A lengthy Wall Street Journal article provides details on the well-known promotion of increases in U.S. immigration by the many problems in the U.S. asylum system. Here then is a summary of the basic U.S. law of asylum, the current U.S. system for administering such claims and a summary of the current problems with such administration.
The Basic Law of Asylum
On July 2, 1951, an international conference in Geneva, Switzerland concluded with the signing of the Convention Relating to the Status of Refugees by the conference attendees and the opening of the treaty for accession or ratification by nation states.[9] By its Article 43(1) it was to enter into force or become a binding treaty 90 days after the sixth state had acceded or ratified the treaty. That happened on April 22, 1954.[1]
This treaty adopted the following definition of “refugee” in Article 1(A)(2) as any person who:
- “[As a result of events occurring before 1 January 1951] and owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
The bracketed phrase [“As a result of events occurring before 1 January 1951”] was the provision that limited the coverage of the Convention to the problems still being faced by many World War II refugees still scattered across Europe. This limiting phrase was eliminated in the Protocol Relating to the Status of Refugees discussed below.
Excluded from this definition of “refugee” in Article 1(F) was “any person . . . [who] (a) . . . has committed a crime against peace, a war crime or a crime against humanity . . . ; (b) . . . has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; [or] (c) . . . has been guilty of acts contrary to the purposes and principles of the [U.N.].”
The Convention granted refugees certain rights within a country of refuge as well as imposing on them certain obligations. The Convention further stipulates that, subject to specific exceptions, refugees should not be penalized for their “illegal entry or presence.” This recognizes that the seeking of asylum can require refugees to breach national immigration rules. Prohibited penalties might include being charged with immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum.
By 1966, it had become apparent that new refugee situations had arisen since the Refugee Convention had been adopted and that all refugees should enjoy equal status. As a result, a new treaty was prepared to eliminate the previously mentioned limitation of the Convention to those refugees created by pre-1951 events. This was the Protocol Relating to the Status of Refugees that went into force on October 4, 1967.
There now are 146 countries that are party to this Convention and 147 nation states (and the Holy See) that are parties to this Protocol and the Convention including the U.S. which ratified same on October 4, 1967 and November 1, 1968.[2]
Twelve years later the U.S. adopted a statute to solidify U.S. obligations under those international treaties. That was the U.S. Refugee Act of 1980.[3]
And in 1996 that statute was amended to define past persecution to include forced abortion or sterilization or punishment for failure or refusal to undergo such procedures and to define fear of being forced to undergo such a procedure or punishment for refusing to undergo same as future persecution.
Another amendment to that statute was enacted in the REAL ID Act of 2005 which required that an asylum applicant must prove that race, religion, nationality, political opinion or membership was or will be “at least one central reason” for his or her persecution.
The Current U.S. System for Administrating Asylum Claims[4]
The U.S. has various means for administering asylum claims.
First is the U.S. State Department’s U.S. Refugee Admissions Program that “accepts referrals of individuals determined by international agencies or other governments to be particularly vulnerable to persecution under these treaties.“
The U.S. also has a complex system of evaluating and deciding upon individual applications for asylum by foreigners at the U.S. international borders or other points of entry by U.S. officials at those borders or by asylum officers, immigration judges or the administrative Board of Asylum Appeals and by U.S. federal courts.
The Office of the Chief Immigration Judge, which is led by the Chief Immigration Judge, establishes operating policies and oversees policy implementation for the immigration courts. OCIJ provides overall program direction and establishes priorities for approximately 600 immigration judges located in 68 immigration courts and three adjudications centers throughout the Nation.”
Current Problems in the U.S. Administration of Asylum Claims[5]
During the U.S. 2023 fiscal year (ending September 30, 2023), “the U.S. received more than 920,000 applications for asylum. . . . Since a single application can cover multiple members of a family, these figures underestimate the actual numbers of people seeking asylum.” Such family groups, “who now almost always ask for asylum, make up about half the roughly two million people encountered by authorities who illegally crossed the U.S. frontier with Mexico last year. Another half million came through legal ports of entry, many using a Border Patrol smartphone app that launched in January 2023 to make an appointment to cross and ask for asylum.”
“The law in the U.S. typically gives migrants who have a reasonable claim of persecution the right to live and work in the country while their cases progress through the courts. So many are now coming that the U.S. lacks the capacity to quickly screen their cases, either at the border or in courts, where a typical asylum case now takes four years. “
“Even if an application is ultimately rejected, migrants by then have put down roots, often had American children and are rarely deported because of the costs and logistical challenges. They are left in limbo—they lose the right to work legally but aren’t kicked out. “ As a result, they “simply melt . . . into the underground society of undocumented migrants and making a new life.”
“The growing use of asylum claims overwhelmed the system and made it nearly impossible to address cases on the spot—immigration officials at the border can screen entrants and determine whether they have a ‘credible fear”‘ of being returned to their own country, rejecting those outright who don’t meet that requirement. Only a few hundred screenings a day out of several thousands of border encounters now take place.” In fiscal 2019 the number of border encounters resulting in immediate repatriation to the applicants’ home countries fell to about 30%.
Conclusion
Virtually everyone agrees that the asylum system needs overhauling, but the dysfunctional Congress has been unable to pass such a bill. Any such “reform” should also evaluate the U.S. need for immigrant labor in our society with an aging, declining population.[6]
Moreover, every U.S. citizen today (other than Native Americans) should proclaim, as does this blogger, “I am a proud descendant of immigrants!”
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[1] Refugee and Asylum Law: The Modern Era, dwkcommentareis.com (July 9, 2011); Multilateral Human Rights Treaties Ratified by the U.S., dwkcommentaries.com (Feb. 9, 2012).
[2] The 1951 Refugee Convention;. Protocol relating to the Status of Refugees.
[3] Weissbrodt, Ni Aolain, Fitzpatrick & Newman, International Human Rights: Law, Policy, and Process at 1040-42 (4th ed. 2009). Any subsequent statutory amendments?
[4] U.S. State Dep’t, U.S. Refugee Admissions Program; Office of the Chief Immigration Judge,
[5] E.g., Luhnow, Caldwell & Forero, The Explosion of Asylum Claims Driving the Global Migrant Crisis, W.S. J. (April 8, 2024); Need to Improve U.S. Asylum System, dwkcommentaries.com Feb. 1, 2023).
[6] E.g., Here is a sampling list of relevant dwkcommentaries.com posts: Iowa State Government Encouraging Refugees and Migrant Resettlement (Feb., 3, 2023); Comment: National Worker Shortages in U.S.(Feb. 3, 2023); More Details on U.S. and Other Countries’ Worker Shortages (Feb. 9, 2023);Other States Join Iowa in Encouraging Immigration to Combat Aging, Declining Population (Feb. 22, 2023); Biden Administration Announces Proposed Restrictions on Asylum Applications (Feb. 27, 2023); Wall Street Journal Editorial: U.S. Needs More Immigrants (July 25, 2023); Increasing Migrant Crossings at U.S. Border Call for Legal Changes (Aug. 16, 2023); Overwhelmed U.S. Immigration Court System (Sept.1, 2023); U.S. Has Long-Term Labor Crisis (Sept. 26, 2023); Presidential Determination of Refugee Admissions for Fiscal 2024 (Oct. 4, 2023); Congressional Dysfunction Hampers U.S. Immigration Policies and Actions (Oct. 7, 2023); Migrants from All Over Flocking to U.S. (Nov 4, 2023); Washington Post Editorial: Improving U.S. Asylum Law and Procedures (Nov. 28. 2023); U.S. Border Crisis Blocks U.S. Immigration Reform (Dec. 7, 2023); U.S. States That Could Have Greatest Benefit from Immigrant Labor (Feb. 28, 2024).