The United States recognizes the right of asylum for individuals as specified by international and federal law. A specified number of legally defined refugees are admitted annually. These refugees are not eligible to apply for asylum from inside the U.S. but have applied for refugee status through the United Nations. Refugees compose about one-tenth of the total annual immigration to the United States, though some large refugee populations are very prominent.
Since World War II, more refugees have found homes in the U.S. than any other nation, and more than two million refugees have arrived in the U.S. since 1980. From 2005 to 2007, approximately 40,000 refugee seekers per year were accepted into the U.S., compared to about 30,000 per year in the UK and 25,000 per year in Canada. The U.S. accounted for about 10% of all refugee-seeker acceptances in the OECD countries in 1998-2007. The United States is by far the most populous OECD country and receives fewer than the average number of refugees per capita: In 2010-14 (before the massive migrant surge in Europe in 2015) it ranked 28 of 43 industrialized countries reviewed by UNHCR.
Asylum has two basic requirements. First, asylum applicants must establish that they fear persecution from the government in their home country. Second, applicants must prove that they would be persecuted on account of at least one of five protected grounds: race, religion, nationality, political opinion, or particular social group.
During the Cold War, and up until the mid-1990s, the majority of refugees resettled in the U.S. were people from the former-Soviet Union and Southeast Asia. The most conspicuous of the latter were the refugees from Vietnam following the Vietnam War, sometimes known as "boat people". Following the end of the Cold War, the largest resettled European group were refugees from the Balkans, primarily Serbs, from Bosnia and Croatia. In the 1990s and 2000s, the proportion of Africans rose in the annual resettled population, as many people fled various ongoing conflicts.
Large metropolitan areas have been the destination of most resettlements, with 72% of all resettlements between 1983 and 2004 going to 30 locations. The historical gateways for resettled refugees have been California (specifically Los Angeles, Orange County, San Jose, and Sacramento), the Mid-Atlantic region (New York in particular), the Midwest (specifically Chicago, St. Louis, Minneapolis–Saint Paul), and Northeast (Providence, Rhode Island). In the last decades of the twentieth century, Washington, D.C.; Seattle, Washington; Portland, Oregon; and Atlanta, Georgia provided new gateways for resettled refugees. Particular cities are also identified with some national groups: metropolitan Los Angeles received almost half of the resettled refugees from Iran, 20% of Iraqi refugees went to Detroit, and nearly one-third of refugees from the former Soviet Union were resettled in New York.
Between 2004 and 2007, nearly 4,000 Venezuelans claimed political asylum in the United States and almost 50% of them were granted. In comparison, in 1996, 328 Venezuelans claimed asylum and 20% of them were granted. According to USA Today, the number of asylums being granted to Venezuelan claimants has risen from 393 in 2009 to 969 in 2012. Other sources agree with the high number of political asylum claimants from Venezuela, confirming that between 2000 and 2010, the United States has granted them with 4,500 political asylums.
"The Immigration and Nationality Act ('INA') authorizes the Attorney General to grant asylum if an alien is unable or unwilling to return to her country of origin because she has suffered past persecution or has a well-founded fear of future persecution on account of 'race, religion, nationality, membership in a particular social group, or political opinion.'" The United States framework on migration is securitization, focusing on the safety of citizens. This results in strict U.S. policies and laws surrounding immigration and asylum.
The United States is obliged to recognize valid claims for asylum under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. As defined by these agreements, a refugee is a person who is outside their country of nationality (or place of habitual residence if stateless) who, owing to a fear of persecution on account of a protected ground, is unable or unwilling to avail himself of the protection of the state. Protected grounds include race, nationality, religion, political opinion and membership of a particular social group. The signatories to these agreements are further obliged not to return or "refoul" refugees to the place where they would face persecution.
This commitment was codified and expanded with the passing of the Refugee Act of 1980 by the United States Congress. Besides reiterating the definitions of the 1951 Convention and its Protocol, the Refugee Act provided for the establishment of an Office of Refugee Resettlement (ORR) within the U.S. Department of Health and Human Services (HHS) to help refugees begin their lives in the U.S. The structure and procedures evolved and by 2004, federal handling of refugee affairs was led by the Bureau of Population, Refugees, and Migration (PRM) of the U.S. Department of State, working with the ORR at HHS. Asylum claims are mainly the responsibility of the U.S. Citizenship and Immigration Services (USCIS) of the Department of Homeland Security (DHS).
Each year, the President of the United States sends a proposal to the Congress for the maximum number of refugees to be admitted into the country for the upcoming fiscal year, as specified under section 207(e) (1)-(7) of the Immigration and Nationality Act. This number, known as the "refugee ceiling", is the target of annual lobbying by both refugee advocates seeking to raise it and anti-immigration groups seeking to lower it. However, once proposed, the ceiling is normally accepted without substantial Congressional debate. The September 11, 2001 attacks resulted in a substantial disruption to the processing of resettlement claims with actual admissions falling to about 26,000 in fiscal year 2002. Claims were double-checked for any suspicious activity and procedures were put in place to detect any possible terrorist infiltration. Nonetheless, some advocates noted that, given the ease with which foreigners can otherwise legally enter the U.S., entry as a refugee is comparatively unlikely. The actual number of admitted refugees rose in subsequent years with refugee ceiling for 2006 at 70,000. Critics note these levels are still among the lowest in 30 years.
|Recent actual, projected and proposed refugee admissions|
|Year||Africa||%||East Asia||%||Europe||%||Latin America
|%||Near East and
|FY 2012 actual arrivals||10,608||18.21||14,366||24.67||1,129||1.94||2,078||3.57||30,057||51.61||-||58,238|
|FY 2013 ceiling||12,000||17,000||2,000||5,000||31,000||3,000||70,000|
|FY 2013 actual arrivals||15,980||22.85||16,537||23.65||580||0.83||4,439||6.35||32,389||46.32||-||69,925|
|FY 2014 ceiling||15,000||14,000||1,000||5,000||33,000||2,000||70,000|
|FY 2014 actual arrivals||17,476||24.97||14,784||21.12||959||1.37||4,318||6.17||32,450||46.36||-||69,987|
|FY 2015 ceiling||17,000||13,000||1,000||4,000||33,000||2,000||70,000|
|FY 2015 actual arrivals||22,472||32.13||18,469||26.41||2,363||3.38||2,050||2.93||24,579||35.14||-||69,933|
|FY 2016 ceiling||25,000||13,000||4,000||3,000||34,000||6,000||85,000|
|FY 2016 actual arrivals||31,625||37.21||12,518||14.73||3,957||4.65||1,340||1.57||35,555||41.83||-||84,995|
|FY 2017 ceiling||35,000||12,000||4,000||5,000||40,000||14,000||110,000|
|FY 2017 actual arrivals||20,232||37.66||5,173||9.63||5,205||9.69||1,688||3.14||21,418||39.87||-||53,716|
|FY 2018 ceiling||19,000||5,000||2,000||1,500||17,500||-||45,000|
|FY 2018 actual arrivals||10,459||46.50||3,668||16.31||3,612||16.06||955||4.25||3,797||16.88||-||22,491|
|FY 2019 ceiling||11,000||4,000||3,000||3,000||9,000||-||30,000|
|FY 2019 actual arrivals||16,366||54.55||5,030||16.77||4,994||16.65||809||2.70||2,801||9.34||-||30,000|
|FY 2020 ceiling||–||–||–||–||–||-||18,000|
A total of 73,293 persons were admitted to the United States as refugees during 2010. The leading countries of nationality for refugee admissions were Iraq (24.6%), Burma (22.8%), Bhutan (16.9%), Somalia (6.7%), Cuba (6.6%), Iran (4.8%), DR Congo (4.3%), Eritrea (3.5%), Vietnam (1.2%) and Ethiopia (0.9%).
The majority of applications for resettlement to the United States are made to U.S. embassies in foreign countries and are reviewed by employees of the State Department. In these cases, refugee status has normally already been reviewed by the United Nations High Commissioner for Refugees and recognized by the host country. For these refugees, the U.S. has stated its preferred order of solutions are: (1) repatriation of refugees to their country of origin, (2) integration of the refugees into their country of asylum and, last, (3) resettlement to a third country, such as the U.S., when the first two options are not viable.
The United States prioritizes valid applications for resettlement into 3 levels.
This is composed of groups designated by the U.S. government as being of special concern. These are often identified by an act proposed by a Congressional representative. Priority Two groups proposed for 2008 included:
This is reserved for cases of family reunification, in which a refugee abroad is brought to the United States to be reunited with a close family member who also has refugee status. A list of nationalities eligible for Priority Three consideration is developed annually. The proposed countries for FY2008 were Afghanistan, Burma, Burundi, Colombia, Congo (Brazzaville), Cuba, Democratic People's Republic of Korea (DPRK), Democratic Republic of the Congo (DRC), Eritrea, Ethiopia, Haiti, Iran, Iraq, Rwanda, Somalia, Sudan and Uzbekistan.
The minority of applications made by individuals who have already entered the U.S. is judged on whether the applicant meets the U.S. definition of "refugee" and on various other statutory criteria (including a number of bars that would prevent an otherwise-eligible refugee from receiving protection). There are two ways to apply for asylum while in the United States:
Immigrants who were picked up after entering the country between entry points can be released by Immigration and Customs Enforcement (ICE) on payment of a bond, which may lowered or waived by an immigration judge. In contrast, refugees who asked for asylum at an official point of entry before entering the U.S. cannot be released on bond. Instead, ICE officials have full discretion to decide whether they can be released.
If applicants are eligible for asylum, they have a procedural right to have the Attorney General make a discretionary determination as to whether they should be admitted into the United States as asylees. An applicant is also entitled to mandatory "withholding of removal" (or restriction on removal) if the applicant can prove that his or her life or freedom would be threatened upon return to her country of origin. The dispute in asylum cases litigated before the Executive Office for Immigration Review and, subsequently, the federal courts centers on whether the immigration courts properly rejected the applicant's claim that she or he is eligible for asylum or other relief.
Applicants have the burden of proving that they are eligible for asylum. To satisfy this burden, they must show that they have a well-founded fear of persecution in their home country on account of either race, religion, nationality, political opinion, or membership in a particular social group. The applicant can demonstrate well-founded fear by demonstrating that he or she has a subjective fear (or apprehension) of future persecution in her home country that is objectively reasonable. An applicant's claim for asylum is stronger where they can show past persecution, in which case they will receive a presumption that they have a well-founded fear of persecution in their home country. The government can rebut this presumption by demonstrating either that the applicant can relocate to another area within their home country in order to avoid persecution, or that conditions in the applicant's home country have changed such that the applicant's fear of persecution there is no longer objectively reasonable. Technically, an asylum applicant who has suffered past persecution meets the statutory criteria to receive a grant of asylum even if the applicant does not fear future persecution. In practice, adjudicators will typically deny asylum status in the exercise of discretion in such cases, except where the past persecution was so severe as to warrant a humanitarian grant of asylum, or where the applicant would face other serious harm if returned to their country of origin. In addition, applicants who, according to the US Government, participated in the persecution of others are not eligible for asylum.
A person may face persecution in their home country because of race, nationality, religion, ethnicity, or social group, and yet not be eligible for asylum because of certain bars defined by law. The most frequent bar is the one-year filing deadline. If an application is not submitted within one year following the applicant's arrival in the United States, the applicant is barred from obtaining asylum unless certain exceptions apply. However, the applicant can be eligible for other forms of relief such as Withholding of Removal, which is a less favorable type of relief than asylum because it does not lead to a Green Card or citizenship. The deadline for submitting the application is not the only restriction that bars one from obtaining asylum. If an applicant persecuted others, committed a serious crime, or represents a risk to U.S. security, he or she will be barred from receiving asylum as well. After 2001, asylum officers and immigration judges became less likely to grant asylum to applicants, presumably because of the attacks on 11 September.
In 1986 an Immigration Judge agreed not to send Fidel Armando-Alfanso back to Cuba, based on his membership in a particular social group (LGBTQ+ individuals) who were persecuted and feared further persecution by the government of Cuba. The Board of Immigration Appeals upheld the decision in 1990, and in 1994, then-Attorney General Janet Reno ordered this decision to be a legal precedent binding on Immigration Judges and the Asylum Office, and established sexual orientation as a grounds for asylum. However, in 2002 the Board of Immigration Appeals “suggested in an ambiguous and internally inconsistent decision that the ‘protected characteristic’ and ‘social visibility’ tests may represent dual requirements in all social group cases.” The requirement for social visibility means that the government of a country from which the person seeking asylum is fleeing must recognize their social group, and that LGBT people who hide their sexual orientation, for example out of fear of persecution, may not be eligible for asylum under this mandate.
In 1996 Fauziya Kasinga, a 19-year-old woman from the Tchamba-Kunsuntu people of Togo, became the first person to be granted asylum in the United States to escape female genital mutilation. In August 2014, the Board of Immigration Appeals, the United States's highest immigration court, found for the first time that women who are victims of severe domestic violence in their home countries can be eligible for asylum in the United States. However, that ruling was in the case of a woman from Guatemala and was anticipated to only apply to women from there. On June 11, 2018, Attorney General Jeff Sessions reversed that precedent and announced that victims of domestic abuse or gang violence will no longer qualify for asylum.
The term "well-founded fear" has no precise definition in asylum law. In INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), the Supreme Court avoided attaching a consistent definition to the term, preferring instead to allow the meaning to evolve through case-by-case determinations. However, in Cardoza-Fonseca, the Court did establish that a "well-founded" fear is something less than a "clear probability" that the applicant will suffer persecution. Three years earlier, in INS v. Stevic, 467 U.S. 407 (1984), the Court held that the clear probability standard applies in proceedings seeking withholding of deportation (now officially referred to as 'withholding of removal' or 'restriction on removal'), because in such cases the Attorney General must allow the applicant to remain in the United States. With respect to asylum, because Congress employed different language in the asylum statute and incorporated the refugee definition from the international Convention relating to the Status of Refugees, the Court in Cardoza-Fonseca reasoned that the standard for showing a well-founded fear of persecution must necessarily be lower.
An applicant initially presents his claim to an asylum officer, who may either grant asylum or refer the application to an Immigration Judge. If the asylum officer refers the application and the applicant is not legally authorized to remain in the United States, the applicant is placed in removal proceedings. After a hearing, an immigration judge determines whether the applicant is eligible for asylum. The immigration judge's decision is subject to review on two, and possibly three, levels. First, the immigration judge's decision can be appealed to the Board of Immigration Appeals. In 2002, in order to eliminate the backlog of appeals from immigration judges, the Attorney General streamlined review procedures at the Board of Immigration Appeals. One member of the Board can affirm a decision of an immigration judge without oral argument; traditional review by three-judge panels is restricted to limited categories for which "searching appellate review" is appropriate. If the BIA affirms the decision of the immigration court, then the next level of review is a petition for review in the United States courts of appeals for the circuit in which the immigration judge sits. The court of appeals reviews the case to determine if "substantial evidence" supports the immigration judge's (or the BIA's) decision. As the Supreme Court held in INS v. Ventura, 537 U.S. 12 (2002), if the federal appeals court determines that substantial evidence does not support the immigration judge's decision, it must remand the case to the BIA for further proceedings instead of deciding the unresolved legal issue in the first instance. Finally, an applicant aggrieved by a decision of the federal appeals court can petition the U.S. Supreme Court to review the case by a discretionary writ of certiorari. But the Supreme Court has no duty to review an immigration case, and so many applicants for asylum forego this final step.
Notwithstanding his statutory eligibility, an applicant for asylum will be deemed ineligible if:
Conversely, even if an applicant is eligible for asylum, the Attorney General may decline to extend that protection to the applicant. (The Attorney General does not have this discretion if the applicant has also been granted withholding of deportation.) Frequently the Attorney General will decline to extend an applicant the protection of asylum if he has abused or circumvented the legal procedures for entering the United States and making an asylum claim.
An in-country applicant for asylum is eligible for a work permit (employment authorization) only if their application for asylum has been pending for more than 150 days without decision by the U.S. Citizenship and Immigration Services (USCIS) or the Executive Office for Immigration Review. If an asylum seeker is recognized as a refugee, he or she may apply for lawful permanent residence status (a green card) one year after being granted asylum. Asylum seekers generally do not receive economic support. This, combined with a period where the asylum seeker is ineligible for a work permit is unique among developed countries and has been condemned from some organisations, including Human Rights Watch.
Up until 2004, recipients of asylee status faced a wait of approximately fourteen years to receive permanent resident status after receiving their initial status, because of an annual cap of 10,000 green cards for this class of individuals. However, in May 2005, under the terms of a proposed settlement of a class-action lawsuit, Ngwanyia v. Gonzales, brought on behalf of asylees against CIS, the government agreed to make available an additional 31,000 green cards for asylees during the period ending on September 30, 2007. This is in addition to the 10,000 green cards allocated for each year until then and was meant to speed up the green card waiting time considerably for asylees. However, the issue was rendered somewhat moot by the enactment of the Real ID Act of 2005 (Division B of United States Public Law 109-13 (H.R. 1268)), which eliminated the cap on annual asylee green cards. Currently, an asylee who has continuously resided in the US for more than one year in that status has an immediately available visa number.
On April 29, 2019, President Trump ordered new restrictions on asylum seekers at the Mexican border — including application fees and work permit restraints — and directed that cases in the already clogged immigration courts be settled within 180 days.
An Unaccompanied Refugee Minor (URM) is any person who has not attained 18 years of age who entered the United States unaccompanied by and not destined to: (a) a parent, (b) a close non-parental adult relative who is willing and able to care for said minor, or (c) an adult with a clear and court-verifiable claim to custody of the minor; and who has no parent(s) in the United States. These minors are eligible for entry into the URM program. Trafficking victims who have been certified by the U.S. Department of Health and Human Services, the United States Department of Homeland Security, and/or the United States Department of State are also eligible for benefits and services under this program to the same extent as refugees.
The URM program is coordinated by the U.S. Office of Refugee Resettlement (ORR), a branch of the United States Administration for Children and Families. The mission of the URM program is to help people in need “develop appropriate skills to enter adulthood and to achieve social self-sufficiency.” To do this, URM provides refugee minors with the same social services available to U.S.-born children, including, but not limited to, housing, food, clothing, medical care, educational support, counseling, and support for social integration.
History of the URM Program
URM was established in 1980 as a result of the legislative branch's enactment of the Refugee Act that same year. Initially, it was developed to “address the needs of thousands of children in Southeast Asia” who were displaced due to civil unrest and economic problems resulting from the aftermath of the Vietnam War, which had ended only five years earlier. Coordinating with the United Nations and “utilizing an executive order to raise immigration quotas, President Carter doubled the number of Southeast Asian refugees allowed into the United States each month.” The URM was established, in part, to deal with the influx of refugee children.
URM was established in 1980, but the emergence of refugee minors as an issue in the United States “dates back to at least WWII.” Since that time, oppressive regimes and U.S. military involvement have consistently “contributed to both the creation of a notable supply of unaccompanied refugee children eligible to relocate to the United States, as well as a growth in public pressure on the federal government to provide assistance to these children."
Since 1980, the demographic makeup of children within URM has shifted from being largely Southeast Asian to being much more diverse. Between 1999 and 2005, children from 36 different countries were inducted into the program. Over half of the children who entered the program within this same time period came from Sudan, and less than 10% came from Southeast Asia.
Perhaps the most commonly known group to enter the United States through the URM program was known as the “Lost Boys” of Sudan. Their story was made into a documentary by Megan Mylan and Jon Shenk. The film, Lost Boys of Sudan, follows two Sudanese refugees on their journey from Africa to America. It won an Independent Spirit Award and earned two national Emmy nominations.
In terms of functionality, the URM program is considered a state-administered program. The U.S. federal government provides funds to certain states that administer the URM program, typically through a state refugee coordinator's office. The state refugee coordinator provides financial and programmatic oversight to the URM programs in their state. The state refugee coordinator ensures that unaccompanied minors in URM programs receive the same benefits and services as other children in out-of-home care in the state. The state refugee coordinator also oversees the needs of unaccompanied minors with many other stakeholders.
ORR contracts with two faith-based agencies to manage the URM program in the United States; Lutheran Immigration and Refugee Service (LIRS) and the United States Conference of Catholic Bishops (USCCB). These agencies identify eligible children in need of URM services; determine appropriate placements for children among their national networks of affiliated agencies; and conduct training, research and technical assistance on URM services. They also provide the social services such as: indirect financial support for housing, food, clothing, medical care and other necessities; intensive case management by social workers; independent living skills training; educational supports; English language training; career/college counseling and training; mental health services; assistance adjusting immigration status; cultural activities; recreational opportunities; support for social integration; and cultural and religious preservation.
The URM services provided through these contracts are not available in all areas of the United States. The 14 states that participate in the URM program include: Arizona, California, Colorado, Florida, Massachusetts, Michigan, Mississippi, North Dakota, New York, Pennsylvania, Texas, Utah, Virginia, Washington and the nation's capital, Washington D.C.
Adoption of URM Children
Although they are in the United States without the protection of their family, URM-designated children are not generally eligible for adoption. This is due in part to the Hague Convention on the Protection and Co-Operation in Respect of Inter-Country Adoption, otherwise known as the Hague Convention. Created in 1993, the Hague Convention established international standards for inter-country adoption. In order to protect against the abduction, sale or trafficking of children, these standards protect the rights of the biological parents of all children. Children in the URM program have become separated from their biological parents and the ability to find and gain parental release of URM children is often extremely difficult. Most children, therefore, are not adopted. They are served primarily through the foster care system of the participating states. Most will be in the custody of the state (typically living with a foster family) until they become adults. Reunification with the child's family is encouraged whenever possible.
As soon as people seeking asylum in the United States are accepted as refugees they are eligible for public assistance just like any other person, including cash welfare, food assistance, and health coverage. Many refugees depend on public benefits, but over time may become self-sufficient.
Availability of public assistance programs can vary depending on which states within the United States refugees are allocated to resettle in. For example, health policies differ from state to state, and as of 2017, only 33 states expanded Medicaid programs under the Affordable Care Act. In 2016, The American Journal of Public Health reported that only 60% of refugees are assigned to resettlement locations with expanding Medicaid programs, meaning that more than 1 in 3 refugees may have limited healthcare access.
In 2015, the world saw the greatest displacement of people since World War II with 65.3 million people having to flee their homes. In fiscal year 2016, the Department of State's Bureau of Population, Refugees, and Migration under the Migration and Refugee Assistance Act (MRA) requested that $442.7 million be allocated to refugee admission programs that relocate refugees into communities across the country. President Obama made a "Call to Action" for the private sector to make a commitment to help refugees by providing opportunities for jobs and accommodating refugee accessibility needs.
The recent U.S. Government policy known as "Zero-tolerance" was implemented in April 2018. In response, a number of scientific organizations released statements on the negative impact of child separation, a form of childhood trauma, on child development, including the American Psychiatric Association, the American Psychological Association, the American Academy of Pediatrics, the American Medical Association, and the Society for Research in Child Development.
According to a study conducted by Joanna Dreby, trauma associated with family separation can have significant effects on the mental and physical well-being of children. Dreby's study concluded that academic difficulties and mental health conditions such as anxiety and depression are prevalent among children whose families have been separated during migration.
Efforts are underway to minimize the impact of child separation. For instance, the National Child Traumatic Stress Network released a resource guide and held a webinar related to traumatic separation and refugee and immigrant trauma.
Historically, homosexuality was considered a deviant behavior in the US; as such, the Immigration and Nationality Act of 1952 barred homosexual individuals from entering the United States due to concerns about their psychological health. One of the first successful LGBT asylum pleas to be granted refugee status in the United States due to sexual orientation was a Cuban national whose case was first presented in 1989. The case was affirmed by the Board of Immigration Appeals and the barring of LGBT and queer individuals into the United States was repealed in 1990. The case, known as Matter of Acosta (1985), set the standard of what qualified as a "particular social group." This new definition of "social group" expanded to explicitly include homosexuality and the LGBT population. It considers homosexuality and gender identity a "common characteristic of the group either cannot change or should not be required to change because it is fundamental to their individual identities or consciences." This allows political asylum to some LGBT individuals who face potential criminal penalties due to homosexuality and sodomy being illegal in the home country who are unable to seek protection from the state. The definition was intended to be open-ended in order to fit with the changing understanding of sexuality. According to Fatma Marouf, the definition established in Acosta was influential internationally, appealing to "the fundamental norms of human rights."
Experts disagree on the role of sexuality in the asylum process. Stefan Volger argues that the definition of social group tends to be relatively flexible, and describes sexuality akin to religion—one might change religions but characteristics of religion are protected traits that can't be forced. However, Susan Berger argues that while homosexuality and other sexual minorities might be protected under the law, the burden of proving that they are an LGBT member demonstrates a greater immutable view of the expected LGBT performance. The importance of visibility is stressed throughout the asylum process, as sexuality is an internal characteristic. It is not visibly represented in the outside appearance.
When considering how sexuality is viewed, research utilize asylum claim decisions and individual cases to understand what is considered characteristic of being a member of the LGBT community. In migration studies, there was an implicit assumption that immigrants are heterosexual and LGBT people are citizens.
One theory that took route within the queer migrations studies was Jasbir Puar's idea of homonationalism. According to Paur, following the September 11, 2001 terrorist attack, the movement against terrorists also resulted in a reinforcement of the binary "us vs. them" against some members of the LGBT community. The social landscape was termed "homonormative nationalism" or homonationalism.
According to Amanda M. Gómez, sexual orientation identity is formed and performed in the asylum process. Unlike race or gender, in sexual orientation asylum claims, applicants have to prove their sexuality to convince asylum officials that they are truly part of their social group. Rachel Lewis and Nancy Naples argue that LGBT people may not seem credible if they do not fit Western stereotypes of what LGBT people look like. The expectation is that lesbians will present in masculine ways, while gay men will present in feminine ways. Eithne Luibhéid recognizes this presentation issue as connecting to the mainstream narrative that same-sex attraction comes from a problem of women being trapped in the men's body and vice-versa. Dress, mannerisms, and style of speech, as well as not having had public romantic relationships with the opposite sex, may be perceived by the immigration judge as not reflective of the applicants’ sexual orientation. Scholars and legal experts have long argued that asylum law has created legal definitions for homosexuality that are essentialist and damaging for our understanding of queerness.
Female asylum seekers may encounter issues when seeking asylum in the United States due to what some see as a structural preference for male narrative forms in the requirements for acceptance. Researchers, such as Amy Shuman and Carol Bohmer, argue that the asylum process produces gendered cultural silences, particular in hearings where the majority of narrative construction takes place. Cultural silences refers to things that women refrain from sharing, due to shame, humiliation, and other deterrents. These deterrents can make achieving asylum more difficult as it can keep relevant information from being shared with the asylum judge.
Susan Berger argues that the relationship between gender and sexuality leads to arbitrary case decisions, as there are no clear guidelines for when the private problems becomes an international problem. Berger uses case specific examples of asylum applications where gender and sexuality both act as an immutable characteristic. She argues that because male persecutors of lesbian and heterosexual female applicants tend to be family members, their harm occurs in the private domain and is therefore excluded from asylum consideration. Male applicants, on the other hand, are more likely to experience targeted, public persecution that relates better to the traditional idea of a homosexual asylum seeker. Male applicants are encouraged to perform gay stereotypes to strengthen their asylum application on the basis of sexual orientation, while lesbian women face the same difficulties as their heterosexual partners to perform the homosexual narrative. Joe Rollins found that gay male applicants were more likely to be granted refugee status if they included rape in their narratives, while gay Asian immigrants were less likely to be granted refugee status over all, even with the inclusion of rape. This, he claimed, was due to Asian men being subconsciously feminized.
These experiences are articulated during the hearing process where the responsibility to prove membership is on the applicant. During the hearing process, applicants are encouraged to demonstrate persecution for gender or sexuality and place the source as their own culture. Shuman and Bohmer argue that in sexual minorities, it is not enough to demonstrate only violence, asylum applicants have to align themselves against a restrictive culture. The narratives are forced to fit into categories shaped by western culture or be found to be fraudulent.
According to Shuman and Bohmer, due to women's social position in most countries, lesbians are more likely to stay in the closet, which often means that they do not have the public visibility element that the asylum process requires for credibility. This leads to Lewis and Naples’ critique to the fact that asylum officials often assume that since women do not live such public lives as men do, that they would be safe from abuse or persecution, in comparison to gay men who are often part of the public sphere. This argument violates the basic concept that one's sexual orientation is a fundamental right and that family and the private sphere are often the first spaces where lesbians experience violence and discrimination. Because lesbians live such hidden lives, they tend to lack police reports, hospital records, and letters of support from witnesses, which decreases their chances of being considered credible and raises the stakes of effectively telling their stories in front of asylum officials.
LGBT individuals have a higher risk for mental health problems when compared to cis-gender counterparts and many transgender individuals face socioeconomic difficulties in addition to being an asylum seeker. In a study conducted by Mary Gowin, E. Laurette Taylor, Jamie Dunnington, Ghadah Alshuwaiyer, and Marshall K. Cheney of Mexican Transgender Asylum Seekers, they found 5 major stressors among the participants including assault (verbal, physical and sexual), "unstable environments, fear for safety and security, hiding undocumented status, and economic insecurity." They also found that all of the asylum seekers who participated reported at least one health issue that could be attributed to the stressors. They accessed little or no use of health or social services, attributed to barriers to access, such as fear of the government, language barriers and transportation. They are also more likely to report lower levels of education due to few opportunities after entering the United States. Many of the asylum seeker participants entered the United States as undocumented immigrants. Obstacles to legal services included fear and knowledge that there were legal resources to gaining asylum.
Human Rights and LGBT advocates have worked to create many improvements to the LGBT Asylum Seekers coming into the United States and to give asylum seekers a chance to start a new life. A 2015 report issued by the LGBT Freedom and Asylum network identifies best practices for supporting LGBT asylum seekers in the US. The US State Department has also issued a factsheet on protecting LGBT refugees.
Concerns have been raised with the U.S. asylum and refugee determination processes. A recent empirical analysis by three legal scholars described the U.S. asylum process as a game of refugee roulette, meaning that the outcome of asylum determinations depends largely on the personality of the particular adjudicator to whom an application is randomly assigned, rather than on the merits of the case. The low numbers of Iraqi refugees accepted between 2003 and 2007 exemplifies these concerns about the United States' refugee processes. The Foreign Policy Association reported that "Perhaps the most perplexing component of the Iraq refugee crisis... has been the inability for the U.S. to absorb more Iraqis following the 2003 invasion of the country. Up until 2008, the U.S. has granted less than 800 Iraqis refugee status, just 133 in 2007. By contrast, the U.S. granted asylum to more than 100,000 Vietnamese refugees during the Vietnam War." 
The 2001 documentary film Well-Founded Fear, from filmmakers Shari Robertson and Michael Camerini marked the first time that a film crew was privy to the private proceedings at the U.S. Immigration and Naturalization Services (INS), where individual asylum officers ponder the often life-or-death fate of the majority of immigrants seeking asylum. The film analyzes the US asylum application process by following several asylum applicants and asylum officers.