Considering Asylee Integration the Unfulfilled Promise of the Refugee Act

• Publication year: 2021

Benjamin M. Levey and Rachel C. Zoghlin^*

Abstract: In order to win asylum status, asylum seekers must prove that they are, in fact, refugees. Yet, after receiving status, asylees do not receive the same benefits that resettled refugees do—benefits the United States is legally obligated to provide. This article examines this issue, detailing the gaps between the governmental support asylees and resettled refugees receive and arguing that neoliberalism, deterrence, and racism underlie these discrepancies.
I think Congress is singularly unsuccessful in defining things . . . . Human conduct is such that oftentimes things don't fit the definitions the way they are tied down sometimes. You know, whether someone is losing their rights in a given situation is an intangible thing. We can't foresee all that now.¹

—Attorney General Griffin Bell
Hearings on the Refugee Act of 1979
The Subcommittee on Immigration,
U.S. House of Representatives

Introduction

One morning in April of 2019, Maria, a 35-year-old woman from Honduras, put on the outfit she typically wore to church, a freshly pressed dress and a blazer, and took the train to the Baltimore Immigration Court.² She had been waiting for her asylum hearing for three years, and she was worried: nervous that she would become emotional on the witness stand while testifying to the threats she and her family suffered because of her political activism, anxious that she would not appear credible, and fearful, ultimately, that the judge would deny her claim. To win the case, Maria and her attorney had to prove that she met the definition of a refugee: someone who, owing to well-founded fear of persecution for reasons of race, religion, nationality, political opinion, or membership in a particular social group, is outside her country of nationality and is unable or unwilling to avail herself of the protection of that country.³ And with a strong argument based upon Maria's involvement with anticorruption political activist groups, they did just that. When the immigration judge granted her application for asylum and the Department of Homeland Security (DHS) agreed to waive appeal, Maria was elated. With her legal status secure, she felt that she could breathe deeply for the first time in years: she would no longer have to live in limbo, and her children would soon be able to come join her in the United States as asylees. Gradually, she would build a new life in the suburbs of Washington, DC.

[Page 23]

More than a year has passed since Maria won asylum, but her children have not arrived yet; their petitions to derive asylum status from Maria remain pending. Her dream of opening her own business, a small Honduran restaurant, has been deferred. As an asylee, Maria was technically eligible for various types of support to help her integrate into her community, including cash assistance, English classes, health insurance, job training, and more. No one—not the immigration judge overseeing her case, nor the U.S. Citizenship and Immigration Services officer who reviewed the judge's order and provided Maria with her I-94 card (proof of her asylee status), nor her lawyer—told Maria that she was eligible for such benefits. So, she never accessed them. Although Maria is now eligible to apply for lawful permanent residency, and though she works 50 hours a week, she can barely make ends meet. She cannot afford the $1,225 filing fee, and she feels intimidated and dissuaded by the fee waiver process.⁴ Maria has already proven that she qualifies for protection and merits assistance, yet the U.S. government has failed to meet her needs and adequately inform her of her rights. And, unless there are significant changes in federal policy, it will continue to fail tens of thousands of asylees like her every year.

This article, one of the first to examine the United States' approach to asylee integration,⁵ considers why asylees like Maria do not, and cannot, access the range of benefits that their counterparts, refugees who enter the country through the Refugee Admissions Program, receive after arriving in the United States.⁶ The first section of the paper explains that asylees are, in fact, refugees, and as such should be entitled to the same range of benefits and supports as individuals who come through the resettlement program.⁷ The article then examines these benefits and supports, reviewing their legal foundations and inventorying the discrepancies between the limited forms of assistance asylees may access and the fuller set of supports that resettled refugees are granted. The article proceeds by historicizing these discrepancies, arguing that they emerged from political motivations of the U.S. government and thus represent a betrayal of the Refugee Act's commitment to nonpartisan, humanitarian concerns. Finally, the article offers a series of policy prescriptions to ensure that asylees receive the assistance to which they are entitled. Given the vast number of asylum seekers waiting to have their claims adjudicated and the recent presidential transition, this marks an opportune moment to advance such prescriptions.⁸

[Page 24]

Asylees Are Refugees

The United States' Asylum System Prior to the 1980 Refugee Act

In July of 1951, world leaders gathered in Geneva, Switzerland, to draft and sign the 1951 Convention Relating to the Status of Refugees (hereinafter "the Convention"), a promise to protect the human rights and dignity of individuals persecuted for being who they were. The document was initially limited in geographic and temporal scope, intended to protect individuals fleeing "events occurring in Europe" prior to January 1, 1951.⁹ One hundred and forty-five nations became party to the Convention, agreeing to abide by its premise and spirit.¹⁰ In perhaps its best-known dictate, the Convention mandates that state parties abide by the principle of non-refoulement. Per Article 33 of the Convention, parties may not "expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."¹¹ The Convention focused upon the protection and resettlement of World War II refugees, but various other refugee crises soon emerged across the world. Totalitarianism, decolonization, and other political developments brought about mass displacement and migration the Convention could not accommodate.

Sixteen years later, the United Nations High Commissioner for Refugees (UNHCR) set forth the 1967 Protocol Relating to the Status of Refugees (hereinafter "the Protocol").¹² The Protocol removed the geographic and temporal limitations of the Convention, extending its protections beyond just those individuals persecuted during World War II.¹³ The United States signed the Protocol in 1967 and remains party to it today.¹⁴ But instead of creating a formal procedure to implement the Protocol, the United States turned to a hodgepodge of legal mechanisms to admit displaced people.¹⁵ By the mid-1970s, it became clear that such an ad hoc, piecemeal approach to the arrival and resettlement of refugees was "haphazard and inadequate," and would not suffice.¹⁶ These shortcomings led Congress toward the passage of the 1980 Refugee Act.

Asylees Are Refugees: The Promise of the 1980 Refugee Act

[Page 25]

Legislative history indicates that, in conceiving of and drafting the 1980 Refugee Act, Congress was well aware of the distinct processes by which persecuted people come to the United States.¹⁷ Experts who testified before Congress made clear that all persecuted people deserve protection, regardless of how they arrive in the United States and seek it. One expert explained to the House Subcommittee on Immigration, Refugees, and International Law that, although the U.S. legislature would not "want to encourage people to come to the United States" through illegal means, "those who qualify as refugees are so desperate that they use whatever method they can [and] should be covered by the same kind of hearing procedures which the Immigration Commissioner has said are required as a matter of fairness. . . ."¹⁸ Another expert who testified before Congress similarly posited that "the same standards should be applied to those aliens seeking asylum inside our country or at its borders, as would be applied to those seeking refugee status from abroad."¹⁹ Yet another expert provided similar commentary, noting the importance of providing a pathway for persecuted individuals already in the United States to gain refugee protection if they "meet the definition of a 'refugee.'"²⁰

In 1980, President Jimmy Carter signed into law the Refugee Act, which provides the foundation for U.S. asylum law as we know it today. The Act established a clear vehicle for recognizing and welcoming into the United States individuals classified as refugees abroad and set forth infrastructure for would-be refugees to access protection from inside the country.²¹ The plain language of the Act made clear that refugees and asylees are effectively the same; it incorporated the definition of a refugee as outlined in the Protocol and established that both refugees and asylees must show that they are:

outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which the person last habitually resided, and who is unable and unwilling to return to, and is unable and unwilling to avail himself or herself of the protection of, that country 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.²²

Rather than subject asylum seekers to a separate legal standard because of their distinct manner of entry and process of obtaining legal protection, Congress cross-referenced the refugee definition, codifying that to receive asylum status in...