Asylum vs. Amnesty: Key Differences in U.S. Immigration Law

Understanding The Distinction Between Asylum And Amnesty

This article provides a summary introduction to the legal meanings of asylum and amnesty.

What is Asylum?

The Asylum Seeker

The Asylum seeker has usually been the victim of substantial human rights violations in their own country and seek sanctuary from another country. Under U.S. law, people who leave their countries for fear of persecution can apply for asylum.

Similarly, persons either at the U.S. border or have already been admitted to the country may seek protection in the form of asylum.

While few people are granted refugee or asylum protection, because of the required proof necessary, a person with a strong case and an experienced immigration lawyer may have their petition for asylum granted.

Applying For Asylum

The Refugee Applicant – Outside The U.S.

Unlike asylum applicants already here, the refugee applicant is still outside the U.S. and are awaiting approval from U.S. Immigration before being approved to enter the country.

Approval will largely depend on whether the person has family in the United States. Other factors include whether they can prove their case fits within a category of persons of particular concern to the U.S., such as fleeing from political persecution for their political beliefs and include:

• Political opinion
• Membership in a political party or movement
• Religious affiliations
• Political affilitions
• National or ethnic origins

Initial Screening of Asylum Applicant

Asylum applicants are given an initial screening by an immigration officer who considers the case to determine whether they have established a sufficient claim.

In addition to showing that the applicant has a legitimate and truthful fear of persecution, the applicant must also show that they are deserving of asylum by answering questions such as why they did not apply as a refugee or why they resorted to using fraudulent travel documents to enter the U.S.

If the petition for asylum is granted, the petitioner receives permission to come to the U.S. under refugee status.

A person admitted as a refugee is eligible for permanent residency one year after admission to the U.S.

Prior Conviction of Heinious Crimes Are Denied Asylum

Persons who have committed certain violent and insidious crimes, such as sexual violence, torture, or human trafficking, will not be granted asylum.

Denial of Asylum

If the immigration officer denies the asylum application, the person can request a hearing before an immigration judge. Should the judge deny the application, the applicant will be immediately returned to their country of origin.

Requesting Asylum Upon Arrest And Removal

An asylum application may be considered after a person is arrested for unlawful entry into the country as a defense against deportation.

People granted asylum may apply for permanent resident status two years after being granted asylum.

Asylum Applicants May Receive Certain Temporary Protections

Persons who may not be eligible for asylum protection may be given the right to remain and work temporarily in the U.S. if they come from a designated country during a civil war, violent internal conflict, or natural disaster.

Similarly, persons who were victims of torture or their lives threatened may not be ordered to return to their country if they can establish they were actually subjected to such treatment.

What Is Amnesty?

The Amnesty Seeker

The Amnesty seeker is hoping for an official act of forgiveness for having committed an unlawful act. Usually, the amnesty seeker belongs to a class of persons for having committed a specific type of crime.

International Treaties

As a result of international treaties, many countries provide persons fleeing persecution from their home country and seeking legal protection in another country. Some of the reasons people are fleeing for their safety is based on their political or religious beliefs, social and personal affiliations.

In the United States these people may be granted refugee status.

Similarly, persons who are either at the U.S. border or have already been admitted into the United States may seek protection in the form of political asylum as described above.

Amnesty can be issued by an act of Congress or by Presidential executive order. The effect of amnesty is to retroactively exempt a select group of people from having committed a crime.

How Amnesty Can Resemble A Pardon

In some ways, amnesty can resemble an official pardon, but in fact, they are very different.

A pardon is a political and discretionary act that releases the person from criminal liability for having committed the crime but does not have the legal effect of declaring the pardoned person innocent of the crime.

Amnesty, however, declares the person as being innocent of the crime, and sometimes amnesty has the effect of even abolishing the crime.

The easiest way to understand Amnesty are through actual past examples.

Past Examples of Amnesty

Amnesty For Undocumented Immigrants

Amnesty has primarily been associated with allowing undocumented immigrants to stay in the country rather than be deported.

Congress passed the Immigration and Reform Control Act (IRCA) in 1986. Since then, more than 9 million illegal aliens have received amnesty in the United States. On November 6, 1986, President Regan granted amnesty to 2.7 million illegal and undocumented immigrants in the United States.

Amnesty For So-Called Draft Dodgers

President Carter granted amnesty to those young Americans that choose to violate the Selective Service Act by illegally refusing to be drafted into the Vietnam War.

Amnesty For Possession of Illegal Weapons

State governments have offered amnesty for anyone owning an illegal weapon if they handed them in before the deadline.

The Role of Amnesty International

Amnesty International (AI) is one of the world’s largest and most respected human rights organizations.

Amnesty International is best known for documenting and publicly disclosing human rights abuses of certain nations and their leaders worldwide. In doing so, they provide countries like the United States and many others the opportunity to offer amnesty to victims of such abuse.

Russian Human Rights Violations And War Crimes

Most recently, in late 2022, Amnesty International documented and exposed Russian abuses, including forcibly transferring and deporting civilians from occupied areas of Ukraine in what amounted to war crimes and crimes against humanity.

Amnesty International has also documented and reported on Russia’s illegal annexation of Ukrainian territories, including the illegal and brutal war crimes committed against innocent civilians, including children living in these regions.

U.S. Immigration Website

U.S. Immigration Lawyers

If you have more questions, make sure to consult with an online immigration lawyer.