To recap: The U.S. employed a closed-door policy to refugees during WW II. It declined to sign the 1951 Convention. It ratified the 1967 Protocol only under the pretense that it would require no change in domestic laws.
In 1980, the U.S. finally amended its domestic immigration laws to bring it into compliance with its treaty obligations under the 1967 Protocol. Since then, U.S. asylum law has progressed in fits and starts, with positive developments often countered by policy setbacks, often in reaction to current events.
March 1980: Refugee Act
Sponsored by Senator Edward Kennedy, Congress passed legislation adopting the 1967 Protocol’s refugee definition into U.S. domestic law. However, the impact was blunted by a subsequent ten-year delay in the publication of implementing regulations. In the interim, both the INS and BIA interpreted the new legislative standard, “well-founded fear,” as meaning “more likely than not.” In 1987, the Supreme Court held in INS v. Cardoza-Fonseca that “well-founded fear” required a lesser showing of fear than the “clear probability” standard. In its decision, the court cited language in which a 10% chance of persecution was found sufficient to satisfy the new standard.
Corresponds w/events creating public fear of lack of control:
The above developments in asylum law coincided with events that incited anti-refugee sentiment among the American public. The Mariel boat lift resulted in the arrival of 125,000 Cuban refugees in spring and summer of 1980 alone. The young governor of Arkansas, Bill Clinton, agreed to the White House’s request to house a number of the new arrivals in Arkansas prisons. Subsequent prison riots resulting from this decision were blamed for Clinton’s reelection defeat.
At approximately the same time, some 25,000 Haitians arrived in the U.S. by boat. Also arriving in hopes of refuge were Central Americans fleeing civil wars in Nicaragua, El Salvador and Guatemala. Furthermore, the Islamic revolution in Iran caused a lesser number of foreign students from that country to consider seeking refuge here as well.
1981: President Reagan initiates Haitian interdiction program
The continued influx of Haitian refugees on unsafe boats led President Ronald Reagan to create a program using Coast Guard vessels to interdict Haitian boats at sea and return them to Haiti without affording their passengers the right to apply for asylum. A continuation of the type of Cold War prioritization that the 1967 Protocol was meant to counter, the program greatly contrasted with the treatment of Cubans arriving in similar fashion, who were routinely paroled into the country and later allowed to adjust their status to lawful permanent residents. Then Associate Attorney General Rudolph Giuliani was involved in both planning and publicly defending the Haitian interdiction program, which faced charges of racism.
April 1987: Creation of APRU
In April 1987, Attorney General Edwin Meese created the Asylum Policy and Review Unit, an independent agency within the Department of Justice. Not part of either the INS or EOIR, APRU was charged with reviewing asylum decisions from a foreign policy perspective, often in furtherance of Cold War priorities, and was authorized to request the Department of Justice to override the decisions of both agencies. The unit was disbanded in 1993.
1989: June 4 (Tiananmen Square) crackdown in China
Following the pro-democracy protests in China and the subsequent government crackdown, the Bush administration designated Chinese nationals in the U.S. to receive Temporary Protected Status. The administration further implemented an informal policy directing INS attorneys and asylum offices to grant asylum to victims of China’s coercive family planning policies. The Bush administration published
proposed regulations intended to codify this practice. However, the regulations were never finalized, and were withdrawn by the Clinton Administration in early 1993.
Nov. 1989: the “Lautenberg Amendment”
Legislation sponsored by Rep. Frank Lautenberg created a presumption of well-founded fear for certain classes of refugee applicants, including Jews and other religious minorities from the Soviet Union and later Iran, and to nationals of Vietnam, Laos, and Cambodia. The legislation applied only to those applying as refugees overseas under section 207 of the I&N Act, and not to those present in the U.S. and applying for asylum under section 208. Thus, the determination of whether an individual possessed a well-founded fear of religious persecution could be determined by where the application was filed. This last point became increasingly significant as the collapse of the Soviet Union allowed its former citizens to travel to the U.S. in increased numbers.
Oct. 1990: Regs Implementing 1980 Refugee Act
Ten years after becoming law, regulations were finally published incorporating the provisions of the Refugee Act of1980. The regulations created a new affirmative procedure, and created seven INS Asylum Offices, staffed by a specially trained Asylum Officer corps. The regulations also altered the procedure regarding advisory opinions by the Department of State (created in the aftermath of the Kudirka affair); codified the presumption of well-founded fear created by past persecution, and allowed certain applicants unable to demonstrate that they would be singled out for persecution to qualify by showing a “pattern or practice” of persecution of similarly situated individuals.
1990: ABC class action settlement
In 1990, the Department of Justice reached a settlement with plaintiffs in a class action lawsuit claiming bias in the adjudication of hundreds of thousands of asylum claims filed by nationals of El Salvador and Guatemala. Under the settlement in American Baptist Churches v Thornburgh, approved by the U.S. District Court for the Northern District of California in January 1991, class members would have their asylum applications adjudicated de novo pursuant to the 1990 regulations, with recommended denials reviewed by the INS Central Office for Refugees, Asylum, and Parole.
Late 1994-early 1995: Asylum Reform
A combination of factors led to a drastic increase in asylum applications in the early 1990s. Reasons included the ABC class settlement; an increase in travel to the U.S. by former Soviet subjects accustomed to favorable Lautenberg Amendment treatment; a slow start to adjudications by the understaffed and underfunded new Asylum Offices (accompanied by the regulatory right to employment authorization 90 days after filing), and the creation of marriage fraud penalties in the late 1980s, which led unscrupulous immigration practitioners to look for other routes to legal status. The result: in 1985, 16,622 new applications were filed affirmatively with the INS; in 1988, 60,736; in 1995, 154,464 asylum applications were received. There were 464,121 pending asylum applications at beginning of FY 1996; only 11% of affirmative applicants were being scheduled for interviews.
In 1993, a fatal shooting outside of CIA headquarters in January was followed a month later by the first World Trade Center bombing. The fact that the terrorists involved in both attacks were paroled into the U.S. after stating a desire to apply for asylum drew much public and Congressional attention to the asylum system. That June, the smuggling ship The Golden Venture was run aground on Rockaway Beach in Queens, NY; its nearly 300 passengers dashed for shore in broad daylight, setting off a media frenzy.
In response, the Clinton administration enacted new regulations effective 1/02/1995. The new rules mandated that asylum applications be adjudicated within 180 days, with only cases that are granted asylum or not completed within the specified time resulting in the issuance of employment authorization.
1994 - 1996: Expanded view of asylum eligibility by BIA, INS
At the same time, the BIA and INS issued groundbreaking decisions expanding the scope of asylum. The Board’s 1994 decision in Matter of Toboso-Alfonso recognized sexual orientation as a basis for asylum. The following year, the INS published guidelines for adjudicating asylum claims filed by women. In 1996, the BIA issued its first gender-based asylum decision, Matter of Kasinga, granting asylum based on a fear of subjection to female genital cutting.
Just as the INS and EOIR were extending asylum eligibility, in the election year of 1996, the Republican-controlled Congress passed a major enforcement-based immigration bill. IIRAIRA included several asylum-related provisions, including a one-year filing deadline for asylum claims; a lifetime bar from immigration benefits for those found to have filed fraudulent asylum claims, and an amendment to the refugee definition to include opposition to coercive population control within the definition of “political opinion.”
1999-2000: CAT; domestic violence claims
In 1999, rules were published allowing for applications for protection under Article III ofthe U.N. Convention Against Torture. That same year, the BIA published a precedent decision, Matter of R-A-, denying asylum to the victim of domestic violence on the grounds that she was not persecuted on account of her membership in a particular social group.
In December 2000, the Clinton administration published proposed regulations relating to domestic violence-based asylum claims. However, final regulations have yet to be published. In January 2001, Attorney General Janet Reno vacated the Board’s decision in R-A-. Two subsequent Attorney Generals certified the case to themselves over the next seven years. The respondent, Rody Alvarado, was eventually granted asylum by an immigration judge in 2009. In 2014, the BIA published Matter of A-R-C-G-, recognizing domestic violence as a basis for asylum.
In 2005, the REAL ID Act contained provisions barring asylum to those who provided material aid to terrorists; the legislation also granted broader discretion to immigration judges’ credibility determinations, and added the “one central reason” test to nexus determinations.
In 2006, the BIA (which had been purged of its more liberal members by Attorney General John Ashcroft) issued Matter of C-A-, the first in a line of decisions creating additional requirements in claims based on membership in a particular social group. The changes significantly impacted thousands of asylum claims lodged by those fleeing gang violence in Central America.
In 2017, Donald Trump signed an executive order seeking to ban the admission of all refugees for 120 days. The Supreme Court will hear arguments on the ban in October 2017.
Copyright 2017 Jeffrey S. Chase. All rights reserved.