The End of Asylum

Philip G. Schrag, Andrew I. Schoenholtz, Jaya Ramji-Nogales

• Publisher: Georgetown University Press
• Year: 2021
• ISBN:
  9781647121082
• Topic: Politics & International Relations
• Subtopic: Immigration Policy
• Index: Politics & International Relations

In The End of Asylum, three experts in immigration law offer a comprehensive examination of the rise and demise of the US asylum system, showing how the Trump administration has put forth regulations, policies, and practices all designed to end opportunities for asylum seekers and what we can do about it.

1

THE REFUGEE ACT OF 1980

The Holocaust as Prologue

The Refugee Act of 1980—the foundation of America’s asylum law—was a response to the failure of the United States and other nations to rescue people targeted by the racial and political policies of Hitler’s Third Reich. While the Nazis persecuted Jews, other minorities, LGBTQ+ persons, and political opponents, the United States had no laws in place to allow the executive branch to rescue victims of persecution, and Congress failed to enact new legislation to save them.

From 1933 to 1941, Hitler sought to “cleanse” Germany of its Jewish population. His strategy was to make their lives so unbearable that they would have no choice but to leave.¹ Within five years, one in four German Jews had escaped. In March 1938, Germany annexed Austria, which was home to nearly 200,000 Jews. Four months later, in July 1938, thirty-two nations held a nine-day conference in the French resort town of Evian to consider a rescue plan. Most of these nations, including the United States, refused to take in German and Austrian Jews, many of whom perished in the Holocaust.²

U.S. federal law enacted in 1924 severely restricted immigration, establishing quotas for visas from European nations. Due to anti-Semitism at the State Department, 60 percent of the visa quota for Germans went unused in the prewar years.³ In 1939, President Franklin D. Roosevelt refused to allow the St. Louis, a ship carrying over 900 Jewish refugees from Germany, to dock in Miami. As a result, the ship was forced to return to Europe, where half the passengers perished in the Holocaust.⁴

The vast majority of those targeted because of their race, nationality, religion, sexual orientation, or political opposition could not find refuge abroad. The Nazis murdered many millions of European civilians in death camps. Photographs of murdered Jews and emaciated survivors in camps liberated by the Allied armies toward the end of World War II vividly exposed these horrors.

The United Nations Refugee Convention

The failure of the international community to rescue refugees, together with the emergence of Cold War refugees, provoked the creation of an international treaty to protect certain people who fled individualized harm. More than 1 million European refugees displaced during World War II refused to return to countries where they had fled mortal threats and other forms of persecution.⁵ In addition, new refugees began to escape to Western Europe once the Soviet Union asserted control over Eastern European states.

The 1951 Refugee Convention,⁶ which was among the first human rights treaties of the modern era created by the international community, filled in an important gap in international law, enabling those with a well-founded fear of persecution to rebuild their lives in a country of refuge.⁷ The treaty focused on protecting refugees from persecution based on their fundamental characteristics and beliefs: religion, race, nationality, political opinion, and membership in a particular social group.⁸ At its core, the treaty substituted the protection of a new host government for that of a government that was unwilling or unable to protect certain citizens and residents. The treaty promised both humanitarian protection and, by connecting refugees to a nation, international stability.

However, the Refugee Convention protected only refugees who fled events that occurred before 1951 and allowed for an optional geographical limitation to Europe. As significant numbers of displaced people crossed borders seeking safety amid anticolonial conflict and civil wars in the 1950s and 1960s, the international community globalized the refugee definition. In 1967, it added the Refugee Protocol, removing the treaty’s temporal and optional geographic restrictions.⁹ Although the United States had not signed the 1951 treaty, it did accede to the protocol, which incorporated by reference the terms of the Refugee Convention.

The Indochinese Refugee Crisis

The United States’ withdrawal of troops from Vietnam in 1975 left many Indochinese nationals who had assisted America and its allies during the conflict with no choice but to escape for their safety. Hundreds of thousands attempted to flee Indochina by boat to Malaysia, the Philippines, Singapore, Indonesia, and Hong Kong. Large numbers also crossed the land borders into Thailand and China.¹⁰

Four years after withdrawing from the Indochinese war, the United States headed the rescue program for refugees associated with the United States–led war effort. In his July 1979 appeal at the UN Conference on Indochinese Refugees in Geneva, Vice President Walter Mondale explained that though the United States had already welcomed over 200,000 Indochinese and planned on welcoming another 168,000 refugees in the coming year, and the nations that belonged to the Association of Southeast Asian Nations, China, and Hong Kong had offered safety and asylum to over half a million refugees, the international community could not keep up with the growing exodus. This is how Mondale appealed to European and other nations to accept refugees:

“The boat people.” “The land people.” The phrases are new, but unfortunately their precedent in the annals of shame is not. Forty-one years ago this very week, another international conference on Lake Geneva concluded its deliberations. Thirty-two “nations of asylum” convened at Evian to save the doomed Jews of Nazi Germany and Austria. On the eve of the conference, Hitler flung the challenge in the world’s face. He said, “I can only hope that the other world, which has such deep sympathy for these criminals, will at least be generous enough to convert the sympathy into practical aid.”¹¹

As the Office of the United Nations High Commissioner for Refugees reports, the United States led a successful international effort to rescue these refugees and avoid a greater humanitarian crisis.¹² Sympathetic to the plight of the Indochinese and cognizant of the importance to the international order of regularized refugee admissions, Congress turned its attention to domestic implementation of the refugee treaty that it had ratified in 1968.

Even though the United States helped negotiate the 1951 Refugee Convention and played a major international leadership role in rescuing refugees, congressional statutes defined refugees as only those fleeing communist persecution.¹³ The Refugee Convention had set out a much broader definition of the term “refugee,” encompassing people targeted for persecution because of an enumerated characteristic (race, nationality), a similarly fundamental trait (particular social group), or the victim’s exercise of a core human right (religion, political opinion). Twelve years after the United States became a party to the protocol, Congress enacted the Refugee Act of 1980 to implement the promise of the convention through domestic law.¹⁴ Importantly, the statute’s definition of a refugee mirrored the convention definition.

At that time, the major humanitarian focus of the U.S. government concerned the rescue of tens of thousands of refugees from abroad—particularly the Indochinese, as discussed above.¹⁵ Through the Refugee Act of 1980, Congress authorized the admission of such refugees identified by the State Department abroad by creating a consultation process with the executive branch and appropriating funds to help integrate the uprooted into American society. Until the Trump administration restricted the admission of refugees through both travel bans and significantly reduced resettlement, the United States’ resettlement program was by far the most generous in the world, protecting some 3 million refugees and offering them a path to citizenship.¹⁶

In the 1970s, most refugees were identified while still abroad and resettled at government expense by the Department of State. But some people who fled persecution arrived in the United States on their own and asked for asylum. Although the Immigration and Naturalization Service (INS) preferred as much discretion as possible in determining which of these arrivals were refugees, Congress voted for a statutory asylum provision that assured due process protections: “Because the politicized nature of executive practice in the asylum area concerned Congress, some members supported statutory asylum procedures in order to assure the extension of the asylum remedy to those fleeing persecution from noncommunist countries.”¹⁷

Accordingly, a provision of the Refugee Act of 1980 instructed the attorney general to establish a procedure to assess applications for protection by such asylum seekers.¹⁸ A decade later, the INS created an Asylum Office and began highly professionalized training of the new Asylum Corps officers. As described more fully below, these officers make the initial asylum decisions for “affirmative” asylum applicants, people who have not been apprehended by immigration authorities but voluntarily come forward after arriving in the United States and ask the government for protection. In 1983, the attorney general also established the Executive Office for Immigration Review, creating procedures for Department of Justice attorneys called immigration judges to adjudicate asylum claims for individuals placed in deportation (now called removal) proceedings (described more fully below).

Judicial Constraints on Executive Politicization

If an asylum seeker successfully demonstrates that she meets the refugee definition and is not barred from admission for other reasons, the United States grants her asylum, which places her on a path to citizenship. Two major legal issues arose during the first decade of implementation: how much proof is required to be recognized as a refugee, and the extent to which U.S. politics and foreign affairs could affect who would be so classified.

The 1980 Refugee Act authorized the attorney general, who oversaw the INS at the time, to grant asylum on a discretionary basis to those who demonstrated a well-founded fear of persecution under the new refugee definition. The act also made it mandatory that the attorney general “withhold deportation” for those who “would” face persecution if returned to their home country. Congress did not define “well-founded fear” of persecution, but the Supreme Court did in a pair of decisions examining the standards of proof for asylum and the withholding of deportation (now called withholding of removal). In the Stevic case, the Court held that noncitizens seeking to avoid deportation must show a “clear probability” that they would be persecuted if returned to their native land.¹⁹ In other words, a person seeking “withholding” had to prove eligibility under a “more probable than not” standard. Just three years later, in Cardoza-Fonseca, the Court decided that the standard for withholding of removal set out in Stevic was too high for asylum.²⁰ Instead, the Court suggested that asylum applicants can meet the “well-founded fear” standard if they can show a one in ten chance that they will be persecuted if returned to their home country.²¹

The arrival of thousands of Salvadoran and Guatemalan asylum seekers fleeing civil wars in the 1980s, at a time when the U.S. government supported authoritarian regimes in those countries and opposed leftist rebels, tested the new definition of a refugee. The Reagan administration refused to recognize that the governments of those countries produced refugees. Reagan officials called the asylum seekers “economic migrants” and granted asylum to hardly any of them.²² As the first director of the Asylum Office observed,

Cold War policies often conflicted with the nonideological definition of refugee contained in the 1951 United Nations Convention as adopted by the United States in 1980. Adoption of that definition implied that concerns about foreign policy and immigration control should not enter into domestic asylum eligibil...