Article: The case for asylum

Judith L Wood

Federica Dell’Orto Hadar

The case for asylum

1. Why does the US accept refugees?

At the end of the Second World War, the US decided to open, albeit partially, its doors to refugees who had escaped Nazi persecution. The decision was the product of a long and tormented internal debate on migration flows and the possibility of welcoming a large number of refugees from Europe.

Both the law of 1921 and that of 1924 were based on a precise calculation that took a given year as a reference point. In the first case, the Emergency Immigration Act dated May 1921, also known as the Johnson Quota Act, limited the number of foreigners admitted annually and by nationality, to 3% of the number of their respective compatriots who were admitted to the United States in 1910. This law was applied until July 1924, when the Immigration Act, or Johnson-Reed Act, was adopted. This policy favored immigrants of Anglo-Saxon and northern European origin. The Immigration Act of 1924 included the National Origins Formula, in which the quotas for each nationality were reduced to 2% of the respective non-naturalized nationals registered in

the USA in 1890. The window between 1938 and 1941 could have offered an excellent opportunity to save the lives of many Jewish people, but saw instead a strengthening of the barriers against migration flows. The US, and large part of the Western World, only began committing to human rights after the end of the Second World War. The Displaced Persons Act was enacted by Congress in 1948, after having admitted over 250,000 displaced Europeans. This legislation provided for the admission of an additional 400,000 people coming from Europe. Later laws provided for admission of people fleeing Communist regimes, largely from Hungary, Poland, Yugoslavia, Korea and China, and in the 1960s Cubans fleeing Fidel Castro. Together with International Human Rights Law, Refugee Law originated for the most part in the aftermath of World War II, prompted by the horrifying crimes that had been committed. It became clear that the international community needed to elaborate a legislative system that did not yet exist in order to protect individuals from human rights violations and genocides. Article 14(1) of the Universal Declaration of Human Rights (UDHR)

1, which was adopted in 1948, guarantees the right to seek and enjoy asylum in other countries. Subsequent regional human rights instruments have elaborated on this right, guaranteeing the "right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions.2" The 1951 Convention relating to the Status of Refugees3 (1951 Convention) contains what is still the most widely accepted definition of "refugee", but the Convention leaves it to each State to create suitable and adequate asylum proceedings and refugee status determinations. The U.S. is only a party to the Protocol, but through its ratification of the Protocol in 1968, it still committed to most of the obligations contained in the original 1951

1 Text available at: https://www.un.org/en/universal-declaration-human-rights/

2 American Convention on Human Rights, art. 22(7)

3 Text available at: https://www.unhcr.org/en-us/3b66c2aa10

document. As evidenced in 8 U.S.C. § 1101(a)(42) (U.S.), the Convention’s definition of ‘refugee’ has been adopted and assimilated into the U.S. domestic law. Under the Immigration and Naturalization Act ("INA"), the Attorney General may grant asylum to a "refugee

4" who proves that he is unwilling or unable to return to his country of origin "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.5" The 1980 Refugee Act incorporated the Protocol’s definition of Refugee into the Immigration and Nationality Act, and it did so by using practically the same language of the Protocol.

2. History of US’ restrictions on asylum and immigration

Throughout American history, federal laws have oftentimes targeted and restricted specific groups from entering the US on the basis of race, class or other characteristics.

A. Chinese Exclusion Ban

In the 1850s, Chinese workers began migrating to the United States to work in the gold mines, but also to take agricultural jobs, and factory work, especially in the garment industry. The Chinese Exclusion Act was the first significant law restricting immigration into the United States. The Act was passed by Congress in 1882 and provided a ten-year moratorium on Chinese labor immigration and it declared the Chinese ineligible for naturalization. The act was renewed in 1892 for another ten years, and in 1902 Chinese immigration was made permanently illegal. The Chinese remained ineligible for citizenship until 1943.

4 8 U.S.C. § 1158(b)(1)(A)

5 8 U.S.C. § 1101(a)(42).

B. Anarchist Exclusion Ban (political Opinion)

On September 6, 1901 an anarchist named Leon Czolgosz fatally shot President William McKinley. This incident started a conversation on how to stop anarchists and political extremists from coming to the US. This conversation culminated in the Anarchist Exclusion Act of 1903, which barred entry to the United States to immigrant anarchists and people judged to be political extremists.

C. Carter’s ban on Iranians

Executive Order 12172 was issued by President Carter in 1979, after the beginning of the Iran hostage crisis. Iranians were banned from entering the United States unless they were against the Iranian regime or had a medical emergency. Iranians with student visas at that time present in the US, were demanded to report to immigration officials within one month or face possible deportation.

E. Regan’s ban on HIV positive people

The first Regulations aimed at restricting entrance to the United States because of certain medical conditions were introduced into the Immigration and Nationality Act (INA) in 1952. Some of the grounds barring entrance to the States were: mental health disorders, tuberculosis, leprosy, epilepsy or "any dangerous contagious disease". The category of contagious diseases was later expanded and, in the 1980s, HIV/AIDS was added to the list6. All aliens infected with

6 Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services (HHS) Medical examination of aliens—Removal of human immunodeficiency virus

HIV were to be considered ineligible for admission to the United States. This was finally lifted in 2010.

F. Muslim Ban

The original travel ban - Executive Order 13769- banned entry into the United States for 90 days of all nationals from seven Muslim-majority countries (Iran, Iraq, Libya, Somalia, Syrian, Sudan, and Yemen), the ban paused all refugee resettlement for 120 days, and indefinitely banned the entry of all Syrian refugees. The final edited version of the ban - Executive Order 137807- is limited to various visa restrictions depending on the country of nationality; it also added three new countries to the original list, including North Korea and Venezuela.

G. Firm Resettlement

The Refugee Act of 1980 made firm resettlement a statutory bar to refugee status, but not to asylum. In 1990 though, the Attorney General amended the regulations and extended the firm resettlement bar to asylum cases. Congress codified firm resettlement as a statutory bar to asylum by passing the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996. As a result, under INA § 208(b)(A)(vi), an applicant is ineligible for asylum if he or she was "firmly resettled in another country prior to arriving in the United States."

3) Firm Resettlement acts as a bar under U.S. Asylum Law.

(HIV) infection from definition of communicable disease of public health significance. Final rule. Fed Regist. 2009;74:56547–56562.

7 Text available at: https://www.whitehouse.gov/presidential-actions/executive-order-protecting-nation-foreign-terrorist-entry-united-states-2/

According to 8 C.F.R. § 208.15 Definition of Firm Resettlement, an alien is considered to be firmly resettled if, prior to arrival in the United States, he or she entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement. Matter of A-G-G-

8, is the leading case from the BIA with regard to firm resettlement. In Matter of A-G-G-, the BIA established a four-step analysis to evaluate whether the bar applies. The Department of Homeland Security bears the burden of presenting prima facie evidence of an offer of permanent status. It is irrelevant whether or not the applicant accepted the offer, so long as ‘status’ was available to him. If DHS is able to prove that an offer of permanent status existed, the burden of proof then shifts to the applicant who will then have to demonstrate he or she did not receive an offer of firm resettlement or that he or she did not qualify. If firm resettlement is established, the burden of proof is on the applicant to demonstrate that an exception applies. There are two exceptions to the firm resettlement bar. Under 8 CFR § 1208.15(a), if an asylum seeker’s entry into that country was a necessary consequence of his or her flight from persecution, he or she remained in that country only as long as was necessary to arrange onward travel, and he or she did not establish significant ties in that country, then there is no firm resettlement. Likewise, 8 CFR § 1208.15(b) excludes resettlement if the conditions of the asylum seeker’s residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled.

4) Victims of domestic violence and Gang related violence

Worldwide women continue to suffer from discrimination, whether implicitly or explicitly, and they are often denied the opportunity of being equal to men in all aspects of daily living. Forced

8 Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011)

marriage, honor-related violence, domestic violence, rape and forced prostitution are only some of the examples of gender-related persecution. It is undeniable that millions of women around the world are persecuted solely because of their gender. In Central America and elsewhere, women struggle to have governments ensure, or in some cases recognize, their right to protection. In some countries, criminal law does not adequately address domestic violence. With regard to domestic violence, one of the most significant decisions was Matter of A-R-C-G-

9, where the BIA specifically recognized domestic violence-based asylum claims and held that "married women in Guatemala who are unable to leave their relationship" can constitute a cognizable particular social group and form the basis of a claim for asylum. In Matter of A-B10 though, the Attorney General overruled the precedent established in A-R-C-G-, because he found that in A-R-C-G- the BIA did not accurately apply the Board’s precedents regarding social distinction and particularity. The Attorney General further found that "generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum." Id. In spite of Matter of A-B-, domestic violence claims can still be viably proposed and upheld if they are cognizable under the BIA’s test of immutability, particularity and social distinction as established in Matter of M-E-V-G-11. Gang related claims based on persecution from gang members face the same difficulty as the ones on domestic violence. Gang violence is a common denominator in the Central America northern triangle and, in light of A-B-, it is a complicated process for an applicant to obtain asylum under this ground. As for domestic violence a membership to a particular social group needs to be defined and found cognizable. But the determined criteria make it nearly impossible

9 Matter of A-R-C-G-, 26 I&N, Dec. 388 (BIA 2014)

10 Matter of A-B, 27 I&N Dec. 316 (A.G. 2018)

11 Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014).

for a judge to grant asylum on a Particular Social Group (PSG). As stated, an applicant qualifies as a refugee if he is unable or unwilling to return to his home country because of a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Specifically, the category of Particular Social Group (PSG) has never been exactly defined. The INA does not define PSG and nor does the 1951 UN Refugee Convention. As a result, the PSG category and its tentative definition has been elaborated by case law. The most relevant interpretation of PSG was given in the BIA’s decision in Matter of Acosta

12, where the Board held that "A particular social group is composed of members who share a common immutable characteristic, such as sex, color, kinship ties, or past experience, that a member either cannot change or that is so fundamental to their identity or conscience of the member that he or she should not be required to change it." This standard and definition remained unchanged for many years, until more restrictive PSG requirements were introduced through Matter of A-B-. Oftentimes, in cases involving domestic violence and/or gang violence, the only remedy available for the respondent is Withholding of Removal or relief under CAT13 (Convention Against Torture). In order to receive protection under CAT, the applicant must establish that it is more likely than not that he or she would be tortured if returned to his/her home country. The applicant must prove that government authorities would be responsible for the torture or would not act to prevent it. Protection under CAT does not require applicants to establish that the torture is based on one of the five protected grounds, as is required for asylum or withholding of removal under the INA.

12 Matter of Acosta, 19 I&N Dec 211 (BIA 1985)

13 8 CFR § 208.16(c)(3)

Withholding has even stricter criteria than asylum and requires the applicant to prove that he or she would face a more than 50% chance of persecution because of one of the protected grounds if returned to their country. The asylum statute expressly requires the applicant to show that a protected ground is "one central reason" for the persecution, but the INA is silent as to whether this standard extends to withholding of removal. In Barajas-Romero v. Lynch

14, however, the Ninth Circuit held that Congress did not intend for the "one central reason" standard to apply to withholding of removal and "‘a reason’ is a less demanding standard than ‘one central reason’." Id. There is currently a split among federal circuit courts regarding the standard to be applied for withholding. The Ninth Circuit, as explained in Barajas, holds that the withholding standard with regard to the reason for persecution, is lower for withholding than for asylum.

5) Safe third country agreements between the USA and neighboring Countries

Article 33 of the 1951 Convention states that "[n]o Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.15" Countries are allowed to remove asylum seekers to a third country when the third country is considered safe and therefore there is no formal violation of Article 33 of the Convention. According to UNHCR, [i]n determining whether a third country is safe, countries should take

14 Barajas-Romero v. Lynch - 846 F.3d 351 (9th Cir. 2017)

15 While parties to the treaty are bound by its provisions, the Convention contains provisions for withdrawing from the treaty or modifying it. Article 44 includes a provision that any Contracting State may denounce the Convention by notification addressed to the Secretary-General of the United Nations, and article 45 of the Convention states that any Contracting State may request revision of the Convention at any time by a notification addressed to the Secretary-General of the United Nations.

into account the following factors: the country’s respect for human rights and the rule of law, its record of not producing refugees, its ratification and compliance with human rights instruments and its accessibility to independent national or international organizations for the purpose of verifying and supervising respect for human rights

16. The "Safe Third Country Agreement17" between Canada and the USA was signed in 2002.This agreement establishes that refugees traveling from the US to Canada cannot seek political asylum in Canada simply because they should have asked for it in the United States. The United States and Canada have entered into this agreement on the assumption that both countries have comparable standards for asylum procedures as well as formal guarantees to asylum seekers, so that a person transferred from one country to another will have a fair assessment of his asylum request. In July 2019, Acting Secretary of Homeland Security Kevin K. McAleenan and Guatemalan Minister of Government Enrique A. Degenhart Asturias signed the "Agreement between the Government of the United States of American and the Government of the Republic of Guatemala on Cooperation Regarding the Examination of Protection Claims." Article 3 of this Agreement provides a process for protection of applicants transferred to Guatemala by the United States after arriving in the United States at or between ports of entry, and says that Guatemala will not return or expel the applicants, thereby applying the principle of non-refoulement embodied in the Refugee Convention and Protocol. On September 20th 2019 the US signed a similar agreement with El Salvador and on September 25th 2019 with Honduras. These agreements require migrants on

16 UNHCR, UNHCR Position Relating to the Resolution on Safe Countries of Origin, December 1922; also available at www.unhcr.org

17 Text available at https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement/final-text.html

their way to the US, to seek protection in those countries first. Under the 1980 Refugee Act, Safe Third Country Agreements are not considered treaties and therefore they can be entered into without the approval of Congress

18. It is in fact established that the right to apply for asylum in the US " shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country… in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection19". Often times though Central American countries cannot provide to migrants the protection or due process that is required under the law, and migrants are therefore left without an adequate system for adjudicating their asylum applications.

The U.S. has a long history of providing protection and assistance to people facing persecution but it has also periodically switched between generously admitting migrants and denying them entry.

18 8 USC 1158(a)(2)(A)

19