U.S. Asylum Policy: Reforms Needed in Current System

Congressional Testimony of Dan Stein, Executive Director, Federation for American Immigration Reform



Submitted For IMMIGRATION SUBCOMMITTEE OF THE SENATE JUDICIARY COMMITTEE



This statement addresses the role of U.S. asylum policy, problems with the current system and suggests legislative remedies.

Introduction

Thank you, Mr. Chairman for the opportunity to present the views of the Federation for American Immigration Reform (FAIR) on the important issue of asylum policy and problems with regard to implementation of the law as it exists today. I am Dan Stein, FAIR’s executive director.

FAIR is a national, non-profit organization of 70,000 concerned citizens nationwide promoting better immigration controls and a return to a moderate level of legal immigration to insure that today’s policies serve the current and future best interests of the American people. FAIR does not receive any federal grants, contracts or subcontracts.

FAIR stands by these principles:

• Illegal immigration can and must be substantially reduced by humane measures that are consistent with our democratic ideals; immigration should not be permitted to undermine opportunities for America’s poor and disadvantaged to improve their wages and working conditions;
• our immigration laws must be fairly and effectively enforced; there should be no favoritism toward or discrimination against a person on the basis of race, religion or ethnicity;
• all immigration should come within a single, stable ceiling which is periodically reviewed on the basis of reasoned, explicit population goals for the U.S.
• three criteria should guide the selection of immigrants: our fair share of refugees for resettlement, our national manpower policy and concerns for the maintenance of intact nuclear families;
• the United States should not contribute to a brain drain that entices away the skilled and talented who are desperately needed in their homelands; we should meet our need for skilled professionals by training and retraining our own;
• the United States should make greater efforts to encourage population size stability, economic development and alleviation of poverty worldwide and especially in countries of great out migration;
• the era of mass international migration as a solution to national problems has come to an end; problems of poverty and overpopulation must be vigorously confronted where people live, rather than postponing their solution by either the exportation or importation of masses of people;
• we should determine our own immigration and population policy broadly and democratically, as a sovereign right and responsibility of our nation.

Mr. Chairman, the American people are extremely hospitable to immigrants and refugees, and our nation’s record of generosity and compassion to people in need of special protection from war, anarchy, or natural disaster is exemplary. We have maintained a very munificent refugee resettlement pattern over the years, even though many of the people we have taken in are not considered true refugees by the United Nations High Commissioner for Refugees. The problem comes when the policies established become unrealistically broad or unintended avenues for abuse.

Mr. Chairman, FAIR suggests these principles in asylum policy:

1. Asylum policy should work to provide temporary protection here for persons to work for positive change back home. The goal is to strike a balance between providing protection for those who need it while encouraging people to — where possible — stay home to work for positive change.
2. Asylum policy should be integrated with refugee policy to create a single, unitary statutory scheme. Asylum standards should not create incentives for persons to “get within U.S. jurisdiction first” with the expectation of preferred treatment over similarly situated persons overseas.
3. Because asylum grants allow an alien to line-jump in front of millions of other people, the grant must be made with care, consistent with the statutory scheme. The management of asylum policy must take into account the enormous worldwide migration pressure, the long waiting lists and backlogs, and the incentives that exist to gain residency through false claims. Someone wiser than I speculated “if only refugees are admitted then everyone will become a refugee.”
4. Other than for countries of first asylum, the grant should be restored to its original purpose: to provide temporary protection for persons here legally who, as a result of unforeseeable, changed circumstances can no longer return home. Certain evidentiary presumptions are appropriate in certain cases where a claimant is from a particular religious or social group and we possess very little home country information that would allow verification of claims. Asylum is to be a temporary status; it is to allow persons to work here for positive political change back home.
5. Asylum should not be viewed as an alternative to regular immigration.
6. Asylees should not be subject to preferred procedural and legal standards that give an advantage to the would-be asylum-seeker to get to the U.S. in order to make the claim. The “credible fear” pre-screening standard for summary return should remain in the law and be actually used by the government.
7. Asylum seekers should be expected to make a claim for protection at the first available opportunity in the first country of refuge. Asylum claimants should not forum shop or otherwise be allowed to pick and choose where they make their claim-passing through several safe-haven nations before getting to the U.S.
8. The legal standards for asylum must be consistent with our international obligations. There should be some “State Action” at the core of the claim of persecution. The newly evolving standard that allows claims to be made on the basis of an alleged absence of state protection for entire classes of “social groups” is fraught with peril as unmanageable and an invitation to fraud.
9. The definition of “membership in a social group” must be defined narrowly enough that it retains some standard beyond the subjective parameters of an imaginative immigration bar.
10. As a practical matter, under our current system, adjudicating asylum claims often involves allegations of abuse that took place tens of thousands of miles away; objective evidence may be entirely lacking and the entire claim may rest on a subjective judgment of the Asylum Officer. Where the procedural, legal or evidentiary standards become unworkable or an invitation to fraud, it is up to Congress to intervene to re-assert the proper standards to insure a manageable program.

Background Of The Mid-1990s Asylum Reform

Our generosity and compassion must be reserved for those who are truly deserving of it. That is the reason that there was widespread resentment at the revelations in the middle of the 1990’s that the nation’s asylum policy had become a major loophole for gaining illegal residence in the United States. So many foreign travelers were arriving in New York and other airports without entry documents and requesting asylum, that the INS had largely shut down efforts to decide the legitimacy of the asylum claims and was waiving the asylum claimants into the country, issuing them work permits and filing away their asylum applications to gather dust. So notorious was the practice that awareness of the loophole spread beyond the alien smuggling rings, and the backlog of pending asylum cases rose into the hundreds of thousands. It appeared to be so easy to get a green card by filing an asylum application that the practice even spread to “green-card” fixers in the United States who began enticing Mexicans who were here illegally to begin filing asylum applications.

As Sen. Kennedy commented in the June 13, 1993 Washington Post, “The asylum system has broken down, and it’s up to Congress and the administration to fix it.” According to former INS Commissioner Doris Meissner, “The problem we have faced in recent years (she told the March 30, 1994 Washington Post) is that people with no legitimate claim to asylum are applying in record numbers, some brought by smugglers, some using fake documents, and some overstaying the visas granted to them as visitors.”

Against this background of fraudulent use of the asylum system, abusing the generosity and compassion of the American people, the Clinton Administration and the Republican-led Congress finally acted in 1995 to reestablish the integrity of the asylum process and reassure the American public that only people who truly feared persecution were able to gain the nation’s protection. The Administration acted first, trying to forestall a change in the law. Those changes in the screening system included a enlarged Asylum Corps, halting the automatic issuance of a work permit to new asylum applicants, and an accelerated processing of asylum applications. On July 9, 1995, Commissioner Meissner told the Post, “After years in which fraudulent asylum claims were routinely used as a backdoor way to enter the United States, the Immigration and Naturalization Service finally has sufficient staff and resources to stop the abuse and ensure that legitimate asylum-seekers no longer pay the price for those who seek to misuse the system.”

These measures were supplemented by Congress in 1996 to add new expedited removal procedures, but the protection against removing someone who feared persecution if returned to his homeland was protected by requiring a screening of all asylum claims by a member of the Asylum Corps. A recent example of the operation of this procedure was demonstrated when a surge of Colombians began arriving in the United States on transit visas ( meaning that they were not documented to enter the United States ( began requesting asylum in an effort to bypass consular screening of Colombian travelers to determine if they were intending immigrants. While it is certainly true that life is difficult in Colombia because of drug-related violence and a breakdown in the government’s ability to assure order, most of the arriving Colombians were not targets for persecution. The Embassy in Bogata was able to suspend the issuance of transit visas for the U.S., this kind of thing demonstrates abuse potential. We hope that the Asylum Corps was able to meet this surge in frivolous asylum claims and, as a result, discourage recourse to this attempt to circumvent the U.S. immigration law. But the evidence is clear: if you create the opportunity for a loophole, it will be exploited.

Earlier, in a similar fashion the Asylum Corps was pressed into service screening Cuban and Haitian “rafters” seeking to enter the United States. If the United States had continued to accept anyone who sought an opportunity for a better life, the stream of Cubans and Haitians setting sail for our country would have become enormous, and they would likely have been joined by nationals of countless other countries in the area.

Other provisions adopted in 1996 reduce the ability of immigration lawyers to continue to seek sequential reviews of removal orders until they find a sympathetic judge and to use an asylum claim as a defense against removal if the alien has been living illegally in the United States for more than a year without initiating an asylum claim. These changes were adopted to redress the imbalance in favor of the asylum applicant at the expense of the American public.

Asylum Reform Judged Largely Successful

The asylum reform effort of the mid-1990s has been largely successful. The number of frivolous asylum claims have dropped off sharply. From a total of 127,000 claims in FY’93, the level in FY’99 was about 32,000. However, there are still problems. Even with careful prescreening of asylum applicants by trained asylum officers, a large majority of asylum claimants who present a convincing enough claim to get referred to an Immigration Judge are still found meritless. The disapproval rate in FY’99 for claims before Immigration Judges was 62 percent. There is no guarantee that people who get asylum are in fact bona fide asylees.

The asylum process is still being used as a backdoor route for gaining illegal residence in the United States is the fact that the number of asylum applications is on the upswing again. From the 32,000 in FY’99, the number jumped by about 28 percent in FY’00 to nearly 41,000.

In addition, the INS has no system in place to assure that the denied asylum applicants ever leave the United States. There is every reason to believe that these persons who have been trying to take advantage to the generosity of the American people stay on in the country illegally and hope to gain legal residence by enactment of another amnesty for illegal aliens. We should remember the warning of Barbara Jordan, former member of the House Judiciary Committee and Chairman of the Commission on Immigration Reform. She said in testimony in the House on February 24, 1995 “…for the system to be credible, people actually have to be deported at the end of the process.”

Mr. Chairman, I recognize that immigration lawyers are unhappy with the current state of the asylum screening process, because some asylum applicants at ports of entry may be sent back home without ever gaining access to the services of a U.S. immigration lawyer. If the purpose of the asylum provisions of the immigration law were intended to maximize the number of persons gaining permanent residence in the United States, that concern might have some logic. However, that is not the purpose of the asylum provision. The reason that asylum was created was to deal with people who would qualify for refugee status if they were abroad, but who were temporarily located in this country. It is clear today that most of the persons being accorded asylum in the United States would not be granted refugee status to the United States if they were outside of this country. Because asylum has proven to be a backdoor route to residence in the United States, policymakers have a responsibility to the American people to minimize the possibility that it is abused.

The Shift In Legal Standards: Who Qualifies?

Mr. Chairman, last December the nation learned from an INS leak that Adelaide Abankwah, a poster child for granting asylum to prevent female circumcision (or genital mutilation), was an imposter. (See Abankwah v. INS, 185 F.3d 22 (2nd Cir. 1999). In fact, she had assumed the identity of another woman, had invented a story that her mother was the queen of a tribe in Ghana and she was due to succeed to that position ( which would lead to the genital cutting ceremony. She succeeded in posing as an entirely different person throughout the entirely of the case — all the way through appellate review.

What this case highlighted (in addition to a judicial willingness to second guess matters committed firmly by law to agency discretion) is that asylum procedure allows people to destroy identity documents during the trip over and fabricate stories out of whole cloth. Although the credible fear procedure was supposed to prevent this, the current asylum system does not insure that the INS even gets a “positive ID” on the alien. It does not allow us to take into account behavior by the alien before arrival — in committing calculated fraud and forum shopping — when determining the credibility of a claim. Limitations of resources prevent the State Department in the home country from individually investigating the claims of individual asylum claimants in the U.S.

The invitation for false claims is compounded by the now unmanageably broad definitions of who is an asylee. The problems presented by broader and broader definitions of who can get asylum is sending this country into new and uncharted waters, especially over the question of who qualifies for a claim based upon membership in a particular social group. The asylum standard codified in U.S. immigration law in 1980 was based on the internationally accepted refugee definition. Whether a person had been persecuted or had a well-founded fear of persecution if repatriated could be evaluated reasonably objectively when the criteria turned on the persons’ race, religion, nationality or political opinion. Congress judged in 1980 on the basis of past experience that the maximum number of asylum claimants in a year would not reach 5,000, so they set that as a ceiling. However, experience has taught us what we should already have known: “if you build a new avenue for admission, they will come.” By 1990, more than 15,000 approved asylum applicants were waiting in a backlog, and Congress doubled the annual ceiling.

Today, we are facing a replay of the 1990 situation. Again there is a backlog of approved asylum claims in excess of the quota for three years. Legislation has been introduced in the House to again increase the ceiling (H.R.1560). Why has the number of asylum applicants been increasing? Is it because persecution is becoming more widespread? I don’t think that is the explanation. In our view, it is more likely because of a systemic problem and because of the stretching in practice of the scope of eligibility for asylum coverage.

Part of the explanation for the increasing number of asylum claimants is due to a prevailing culture in the INS that creates a much greater onus on an asylum officer or an immigration judge who denies an asylum application than if the application is approved. That appears to explain approval of the fraudulent Abankwah case. The INS said all along that it had doubts about the bona fides of her asylum claim, but extensive interest by the press and politicians in the case apparently overcame the INS professionals’ good judgment.

Another part of the explanation involves legislative and judicial expansion of asylum coverage. The congressional action occurred with the addition to the asylum definition of China’s family planning policy as a form of political persecution by Sec. 601 of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA).

FAIR expressed it’s concern that this change in the law would be another loophole phenomenon, i.e., that it would lead to an increase in fraudulent Chinese asylum applicants. We have been proven correct. In FY’96 there were 1,509 Chinese asylum applications. In FY’2000 there were 5,541 Chinese applications. There would have been even more except the United States began intercepting Chinese smuggling ships and diverting them to ports in neighboring countries where the smuggled Chinese could not gain entry making asylum based on claims of fear of family planning persecution. In these cases, the neighboring countries brought in representatives from the UN High Commissioner for Refugees and the International Organization for Migration to screen the Chinese for possibly valid asylum claims and found only a miniscule number of possibly valid claimants. If the same Chinese had succeeded in arriving in the United States, the 1996 provision in our law would likely have led to large numbers receiving asylum and few if any removals. That has been the experience with a surge of asylum claims from Chinese illegal entrants as coached by the Chinese snakehead smuggling rings. So called “one child per family” claims were also asserted after the fact on behalf of the still detained smuggled Chinese from the Golden Venture.

Increasingly over the past several years, asylum has been granted to people claiming to fear generalized social customs or conditions, such as female circumcision, and even social ostracism based on sexual orientation, disease or disability. While these practices are at best inconsistent with Western notions of decency and at worst reprehensible, they hardly fit the intended definition of political persecution as contemplated by the Geneva Convention or our other international obligations. The expansive nature of asylum grants over the past several years have moved us from the murky area of rendering judgments about the actions of foreign governments to the even murkier area of judging social and cultural practices that are at odds with our own. Asylum law has deviated from cases where there is direct State Action in perpetrating persecution to the hazy area of a government’s alleged generalized failure to provide certain protections for marginalized groups.

If the United States has sometimes been viewed as the world’s policeman, these recent expansions of political asylum are moving us toward the role of trying to be the international nanny — of a nation trying to insure that no person encounters the vexations of life’s misfortunes. How can the United States monitor what is taking place in every village square and in every bedroom around the world?

Virtually everyone who is subjected to any injustice, whether perpetrated by a government, social group, or even a father or an aunt, can seek asylum protection by the United States — even if there is no plausible reason to explain why this particular alien is here making the claim in this particular country at this particular time. And, the most troubling aspect of this trend is that increasingly there are no objective criteria to assist the asylum officers and immigration judges in evaluating these claims in order to be able to limit asylum grants to truly meritorious cases. Despite the lessons learned in the early 1990’s, there is still very little “discipline in the system” to insure that claims without merit are not approved. If advocates are concerned about claims with merit being denied (and there’s little evidence of that fact), what about the problem of merit-less claims being granted? Isn’t that a problem, too?

As if this were not already a difficult enough situation, and one that has already fueled more asylum claims than were ever contemplated when the asylum law was adopted, a last gasp effort of the preceding administration bequeathed us a new avenue for asylum claims. Under this parting proposal, women around the world who are battered by their spouses may become eligible to receive residence in this country — and asylum generally now seems to mean de facto permanent residence.*1We have asked the Bush Administration to withdraw these proposed rules. Already, the asylum provision, intended to protect people from persecution by their governments, has been broadened to include a whole range of people who might be subjected to objectionable cultural and social practices.

It is unfair to the American people to ask them to embrace a policy that attempts to right every wrong and rectify every misfortune, wherever it occurs, no matter who is responsible by bringing the victims into the United States for permanent residence and giving them instant access to welfare programs, housing assistance, and other taxpayer-supported public assistance programs that are available only to the neediest Americans.

Moreover, unlike political persecution, which can be assessed objectively, rendering judgments about cultural and social practices is highly subjective. It forces the United States into a position of passing judgment on social practices and cultural mores in every society on earth. If ostracism due to sexual orientation is grounds for asylum, how is a line to be drawn to exclude asylum claims from women who in Islamic societies are required to wear veils, or denied the right to drive a car or work outside the home? At that point asylum ceases to be a mechanism to protect the persecuted, and becomes a process of imposing our values on others or using the asylum law to obtain “legitimacy” for some international cause.

In a world of 6 billion people, most of whom live under political systems and cultures that leave a lot to be desired, real world conditions mean we must be selective in granting asylum protection. Political asylum must not become social asylum, or it will destroy our ability to help anyone. One test: try to apply the asylum standard contemplated to international refugee resettlement screening. If the standard produces refugee eligibility for tens or hundreds of millions of people, then the standards is probably not tenable.

Fair’s Recommendations

Mr. Chairman, as I have outlined above, the gains in control over asylum abuse adopted beginning in 1995 are again beginning to weaken as a deterrent to fraudulent claims. Part of this, as I noted, is a culture in the INS bureaucracy that makes it more difficult to deny an asylum claim than to approve it. Another part of the problem is the process over the past few years of expanding the scope of eligibility for asylum. That not only complicates the asylum adjudication process, it attracts additional claimants.

Now we are faced once again with a backlog of approved asylum claims as in 1990. The so-called “ABC” backlog has been dealt with — even though most of those claimants were never able to perfect asylum claims. *2 The question is what is an appropriate policy response. Another increase in the asylum admissions ceiling is not the solution. FAIR opposes that approach and believes that the American people would be ill served by that measure. The solution to the mounting immigration pressure cannot always be to raise numbers.

The objective we should be striving to achieve is continued assured protection for asylum applicants who fear persecution from governments or from organized non-governmental elements that are oppressing people with the tacit backing of their government, while discouraging the abuse of the American people’s hospitality and compassion. We believe that three reforms would serve that purpose.

The first of the reforms would decouple the grant of asylum from permanent residence. International practice demonstrates that there is no standard requiring us to grant permanent residence to asylees. There is no reason that a bona fide asylum applicant can not be admitted as a nonimmigrant with the right to work in the United States. That status should not be adjusted to permanent residence until after a minimum of five years. There is no reason that a person who has shown the resourcefulness to get to the U.S. to ask for asylum should be accorded welfare benefits and other public assistance that should be reserved to our most needy citizens. As international circumstances change, the asylum status should be periodically reviewed to determine whether the original circumstances that led to the asylum grant have been reversed. In that case, when the fear of persecution is no longer valid, the asylees should be required to return home. Similarly, an asylum grantee should face a presumption that a fear of persecution no longer exists if he or she travels back to the home country.

The advantage of the adoption of this reform is that it would discourage the still sizable number of asylum applicants who see asylum as a way to permanent residence in the United States, even if their main objective is not the public assistance that comes with a grant of asylum.

The second reform proposal is an amendment to the refugee and asylee definition to delete the reference to “membership in a particular social group.” This change would preserve the scope of asylum protection for the traditional range of persecution, i.e., for race, religion, nationality and political opinion, while ending the expansion of asylum claims into areas of social policy never intended by the framers of the law. Asylum claimants should be judged by the same standards as persons screened as refugees overseas.

The third proposed reform is to put an end to the quasi-asylum status of Cubans who arrive illegally in this country. The Cuban Adjustment Act is an anachronism of the Cold War that treats all Cubans as if they were fleeing persecution. In our current practice, we recognize that is not the case any longer. Those Cubans who are intercepted attempting to enter the United States illegally are given the opportunity to request asylum and are given a hearing if they present a convincing case that they have been persecuted or will be persecuted if they are returned to Cuba. However, most of the intercepted Cubans fail this test and are returned to Cuba, where follow-up programs have convincingly demonstrated they are not subjected to persecution. If the Cuban Adjustment Act is abolished, Cubans will be put on an equal footing with Haitians and all others who arrive illegally in the United States and seek to stay. They will have to present an asylum claim, and if they are not entitled to that protection, they will be removed.

Even if this reform were not inherently logical in it’s own right ( which it clearly is ( it is essential to restoring the even-handedness and fairness of our asylum policy. It will assure persons from other countries who today are denied the opportunity to stay in the United States accorded only to the Cubans — that our policy is not discriminatory against them.

Conclusion

The context in which we make these recommendations is the overall rise in immigration to a level never contemplated by the legislators who created the current system of immigration in 1965. From moderate levels of immigration between a quarter of a million to a third of a million admissions per year during most of the past century, immigration today is averaging closer to one million admissions per year, and it is well above that level when illegal residents are included. That massive influx is clear from the 2000 Census numbers. The net increase of over ten million immigrants during the 1990’s demonstrates a trend that also drives the rapid increase in the overall population of the country. FAIR, like the U.S. Commission on Immigration Reform, is concerned that the preservation of a welcoming climate for new immigrants will be difficult unless the level of immigration is scaled back to a more moderate level.

Legitimate, merits-based refugee and asylee admissions deserve our highest priority and attention. They should get first priority in admissions. However, as long as there is no real definable national interest or objective governing our immigration policy, we will continue to be unable to make trade-offs in order to reallocate priorities. Therefore, asylum policy, too, must be looked at critically as part of any effort to scale back the level of immigration. As I noted above, FAIR thinks that asylum claims can be reduced without any jeopardy to the policy of protecting persons who fall within generally accepted international norms for asylum. We urge on behalf of our members and the American public in general that the pressure from advocates for improper widening the admissions criteria for asylum applicants be resisted, and further reform of the asylum process be adopted in order to assure continued public understanding and support of this program which, when it is properly administered, is a necessary humanitarian program.

*1 See also, Aguirre-Cervantes v. INS, No. 99-70861,2001 WL 274698 (9th Cir. Mar. 21, 2001). In this case, the Mexican Government was held to be unable or unwilling to provide adequate civil remedies and protective facilities for battered spouses, and that the family was the social group involved -where one member (the father) was abusing another member (the daughter).

*2 The ABC backlog illustrates the need for speed in asylum adjudications. Backlogs among claimants inside the U.S. will soon obtain the equities to insist that their right to remain be determined on factors other than the merits of the asylum claim itself.