Protection Promises

With the subject of U.S. asylum policy coming to the forefront of the national political debate, we asked Cesare Romano, a professor law and W. Joseph Ford Fellow at Loyola Law School in Los Angeles, and Jenna Gilbert LLS ’10, managing attorney of the Los Angeles office of Human Rights First, to give us a primer on the topic.—The Editor

What is asylum?
The term “asylum” indicates the protection given by a state to individuals who enter state territory seeking protection from persecution, and who, because of the persecution, are unable or unwilling to return to their country of origin. However, when people move to other countries not because of fear of persecution but rather by choice, to seek better opportunities, we talk about “migrants.” Although states are sovereign and they can welcome to their territory or deny entry to their territory to migrants, their freedom to deny entry to those seeking asylum is limited by well-established and long-observed principles of international law.

What is the origin of the concept?
Greek cities gave citizens of other cities and nations asylum. In more recent times, the displacement of millions caused by World War II, and in particular of Germans who fled territories occupied by the Soviet Union to seek refuge in the west, led the international community to codify the basic rules regulating territorial asylum. These are found in the Geneva Convention Relating to the Status of Refugees of 28 July 1951 (also known as the Refugee Convention), as supplemented by the New York Protocol of 31 January 1967 (Protocol Relating to the Status of Refugees). These two treaties are the cornerstone of the international legal regime for the protection of refugees. To date, they have been ratified respectively by 145 and 146 states. The United States has only ratified the New York Protocol.
The Refugee Convention defines the term “refugee” as a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership in 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.

Is asylum a widely recognized element of international law?
States have the right to grant asylum to whomever they want (with the exception of terrorists and those who have committed international crimes). This is an essential attribute of their sovereignty. However, although international law recognizes the right of everyone to leave their country, in international law there is no right to enter another state and no individual right of asylum. Being a refugee, having “refugee status,” does not necessarily entail or imply a right to enter another state, or the right of residence in that state. However, once a refugee does enter another state (and that includes being rescued at sea), that state is limited in its capacity to reject the refugee by two principles. First, refugees cannot be returned to the country from which they fled as long as they risk persecution there. This is the so-called rule of non-refoulement, which is not only enshrined in the Refugee Convention but also in several other international legal documents to the point that it is considered now a rule of customary international law, binding on all states regardless of what treaties they ratified. Second, although refugees can be transferred to other states, those other states also are sovereign, and therefore they can, and often do, refuse to welcome those refugees on their territory.

What is the difference between affirmative asylum and defensive asylum?
In the United States, whether an applicant can apply for asylum affirmatively with the asylum office or defensively before an immigration judge largely depends on the person’s manner of entry and whether he or she has been placed into removal proceedings. Additionally, unaccompanied minors are authorized to apply for asylum affirmatively, regardless of whether they are also in removal proceedings, as they have special protections guaranteed under the law. Someone who entered the United States on a visa would typically file for asylum affirmatively, whereas someone who was apprehended by immigration authorities after entering the United States without a visa or who presented themselves at a port of entry to request asylum would typically seek asylum before an immigration judge as a defense to their removal.

On what basis does the United States grant asylum to persons?
To qualify for asylum, an applicant must first satisfy the definition of a refugee, which comes from the Refugee Act of 1980 and largely mirrors the Refugee Convention definition. The applicant also cannot be subject to any of the bars to asylum, which include bars related to criminal or terrorist activity, and must warrant a favorable exercise of the adjudicator’s discretion.

Must one be a legal resident of the United States to be granted asylum status by the U.S. government?
The immigration status of the individual applicant does not matter. Of note, an asylum applicant will be barred from seeking asylum, with certain exceptions, unless the application is filed within one year of entry to the United States, so most asylum applicants have no lawful status whatsoever at the time they apply.

Is there legal recourse for those whose asylum application is rejected?
An asylum applicant may appeal a negative decision to the Board of Immigration Appeals (BIA) and later to the circuit court where the individual resides.

Is asylum available to refugees fleeing war zones or must the applicant have been personally targeted for persecution in his or her home country?
Fleeing general civil strife or war zones would not be sufficient to prove a claim for asylum. The fear of persecution must be related to a specific ground enumerated in the refugee definition, though such fear would not be negated simply because general violence exists. For instance, most individuals fleeing Syria would be able to demonstrate eligibility for asylum based on their actual or imputed political opinion, or another protected ground, in addition to the fact that Syria is a war zone.

Has the practice of granting asylum been upheld by U.S. administrations regardless of which party holds the White House?
The United States has a long tradition of upholding its international obligations and commitment to asylum protections, regardless of political affiliation. In fact, President Ronald Reagan referred to the United States as a beacon to freedom-loving people around the world. Asylum seekers are people whose basic rights have been denied or threatened and who have sought protection in our country. Only in recent years has the issue become polarizing, particularly with the current administration likening Central American asylum seekers to MS-13 gang members and those fleeing violence in the Middle East to terrorists.

What's the difference between asylum and temporary protected status?
Temporary Protected Status is a temporary form of immigration status offered to nationals of specific countries that have suffered from ongoing armed conflict or natural disaster. That status must be regularly renewed and can end when the situation in the country normalizes. Asylum is a permanent form of protection for individuals who have suffered persecution because of their race, religion, nationality, membership in a particular social group or political opinion.

Does the U.S. Congress have any oversight responsibility for the administration of the U.S. asylum process?
The statutory authority for asylum comes from Congress, while regulations also govern the administration of the statute. In addition, case law plays a large role in determining asylum eligibility, with cases coming from the BIA and the circuit courts. However, the BIA, as with the immigration courts, is not part of the independent judicial branch. Instead, BIA is under the purview of the Department of Justice and attorney general. The AG may certify BIA cases to himself, which can dramatically impact the case law applicable to asylum or any other immigration law. But any change in the asylum legal framework would have to come from Congress, not the White House.

Have any significant changes been introduced into the administration of the asylum process by recent U.S. presidents?
The current administration is engaged in ongoing efforts to delegitimize the asylum process in the United States and has often referred to asylum, a process that guarantees the protection of those who have fled persecution, as a “loophole.” Congress has proposed a series of legislative measures that would limit the protection of asylum seekers, but thus far none have been successful.

Cesare Romano is a professor law and W. Joseph Ford Fellow at Loyola Law School in Los Angeles. His expertise is in public international law, including international human rights, international courts and tribunals, international criminal and humanitarian law. He holds an LL.M. degree from New York University and a Ph.D. from the Graduate Institute of International Studies at Geneva University in Switzerland. Romano founded the International Human Rights Clinic at Loyola Law School.

Jenna Gilbert is the managing attorney of the Los Angeles office of Human Rights First, a nonprofit, nonpartisan international human rights organization based in New York. She oversees the pro bono legal representation of indigent asylum seekers and assists Los Angeles lawyers and firms that represent asylum seekers. She earned her Juris Doctorate degree from Loyola Law School in 2010.

This article appeared in the summer 2018 issue (Vol. 8, No. 2) of LMU Magazine.