Americans, but Not Citizens: an Argument for Nationality-based Asylum Protection

• Publication year: 2019

Jillian Blake^*

Abstract: Since 2017 the Trump administration has been undoing immigration protections for hundreds of thousands of longtime U.S. residents, including those with Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS). Many of the people affected by these changes have lived in the United States for decades and have become culturally American, even though they are not U.S. citizens. Furthermore, many of the countries these individuals could be removed to are among the most dangerous in the world and Americanized deportees are often targeted for persecution upon return. This article argues that those who are ethnically American and fear persecution on that basis should be able to seek asylum in the United States under the protected ground of "nationality." The article outlines the legal basis for such a claim, including nationality as a ground for asylum, the feared persecution's nexus to the protected ground, and the lack of state protection.

Introduction

During the 1930s President Herbert Hoover carried out a massive deportation campaign against Mexicans and Mexican-Americans in response to nativist resentment and scapegoating of immigrants. The campaign, known as the "Mexican Repatriation," was executed in a brutal, racist, and illegal manner, and led to the expulsion of more than a million people from the United States. Many people who had lived most of their lives in the United States "found themselves in Mexico dealing with process of socialization, of learning the language, [while] they maintained an American identity."¹ Almost a century later, another repatriation crisis is looming in the United States.

Since 2017, President Donald Trump's administration has been systematically undoing legal protections for law-abiding, longtime U.S. residents. The administration announced an end to Temporary Protected Status (TPS)² and Deferred Action for Childhood Arrivals (DACA)³ programs, which will subject more than a million people to removal from the United States in the coming years.⁴ Many of the people affected by these changes speak English, were educated in the United States, have lived in the United States for decades, and have U.S. citizen family members. For all intents and purposes these people are Americans yet are now facing forcible removal to places foreign to them.

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In addition to the harm of having to leave behind the lives they built and start again in a place they do not know, many will also face persecution in the countries they are removed to. The top countries of origin for DACA recipients are Mexico, El Salvador, Guatemala, and Honduras,⁵ which are among the most dangerous countries in the world.⁶ Similarly, the top countries of origin for TPS recipients are El Salvador, Haiti, and Honduras.⁷ Violent criminal gangs are prevalent in these countries and "Americanized" deportees are often targeted for persecution soon after they return.⁸

U.S. deportees to Central America are considered "naive, vulnerable, and particularly wealthy . . ." and are "prime targets for gangs."⁹ Their "attachment to America and relative unfamiliarity with their homeland lead to extreme challenges in reintegration in a nation dominated by criminal gangs."¹⁰ In the past five years at least 70 deportees have been murdered in El Salvador alone, 20 of them since 2016.¹¹

This article argues that many of the people who will face removal in the coming years are ethnically American (but not U.S. citizens) and will have legitimate asylum claims based on the protected asylum ground of "nationality." In order to qualify for asylum, the applicant will first have to demonstrate that his or her nationality or ethnicity is American¹² even though he or she is not a U.S. citizen. This can be accomplished by presenting evidence of the common elements of nationality and ethnicity, including long-term residence, education, language, culture, political allegiance, and interests.

Next, the applicant must demonstrate that he or she has a well-founded fear of persecution in the proposed country of removal based on his or her nationality. This can be accomplished by presenting credible evidence that those with U.S. nationality characteristics face persecution and are targeted on that basis in the proposed country of removal or that the person has already been threatened or persecuted on that basis. Importantly, the applicant need not show that the nationality characteristic was or will be the sole reason for persecution, but only one central reason. Finally, these asylum applicants will have to show that their birth country will not be able to protect them from the persecution they will face because of ineffective security forces.

American Nationality as a Ground for Asylum

Those who meet the legal definition of "refugee" can be granted asylum in the United States. Under U.S. and international law, a refugee is a person who has a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion."¹³ Under United Nations High Commissioner for Refugees (UNHCR) guidelines, the nationality ground for asylum is "not to be understood only as 'citizenship.'"¹⁴ Instead, "[p]ersecution for reasons of nationality may consist of adverse attitudes and measures directed against a national (ethnic, linguistic)

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minority and in certain circumstances the fact of belonging to such a minority may in itself give rise to well-founded fear of persecution."

"Ethnic group" is defined by sociologists as:

individuals who consider themselves, or are considered by others, to share common characteristics that differentiate them other collectives in society, and from which they develop distinctive cultural behavior. . . . Members of that ethnic group may be identifiable in terms of racial attributes, but they may also share other cultural characteristics such as religion, occupation, language, or politics. Ethnic groups should also be distinguished from social classes, since membership generally cross-cuts the socio-economic stratification within society, encompassing individuals who share (or are perceived to share) characteristics that supersede class.¹⁵

Courts in the United States have recognized racial and ethnic minorities as refugees under the nationality ground. In Stserba v. Holder,¹⁶ the Sixth Circuit found that an asylum applicant who was a citizen of Estonia but ethnically Russian was persecuted based on her Russian ethnicity because she was stripped of her Estonian citizenship for two years and had her medical degree from Russia invalidated. Similarly, in Mengstu v. Holder,¹⁷ the Ninth Circuit found that an asylum applicant who was born in Ethiopia but ethnically Eritrean faced persecution when she was expelled from Ethiopia due to her Eritrean ethnicity. In Perkovic v. INS,¹⁸ the Sixth Circuit also found that two asylum applicants were persecuted in the former Yugoslavia because of their Albanian ethnicity. Other examples of ethnicities granted asylum protection in the United States include Mayans from Guatemala,¹⁹ Amhara from Ethiopia,²⁰ Tibetans from China, and Roma from Bulgaria.²¹

These examples demonstrate that nationality-based asylum protection is not usually linked to the applicant's citizenship but rather his or her ethnic or racial identity. Furthermore, this ethnic identity can be one that has its own nation-state (Russia, Eritrea, Albania) or one that does not have its own nation-state (Mayan, Amhara, Roma, Tibetan).

There is a distinct American nationality rooted in American culture, politics, and history that those who have lived a significant time in the United States share, whether or not they are citizens. Many noncitizens deportees identify as American, and others also perceive them as such through their culture, mannerisms, or accents.

As a Honduran deportee who lived decades in the United States explained, "I feel like I'm more American than I am Hondurenan because everything that I do is American, you know. . . . The stuff I buy to eat, the movies I watch, the music I listen to—it's like it's tattooed in me to be an American."²²

Another deportee from the United States stated, "My whole world was there . . . first language was English."²³ A journalist chronicling the lives of U.S. deportees in El Salvador describes:

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[G]ame-day tailgating is a part of preserving their adopted American traditions in a country where the word futbol is universally understood to mean soccer. When the first notes of 'The Star-Spangled Banner' sounded, Reyes and the other deportees rose to their feet. It was the national anthem they knew best.²⁴

According to another article based on interviews with more than 200 deportees in Mexico, the U.S. deportees "stand out. They dress differently, they think differently, they speak broken Spanish and they dream in English. They miss everyday American life and its special occasions. They long for American food. . . ." When asked what they missed most about the United States, many responded "everything. . . . I feel American."²⁵

Deportees who have lived a long time in the United States have adopted American language, culture, and even political allegiance but are not U.S. citizens. The most common age of arrival for those in the United States who have DACA is eight, and 31 percent of DACA recipients arrived in the United States when they were five years old or younger.²⁶ Those with TPS from El Salvador and Honduras have resided in the United States since 2001 and 1999, respectively. When these longtime U.S. residents return to their birth countries, many will still identify with the American nationality, and be a distinct and visible minority within the countries they are removed to.

Nexus

The most difficult aspect of a nationality-based asylum...