Protecting Our Neighbors

Protecting Our Neighbors

By: Jennifer Healey, Staff Attorney

I’ve heard people use different metrics to judge a nation as a whole: average vacation hours per year, collective debt, treatment of animals, donations to charity, and the list goes on. I think the heart of any country manifests—at least in part—through its humanitarian laws: whether they exist at all, and if so, how they’re implemented. Many laws are justified by ‘public interest’ considerations and positively impact a large portion of the population (i.e. they keep people safe, preserve individual freedom, save money, etc.). In contrast, humanitarian law is rooted in mercy, not merit. It’s a government acknowledgement that some people have suffered so immensely that they deserve special protection. Humanitarian law is born out of compassion and different from every other practice area. That’s why it’s so important.

Immigration Options: “Pathways”
There are three broad categories for immigration benefits in the U.S.: business/academic, family-based, and humanitarian. The policy justifications behind these three ‘pathways’ are obvious: the U.S. (i) has an interest in drawing professionals/students through merit-based vetting, (ii) prioritizes keeping families together, and (iii) enjoys a worldwide reputation as a haven for persecuted people. At Just Neighbors, we serve clients with humanitarian immigration applications. Of the various case types we handle, asylum is the most misunderstood and newsworthy of them all.

A while back, I represented an asylum-seeker who fled his home country of Iraq because he was abducted and tortured by Shia Militia members, who held him for ransom. He initially planned to escape and join family elsewhere in the Middle East, but they were in a country that didn’t offer humanitarian protection. Quite a few countries don’t offer asylum or other humanitarian immigration options. He made the difficult journey to the U.S., where his first application was denied by the Asylum Office. Fortunately, he was eventually granted asylum by an Immigration Judge, after years of gathering evidence for his case. I will never forget his reaction to the Judge’s decision—it was the most demonstrative expression of relief I’ve ever seen. I remember thinking to myself, “I’m so glad to live in a country that chooses—through its laws—to protect this man.” He is currently completing medical residency and ever grateful to live in a country with laws that protect him. I tell this story because he was granted asylum under the current administration—with numerous factors working against him. It’s easy to become disheartened while this country limits protections for asylum-seekers and refugees. At the same time, it’s important to remember that while our policies and case law are changing, there is still statutory protection, with deep roots in international treaties, for many of our clients.

Who is an asylee? Who is a refugee?
In a nutshell, asylum is permission from the federal government for an individual to remain in this country[1] after they have satisfied the legal definition for a refugee: past persecution or a well-founded fear of future persecution on account of race, religion, nationality, political opinion, or membership in a particular social group.  INA § 208. The difference between asylum and refugee protection is simple: asylum-seekers apply for protection in the U.S., while applicants for refugee status apply abroad. The legal burden is the same.

The asylum system in the U.S. grew out of the aftermath of World War II, while millions of forcibly displaced people searched for a new home. The U.S. demonstrated its willingness to contribute to post-war efforts through the Displaced Persons Act of 1948, which was the first statutory protection for several hundred thousand European refugees.

International Law
There are two key treaties that lay the foundation for asylum protection as it exists today in the U.S. Shortly after it’s formation, the United Nations drafted a multilateral treaty—the 1951 Convention Relating to the Status of Refugees—to establish an international framework for refugee protection. That treaty created a legal definition for refugees (which is very similar to the definition used in the U.S., as described above) and required state parties to protect individuals who met the definition. The 1951 Convention targeted refugees fleeing the World War II conflict because it only provided protection to refugees who fled events before January 1, 1951. The U.S. was not a signatory to The 1951 Convention.  In 1967, the United Nations expanded the same refugee definition—through a treaty called the Protocol Relating to the Status of Refugees—to include people who fled events after 1951. The U.S. signed onto that treaty. This is why we see human rights activists on the news remind us that the U.S. is bound, under international treaty obligations, to neither “expel [n]or return” people who satisfy the legal definition for a refugee.[2]

In 1980, the U.S. incorporated parts of The 1967 Protocol into domestic law by enacting the Refugee Act of 1980.  The Refugee Act amended the Immigration and Nationality Act to permit “any alien who is physically present in the United States” to apply for asylum, regardless of manner of entry. It also incorporates the 1951 Convention’s refugee definition into the federal statute. Much liked the abovementioned treaties, the Refugee Act was responsive to conflict: it was enacted during the aftermath of the Vietnam War.

Prioritizing Protection
A look back into our nation’s history shows us that our asylum system evolved to provide a compassionate response to conflict. The whole system is admittedly political and at times oddly skewed to favor certain groups. Nonetheless, it’s based on compassion. Because of that, it doesn’t make sense for the asylum system to transition into a vetting mechanism used to eliminate people who can’t make this country wealthier. We have a system for that already: through business/academic-based immigration. This is not to say that asylees and refugees don’t add economic value. On the contrary, many studies indicate the opposite: the same perseverance that drives asylum-seekers to flee their countries in order to make a long journey to safety, often equips them to add professional value in the countries where they land. The abovementioned gentleman completed medical school while gathering evidence and prepping for two rounds of his asylum application—all while recovering from trauma!

Humanitarian protection, and asylum specifically, was enacted to serve a different purpose than merit-based counterparts.[3] It’s important that the two practice areas not be conflated because our obligations under international and federal law don’t allow it. We are still one of the countries in the world with an established—albeit flawed and backlogged—asylum system. These are very hard times for our clients. Let us remember that protection is firmly embedded in our immigration legal system and we will continue to help our neighbors reach freedom and safety in this country.

[1] Asylum status is usually indefinite, meaning that it typically does not expire, yet it is revocable upon proof of conviction of certain crimes, fraud, changed country conditions, etc.
[2] Article 33 of the 1951 Convention is incorporated into the Protocol Relating to the Status of Refugees.
[3] It’s important to note that there are merit-based considerations within the asylum system. Asylees can lose their status if they are convicted of certain crimes, commit fraud, etc. In addition, there are multiple rounds of vetting during subsequent application cycles (for example: legal permanent residency and citizenship).

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