Rejecting Refugees
posted by Jaya Ramji-Nogales
The New York Times today reports on my most recent co-authored empirical study of the U.S. asylum system, Rejecting Refugees: Homeland Security’s Administration of the One-Year Bar to Asylum, forthcoming in the William and Mary Law Review. As the title suggests, this article focuses on asylum law’s one-year filing deadline, which was created by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Scholars and practitioners have long expressed concern that refugees have been denied asylum due solely for failure to apply within a year of entry, and fear that the bar has had a significant impact on the U.S. asylum system. Our article is the first systematic empirical study of the effects of the deadline on asylum seekers and the asylum system.
We focus on decision-making by the Department of Homeland Security, which adjudicates most applications for asylum in the first instance. The findings are troubling. Most notably, it is likely that since the one-year bar came into effect, in April 1998, through June 2009, DHS rejected on the deadline more than 15,000 asylum applications (affecting more than 21,000 refugees) that would otherwise have been granted.
“Rejected” means that these asylum seekers could, if they had sufficient resources, have pursued their case further in immigration court. Because the data systems used by DHS and the immigration courts (which are part of the Department of Justice) do not regularly coordinate and track cases, we cannot tell how many of these applicants were successful in immigration court. If immigration judges decided these cases the same way as the asylum officers, many refugees were ordered deported not because they failed to establish eligibility for asylum but because they did not file their applications within a year of entry. Even those asylum seekers lucky enough to win their one-year deadline arguments in immigration court faced the expense and trauma of an appeal, not to mention the delay, during which their family members remaining in their home country might suffer serious harm. (Spouses and children are eligible to join successful asylum seekers in the United States.)
The data give rise to concerns that certain populations were more adversely affected by the deadline than others. Women were significantly more likely to file very late (three or more years after the deadline had passed) than men, perhaps because they are more likely to suffer sexual violence and therefore more reluctant to reveal what happened to them. Moreover, women claiming asylum on gendered grounds, such as domestic violence and female genital mutilation, might not become aware that they are eligible under the law until they have lived in the U.S. for several years. Asylum seekers from certain countries, such as the Gambia and Sierra Leone, were much more disadvantaged by the deadline than applicants from other countries, such as Haiti and India. Though we can’t know from the data the cause of this disadvantage, it is possible that the deadline particularly impacts refugees who do not have a strong community of immigrants from their home countries who can help to guide them through the asylum process.
Our recommendation? The deadline should be repealed, as several bills introduced in Congress propose. Short of repeal, the Obama administration should amend its regulations to broaden the scope of exceptions to the deadline and expand its training of asylum officers to encourage acceptance of a broader range of evidence and engagement in proactive questioning to establish applicants’ compliance with the deadline.
(cross-posted on IntLawGrrls
September 30, 2010 at 6:45 am
Posted in: Administrative Law, Immigration
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Responses (6)
Lawrence Cunningham - September 30, 2010 at 10:31 am
Great research. Congratulations on the NYT coverage. It’s cute how the paper says the piece is being published on the SSRN. William & Mary Law Review will actually publish it. This shows how the concept of publishing is changing.
Ken Rhodes - September 30, 2010 at 4:47 pm
I second Professor Cunningham’s compliment. I look forward to reading the article in the December issue, but I am concerned about something implicit in the post here. Perhaps you could clarify this:
“Refugees” are here in this country under some sort of “permission” from our government, be it a passport from their homeland with an appropriate visa, or be it some other sort of document. They had to know something, and to have done something, to gain access to our country.
How does it happen in a large number of cases that those same refugees are not aware of the other aspects of their tenure here, and that they are perhaps eligible for the status of “asylum” in our country.
I would not be at all surprised to learn that a large number of illegal immigrants are here working without proper documents and have no idea. On the other hand, it seems far-fetched to me that most “refugees,” who presumably (a) did NOT gain their initial entry illegally, and (b) did not simply walk across the border undetected, would have gotten here and gained admittance without knowing anything about how our system works, even to the simple extent of how to find assistance.
And yet, that seems to be the case, according to the data on such a large number of late (or non-existent) applications for asylum. How does this happen?
Matt Lister - September 30, 2010 at 10:14 pm
Ken- Jaya may want to add to this, but in my experience a few factors are at play. First, a fair number of people with at least legitimate and often quite strong asylum claims enter the country irregularly- sometimes crossing the southern (and sometimes norther) border somewhere other than a road, and sometimes on papers that are not their own. (The reasons for this are various.) Secondly, a large number of people with plausible to strong asylum claims enter the US regularly, but still have no idea how the system works- they may speak little English, know no one, etc. They are not given this information by anyone. False information is quite common. (I’ve met fairly well educated people from Eastern Europe who think that if you enter the U.S. on a tourist visa and live here for 5 years, you are then fine, for example.) So, in addition to the sort of cases Jaya mentions, there are lots of others where the person in question has at least a plausible asylum claim and just didn’t know that anything could be done, let alone what to do.
I don’t think that a time-limit of some sort is in principle unreasonable. (It’s worth pointing out that the one-year bar was a _huge_ improvement over the original proposals in the 1996 legislation, which at first had very short time limits- a few weeks, I think, or on some proposals, immediately upon entering.) The worry, though, is that there are so many different sorts of legitimate exceptions that it’s not clear to me that the mixture of a bar plus exceptions can be applied in a fair and principled way. Perhaps it could be with a longer time limit, though I’m not sure. But, I’m certainly looking forward to reading the paper.
Jaya Ramji-Nogales - October 1, 2010 at 11:41 am
Thanks for your comment, Ken, and your response, Matt. The study (which you can read now on SSRN) details the multiple barriers to information about the asylum process for those who enter lawfully (and I agree with Matt’s point that many genuine refugees enter without authorization; even the UN Refugee Convention recognizes this point).
But here’s perhaps a helpful way to think about it — presumably you have traveled to Europe or to another country for which you need a visa. Do you have any idea how the asylum process works in those countries? Would you know where to turn for assistance? My first point, then, is that information about obtaining a visa is very different from information about the asylum system, which is not nearly as widely accessible and can be quite complicated. While some refugees are well educated and speak English, many have little familiarity with the law and functional legal processes and it may take some time before they’re able to navigate the system (needing first to concern themselves with finding food, shelter, etc.).
Moreover, for many genuine refugees, their experience with government officials is that of repression, abuse, and torture, so it takes quite a mental adjustment (particularly for those suffering conditions such as post-traumatic stress disorder as a result of torture) to understand that government officials in the United States may be willing to assist them to remain here.
The problem is even more pronounced for asylum seekers with non-traditional claims. Say that you are a gay man in Serbia. You have been ridiculed, harassed, and beaten your entire life for being gay. You flee to the United States because you’ve heard that you can be openly gay here — but would you have any idea that your mistreatment in Serbia could be grounds for you to remain in the US? That requires a fairly sophisticated understanding of the law of asylum, and the expectation that genuine refugees will be able to overcome all of these hurdles within a year of entry is simply not realistic.
Matt — I look forward to hearing your thoughts on the study and our recommendations. While there may be reasons to be skeptical of late asylum claims, those concerns could be included in the asylum determination without requiring this procedural bar, the mandatory application of which is quite costly to the system (not to mention to genuine refugees).
Matt Lister - October 1, 2010 at 12:26 pm
Hi Jaya,
I might not have been clear in the last bit I wrote (when I read it again my point didn’t seem very clearly put to me, at least.) What I’d meant to say was that because I think a “strict” time bar with a lot of exceptions probably can’t be well administered, that having no strict time bar might be the better option. My only worry about that would be whether that, too, might give too much discretion immigration officials, too. Still, it seems more likely to me to be the better option (the no time bar one), but I’m sure I’ll have a more informed opinion after reading your paper.
Veracitor - October 7, 2010 at 7:34 pm
Good public policy demands fairly strict and fairly short deadlines on making an asylum claim.
If there is no deadline, an illegal immigrant will not make an asylum claim until s/he is apprehended, at which time the evidence supporting the claim will be stale at best or fabricated at worst. The longer a putative asylum-seeker has been in the US, the more likely her friends have coached her to make a phony asylum claim and the more chance she has had to fabricate or obtain false evidence to support a false claim. Long-delayed asylum claims are hard to evaluate fairly, so immigration officials are more likely to make erroneous eligibility determinations in such cases.
Besides the avoidance of error and the discouragement of fraud, the US needs to recognize asylum claimants promptly in order to inform US foreign policy (e.g., if many refugees arrive from a certain source country, the US may wish to bring diplomatic pressure against that country) and in order to manage asylum claimants’ presence in the US effectively (e.g.g., issuing them documents, providing them aid, monitoring their behaviour).
A year is more than enough time for even the most timid and ignorant illegal immigrant to make a legitimate claim for asylum. It is quite proper to cut off asylum claims after that– how urgent can a claim be if the claimant can forget about it for more than a year?
All the stuff about how immigrants find it difficult to make asylum claims is nonsense. An immigrant may claim asylum from any immigration, customs, or border patrol official in the first instance, and indeed, from nearly any Federal or State police or judicial official in the second instance. Anyone can easily make an asylum claim at her port of entry, or at any international airport, seaport, land crossing, or at any of thousands of government offices in the US. Anyone afraid to go to a government office may send a representative. Once the claim is made it is easy for claimants to get legal advice and representation.
“But they don’t know they should,” say the ‘asylum advocates.’
Nonsense. Everyone knows they are supposed to have proper papers. Even if they are so abysmally ignorant when they arrive (get smuggled in?) that they don’t know about passports and visas and so-forth, they will find out as soon as they try to get a driver’s license, a job, public assistance, whatever. If they purchase fake documents then they are committing a crime and they know it. Every illegal immigrant finds out shortly after arrival that she is supposed to talk to the immigration authorities. When she does she may make an asylum claim.
“But she might be arrested and offered voluntary departure!”
Yes. Of course! Illegal immigrants should be offered voluntary departure and should be deported if they refuse, unless they claim some status which entitles them to remain in the country! Any illegal immigrant entitled to asylum may claim it as soon as she contacts authorities, which she ought to do upon arrival at the US border or inside it (e.g., airport), or as soon after that as her coyote lets her go anywhere near a government office.
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