Asylum rights and wrongs: what the proposed Refugee Protection Act will do and what more will need to be done.

AuthorPristone, Michele R.

ABSTRACT

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) added major new restrictions to U.S. asylum law. Several other laws passed in the wake of 9/11 produced additional restrictions. Various proposals to modify or even eliminate the changes made by IIRIRA and the post-9/11 laws have been introduced over the years; the Refugee Protection Act of 2010 (RPA) is the most prominent recent example of these efforts. As this Article details, the RPA has much to commend within it, especially its proposed elimination of the one year deadline for asylum applications that was originally imposed by IIRIRA.

The most pressing problem not substantively addressed by the RPA concerns the expansion of expedited removal, a central innovation of IIRIRA. Expedited removal authorizes Customs and Border Patrol officers to apprehend and deport persons without appropriate travel documents and to bar them from reentry for five years. For persons caught up in the expedited removal process, deportation typically occurs less than forty-eight hours after arrival at the U.S. border. The process is able to work so quickly because the deportation decision typically is made by a front-line border patrol worker and his or her supervisor, with the possibility of judicial review either completely barred or extremely limited, depending on the circumstances.

Although various government studies, as well as reports by other groups, have shown that expedited removal results in many improper deportations, the process nonetheless has been expanded step-by-step in recent years beyond its original limitation to U.S. ports of entry, and now applies to all locations within 100 miles of a U.S. border (expansively defined to include all international waters). This Article argues that the RPA's failure to curtail this expansion is a significant and unwelcome omission; indeed, the most recent expansions have greatly increased the risk of deporting U.S. citizens and legal permanent residents. The risk of improper deportation is not likely to be appreciably lessened by the RPA's authorization of one additional government study of expedited removal. As the Article points out, while prior studies with a similar charge and duration have revealed much wrongdoing, they also have been mainly ignored by immigration authorities. However, the inadequacy of past studies to bring about concrete reform is in no small part due to limitations placed upon them by Congress or by immigration administrators. The Article asserts that, in order to overcome the bureaucratic biases of the Customs and Border Patrol and to ensure the proper implementation of the law, these limitations must be revised or eliminated. The Article accordingly concludes with a number of specific recommendations for enabling future studies to achieve the dual objectives of shedding light and bringing about reform.

TABLE OF CONTENTS Abstract Introduction I. Asylum Pre- and Post-IIRIRA II. The Changes Proposed by the RPA A. Changes to Provisions Introduced by IIRIRA B. Changes to Provisions Introduced by the PATRIOT Act C. Changes to Provisions Introduced by the REAL ID Act D. Other Provisions III. What Remains to be Done, Beyond the RPA Conclusion INTRODUCTION

International law establishing the rights of refugees derives from the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. (1) Nations signing onto these treaties promise to adhere to the policy of non- refoulement, a duty not to return refugees to countries in which they fear persecution. The United States agreed to be bound by the 1951 Convention and its Protocol in 1968. (2) The Refugee Act of 1980 codified the treaty obligations and established a system for adjudicating claims for asylum in the United States. (3) Under the Refugee Act of 1980, a refugee is eligible for asylum if he or she can establish that he or she is "unable or unwilling to avail himself or herself of the protection of [his or her] country [of nationality] because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." (4)

Criticism of the system established in 1980 gained momentum throughout the 1980s and early 1990s. Detractors of the asylum process argued that its large backlogs and long delays had become a magnet for illegitimate applicants intent on using the system simply to obtain work authorization and remain in the country for years pending adjudication of fraudulent applications in immigration court at which they had no intention of ever appearing. (5) Others linked abuse of the asylum system to terrorists, including participants in the 1993 World Trade Center bombing. (6)

In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (7) was enacted in response to concerns that the asylum system was being abused by fraudulent applicants. IIRIRA attempted to address this problem by imposing procedural hurdles on refugees seeking asylum in the United States. New provisions included a process of "expedited removal," (8) a mandate for pre-hearing detention of asylum seekers identified through expedited removal, (9) and a one year filing deadline on all asylum applications, (10) All of these intended solutions have endangered legitimate asylum seekers.

The asylum system again came under attack after 9/11. The antiterrorism legislation that was enacted into law in the aftermath of 9/11, in particular the PATRIOT Act (11) and the REAL ID Act, (12) imposed additional substantive and procedural hurdles on asylum seekers that further eroded asylum protection.

The proposed Refugee Protection Act (RPA), (13) recently introduced by Senators Leahy, Levin, Durbin, Akaka, and Burris, addresses some of the problems created by IIRIRA and the PATRIOT and REAL ID Acts. Unfortunately, many problems will remain even upon passage of the RPA. This Article outlines the changes made by IIRIRA and post-9/11 legislation, discusses and assesses the likely effectiveness of the main provisions of the RPA should it be passed by Congress, and makes several additional suggestions for future legislation. In particular, my additional suggestions focus on expedited removal, with my primary recommendations calling for a scaling back of the geographic range of expedited removal and an expanded external examination of the process, significantly beyond the more limited examination contemplated by the RPA.

  1. ASYLUM PRE- AND POST-IIRIRA

    Asylum claims are assessed in two different procedural contexts--affirmative and defensive. Affirmative application procedures apply when the applicant has entered the United States and applies affirmatively for asylum with the Asylum Office of Citizenship and Immigration Services (CIS) before removal proceedings are initiated against him or her. For example, a person may be admitted to the United States under a student or a visitor visa and then apply for asylum. Affirmative application procedures would apply in these cases, even if the particular visa had expired at the time of application. Indeed, even those who enter the country without inspection and who are present in the United States without authorization are eligible to apply affirmatively for asylum. All of these persons, if they apply affirmatively for asylum, are interviewed by a specially trained asylum officer in a non-adversarial interview. The officer can either grant asylum or refer the case to removal proceedings in immigration court. (14)

    Suppose, however, that the student or visitor visa had expired and the student or visitor was then apprehended by immigration officers and placed into removal proceedings before an application for asylum had been filed. Or that an individual who entered without inspection was later arrested or otherwise identified by immigration officers. In these cases, defensive application procedures would apply with the asylum claim being considered for the first time, essentially as an affirmative defense to removal, in an adversarial hearing before an immigration judge in which a trial attorney from Immigration and Customs Enforcement (ICE) opposes the claim. (15) If the applicant receives an unfavorable decision, the judge's decision is subject first to administrative review by the Board of Immigration Appeals (BIA) (16) and then to judicial review in the federal circuit court system. (17)

    In the 1990s, claims that both types of applications were being widely abused began to resonate politically. Abuse of the affirmative application process would occur when, as sometimes happened, weak or fraudulent claims would be filed solely to gain the work authorization that, at the time, was routinely granted upon the filing of an application for asylum. Because the adjudication process was severely backlogged, the work authorization benefit of filing a frivolous claim could last for years.

    Moreover, when an affirmative applicant's asylum claim was denied by an asylum officer, and the case was referred to an immigration judge for deportation, the cases could languish in court for years before a final order of deportation was issued. Until that final order, the work authorization benefit would remain. Finally, abuse of the process could be continued simply by failing to appear for one's removal hearing.

    Absconding was of particular concern with regard to individuals who arrived at airports and seaports without properly issued visas or passports. In the 1980s and early 1990s, even these individuals were usually released into the general public after being given notices telling them to appear in immigration court for a removal hearing. (18) Rates of absconding were high, particularly among those without valid claims for asylum, and the likelihood that those who absconded would be detected was minimal. (19) To notable political effect, detractors of the asylum system claimed on national television that "every...

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