People who make asylum claims after coming to the U.S. illegally are much more likely to be turned down than granted asylum. Out of 120,094 asylum claims by illegal entrants in 2017, 6,995 were granted according to the Justice Department.
That makes Sergio very lucky.
“I came to the United States in 1992 because there was not a lot of work down there,” the 64-year-old man, who wanted to be known only by his first name, explained in Spanish. Under the Trump administration’s strict enforcement procedures, he was targeted for deportation after being arrested for drunkenness in May last year.
Asylum claims made after an illegal entry are called defensive asylum and are handled by the Department of Justice. Asylum claims made by people who came to the U.S. legally are called affirmative asylum and handled by the U.S. Citizenship and Immigration Services.
The odds of being granted defensive asylum got a little better in the first half of 2018. Petitions fell to 85,534 of which 6,946 have been granted. But it is still a long, long shot. And still worse than the odds of getting affirmative asylum. Out of 115,399 affirmative petitions filed in 2016, 11,729 were granted.
Disagreement with guard
Sergio was transferred to a jail in Orange County, near Los Angeles, where he says a guard insulted him early in his nine months in detention. Sergio said the guard accused him of being disrespectful and reminded him that he was prisoner.
“I said, ‘No, I’m not a prisoner,’” Sergio responded. “‘I’m in detention for immigration,’ I haven’t committed any crimes.”
He says his relationship with the guards went downhill from there.
His lawyer, Joel Frost-Tift of Esperanza Immigrant Rights Project of Catholic Charities, applied for asylum for his client, noting that he suffered from mental illness.
“He did have some medical treatment in detention,” the attorney said, “but it was clearly very inadequate.” Sergio tried to commit suicide a month before the end of his detention. “I think that’s a sign that his medication wasn’t right, he wasn’t getting adequate care,” Frost-Tift said.
A judge agreed with the lawyer that Sergio would not receive proper care if returned to Mexico, and granted asylum February 15.
“Because the judge didn’t make a full written or oral decision, there’s no way to know for sure what his rational was,” Frost-Tift said. “Some judges have found that conditions in mental health institutions cause people to face a reasonable possibility of persecution, and in some cases even that they are more likely than not to be tortured.”
Petitioners for asylum must prove they have a “reasonable fear” of persecution in their home country. Reasonable fear is defined by the United Nations as at least a 10 percent chance of persecution.
They must also file for asylum within a year of their arrival in the U.S., which Sergio did not do.
“There are two exceptions to this rule,” Frost-Tift explained. “First an applicant can demonstrate ‘changed circumstances which materially affect the applicant’s eligibility for asylum’ or ‘extraordinary circumstances relating to the delay in filing,’ both of which usually come in to play with claims based on mental illness.
U.S. officials say asylum claims have skyrocketed because many migrants are exploiting a broken system.
“While USCIS changes to (affirmative) asylum interview scheduling have been able to help slow the backlog’s growth,” said Michael Bars, a spokesman for US Citizenship and Immigration Services said in a written statement. “Our current system, prone to loopholes, fraud and abuse, prevents legitimate asylum seekers from being seen in a timely fashion.”
Sergio is still waiting for the government to send him a visa. He says he feels relieved to be granted asylum, but also “frustrated. I’m frustrated,” he said, “because I’m staying at a shelter.”
Free, living in a homeless center in central Los Angeles, Sergio’s health has stabilized and he is ready for the next chapter to begin.