CPB Photography I Glenn Fawcett / Mani Albrecht / Flickr
Even before Trump barred asylum seekers from the US-Mexico border by declaring all unauthorized border crossings to be “invasions,” American asylum was a system with no winners. Now, while migrants at the border are stripped of the meager options they previously had recourse to, it’s crucial to understand what it meant, until very recently, to seek asylum in the United States—and how the failures of the system have been weaponized against all migrants. This double-bind becomes especially apparent when we consider the available pathways of legal migration at an individual level. What are the decisions a single person must weigh as they seek a new home in the United States?
Amadou is a 22-year-old man from West Africa. He arrived in New York City after leaving his home country, Guinea. He is part of the Fulani ethnic group, a population that has faced systematic discrimination since Guinea’s independence in 1958. The racism Amadou experienced in Guinea as a result of his ethnicity was among the key reasons he chose to undertake a harrowing, month-long journey from West Africa to Central America to eventually reach the United States. Another important factor was economic hardship. Amadou is the eldest son of a family who relies on him as an economic breadwinner; as a young teenager, he stopped attending high school after his father’s death, and started working in Conakry, the capital city of Guinea. In coming to the US, Amadou hoped to obtain lawful work authorization in order to start sending money back home to his mother and four younger siblings while living safely and freely. However, upon arriving in New York City, Amadou quickly realized that finding a job would not be straightforward.
Amadou faces a second dilemma. Like many of the over 210,000 migrants who have arrived in New York City since 2022, Amadou originally entered the United States at the Southern Border on foot. As a result, he was apprehended by Customs and Border Patrol officers, given a “Notice to Appear” in immigration court, and charged with a “crime” of unlawful entry. Amadou was then initiated into removal proceedings, a lengthy, extensive process of immigration court hearings that penalizes people for walking into the US without lawful authorization. The looming threat of these removal proceedings hangs over his new life here, for which the final consequence is deportation.
The best chance for Amadou to work and gain legal status is to apply for asylum. Now, even that option—which has no guarantee of success to begin with—appears to be at risk of disappearing, and it has already been taken away from many.
What is asylum?
Asylum is a strictly defined legal status that was codified after World War II in international law by the newly formed United Nations. Asylum is restricted to people who have experienced past persecution or are at risk of experiencing future persecution based on five fundamental criteria as defined by the United States Citizen and Immigration Services: race, religion, nationality, political opinion, or membership in a particular social group (such as sexual orientation). These protections were initially geared toward Europeans fleeing across international borders, as is apparent in an optional geographic limitation in the initial United Nations 1951 Convention Relating to the Status of Refugees. Displacement related to decolonization movements across the globe promoted an expansion of eligibility for asylum in the subsequent 1967 Protocol, according to which everyone is entitled to seek asylum, whether or not they entered into the country “legally.” The United States is a signatory to the 1967 Protocol, and successful asylum-seekers can apply for a green card and eventually obtain US citizenship.
However, the burden to successfully defend an asylum claim in the US is exceptionally high. The applicant must provide substantial evidence, often including a personal testimony and witness statements, related to the claim. Such requirements have inherent class implications: articulating a history of political disobedience and risk of personal targeting in one’s home country, for example, typically requires a high level of education. And the asylum category only applies to a limited portion of the hardships many vulnerable people face migrating to the US.
Other extreme hardships that drive large migration patterns, such as economic persecution, extortion, and the impact of climate change on one’s physical and economic well-being, are much harder to fit into the strict definitions of US asylum law
Legal pathways
Besides asylum, Amadou does not have many other options. Most pathways to legal immigration, including applying for an employment or a tourist visa while in his home country are nearly impossible. Employment visas, for instance, require the sponsorship of an employer—which is unrealistic for those without high levels of formal education and English fluency. It is also highly improbable that Amadou would have been granted a tourist visa while still in Guinea, given that he is a single young man from Africa with limited economic means. And if on a tourist visa, Amadou would not have had the opportunity to legally work in the US. Furthermore, because Amadou is in removal proceedings, it is nearly impossible for him to adjust his immigration status through other pathways, such as marrying a US citizen, without having to eventually leave the country for an extended period of time while the paperwork is processed.
There is a special category Amadou might have made use of under the Biden Administration: people crossing through the Southern Border used to have the option to apply for CBP1 in Mexico, which granted a noncitizen the legal right to enter. (The Trump Administration promptly suspended CBP1 as soon as the president took office.) Even while it lasted, there were significant flaws in the CBP1 process. Waiting in Mexico for CBP1 approval could last many months, with no guarantee of success; while they waited, migrants were left exposed to precarious conditions and exploitation, including by cartels. Now, in summarily abolishing this process and canceling all previously scheduled applicant appointments, the Trump administration has left stranded the tens of thousands of migrants who had been waiting in Mexico.
If Amadou were from Venezuela, Ukraine, or another country with a Temporary Protected Status (TPS) designation and had arrived in the United States before a designated point in time, he would likely be eligible for short-term immigration relief–allowing him to lawfully reside and work in the country for a specific time frame. However, Guinea is not on the list of countries eligible for TPS.
Once in the United States, Amadou has essentially one option for adjusting his immigration status: asylum. In doing so will also enable Amadou to work in the US lawfully. Otherwise, he will remain undocumented and seek employment in the informal economy. Even this latter choice is increasingly difficult for arrivals without family members or community contacts to help navigate US systems.
Initiating the asylum process means that Amadou will ultimately need to defend himself in front of an immigration judge and prosecutors from the US Immigration and Customs Enforcement to attempt to prevent deportation. Unlike other principles of justice, where one is innocent until proven guilty, defendants in the US immigration court system are essentially guilty until proven innocent.
So while Amadou’s motivations for leaving Guinea don’t fit easily into the narrow definition of persecution relevant to asylum, he finds himself in a situation where the rights he should be able to access at the federal and local level (for example, work authorization, shelter) are only accessible through asylum.
Applying for asylum does grant Amadou limited legal protections, and then still more time, perhaps years, as he awaits adjudication in the backlogged courts. Crucially, once his asylum application has been pending for 150 days, Amadou will become eligible to apply for federal work authorization.
There are local benefits as well. In New York City, Amadou is, theoretically, guaranteed the right to shelter, regardless of his immigration status: The right to shelter has been entrenched in New York City legislation since the late 1970s. However, as of spring 2024, to retain a place in a shelter after being there for 30 or 60 days (based on age), a migrant has to reapply for a bed. And to do so, they must present a pending asylum application. This new city policy aims to discourage migration, but in fact, further incentivizes people like Amadou to apply for asylum in order to access basic needs. In addition, many New York City care networks, such as free legal clinics and nonprofit organizations, are specifically geared toward asylum seekers rather than migrants more broadly.
Pressure from every point in the immigration system encourages people to apply for asylum as a means to protect themselves against deportation, access work opportunities, benefit from local services, and gain recognition as people with the right to remain in the US. So while the majority of migrants would prefer to come legally, even those who don’t fit asylum criteria (such as the many people primarily seeking work) are incentivized to reframe their stories to fit the category. Some politicians might characterize this as dishonesty or exploiting a perceived loophole—but for someone like Amadou, it is a decision driven by necessity. Seeking asylum is his most viable route to securing basic visibility, protections, and rights in a difficult and dehumanizing system.
Hierarchies of suffering
When other modes of legal immigration are so difficult, it should surprise no one that many migrants turn to asylum as their best option; consequently, the asylum system has become overwhelmed. It’s a cycle that fuels a toxic political narrative of a Southern Border inundated with people who plan to “cheat” their way into citizenship by seeking asylum—a narrative in turn used to justify legal frameworks that legitimize only certain types of migration.
A moral hierarchy of suffering emerges: one in which direct experiences or threats of violence and persecution are ranked above conditions of generalized insecurity, poverty, or climate change-related natural disasters. Meanwhile, individuals migrating to the United States are required to present and justify their experiences in terms of suffering and victimization, whereas for many migrants, the journey to the United States—and through its immigration system—is a story of immense resilience in pursuit of a more hopeful future, of the “American dream” of agency and self-determination.
The way forward
If Amadou seeks asylum, the possibilities for his claim to go wrong are seemingly endless, from shelters failing to keep track of important mail to immigration judges rescheduling hearings. Even if he develops the necessary fluency with bureaucracy, he’ll still depend on luck and the arbitrariness of local dynamics—for example, New York City has a significantly larger share of judges with high asylum grant rates compared to most other cities in the US. And even in New York, Amadou is likely to find himself trapped in years of adjudication limbo, shuttled between various agencies with little clarity on timelines, while his future hangs in the balance.
This inefficiency comes at great personal and psychological expense to Amadou; it also constitutes a significant time and cost to US governmental systems involved in apprehensions, detainment, and court proceedings of immigration enforcement drain government agencies’ financial resources, with an estimated $409 billion spent over the past 20 years.
The outdated legal frameworks have created a double bind in which migrants are driven to apply for asylum, and then punished for doing so; the pressure to seek asylum gives rise to degrading half-truths of victim narratives, long periods of precariousness, system backlog, public misunderstanding of the problems at play, and increasingly, anti-migrant sentiment and policy. The first Trump administration contributed to this self-perpetuating cycle; the second made political hay with it in the 2024 elections and seems committed to carrying out the campaign’s worst threats. As the underlying causes of migration will certainly be exacerbated by increasing global instability, federal and local policies need to be adapted and expanded to create legitimate pathways for safe migration—and alternatives to asylum for those already here to live and work in the United States.
