Refugee Admittance and Asylum Outcomes in the U.S. Before and After 9/11; Fair or Unfair?

Seth Feingold was a student in Professor Birdsong’s Refugee and Asylum course last semester.  Mr. Feingold has written an interesting paper for the seminar analyzing asylum outcomes in U.S. immigration matters prior to and after 9/11/01.  He has given me permission to put it on my blog.  read it.  I think you will find it interesting.

Refugee Admittance and Asylum Outcomes in the U.S. Before and After 9/11; Fair or Unfair?


By: Seth Feingold


            Those who are fortunate enough to be granted asylum in a post 9/11 America receive permanent resident status and privileges that include freedom from the fear of deportation, the ability to work legally, and the possibility for future citizenship.[1]  It is because of these rights and privileges that the United States Asylum system has become the new battleground in the War on Terror.[2]  Many argue that the asylum system is a potential avenue for terrorists to seek admittance into the United State.  Therefore, in the name of national security, additional legislation was and is needed to ensure that those wishing to commit acts of terrorism do not gain entry via the asylum system.

With global terrorism and anti-American sentiment on the rise, it was thought that weaknesses in the asylum system could be easily exploited leaving American citizens vulnerable to another attack from the inside.  Acting quickly the government passed legislation and various reforms that attempted to reinforce our borders and security.  However, it is believed by many that these new changes have been made at the expense of our humanitarian efforts to provide a safe haven for those who need it most.

               Part I of this paper will detail the history of the United States asylum system.   Starting with the United Nations Convention Relating to the Status of Refugees and ending with the Illegal Immigration Reform and Immigration Responsible Act of 1996, Part I will discuss the evolution of modern day immigration law within the United States pre 9/11.  Part II will focus on post September 11th, 2001 legislation with an examination of how these new laws and policies have affected the asylum system in particular.  Part III of this paper will look at the refugee and asylum numbers pre and post 9/11 and Part IV will present suggestions as to how the United States should proceed if it wishes to maintain its humanitarian mission to the less fortunate and those in need of refuge.

 I. Evolution of Modern American Asylum Law: Pre 9/11

 United Nations Convention Relating to the Status of Refugees


            In 1951, at a special conference convened to address the issues relating to post-war European refugees, the office of the United Nations High Commission for Refugees was born (“UNHCR”).  Only sixth months after its conception the United Nations again met with the hope of formulating and adopting a treaty pertaining to refugees[3].  It was at this meeting in which the 1951 Convention Relating to the Status of Refugees was formulated.  The 1951 Convention Relating to the Status of Refugees is the key legal document in defining who is a refugee and who is not.[4]  In codifying the definition of a refugee, Article 1(A)(2) of the act provided:


For the purposes of the present Convention, the term “refugee” shall apply to any person who [as] a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country[5].


The convention was specifically created in response to the mass displacement of individuals post World War II and thus its underlying motivation was “the strong global commitment to ensuring that the displacement and trauma caused by the persecution and destruction of the war years would not be repeated.”[6]   Therefore, it is not surprising that under this convention, a person does not qualify as a refugee unless they are outside of their country of origin as a result of events that occurred prior to 1951.[7]  Although eventually adopted by 144 out of a total United Nations membership of 192[8], the United States did not ratify the 1951 Convention, instead choosing to reformulate an independent asylum policy in the Immigration and Nationality Act of 1952.[9]


The Immigration and Nationality Act of 1952 and The 1965 Immigration Act


The Immigration and Nationality Act of 1952 (“INA”) commonly referred to as the McCarran-Walter Act, codified United States immigration law into Title 8 of the United States Code.  The bill collected many existing provisions and reorganized the structure of immigration law.[10]  It is apparent from a reading of the act the growing fear of the spread of communism heavily influenced its structure and language.  In fact, the INA defined a refugee as someone fleeing communism or the Middle East.[11]  The act shows a shift in United States immigration policy where the main focus is now on the individual and their desirability as opposed to merely their country of origin.  Section 212 of the 1952 act establishes “general classes of aliens ineligible to receive visas and excluded from admission.”[12]  While the 1952 act ushered in many changes such as the preference system for skilled and different classes of workers, it held on to the highly criticized quota system.[13]  This system predetermined a maximum number of aliens from individual countries that would be allowed to immigrate to the United States.  However, once ascertained that the individual was eligible under the quota system they were only afforded entry after it was determined that they would not be considered excludable under Section 212 of the Immigration and Nationality Act.  Among the grounds for exclusion were those that were deemed insane or sickly along with those that were thought to enter “solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States.”[14]  There were also a number of exclusionary grounds pertaining to the greater national security interest.  The United States, weary of the infiltration and subversion of the communist ideology on the American people, included sections that specifically excluded those individuals that would “engage in activities which would be prohibited by the laws of the United States relating to espionage, sabotage, public disorder, or in other activity subversive to the national security.”[15]

As the threat of communism and the cold war grew stronger, the Immigration and Nationality Act was amended and the result was the Immigration Act of 1965.  The most noticeable and likely the most favorable change to American immigration law was the exclusion of the National Origins Quota System that had been in place since the Immigration Act of 1924.  The Immigration Act of 1965 placed a new focus on family reunification and employment preferences.[16]  The act established the first concrete system to aid individuals who were seeking refuge.  Section 243(h) gave the Attorney General the power to withhold deportation of an alien physically present in the United States if it was determined that he would be subjected to persecution if deported to his country of origin.[17]  In order to qualify for asylum under the Act an individual would have to be from either communist countries or countries in the “general area of the Middle East” and demonstrate a “clear probability” of persecution before being accepted.[18]


The 1967 Protocol to the Status of Refugees

            In 1967, the United Nations convened and updated the 1951 Convention.  The Protocol was “designed to address any refugee flows arising out of persecution-related events after World War II.”[19]  The protocol was acceded to by the United States in 1968, the first time it had officially aligned itself with the international communities policy relating to refugees.  Thus, the United States was now acceding that “equal status should be enjoyed by all refugees irrespective of the dateline 1 January 1951.[20]  Critical to the Protocols purpose was its carefully crafted definition of “refugee”, which held that a refugee is any person who:

[O]wing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear is unwilling to return to it.[21]

Before the formal adoption of the Protocol, United States immigration policy only allowed for a granting of asylum to those refugees that were from communist countries or counties in the Middle East.  Those who met these requirements still had to show a “clear probability” of persecution before they were accepted and admitted as refugees.[22] 

For the first time the United States was officially recognizing the concept of refoulement as Article 33 of the act strictly forbade the return of any person who would face harm due to one of the five enumerated grounds if forced back to their country of origin.[23]  Although the United States was bound by refoulement, the Attorney General’s discretionary authority to withhold deportation was not replaced with a mandatory provision requiring withholding of deportation until 1980.[24]

            Despite the technical adoption of the Protocol in 1968, the United States maintains that the Protocol is “not self-execut[ed] and, thus, is implemented in domestic law only to the extent that Congress has passed specific legislation embodying its terms.”[25]  While officially signing on there were no actual changes to United States immigration law as the Protocol was only adopted after the Senate was assured that ratification would not require modification of any existing law.[26]  The United States would continue to rely on the section of the 1952 Immigration and Nationality Act that gave the Attorney General the power “to withhold the deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reasons.”[27]  It was not until 1980, with the adoption of the Refugee Act and the codification of the 1951 Conventions definition of  “refugee” that Congress would officially recognize the United States’ obligations under the 1967 Protocol.[28]


The Refugee Act of 1980

            The implementation of The Refugee Act of 1980 was the first time Congress passed law specifically designed to address the needs of refugee and asylum seekers.  Its official purpose was to give “statutory meaning to [the United States’] commitment to human rights and humanitarian concerns.[29]  It was now officially a legal right to seek asylum within the United States.  Grants of asylum would also no longer be limited to the geographical and political limitations of the 1952 Act.[30]  As important as the official adoption of the term “refugee” was that the Attorney General’s discretionary power to withhold deportation was officially removed.  Relief was now mandatory if the requirements of the statute are satisfied.[31]  The Act also required the Attorney General to create a uniform procedure for determining the eligibility of those seeking asylum.    

            The implications of the new Refugee Act were first recognizable in the landmark case of INS v. Cardoza-Fonsecai.  The Supreme Court would articulate “a new, lower standard of proof for asylum eligibility, differentiating it from that of withholding of removal.”[32] 


The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA)

            It did not take long before lawmakers realized that the United States asylum system was abundant with flaws.  There were extreme delays in processing which allowed individuals with no official status to remain in the country for years while they waited for the adjudication of their claim.  It was these long delays coupled with the fear that terrorists were using these loopholes as a safe haven to remain in the country without worry[33] that led to the passage of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (hereinafter “IIRAIRA”).  This act installed several provisions which were specifically designed to limit abuse of the asylum system.  These limitations included one-year filing deadline for asylum seekers[34], a delay in work authorization eligibility[35], quicker turn around time of asylum applications, expedited removal[36], and the physical detention of asylum seekers.[37]  Congress felt that with these hurdles in place, the asylum system would less likely be abused by “economic migrants, unscrupulous individuals, and terrorists” looking to take advance of the system.[38]

II. Post 9/11 Immigration Legislation

The United States Patriot Act

            In the wake of the September 11, 2001 terrorist attacks President George W. Bush signed into law the United States of America Patriot Act (hereinafter Patriot Act) on October 25, 2011.  This sweeping antiterrorism legislation gave law enforcement officials unprecedented power to carry out searches, utilize electronic surveillance techniques, and to arrest and detain suspected terrorists.  Alongside these newly added powers were immigration provisions that widened bars to inadmissibility and deportability and increased the use of existing bars to asylum.[39]  This was accomplished by identifying other types of conduct that are to be considered “engaging in terrorist activity” such as “soliciting funds for terrorist organizations, soliciting persons for members in such organizations, or affording material support to such organizations.”[40]  The “material support” provision has given the opportunity for Department of Homeland Security attorneys to argue that those who were in fact victims of terrorism are deemed inadmissible.[41]  Before the passage of the Patriot Act, if an applicant was to be deemed inadmissible for providing support to a terrorist organization, the support had to be given with the knowledge that the support was going to a group planning terrorist activities.  With the passage of the Patriot Act, any persons who gives material support is barred regardless if they had any knowledge of future terrorist activity.[42]  These immigration provisions include ones that “render inadmissible persons who, as representatives of political, social or similar groups, have publicly endorsed terrorism, persons who have used their positions of prominence in any country to endorse terrorist activity, and persons who have been associated with terrorist organizations and intent to engage in activities that could endanger the United States.”[43]  The expanded definition of what constitutes “engaging in terrorist activity” has led to vast scrutiny and debate.  It is now plausible that an individual who legitimately meets the requirements of a refugee to be indefinitely detained because this individual may have been a “a protestor who [threw] stones at a demonstration.”[44]  That stone can now be construed as a “weapon or another dangerous device” under the statute.  Critiques argue that with the expanded definition of “terrorist activity” it will be too easy for the government to argue that all violent political acts bar an asylum-seeker as inadmissible.

            The Patriot Act also broadened the authority of the U.S. government to detain non-citizens.  Attorney General John Ashcroft issued a regulating that made it permissible for the authorities to hold someone without charge for forty-eight hours, as opposed to the previously permissible twenty-four.  Perhaps even more detrimental to individual’s civil liberties, “the regulation also authorized detention without charge for an unspecified additional reasonable period of time in the event of an emergency or other extraordinary circumstances.”[45]

            The asylum provisions implanted within the Patriot Act were designed to “grant DHS the tools needed to filter terrorists out of the immigration process.”[46]  However, in 2004 a report released by the Commission on 9/11 stated that the American asylum system was being utilized by terrorists on a greater scale then first initially believed.  This report would eventually lead to the passing of The Real ID Act of 2005 (to be discussed later).[47]


The Department of Homeland Security

            The Immigration and Nationality Service (hereinafter “INS”) was abolished on March 1, 2003 and its functions were transferred to the then newly created Department of Homeland Security (hereinafter “DHS”).  It is important to note that the Homeland Security Act states that the mission of DHS is “to prevent terrorist attacks in the United States, reduce the vulnerability of the United States to terrorism, and minimize the damage from terrorist attacks.”[48]  While it is understandable that the United States government would require assurances and safeguards that those seeking refuge in the U.S. are not threats to national security, the altruistic and humanitarian nature that is at the heart of refugee and asylum system seems to have been lost when DHS took over the duties of the former INS. 

One common critique of the then newly created DHS is its fundamental structure.  DHS separates the enforcement and service functions of the old INS into different bureaus within the new Department.[49]  Under this new structure the legal expertise is placed with U.S. Citizenship and Immigration Services the authority to detain asylum-seekers rests with the Bureau of Immigration and Customs Enforcement, and the authority over immigration inspections and expedited removal lies with the Bureau of Customs and Border Patrol.[50]  It is because of this complicated and bifurcated bureaucratic structure that many asylum-seekers are said to fall between the cracks.

The attacks on the World Trade Center in 2001 have allowed the United States to “craft it its new immigration policies around its national security concerns without wholly violating the principles outlined in the United Nations Protocol.”[51]  This is because the United Nations Convention Relating to the Status of Refugees includes a national security exception.  It states that the Convention “does not prevent the member states in time of war or other grave and exceptional circumstances from taking certain actions that it believes are essential to the national security of its homeland.”[52]  It is because the United States has never clearly defined what constitutes “national security” that they have been able to utilize the Conventions exception.

Less than two weeks after the abolishment of INS, on March 17, 2003, as part of Operation Liberty Shield, DHS announced that it would now detain, for the remainder of their immigration proceedings, all asylum-seekers from regions “where al-Qaeda, al-Qaeda sympathizers, and other terrorist groups are known to have operated.”[53]  This policy, whose justification was said to be national security, was to applied across the board and meant that even those who fulfilled the strict parole criteria, regardless of the fact that they posed no threat to the public, were to be detained and held until the conclusion of their immigration case.  Although officially terminated in April 2003, attorneys from all parts of the country have routinely reported the continued detention of asylum-seekers from Arab and Muslim countries for the duration of their asylum proceedings.[54]



The Real ID Act

            Passed as part of the Omnibus Iraq Appropriations Bill, the Real ID Act of 2005 “purports to reform an asylum system that had become an easy target for infiltration by terrorists.”[55] Comprised of twenty-nine amendments to the Immigration and Nationality Act, the Real ID Act addresses three crucial area of asylum law: establishing credibility, corroborating the asylum claim, and proving that motivation of the persecutor was due to one of the five enumerated grounds.[56] 

A. Credibility   

In an effort to provide greater consistency between the courts regarding an adjudicator’s credibility determination, the Real ID Act has established a “totality of the circumstances” test.  This test attempts to codify case law as to when an adjudicator may require additional evidence apart from the Respondent’s testimony alone.  The act states:

Considering the totality of he circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record )including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.  There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.[57]


            The determination of an applicant’s credibility by an immigration judge is perhaps one of the most important determinations throughout the entire immigration proceeding.  This is in part because the Immigration and Nationality Act only authorizes the Court of Appeals to reject the IJ’s determination if a “reasonable adjudicator would be compelled to do so.”[58]  While the Real ID act attempted to make this decision making process more consistent throughout the courts, it actually departed from well-established case law and INS guidelines.  The Real ID act specifically allows immigration judges to make their credibility determination “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.”[59] 


B. Corroboration

            The Real ID Act establishes that “an asylum seeker [may] corroborate his or her claim solely with his or her own testimony” but stipulates that such testimony “must be credible, persuasive, and refer to specific facts sufficient to demonstrate that the applicant is a refugee.”[60]  At first glance this would appear to be a beneficial policy that would allow the courts to the opportunity to take the applicants at their word with little to no corroboration.  Due to the inherently difficult and often dangerous situation asylum seekers flee from, it is not surprising that “persons escaping persecution may leave behind important documents (such as identity cards, birth certificates, medical records, etc.) when fleeing their countries, either in haste or in an attempt to conceal their identities from persecutors.”[61]  While courts outwardly recognize this fact, the Real ID ignores its reality and instead permits an adjudicator to arbitrarily require that corroborating evidence be submitted, regardless if the applicant’s testimony seems sufficient to meet the definition of a refugee.  The Real ID essentially codifies the holding in Matter of S-M-J but leaves out the reasonable requirements   As per S-M-J a judge can require corroborating evidence when it is reasonably expected that it should be provided.  It further held that “where corroborating evidence is available, the applicant should present it and when unavailable, the applicant should explain why.”[62]  However, the coinciding corroboration provision of the Real ID act has no such “reasonable determination” requirement, essentially allowing judges to require corroboration at their every whim.


C. Centrality of Motive (“At Least One Central Reason”)

            To determine whether harm that an individual has suffered rises to a level where it can be construed or classified as persecution, a three-part test is required.  First, the asylum-seeker must have suffered harm that is severe enough to be considered persecution.[63]  Secondly, the government or someone that the government is unable or unwilling to control must have committed the persecution.  Lastly, the harm must have occurred on account of one of the five enumerated grounds: race, religion, nationality, political opinion, or membership in a particular social group.[64]  While understanding that persecution can occur for any number of reasons or even multiple reasons in the same instance (mixed motives), the Real ID Act addresses the issue by codifying the “at least one central reason” standard. 

            This standard acknowledges that many asylum-applicants have experienced persecution that “may have occurred on account of one or more non-protected grounds, as well as one or more protected grounds.”[65]  While seeming to allow applicants greater leeway in showing that they meet the statutory definition of a “refugee”, the one central reason standard has been criticized as unreasonable because “[p]ersecutors generally do not provide their victims with evidence of, insights into, or discussion about the atrocities they commit”[66] and it “require[s] asylum applicants to prove where in the mind of their persecutors the motive resided.”[67]


III. Statistical Analysis

            There has long been a concern that those who wish to commit acts of terrorism would claim to be refugees from foreign nations and apply for asylum in the United States, with the ultimate goal of blending in among the hundreds of thousands of pending asylum cases.  It is because of this widespread fear that careful attention has been paid to those who are deemed to come form high risk counties such as Saudi Arabia, Iran, Pakistan, Egypt, Iraq, Afghanistan and others in Africa and the Middle East.  The potential for abuse of the US asylum system by terrorists has given rise to the argument that national security risks should outweigh humanitarian concerns, and therefore the asylum system should be restricted even further.[68]

            Those who do not wish to see the asylum process become more restrictive in the name of national security point to the fact that there are already many security screenings that asylum applicants go through and if any are suspected or known terrorists, the law already bars them from being granted asylum.  It is because of the discretionary relief placed in the hands of immigration judges that as soon as a reasonable suspicion arises, the asylum seeker is likely to have their application denied.  Those who disagree with the limiting the judicial review of asylum cases “contend that it would erode two traditional values of U.S. polity – the right to due process and freedom from repression and persecution.”[69]

            Whichever side of the argument one aligns themselves with, the undisputed fact is that there has been a steep downward shift in refugee admissions that began immediately after the attacks on September 11, 2001.  In a press release on November 21, 2001, President George W. Bush stated that the United States would accept 70,000 refugees in fiscal year 2002.  However, the overall number of refugee admissions in 2002 was at a staggeringly low 27,110.  In 2003 the admissions total rose to approximately 28,400.  To put these post 9/11 refugee numbers into perspective, one should note that through out the 1990’s the United States had admitted somewhere between 69,300 and 122,000 refugees per year.  The highest ever-recorded year for admitted refugees was in 1980 when the United States admitted 207,116 refugees and had a cap of 231,700.  However it is also important to acknowledge that since 2003 refugee admissions have steadily risen.  With a refugee admittance ceiling of 80,000 persons, in 2008 there were 60,107 total refugees admitted and in 2010 there were 73,293.


            While refugee admittance has begun to recover from the steep drop off in the immediate aftermath of 9/11, total grants of asylum (both affirmatively and defensively) have been on steady decline since their peek in 2001.  In 1990 there were 8,472 individuals granted asylum.  That number continued to rise until it hit an all time high of 39,161 in 2001.  Since 2001 however, this number has continued to slide with just over 21,000 granted asylum in 2010. 



























































































Source: U.S. Department of Homeland Security, U.S. Citizenship and Immigration Service (USCIS), Refugee, Asylum, and Parole System (RAPS) and the U.S. Department of Justice (DOJ), Executive Office for Immigration Review (EOIR).


It is quite apparent by looking at the statistics that the terror attacks on September 11 have had a great effect on the humanitarian admittance of individuals seeking refuge in the United States.  It is not only the aggregate number of individuals that has been affected but also the number of people from specific regions around the world.  Because the terrorist threat is deemed strongest in the previously mentioned “high risk” countries, it is not surprising that grants of asylum for individuals from these regions have become even scarcer.  The leading countries of nationality for persons granted asylum in 2012 were China, Ethiopia, Haiti, Venezuela, and Nepal.[70] 


IV. Conclusion

After the attacks on the twin towers the asylum system was looked at as an open door that invited unscrupulous individuals whom have the intent to commit acts of terror, the opportunity to gain legal entry.  Despite the fact that none of the 19 September 11th hijackers were refugees or asylum grantees, Congress passed immigration reform such as the Real ID Act with the intention of making it more difficult for terrorists to gain entry via asylum.  Unfortunately however, legislation such as the Real ID Act and the creation of DHS have had an adverse effect on all asylum seekers, including those who many would believe meet the definition of a refugee.  The numbers show that since the attacks immigration judges have been less willing to find applicants meet the statutory definition of a refugee and are using the discretion afforded to them by statute to deny a vast majority of applications.

It is in my opinion that if greater due process were granted to those who find themselves in front of an immigration judge when in removal proceedings, many of the adverse effects of post 9/11 immigration reforms would be negated. Specifically, the right to have an attorney provided free of charge is not currently provided to those in immigration court.  It is this lack of representation that has led to an abuse of the system by both attorneys for the Department of Homeland Security and by Immigration Judges.  With the complex rules and procedures required for any matter in immigration court, it is nearly impossible for an alien, most of whom don’t speak English, to navigate through the system and to present the argument necessary to rebut an order of removal.  If attorneys were provided to all respondents in asylum proceedings, the government would be held accountable and would have to follow the strict construction of all applicable statutes.  The latitude given to immigration judges in the form of discretionary powers would eventually be eliminated to the greatest extent possible.  With the presence of guaranteed representation, attorneys for the respondent would know when an immigration judge was making an impermissible ruling.  This would in turn result in many appeals to the Board of Immigration Appeals and Federal Circuit Courts, which would add to the strain that the courts are already facing.  To eliminate the strain on the courts, legislators would be pressured to amend current immigration laws.  These amendments would likely lead to a more clearly defined statute which would in turn limit discretionary powers and result in greater consistency in all immigration cases.

            The United States has had a long-standing tradition of providing those faced with oppression the opportunity to thrive in this country. As long as national security remains the lead interest ahead of humanitarianism, those who are legally and statutorily required to receive aid (in the form of a grant of legal status) will continue to become victims of personal biases.  It is therefore necessary to provide asylum applicants with legal representation if we wish to provide them the opportunity to receive the protection that many of them so desperately deserve.



[1] Michael D. Yanovski Sukenik, Marginal Refuge: The Ramifications of Terrorism for an Unsustainable United States Asylum Policy, 65 U. Miami L. Rev. 79 (2010).

[2] Marisa Silenzi Cianciarulo, Terrorism and Asylum Seekers: Why the Real ID Act is a False Promise, 43 Harv. J. on Legis. 101 (2006).

[3] David A. Martin, Forced Migration: Law and Policy 38 (Thomson/West 2007).

[4] See The 1951 Refugee Convention at (last visited Nov. 18, 2011).

[5] Article 1(A)(2) of 1951 convention

[6] See Refugee Protection: A Guide to International Refugee Law at (last visited Nov. 18, 2011)

[7] Article 1(A)(2) of 1951 convention

[8] See Audiovisual Library for International Law at (last visited Nov. 18, 2011).

[9] See Cianciarulo, supra note 1 at 34

[10] See (last visited Nov. 18, 2011).

[11] Edward M. Kennedy, Refugee Act of 1980, 15 Int’l Migration Rev. 141, 143 (1981)

[12] INA of 1952 §212.

[13] This quota system is known as the National Origins Quota System and was originally established by the Immigration Act of 1924.  This system allows for a greater control of “immigrant selection” and was therefore included in the 1952 Act as another tool to combat the infiltration of communism into America.

[14] INA of 1952 §212(a)(27)

[15] INA of 1952 §212(a)(29)(A)

[16] The preference system as it appeared in 1965, before being amended in 1990, is as follows: 1. Unmarried adult sons and daughters of U.S. citizens.  2. Spouses and children and unmarried sons and daughters of permanent resident aliens.  3. Members of the professions and scientists and artists of exceptional ability.  4. Married children of U.S. citizens.  5.  Brothers and sisters of U.S. citizens over age twenty-one.  6. Skilled and unskilled workers in occupation for which there is insufficient labor supply.  7. Refugees given conditional entry or adjustment.  8. Applicants not entitled to preceding preferences

[17] Immigration and Nationality Act, Pub. L. No. 82-414, § 243(h), 66 Stat. 163, 214 (1952).  Section 243 (h) reads: The attorney general is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason

[18] See Cianciarulo, supra note 1 at 38

[19] See Id. at 43

[20] Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 [hereinafter 1967 protocol]


[21] Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 [hereinafter 1967 protocol]

[22] Marisa Silenzi Cianciarulo, Counterproductive and Counterintuitive Counterterrorism: The Post September 11 Treatment of Refugees and Asylum-Seekers, 84 Denv. U. L. Rev. 1121 (2007).

[23] Article 33 of the Protocol provides that, “no Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers or territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion.”

[24] Shane M. Sorenson, Immigration and Naturalization Service v. Cardoza-Fonseca: Two Steps in the Right Direction, 3 Admin. L.J. 95 (1989).

[25] See Id. at 44

[26] See Id. at 45

[27] See Cianciarulo, supra note 22 at 20; see also INA § 243(h), 8 U.S.C. § 1253(h) (Supp. V. 1970) (now INA § 241(b)(3), 8 U.S.C.A. § 1231(b)(3)(West 2007)).

[28] See Id. at 22

[29] See. Id; see also S. REP. NO. 96-256, at 1 (1979), reprinted in 1980 U.S.C.C.A.N. 141, 141.

[30] See Cianciarulo, supra note 1 at 51

[31] See Sorenson, supra note 24 at 55: §243(h) now reads: The attorney general shall not deport or return any alien to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion nationality, membership in a particular social group, or political opinion.

[32] See Cianciarulo, supra note 1 at 55; see also 480 U.S. 421 (1987).; Withholding of removal requires a “clear probability” of persecution while asylum seekers must show only a “well-founded fear”

[33] See Cianciarulo, supra note 22 at 33

[34] As of April1, 1997, asylum seekers must file their applications for asylum within one year of their entry into the United States.  An applicant’s failure to prove by clear and convincing evidence that they filed within one year bars the application from eligibility (limited exceptions available to overcome this filing deadline.

[35] This delay in work authorization closed a loophole that Congress felt was being exploited.  It was believed that claims of asylum were filed solely so individuals could obtain work authorization.  Absent a 180 day delay, this provision made it virtually impossible for those with a pending asylum application to receive work authorization.

[36] The act authorizes immigration officers at U.S. ports of entry to expel those deemed inadmissible.  Those who receive such an order are barred from reentry for a minimum of five years.

[37] Those claiming asylum at a port of entry are no longer guaranteed entry.  Aliens seeking admission are now subject to mandatory detention under the act; #1 page5; see also §604(a);

[38] See Cianciarulo, supra note 22 at 74

[39] Eleanor Acer, Refuge in an Insecure Time: Seeking Asylum in the Post 9/11 United States, 28 Fordham Int’l L.J. 1361 (2005).

[40] Austin T. Fragomen, Alfred J. Del Rey, & Sam Bernsen, Historical Perspective on Immigration Legislation, 1 Immigr. Law & Business § 1:10 (2011).

[41] See Acer, supra note 39: Attorneys working for DHS argued that “members of a Burmese Christian ethnic minority, who are victims of torture and persecution at the hands of the notorious Burmese military regime, are barred from asylum for having provided support to a political movement whose armed wing has used force to oppose this repressive regime.”  DOJ has also argued that a policeman from Colombia who was extorted by the FARC is barred from asylum because the money that was extorted from him constituted material support.

[42] Craig R. Novak, Material Support to Terrorists or Terrorist Organizations: Asylum Seekers Walking the Relief Tightrope, 4 Mod. Am. 19 (2008).

[43] See Fragomen, supra note 40.

[44] Regina Germain, Rushing to Judgment: The Unintended Consequences of the USA Patriot Act for Bona Fide Refugees, 16 Geo. Immigr. L.J. 505 (2002).

[45] See Acer, supra note 39 at 25.

[46] See Novak, supra note 42 at 11.

[47] See Id. at 13.

[48] See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135.  See also 6 U.S.C. §101(b)(1) (2002).

[49] See Acer, supra note 39 at 63.

[50] See Id.

[51] Victoria Rapoport, The Politicization of United States Asylum and Refugee Policies, 11 SCHOLAR 195 (2009).

[52] See IdSee also United Nations Convention Relating to the Status of Refugees, art. 9, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (giving the right to contracting states the ability to act when there is a national security crisis).

[53] See Acer, supra note 39 at 93.

[54] See Id. at 96.

[55] See Cianciarulo, supra note 22 at 94

[56] The Real ID act covers other area of immigration law as well.  These include withholding of removal, judicial review, border security and the issuance of drivers license.  However the aforementioned topics are beyond the scope of this paper.

[57] § 101(a)(3)(B)(iii), 119 Stat. at 303

[58] 8 U.S.C.A. § 1252(b)(4)(B) (West 2007).

[59] See Cianciarulo, supra note 22 at 111.

[60] See Cianciarulo, supra note 1.  See also Real ID Act, Pub. L. No. 109-13, Div. B, § 101(a)(3)(B)(ii), 119 Stat. 231, 303 (2005).

[61] See Cianciarulo, supra note 22 at 113

[62] 20 I. & N. Dec. 120 (B.I.A. 1989).

[63] There is no universally accepted definition of “persecution”.  Instead, “persecution is defined on a case-by-case basis.

[64] 8 C.F.R. § 208.13(b)(2)(A) (2007).

[65] See Cianciarulo, supra note 22 at 135

[66] See Id. at 142

[67] See Id. at 143

[68] Ruth Ellen Wasem, U.S. Immigration Policy on Asylum Seekers, CRS Report for Congress (Updated February 16, 2005).

[69] See Id.

[70] DHS Office of Immigration Statistics: Nationals of the above mentioned give countries accounted for 47 percent of persons granted asylum in 2010



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