Closing the Asylum Door by Attorneys Carl Shusterman and David Neal (who went on to become Chairman of the Board of Immigration Appeals) appeared in Los Angeles Lawyer magazine in 1995.
Call it the spirit of the SS St. Louis. The same attitudes of indifference and hostility that guided US asylum policy during World War II–and sent hundreds of Jewish refugees abroad the ill-fated ship SS St. Louis back into the arms of the Nazis–are prevalent today.
From Germany, which has rescinded its open-door asylum policy, to France, Great Britain, Canada, and the United States, the world’s wealthiest nations are reevaluating the meaning of political asylum and who should qualify for it.
How can political refugees be distinguished from economic migrants? Are those fleeing draconian population-control policies entitled to asylum? What about women leaving countries where genital mutilation is the norm? Finally, and perhaps most important, with the growing number of applicants, is it still realistic to offer asylum to all those who qualify?
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With California’s Proposition 187 as a backdrop, Congress, the administration, and the courts are seeking answers to these questions. Unfortunately, some of the asylum reforms now being implemented undercut the American ideals of sanctuary and due process.
The popular press portrays asylum applicants as mostly economic refugees who come not to escape persecution but to make a buck. That perception is at least partly correct: Economic migrants have been motivated to apply for asylum since the Immigration Reform and Control Act of 1986 (IRCA), which requires employers to verify the legal working status of all hires. Newcomers quickly discovered that applying to the Immigration and Naturalization Service for asylum was a fast and easy way to obtain Employment Authorization Documents (EADs), the ticket to a job under the new law.
From 1986 to 1989, the number of asylum applications exploded from fewer than 20,000 to more than 100,000. The INS began receiving applications from people who claimed to face persecution in such notorious totalitarian states as Switzerland, New Zealand, and Canada. Today, the number of backlogged asylum applications is fast approaching one-half million.
To cope, the INS issued new regulations in January 1995 designed to streamline the asylum process. No longer does the INS automatically issue EADs or request State Department opinion letters about conditions in the asylum seeker’s country of origin. Gone is the system where the asylum officer provides an applicant with a written Notice of Intent to Deny the request for asylum and an opportunity to rebut any mistaken INS conclusions.
Indeed, there is no need to deny a request for asylum at all. The system provides that new cases are to be heard by an asylum officer within 60 days from the date they are filed. If the government approves the application, an EAD is issued. Otherwise, the application is referred to an immigration judge to consider in a deportation proceeding. No explanations to the applicant are required.
The government is doubling the number of asylum officers and immigration judges to implement the revised regulations. Dozens of new judges, including the first Latin American and first Asian American immigration judges appointed in Northern California, took the bench during March and April.
These changes have not taken place in a vacuum. Anti-immigrant fervor is at a postwar high. The result may be all too predictable. Given the ease with which asylum cases can be referred to the courts, some asylum applicants are already getting the bum’s rush. In recent months the immigration courts have been flooded with thousands of orders to show cause, which the INS uses to initiate deportation proceedings. This unprecedented volume of orders pouring into the courts shows the premium that is now being put on accelerating deportations. Due process has become a secondary consideration to the political priority of ridding the country of asylum seekers.
The losers, of course, are the legitimate applicants, the victims of torture, ethnic cleansing, rape, and terror who, under the new regulations, are trapped in a revolving door. Forced repatriation is obviously a catastrophe for these unfortunates, but it eventually hurts everyone when due process is denied to the vulnerable and powerless.
Where does the real problem lie and what can be done about it? The fault is not necessarily with our statutes. Like laws governing such matters as sexual harassment and police brutality, asylum law attempts to set a standard of reasonableness.
The Refugee Act of 1980 made asylum benefits available to refugees worldwide, bringing the United States into line with international treaties and obligations. Prior to the act, asylum benefits were available only to people fleeing the political enemies of the United States–for example, those from communist and Middle Eastern countries.
The 1980 law replaced this political standard with a neutral one. It declares that anyone who can demonstrate a “well-founded fear of persecution” in his or her native country based on race, religion, nationality, membership in a particular social group, or political opinion is a refugee and may be granted asylum in the United States.
The contentious point, of course, is the definition of persecution. For example, do government limits on obtaining food rations constitute persecution? In Saballo-Cortez v INS (1985) 761 F2d 1259, the Ninth Circuit U.S. Court of Appeals held that denial of privileges in purchasing food or obtaining more desirable employment was not persecution.
In Ananeh-Firempong v INS (1985) 766 F2d 621, however, the First Circuit deemed the confiscation of one’s land and property to be persecution. Then again, in Farzad v INS (1986) 802 F2d 123, the Fifth Circuit held that an Iranian asylum applicant whose property had been vandalized could not show a well-founded fear of persecution because neither he nor his family had received direct threats from the Khomeini government.
What if an asylum applicant is afraid to return home because he or she resisted military service? Criminal punishment for refusal to serve is not persecution, according to the Tenth Circuit in Nguyen v INS (1993) 991 F2d 621. However, the Board of Immigration Appeals in Matter of A-G- (BIA 1987) 19 I&N 502, said that if the punishment is disproportionate to the crime, then prosecution for draft evasion is persecution.
Individual attacks, including rape and sexual assaults, cannot be the basis for an asylum claim. Matter of Pierre (BIA 1976) 15 I&N 461. But, according to the Ninth Circuit in Lazo-Majano v INS (1987) 813 F2d 1432, if the applicant was abused by an agent of the government, such as a military officer, because of her political opinions, a personal attack can be deemed persecution. The INS issued guidelines in May directing asylum officers to be aware of the special sensitivities that apply to interviews where gender-based persecution claims are made. However, these guidelines do not alter the legal standard of what constitutes persecution.
These decisions, and the basic requirements of the law, limit asylum benefits to surprisingly few applicants. According to INS statistics, less than 20 percent of the applicants were granted asylum in the last five years. Contrary to popular perception, U.S. asylum law is extremely restrictive.
As written and adjudicated, U.S. asylum law generally manages to combine fairness with practicality. But, like possession, implementation is nine- tenths of the law. And the asylum issue has long been a notorious political football.
Indeed, laws were on the books during World War II that would have allowed thousands of European Jews to obtain U.S. visas. Nevertheless, Under Secretary of State Breckinridge Long, in his now infamous memo to U.S. consular officers, ordered his subordinates to “postpone, postpone, postpone” the applications of Jewish refugees. Even after the war, Jewish holocaust survivors and even Catholic applicants for visas were shunted aside in favor of more politically acceptable refugees.
This checkered history raises several questions about the present. Why, for instance, did it take 15 years from passage of the Refugee Act of 1980 for the government to double the number of asylum officers and immigration judges? Why do both Sweden and Canada employ more asylum officers than the United States does, even though the number of asylum applicants in those countries is a tiny fraction of U.S. totals? Why is the push to reduce asylum backlogs so strong now that the majority of applicants are Latino and Asian?
Given the tendency to sacrifice due process for political expediency, the best safeguards for legitimate asylum seekers would be additional due process in the revised regulations and an adequately equipped immigration bench.
Asylum applicants should be given some kind of meaningful written explanation when their applications are referred to an immigration judge. A mere checklist evaluating the case hardly substitutes for the old system of detailed reports. Asylum officers should not be able to dismiss a claim so casually, even in the name of efficiency and expedience. Under such a system, there is no incentive for an asylum officer to thoughtfully review a complex application.
In addition, the new regulations should be relaxed to permit more asylum seekers to work while their cases are under consideration. The revised rules will keep some applicants out of work for years. The effect, if not the intention, of these reforms will be to starve refugees into abandoning their cases.
Under the new system, asylum officers are empowered to grant the most obviously valid applications within 60 days. Frivolous applications–many of which are “boilerplate specials” submitted by so-called immigration consultants- -should be as easy to identify. All other applicants ought to have the right to feed and house themselves while their cases are being processed, just as defendants in criminal cases are fed and housed.
Moreover, since the new regulations make it easy to funnel asylum applications to immigration judges, they should be given the same in-depth instruction on political trends and international flashpoints presently provided to asylum officers. Under the present system, immigration judges spend just one week prior to taking the bench learning the procedural aspects of their appointments. They are sometimes completely at sea trying to evaluate the effect of infighting between arcane political factions in countries most Americans know nothing about. In the age of information, it would be relatively easy to put immigration judges on-line with the most detailed analysis of world politics available. The effort would be consistent with reforms under way at the Board of Immigration Appeals, which, under new management, is attempting to improve the quality of immigration proceedings and processes nationwide.
Last, the INS could spend considerably more energy cracking down on the phony documents industry, which encourages economic refugees to file asylum applications. The new regulations allocate no resources for the arrest and prosecution of those profiteers, whose illegal activities go almost completely unchecked.
Unless these changes are made, it is a certainty that hundreds and perhaps thousands of deserving asylum applicants will be returned to their home countries to face torture, terror, and death. They deserve better, particularly because one factor in drawing them here is our claim to be a nation of freedom and sanctuary. So thought the passengers of the SS St. Louis, to their cost and to our shame.
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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