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Recommitting to the US Refugee Protection System on the 35th Anniversary of the Refugee Act of 1980

The US refugee protection system has long been a centerpiece of the international refugee regime and US humanitarian programs. US protection policies and practices -- for better and worse -- have immense human consequences and influence on other states.
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The Refugee Act of 1980 sought to bring US law into conformity with the 1951 United Nations Convention and the 1967 Protocol Relating to the Status of Refugees, which prohibited the return of persons at risk of persecution to their states of nationality or last habitual residence and sought to promote the integration of refugees into their host nations. Since 1980, the United States has resettled nearly three million refugees, provided political asylum to roughly 450,000 persons, offered temporary protection to millions more, including the hundreds of thousands at present with Temporary Protected Status, and created a strong (albeit under-resourced), multi-agency infrastructure to meet these needs.

A special collection of papers on the US refugee protection system - released last week by the Center for Migration Studies of New York (CMS) -- recognizes these accomplishments, but also documents the damage worked on US protection programs by restrictive legislation and the growth of the US immigration enforcement and homeland security infrastructure.

Several papers analyze US programs and policies that seek to prevent or dissuade imperiled persons from securing protection in the United States. They argue that the United States should build credible mechanisms into its interdiction and pre-screening policies, immigration-related security systems, and the expedited removal process in order to identify those at risk, screen them, and ensure that they are not returned to perilous situations. Other papers document the widespread use of summary, non-court removals (which constitute 85 percent of all removals), the bar on asylum claims filed after one-year of entry, the use of detention to deter others from coming, and long delays in providing employment authorization to asylum-seekers. These measures likewise prevent large numbers of persons at risk of persecution, torture or severe harm from seeking protection or prevailing in their claims. Other papers address the unnecessary separation of families, poor coordination, and integration challenges in the US refugee resettlement program; the lack of sufficient legal vehicles to admit populations in peril who do not meet the narrow refugee definition; the failure to provide long-term beneficiaries of temporary protection with the opportunity to obtain permanent status; and the insufficient resources devoted to the US asylum corps and immigration court system.

In a recent law review article published in the Chicago Journal of International Law titled "The New Refugees and the Old Treaty: Persecutors and Persecuted in the Twenty-First Century," Professor Andrew Schoenholtz makes the case that the refugee protection system, established after World War II to protect displaced persons who could not safely return home, can adapt to the protection challenges raised by the growing number of persons fleeing persecution and violence in "ungoverned spaces," in failing, weak and fragile states, and by non-state actors. Schoenholtz argues that the Refugee Convention and Protocol are premised on the responsibility of states to protect citizens and residents from harm related to their "personal characteristics" and "fundamental beliefs and opinions," and that these goals remain a central purpose of the modern state. In addition, the terms of the Convention and Protocol are sufficiently flexible to apply to new persecutors, forms of persecution, and persons in need of protection. In short, the deficiencies in the US refugee protection system do not necessarily result from an outdated and "old Treaty." Yet the papers in the CMS collection describe the many hurdles encountered in non-traditional asylum claims, particularly those related to predation by gangs and organized criminal enterprises.

Finally, the papers report on US officials who seek to dissuade asylum-seekers from pursuing their claims by threatening them with detention and separation from their families, mocking them with claims that "the United States is full," or simply denying entry - contrary to US law -- to persons who express a fear of return to their states of nationality or last residence. Most recently, the US Department of Homeland Security's Office of Inspector General (OIG) reported that certain Border Patrol sectors refer asylum-seekers for criminal prosecution prior to allowing them to seek asylum. It has long been recognized that persons fleeing for their lives must often cross borders without proper travel documents. Needless to say, the criminal prosecution of asylum-seekers operates as a disincentive to seeking and securing asylum, as well as a barrier to the integration of persons ultimately granted asylum. It also runs afoul of the Refugee Convention and Protocol, which prohibit contracting states from punishing refugees "on account of their illegal entry or presence," and the Refugee Act of 1980 which envisioned an asylum system for non-citizens "physically present in the United States or at a land border or port of entry, irrespective of such alien's status." It is remarkable that Border Patrol sectors disregard the law so brazenly. It may be even more remarkable that OIG's recommended solution to this illegal practice is for the Border Patrol itself to develop guidance related to asylum-seekers in this situation.

The US refugee protection system has long been a centerpiece of the international refugee regime and US humanitarian programs. US protection policies and practices - for better and worse - have immense human consequences and influence on other states. The United States can simultaneously safeguard the homeland, screen out fraudulent claims, and protect those fleeing for their lives. It should recommit to the vision set forth in the 1980 Refugee Act, live up to its heritage as a haven for the oppressed, and assume the mantle of global leadership on refugee protection. At its best, this is what the United States does.

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