The United States is indeed facing an asylum crisis.
The American Immigration Council defines asylum as a “protection granted to foreign nationals already in the United States or at the border who meet the international law definition of a ‘refugee.’”
There are subtle differences between an asylum seeker and a refugee, the former being a foreign national whose claim for asylum has not yet been accepted while the latter is a foreign national who has fled their country of origin and who is unwilling or unable to return to that country because of a credible fear of being persecuted due to their race, religion, nationality or membership of a particular social group or political opinion.
Amnesty International puts it this way: “Not every asylum seeker will ultimately be recognized as a refugee, but every refugee is initially an asylum seeker.”
International Law Recognizes Rights of Refugees
Refugees gained their international protections through the 1951 UN Refugee Convention and the 1967 Protocol Relating to the Status of Refugees. Asylum seekers actually gained international protections three years before the 1951 Convention through the 1948 United Nations’ Universal Declaration of Human Rights. America would recognize these human rights two decades later through Article 22 (7) of the American Convention on Human Rights.
These treaties and declarations have one thing in common: they not only recognize but embrace the international rule of law that asylum seekers and refugees enjoy the same rights as all other human beings.
In order to fulfill its obligations to protect this international rule of law, the United States enacted the Refugee Act of 1980. This Act was essential to accommodate the hundreds of thousands of Vietnamese and Cambodians refugees who had supported the American war effort and found themselves in need of U.S. protection. The Act increased the ceiling for the country’s number of refugees from 17,400 to 50,000.
History of Ignoring International Obligations
The United States began to retreat from its international obligations to asylum seekers with the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
Signed into law by former President Bill Clinton, this Act was designed to address the increasing “problem” of illegal immigration. It found strong support in Congress, according to Human Rights Watch, in the wake of the 1993 World Trade Center bombing, the 1994 anti-immigration legislation in California, and the 1995 Oklahoma City bombing. The Act directed a greater law enforcement presence and enforcement at the nation’s southern border, including the construction of a fence where illegal crossings were prominent.
ICE Powers Expanded
In the aftermath of the September 11, 2001 twin towers attack, Congress abolished the Immigration and Naturalization Service (“INS”) and formed the Department of Homeland Security (“DHS”), bestowing the agency with broad umbrella authority to oversee immigration in this country.
One of the most controversial agencies established under that umbrella was Immigration and Customs Enforcement (“ICE”) which became the enforcement and deportation arm of the DHS.
To fulfil these primary enforcement responsibilities, Congress authorized the DHS to extend wide-ranging civil and criminal authority to ICE’s 20,000 plus officers in order to “protect national security” and fight illegal immigration. This includes the power to conduct DHS investigations and enforce removal operations—both of which, say critics, are conducted in a heavy-handed and illegal manner.
Restrictions on Asylum Claims
Four years after the “9/11 attacks,” Congress passed the Real ID Act which, according to Immigration Equality, greatly restricts the asylum process by making it easier to deny asylum requests based on the lack of credibility by the asylum seeker. This Act imposes a difficult, sometimes impossible, burden on asylum seekers, forcing them to establish that “race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.”
In other words, asylum seekers must demonstrate a nexus between the persecution and protected ground—a burden that requires a great deal of corroborating evidence.
Currently, there are approximately 800,000 asylum requests waiting to be processed by American authorities—and the Trump administration is doing everything in its power to summarily reject those requests. President Trump has even advocated the extreme position of ending due process in the asylum adjudication process by getting rid of the judges who oversee that process.
America has always had a tortured, racist attitude toward immigration beginning with indentured servitude, forced slavery, cheap foreign labor, and now asylum. This racism toward anything foreign was evidenced by the abandonment of the indigenous people who fought alongside Americans during its recent wars: the Vietnamese Montagnards and the mountain tribesmen in Laos and Cambodia during the Vietnam War and now the Kurds in the “war on ISIS” in Syria.
This historical racist attitude opened the door to President Trump’s “new” war on illegal immigration with a policy that welcomes immigrants from European and some Asian countries, who they believe can help the American economy, while banishing all others from “shithole counties.”
The Trump administration, especially through its immigrant architect Stephen Miller, has extrapolated from the 1854 “No Irish Need Apply” to current policy on asylum with this refrain: “No One of Color Need Apply.”
We give a very special tip of the hat to the ACLU attorneys and all the other immigration attorneys who continuously fight the Trump administration’s unrelenting racist immigration policies. They deserve so much more.