of Status (Form I-485) applications.
The purpose of the VAWA program is to allow victims the opportunity to “self-petition” or independently seek legal immigration status in the U.S. Victims of domestic violence, battery and extreme cruelty whose Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) self-petitions are approved may file Adjustment of Status (Form I-485) applications directly (self-petition). Once a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) VAWA self-petition is approved, the immigrant victim may file an Adjustment of Status (Form I-485)application to become a lawful permanent resident (green card holder) directly. (12)
A legal document that allows a foreign national to enter the U.S., either temporarily under a nonimmigrant visa or permanently under an immigrant visa. The State Department manages the visa process.
DHS or an Immigration Court may allow a person to depart from the U.S. at his or her own expense if he/she is in the process removal. DHS and/or the Immigration Court will set a time restraint, usually about 120 days, to depart the U.S. If the person fails to depart, they will be subject to fines and a 10 year period of ineligibility for other forms of relief. Immigrants with aggravated felonies are ineligible for voluntary departure.
Withholding of Removal
This order issued by an immigration judge which, like asylum, protects a person from being deported to a country where they fear persecution, demonstrating more than a 50% chance that they will be persecuted in their home country on account of their race, religion, nationality, membership in a particular social group, or political opinion. Applications for withholding of removal are made on the same form as asylum applications (form I-589) and are also made simultaneously with the asylum application. However, while either an asylum officer or an immigration judge can grant asylum, only an immigration judge hearing a case for someone in removal proceedings can grant withholding of removal.
(For how withholding of removal differs from asylum: Footnote, 5)
Zero Tolerance and Criminal Prosecution
While asylum and deportation proceedings are a civil process, the government can also separately pursue criminal prosecution in regular federal court. Illegally entering the United States is a misdemeanor on the first offense and a felony for repeat offenders. In April (2018), Attorney General Jeff Sessions announced a “zero tolerance” policy for such crimes.
The U.S. Immigration and Naturalization Service (INS) began implementing the expedited removal provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) in 1997.
The UN Special Rapporteur of the Commission on Human Rights has proposed that the following persons should be considered as migrants:
"(a) Persons who are outside the territory of the State of which their are nationals or citizens, are not subject to its legal protection and are in the territory of another State; (b) Persons who do not enjoy the general legal recognition of rights which is inherent in the granting by the host State of the status of refugee, naturalized person or of similar status; (c) Persons who do not enjoy either general legal protection of their fundamental rights by virtue of diplomatic agreements, visas or other agreements."
When referring to a "migrant worker," the definition significantly changes; the UN Convention on the Rights of Migrants defines a migrant worker as a
"person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national."
In other words, this definition indicates that a migrant worker does not refer to refugees, displaced or others forced or compelled to leave their homes.
This distinction has seemed to cause some confusion at the international level and opened up opportunities for some political factions to use the term "migrant" in a pejorative way; for example, in 2015, some Europeans began using the term "migrant" as a contrast to "refugees" to try to make the case that the thousands of people crossing the Mediterranean to seek protection are not deserving of "refugee" status, causing Al Jazeera News to denounce the term "migrant" as one that has "evolved from its dictionary definitions into a tool that dehumanizes and distances, a blunt pejorative."
Al Jazeera's position is well-meaning, but it also remains problematic, as it implies that economic migrants are less deserving than refugees, and that people drowning at sea only fully deserve empathy if they are refugees. It went with an agenda that only wanted to discuss Syrians, and in practice tended to exclude the many non-Syrians reaching Europe, both refugees and non-refugees.
After many conversations with the International Detention Coalition and our partners in Europe such as Detention Action, Freedom for Immigrants believes that we cannot allow "migrant" to become a pejorative term, as it is the most neutral and accurate term we have to describe any person who migrates, including refugees.
It also reflects the reality of detention in South America, Central America, and Mexico where people are often detained at different stages of their migration journey, whether upon entering a country, leaving a country, and even when attempting to leave or being returned to their country of origin.
Widely used during the Obama Administration, but has become unavailable as a matter of policy since the Trump Administration took office.
Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment : "Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."
Withholding of removal is inferior to asylum in the following ways:
A person granted withholding of removal has no pathway to a green card or to U.S. citizenship. Because an order of removal was issued, and then withheld, in most cases a person would have to reopen their removal proceedings in order to pursue other immigration options. Warning: it is important to consult with an immigration attorney before reopening a withholding case. While it may well be worth the risk to do so, reopening the case may also jeopardize the initial grant of withholding of removal. This could then result in the threat of actual deportation.
A person granted withholding of removal is required to pay a yearly renewal fee for an employment authorization document in order to maintain the legal right to work in the United States.
People granted withholding are eligible to receive some, but not all, of the same government benefits as asylees.
A person granted withholding of removal cannot travel outside of the United States. If they do, they are considered to have self deported and the order of removal the immigration judge issued will go into effect. This will make it very unlikely for that person to re-enter the United States.
The government retains the legal right to deport people granted withholding of removal to a country other than the one from which they were granted withholding of removal. This type of deportation to a third country is rare. However, Immigration and Customs Enforcement frequently issues “Orders of Supervision” that require people that have a withholding of removal status “to check-in” regularly with immigration either in person or by phone, and to request prior permission before leaving the state. There is no exact time frame on how long these check-ins will continue for.
For people who are granted withholding of removal while being incarcerated in an immigration detention facility, Immigration and Customs Enforcement will sometimes choose to continue to detain that person even after they have won their case. In most cases, this type of continued detention is improper and contrary to longstanding internal ICE policy that favors release for these individuals. See Immigrant Justice’s Field Guidance Reminder (PDF, external site). LGBT people who continue to be detained even after being granted withholding of removal should contact Immigration Equality.
Alternatives to detention. (n.d.). Retrieved September 20, 2018, from https://idcoalition.org/alternatives-to-detention/
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By the Numbers FY2017. (n.d.). Retrieved September 19, 2018, from https://www.ice.gov/topics/fy2017
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APT. A legal definition of torture. Retrieved September 20, 2018, from https://apt.ch/en/what-is-torture/
USCIS.Victims of Criminal Activity: U Nonimmigrant Status. (n.d.). Retrieved September 20, 2018, from https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-criminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmigrant-status
A Guide to Children Arriving at the Border: Laws, Policies and Responses. (2018, June 25). Retrieved September 20, 2018, from https://www.americanimmigrationcouncil.org/research/guide-children-arriving-border-laws-policies-and-responses
Fact Sheet: USCIS Issues Guidance For Approved Violence Against Women Act (VAWA) Self-Petitioners. (n.d.). Retrieved September 20, 2018, from https://www.uscis.gov/archive/archive-news/fact-sheet-uscis-issues-guidance-approved-violence-against-women-act-vawa-self-petitioners
Benner, K., & Savage, C. (2018, June 25). Due Process for Undocumented Immigrants, Explained. Retrieved September 20, 2018, from https://www.nytimes.com/2018/06/25/us/politics/due-process-undocumented-immigrants.html
Freedom for Immigrants. Terminology. Retrieved September 20, 2018, from https://www.freedomforimmigrants.org/terminology/
Get Legal. Immigration Terms. Retrieved September 20, 2018, from https://public.getlegal.com/legal-info-center/immigration-terms/
USCIS Glossary. Retrieved September 20, 2018, from https://www.uscis.gov/tools/glossary
Steve Bowman, Homeland Security: The Department of Defense's Role 1-2 (Cong. Res. Serv. Rep. 31-615, 2003). DOD plays a supporting role in the former, a primary role in the latter. Id. See also Supporting Homeland Security, supra note 3, at 1.