AN AMERICAN PLACE: PITFALLS FOR ASYLUM SEEKERS

Introduction

In 1996, Congress changed our asylum rules that had developed from the Refugee Act of 1980. The Refugee Act came from our international law obligations in the UN Protocol Relating to the Status of Refugees, which went into effect in 1966 and to which we acceded two years later.

Congress imposed a 1-year limit on an asylum seeker’s eligibility to file an asylum application after arrival. It banned work permits for asylum applicants for the first 180 days during which their applications are pending, unless granted asylum. However, the most serious and under-reported change Congress made in 1996 to asylum laws was imposing a lifetime ban on immigration benefits for those filing frivolous asylum applications.

A frivolousness finding takes effect with proof that the filer received a warning about the consequences of filing a frivolous asylum application. The exceptions to that ban are limited. In most cases, the filer must give up almost all rights.

1-Year Filing Rule

The 1-year filing rule seems unfairest to the typical asylum seeker who does not speak English and is often barely educated. Historically, our immigration laws focused on restrictionism. Over time, a labyrinth of hodge-podge additions developed to produce a body of laws that one court compared in complexity to the U.S. Tax Code.

To beat the 1-year deadline, many asylum seekers rely on others to complete and file their forms. ‘Immigration consultants’ and others do not have to have any legal training to assist in the preparation and filing of asylum applications.

The other pitfall that sometimes comes with relying on immigration consultants who have little or no legal training are what can seem benign choices for an asylum seeker sent to immigration court. For example, many asylum seekers know nothing about the Asylum Clock that governs when a filed application qualifies its filer to apply for a work permit. It must tick for a full 180 days while the application is pending before they can get a work permit.

Logistics are a problem if the asylum seeker does not leave detention quickly after arrival. As time passes with them in detention, it becomes more likely that their case will be filed in an immigration court close to the detention center where the asylum seeker is detained.

If an asylum seeker makes bond, sometimes court officials present a paper asking the judge to transfer the case to a court near where the asylum seeker is headed. Often, that request to change venue is not explained as a delay that causes the Asylum Clock to stop until the asylum seeker appears in the new court location, which can take months or even years. With the Asylum Clock stopped, the 180 days do not run and eligibility for a work permit disappears.

Deterrence v. International Law Obligations

There is no doubt that Congress did the right thing in trying to curb the steep rise in asylum applications without merit. The irony is that while imposing the Asylum Clock for work permits, which ostensibly deters non-meritorious asylum applications, it also imposed the frivolousness rule.

Neither has deterred frivolous asylum applications significantly. But genuine asylum seekers who do not know about the Asylum Clock suffer in a country in which, unlike other rich nations, we do not give an asylum seeker anything – no food, no housing, no clothing, no healthcare. If we grant them asylum, we give them most of those things. If their application is pending for 180 days, they get a work permit. Otherwise, nothing.

When we acceded to the UN Protocol Relating to the Status of Refugees in 1968 and incorporated that international law into our domestic law through the Refugee Act of 1980, we promised that we would extend protections to asylum seekers beyond what the 1951 UN Convention did.

The UN has not amended the protocol. But Congress has amended domestic laws to remove protections we agreed to extend to asylum seekers in the Refugee Act. No other rich nation has curbed these protections the way we have, relegating asylum seekers to destitution because it offends us that asylum seekers come here.

Conclusion

The changes to asylum laws introduced by Congress in 1996 have had profound implications for asylum seekers in the United States. Despite the intentions behind these changes to curb non-meritorious asylum applications, they have not significantly deterred frivolous applications. Instead, they have disproportionately affected genuine asylum seekers who are unaware of the complexities of the asylum process. This has resulted in prolonged periods of uncertainty and hardship for many individuals seeking refuge in the United States.