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Asylum Crackdown Threatens Lives and Ideals

by Michele Pistone

This article appeared on cato.org on April 8, 1998.

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Throughout its history, the United States has been a refuge for people fleeing oppression at the hands of their governments. But new immigration laws have put that tradition in jeopardy. They impose procedural hurdles that in many cases will prevent genuine victims of persecution from attaining asylum here.

Beginning April 1, people who want to apply for asylum must file an application with the Immigration and Naturalization Service within one year of arriving in the United States. April Fools Day also marks the one-year anniversary of the new expedited removal provisions. They authorize low-level immigration officers to deport individuals arriving in the United States back to their home countries after only minimal screening and without any judicial oversight. The law applies to all individuals who arrive without proper travel documents, or who are suspected of carrying documents that were procured by fraud, and do not explain that they are fleeing persecution.

The 1996 immigration law containing these provisions was a gross overreaction to what Congress believed to be abuses of the asylum system, in particular false claims for asylum merely for the purpose of getting work authorizations. But at the time that legislation was enacted, the INS had already implemented reforms to deal with those concerns. Under these regulations, people who apply for asylum are not given work authorization until they are granted asylum; new applications are being adjudicated by asylum officers within 45 days of their filing. After the INS administrative reforms took effect, asylum applications fell by two-thirds, from 154,000 in 1995 to only 53,000 in 1997.

This may be why Doris Meissner, commissioner of the INS, vehemently opposed the imposition of an asylum filing deadline when it was before Congress, testifying that it would "frustrate and hamper [the INS' reform] efforts." She complained that the deadline was "an idea that is born of assumptions about a system in the past that wasn't working effectively."

So when these laws were enacted, where was the abuse in the system that Congress was concerned about? If it existed at all, it was a molehill at best. The one-year filing deadline for all applications for asylum and the expedited removal process are going to cause more damage than they will prevent.

Beyond the individual tragedies, the new laws do unnecessary damage to our nation -- to the idea, as old as the Pilgrims, that America is a land that does offer refuge to people fleeing government oppression. We grant political asylum to refugees because as a nation we believe that government oppression because of one's race, religion, political opinion, nationality or social group is wrong.

The laws do damage in a number of ways. They harm individuals fleeing government-sanctioned persecution by imposing hurdles that most victims of oppression will find difficult to overcome. As a result of the new laws, innocent people will die. That’s because most asylum seekers are really quite different from the image many of us may have of them.

One may first think of the brother of Livan Hernandez, the baseball star from Cuba, or the Olympic weight lifter who defected from Iraq during the Olympics in Atlanta. Such high-profile people may have little difficulty establishing their claims for asylum immediately upon departing an airplane or boat or filing their political asylum applications shortly after arriving in the United States.

But the famous cases are not typical. Typical asylum cases involve individuals who are fleeing personal danger and lack the time to think about proper channels of travel. Their only thoughts are about how to save their lives. These individuals may not speak English or understand the availability of asylum protection. Many of them suffer from post-traumatic stress disorder or other illnesses related to their trauma. They may never have traveled from their home town or village and may be afraid, tired and alone. The circumstances surrounding the flight and resettlement of asylum seekers in the United States prevent real asylum seekers from being able to do the types of things that we would commonly expect of other arriving immigrants -- like filing an asylum application within one year of arrival or making an asylum claim at the airport.

The expedited removal laws also increase the likelihood of returning people to probable danger or death after only minimal questioning -- essentially imposing capital punishment in a procedural setting with fewer protections than we afford those accused of an ordinary traffic violation. Those who travel without proper documents often do so out of necessity because their governments, the normal issuers of such documents, are also their persecutors. It is unrealistic to expect those individuals to ask their government for travel documents so that they can flee the country, or to require them to show their own passports to their persecutor upon fleeing. Simply having such documents with them would put their lives in danger.

But the immigration laws do just that. They require asylum seekers to do things that are unrealistic for them to do. Those who don’t comply are being sent back to their persecutors.

Beyond the individual tragedies, the new laws do unnecessary damage to our nation -- to the idea, as old as the Pilgrims, that America is a land that does offer refuge to people fleeing government oppression. We grant political asylum to refugees because as a nation we believe that government oppression because of one's race, religion, political opinion, nationality or social group is wrong. It violates our fundamental values.

In the end those values will triumph, but it may take a while because it is our good fortune that most of our citizens lead lives far removed from those of refugees fleeing government oppression. The damage done by the new asylum laws has not yet registered with the American public, but before long it will.