Optimal asylum.

AuthorRay, Shalini Bhargava
PositionRefugee protection regime - I. Introduction into III. History of the Refugee Protection Framework, p. 1215-1239

ABSTRACT

The U.S. asylum system is noble but flawed. Scholars have long recognized that asylum is a "scarce" political resource, but U.S. law persists in distributing access to asylum based on an asylum seeker's ability to circumvent migration controls rather than the strength of the asylum seeker's claim for protection. To apply for asylum, an asylum seeker must either arrange to be smuggled into the United States or lie to the consulate while abroad to obtain a nonimmigrant visa. Nonimmigrant visa requirements effectively filter the pool of asylum applicants according to wealth, educational attainment, and intent not to remain in the United States indefinitely--criteria completely unrelated to or at odds with the purposes of refugee law. The system as currently designed, therefore, selects asylum seekers based entirely on their ability to satisfy irrelevant criteria and without regard to their relative need for protection from persecution. Such a system fails to maximize the humanitarian benefits of scarce U.S. asylum resources.

To better protect individuals facing serious persecution, this Article contends, Congress should consider reforming the immigration laws to provide for an "asylum visa" to be made available to certain foreign nationals. U.S. consulates abroad, under proper and limited circumstances, might issue this visa to foreign nationals who demonstrate a credible fear of persecution on a ground enumerated in the United Nations Convention Relating to the Status of Refugees (Refugee Convention). Applicants would then lawfully enter the United States and apply for asylum. Successful applicants would remain, and unsuccessful applicants would face removal. Drawing on the extant literature on "protected entry procedures" (PEPs) that once existed in Europe, this Article considers the costs and benefits of the practice of issuing asylum visas. This Article concludes that, despite serious and uncertain costs and the impracticability of issuing asylum visas in some countries, this practice would likely create substantial benefits. In particular, it would likely decrease asylum seekers' reliance on human smugglers, clear a path to protection for bona fide asylum seekers, and increase the accuracy of information possessed by both asylum seekers and the U.S. government. Thus, the asylum visa would assist asylum seekers in making better-informed decisions ex ante and help to achieve a better allocation of asylum resources ex post. For these reasons, the creation of an asylum visa and the potential details of such a proposal merit further study.

TABLE OF CONTENTS I. INTRODUCTION II. THE PROBLEM WITH ASYLUM IN THE UNITED STATES A. The Purposes of Asylum and Refugee Law B. Overview of the Paths to Protection 1. Resettlement 2. Asylum a. Illegal Entry Through Human Smugglers b. Entry on Nonimmigrant Visas Issued for Nonasylum Purposes i. Visa Adjudications ii. Types of Nonimmigrant Visas a) Students b) Tourists 3. Assessment of the Current System III. HISTORY OF THE REFUGEE PROTECTION FRAMEWORK. A. A State's Right to Grant Asylum B. An Individual's Right to Seek Asylum C. Refugee Convention 1. Nonrefoulement Generally 2. Nonrefoulement and "Impunity" for Illegal Entry 3. Nonrefoulement Applied to Visa Regimes 4. Emergence of PEPs IV. THE ASYLUM VISA A. Overview B. Benefits C. Costs of Asylum Visa D. Objections E. Toward an Ideal Asylum Visa Regime 1. Role of Asylum Visa in Context of Other Visas and Entry Without Inspection 2. Adjudicators of the Visa Must Be Trained in Refugee Law 3. Adjudications Must Be Expeditious to Benefit Asylum Seekers Facing Imminent Harm and Perform Only a Basic Review of the Claim for Protection 4. Efficacy V. CONCLUSION I. INTRODUCTION

Chen Guangcheng, a Chinese human rights activist, escaped from house arrest in the Shandong Province and entered the U.S. embassy in Beijing on April 26, 2012, seeking refuge from the Chinese authorities. (1) Chen's escape and subsequent sheltering by the U.S. embassy triggered a diplomatic crisis, calling attention to China's abuse of rights activists at a time when the two countries were on the verge of economic talks. (2) The embassy sheltered Chen for six days. (3) Chen apparently rejected the idea of political asylum in the United States and expressed a desire to remain in China, provided the Chinese authorities would ensure his safety and that of his family. (4) Chen eventually left the embassy unaccompanied by embassy officials. (5) Within hours, he concluded that he could not live safely in China. (6) The U.S. government subsequently negotiated a deal with the Chinese government that would allow Chen to travel to the United States on a student visa and enroll at New York University Law School as a visiting fellow. (7)

In this way, the United States resolved the matter temporarily by granting Chen a student visa and transporting him to the airport. (8) Chen boarded a plane to the United States without incident and without being confronted by the Chinese authorities. (9) By avoiding talk of political asylum, which China considered an "affront," (10) this arrangement allowed China to save face and the United States to extend protection, however temporary, to Chen. (11)

Chen's story highlights the core humanitarian concerns of refugee law as well as the sensitive political and diplomatic considerations that shape the asylum system. To a lesser extent, it demonstrates the subterfuge that the U.S. system depends upon--the admission of refugees on temporary, nonimmigrant visas because the law neither acknowledges the refugee's intent to seek asylum nor facilitates that process openly. Although Chen's quest for safety ended successfully, many lower profile asylum seekers lack access to protection.

This Article assesses the current methods by which U.S. law regulates access to the asylum procedure, focusing on the role of nonimmigrant visas--issued only for purposes other than asylum. These visas generally require applicants to demonstrate sufficient wealth and--in some cases--education. (12) These requirements effectively filter for characteristics that are wholly irrelevant to the goals of refugee law. (13) More fundamentally, the system as currently designed deprives both sides of important information. The migrant has no information about his or her chances of prevailing in a claim for asylum prior to incurring significant cost and risk to make the journey to U.S. territory. (14) Similarly, the U.S. government lacks knowledge of the applicant's true intentions; that is, whether he or she is a tourist, a student, a scholar, a refugee, or perhaps none of these. (15)

This Article argues for addressing this problem by instituting an "asylum visa." (16) Such a visa would be issued at the embassy within the applicant's home country or in a third country for individuals who demonstrate, for example, a "credible fear of persecution" (17) and wish to enter the United States for the purpose of applying for asylum. The practice of issuing asylum visas would allow the United States to openly facilitate the journey of applicants with strong claims, discourage applicants with no chance of success, and reduce asylum seekers' reliance on human smuggling to access U.S. territory. (18) Although no Western country currently issues asylum visas on a regular basis, (190 these visas have a rich history rooted in the experiences of World War II refugees. (20) Thus, they...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT