Rejecting refugees: homeland security's administration of the one-year bar to asylum.

• Author: Schrag, Philip G.

ABSTRACT

Since 1980, the Refugee Act has offered asylum to people who flee to the United States to escape persecution in their homeland. In 1996, however, Congress amended the law to bar asylum--regardless of the merits of the underlying claim--for any applicant who fails to apply within one year of entering the United States, unless the applicant qualifies for one of two exceptions to the rule.

In the years since the bar was established, anecdotal reports have suggested that genuine refugees, with strong claims to asylum, have been rejected solely because of the deadline. Many scholars and practitioners suspected that this procedural bar had a dramatic effect on the U.S. asylum system. Until now, however, there has been no systematic, empirical study of the effects of the deadline on asylum seekers and the asylum system.

The Department of Homeland Security (DHS), which is the first-level adjudicator of affirmative applications for asylum, supplied the authors with a database of asylum claims that has never before been analyzed. This database includes demographic and other characteristics of all principal applicants for asylum before DHS since September 1998--more than 300,000 cases--and the decision reached in each case. (2) In this Article, the authors report, for the very first time, what that database shows about DHS's application of the one-year deadline. They find, among other things, that

* over the entire time frame studied, DHS determined that nearly a third of all affirmative asylum applicants missed the filing deadline;

* in the years immediately after the deadline went into effect, Fiscal Year (FY) 1998 through FY 2002, DHS found only 27 percent of applicants to be late, but after that period, DHS determined a significantly higher percentage to be late (35 percent from FY 2003 through June 8, 2009);

* DHS has rejected the applications, finding no applicable exception, in the cases of 59 percent of those who were determined to have filed late, or 18 percent of all affirmative asylum applicants;

* applicants from certain countries, such as the Gambia and Sierra Leone, are much more disadvantaged by the deadline than applicants from certain other countries, such as Haiti and India. The deadline may particularly impact refugees who, upon arrival, were not living among a community of emigrants from their home countries who could warn them about the deadline's existence;

* it is likely that as a result of the deadline, since April 1998 DHS has rejected more than 15,000 asylum applications, involving more than 21,000 refugees, that would otherwise have been granted.

The authors conclude that because the costs of the one-year deadline exceed its benefits, it should be repealed as proposed by several bills that have been introduced in Congress. (3)

TABLE OF CONTENTS I. INTRODUCTION A. Adjudication Procedures for Affirmative Applications for Asylum B. The One-Year Deadline 1. Legislative History 2. Implementation of the Deadline 3. Criticisms of the Deadline C. The Database II. TIMELINESS A. Representation B. Nationality C. Gender D. Age E. Mode of Entry F. Asylum Offices III. THE REJECTIONS A. Introductory Note B. The Rejection Rate C. Magnitude of Lateness D. Asylum Seeker Characteristics E. Disparities Across and Within Asylum Offices 1. Disparities Across Asylum Office Regions 2. Disparities Within Asylum Office Regions F. Were Bona Fide Refugees Denied Asylum Because of the Deadline? IV. CONCLUSIONS AND POLICY RECOMMENDATIONS A. Summary of Conclusions B. Policy Recommendations METHODOLOGICAL APPENDIX Regression Analyses Estimation Dependent Variables Independent Variables REGRESSION APPENDIX Timeliness Regressions Rejection Regressions ESTIMATION APPENDIX I. INTRODUCTION

In 1996, Congress passed sweeping changes to the nation's immigration laws, aimed at tightening America's borders and deporting unauthorized immigrants. (4) Tucked within the voluminous text of this immigration reform bill was a misguided and potentially devastating change to the law that protects those who come to our shores seeking protection from persecution in their homeland. (5) The one-year bar requires asylum seekers to file their applications within one year of entry; those who fail to do so are ineligible for asylum, regardless of the merits of their underlying claim, unless they can prove that they were unable to file timely due to "changed" or "extraordinary" circumstances. (6) As explained further below, the rationales for this dramatic restriction on asylum eligibility are rather murky; it seems that Congress was attempting either to fix a problem of systemic delays that had already been resolved, or to triage weak asylum claims with an instrument so blunt that it undermines the asylum process. (7)

Anecdotal evidence has suggested that the one-year deadline imposes harsh and unfair denials of asylum on applicants, some times resulting in their deportation to countries where their liberty and lives are endangered) Though the one-year bar has been in place for over a decade, this study is the first systematic investigation of the effects of this policy and, in particular, how the application of the deadline has affected asylum seekers of different genders, nationalities, religions, ages, and locations in the United States. (9)

DHS, which through its Asylum Office adjudicates most asylum claims in the first instance, was as interested as we were in understanding the effects of the asylum deadline. (10) The agency provided us with data pertaining to its asylum adjudications, excluding information that could identify individuals, in cases filed from the start of FY 1996, two and a half years before the deadline became effective, through June 8, 2009. The database included 383,480 asylum cases in which its officers interviewed asylum applicants and reached decisions. We have examined these data and present our findings in this Article.

Over the twelve-year period since the deadline became effective, DHS has rejected tens of thousands of asylum seekers because they did not apply before the deadline. Each rejected case met one of three outcomes. For those whose asylum cases were also denied in the immigration court and on appeal, the deadline resulted in a final order of removal of the refugees to their home countries, in which they feared imprisonment, torture, or death. The "luckier" refugees, who missed the deadline but could meet a higher burden of proof and establish that persecution in their homeland was more likely than not, were granted a lesser form of protection that left their children and spouses without any derivative immigration status and did not offer a route to citizenship. (11) And even those refugees who were eventually granted asylum in immigration court, either because the judge found the deadline did not apply or that an exception to the deadline did apply, were subject to the traumatic uncertainty of an unnecessarily long asylum procedure during which they were not authorized to work to support themselves. (12)

Part I of this Article describes DHS's asylum adjudication system. Part I.A describes the process through which DHS asylum officers have evaluated applications for asylum both before and after the imposition of the one-year application deadline in 1998. Part I.B summarizes the history of the deadline, its exceptions, how issues involving the application of the deadline and its exceptions are administered by the asylum officers, and prior critiques of the deadline. Part I.C explains the database that we received from DHS and describes the population of applicants over the thirteen-year period to which the database applies.

Parts II and III describe our findings. Part II reports our study of the population of asylum seekers, exploring who filed on time and who missed the deadline, as well as by how much they missed it. Part III details our study of the cases in which asylum officers found that late-filing applicants (including members of particular subpopulations) qualified for an exception to the deadline based on changed or extraordinary circumstances. Because determinations regarding the applicability of exceptions involved judgments by asylum officers, we also explore the degree to which these officers' decisions in similar sets of cases demonstrate consistency or disparity. Part IV provides our conclusions and our recommendations for legislative and administrative reform. The Methodological Appendix to this Article offers a detailed description of the methodology used in our studies and the database from which we drew our analyses. (13) The Regression Appendix provides the output from the four regression analyses on which the Article relies, and the Estimation Appendix provides confidence intervals and further information on the estimate of arbitrary denials to genuine refugees that we make in Part III.

As described in more detail in Part IV, we conclude that the one-year deadline is not without some value, but that its benefits are far outweighed by its costs to the government and the public and by the injustice that it causes. Even without the one-year deadline, the asylum adjudication system is, to an unfortunate degree, a game of "refugee roulette." (14) At least in its application from its inception through early 2009, the deadline injected into the asylum adjudication system several more chance factors that are unrelated to the merits of an applicant's claim. People from different countries and regions, for example, were affected differently by the deadline because members of certain groups missed the deadline more often than others; this may reflect only the degree of support from conationals already in the United States, rather than the merits of their claims. Similarly, asylum officers determined that some groups of late applicants qualified for exceptions at a much higher rate than other groups, and within particular regional Asylum Offices, where cases are assigned to...