Nicholas Bolzman* | 1 Regent J. Glob. Just. & Pub. Pol. 3 (2014)

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INTRODUCTION

For the past forty years, the United States has suffered from a schizophrenic asylum policy. To obtain asylum, applicants must meet two requirements—that they fear or have experienced actual persecution, and the persecution was on account of one of five listed grounds: race, religion, nationality, membership in a particular social group, or political opinion.^[1] While the first requirement is expansive and able to adapt to whatever new creative forms of harsh treatment persecutors develop, the second, called the nexus clause, finitely and arbitrarily narrows and limits asylum to only those who have suffered a type of persecution foreseeable to the statute’s drafters.

Although an improvement to the prior ad hoc and geographically limited criteria for asylum, the internal tensions in today’s asylum law have resulted in both inconsistent results and distracting litigation— both of which harm the very people asylum law is supposed to help. Despite being an attempt to modify the persecution element, the nexus clause, as interpreted by the courts, has become, at best, an unnecessary complication and, at worst, an inadvertent legitimation of the persecution that an asylum law should protect against. The result is a policy that arbitrarily excludes victims of persecution when their persecutor’s motivation is not recognized under the limited nexus clause, a practice that inadvertently declares the persecution legitimate. Examples of such exclusions are victims of persecution based on gender and sexual orientation, those targeted for female genital mutilation (FGM) or recruitment as child soldiers, and those subjected to persecutory laws of general application.

This shortcoming could be addressed by adding gender, age, or laws that violate other basic human rights to the nexus clause list. But this would only be a surface fix. The heart of the difficulty is an inherent conflict written into the asylum law itself. Identifying this conflict makes the solution simpler than creating a laundry list of the various types of persecution that people may face around the world. Instead, the United States can simply offer asylum to those who are persecuted for any illegitimate motivation. This would recast the nexus clause as a classification, instead of an additional criterion, or could even be used to remove the clause altogether.

HISTORY OF THE U.S.’S ASYLUM POLICY

The United States’ asylum policy is historically intertwined with— and is still a subset of—its immigration policy. When immigration rules were lax, there was no need for a separate asylum procedure for refugees to obtain permission to enter the United States. The only time the issue of asylum would come up was in response to extradition procedures when an alien’s home country demanded its citizen back.^[2] Refugees were not even given legal recognition until 1948.^[3]

From the nation’s founding until 1875, there were virtually no immigration restrictions.^[4] Refugees could enter the same as anyone else. Restrictions began in 1875 with prohibitions on prostitutes and criminals,^[5]and continued over the next several decades: Chinese immigration was prohibited in 1882,^[6] anarchists were excluded in 1903,^[7] and illiterates were barred in 1917.^[8] The first quotas restricting the number of foreigners allowed to enter the country annually were enacted in 1921, but there were still no affirmative eligibility requirements to meet before entry.^[9] During this era, because the immigrants’ reason for seeking entry was simply irrelevant and there was no need to place refugees into a separate class, refugees would be admitted or excluded on the same criteria as any other alien. Yet, with the adoption of quotas, refugees competed with all other types of immigrants. The result, as Fragomen and Bell explain, was that refugees were increasingly squeezed out:

While restrictions on immigration increased, no special provision was made to permit the continuing entry into the United States of persons seeking sanctuary from persecution in their home countries. The result was that the previously open doors were shut completely to refugees; the worst example of this policy came in the 1930s, when Congress refused on several occasions to enact legislative exceptions to the strict quota policy then in effect in order to permit the entry of refugees from Nazi terror, including proposed exceptions for groups of Jewish orphans.^[10]

Although likely unintended, the effect of the increasingly restrictive immigration policies adopted in the early twentieth century was to leave out refugees altogether.

It was not until after World War II, in the Displaced Persons Act of 1948, that refugees first received legal recognition.^[10] However, it was so highly restrictive and technical that ninety percent of displaced Jews, whom this act was supposed to help, did not qualify.^[11] This act was extended in 1950, 1951, and 1952, but remained geographically limited to the countries liberated from German rule.^[12]

In 1953, Congress also adopted the Refugee Relief Act, which provided for the admission of 28,000 refugees, half of which needed to be from Eastern European countries.^[13] The purpose was largely political: “[s]pecial allotments were provided for Sweden, Iran, and Greece (countries viewed as bulwarks of democracy against Soviet expansionism).”^[14] Sponsorship by U.S. citizens was required for all applicants.^[15] However, these combined acts, which addressed refugees “on an ad hoc basis . . . while failing to devise an overall policy,”^[16] were inadequate for the refugee crisis following the 1956 Hungarian revolution and the subsequent invasion of Hungary by the Soviet Union.^[17]

The Hungarian revolution produced approximately 200,000 refugees, and the United States was unable to meet its portion of the demand under the Refugee Relief Act of 1953.^[18] Once all refugee slots were full, President Eisenhower, after consulting with Congress, authorized the Attorney General to use the newly created parole power to admit additional 15,000 refugees.^[19] This new parole power had been added by the Immigration and Nationality Act of 1952.^[20] Anker and Posner describe it as follows:

Section 212(d)(5) was originally enacted to authorize the parole of otherwise inadmissible aliens. Derived from early administrative practice and operational instructions, it was designed to overcome some of the stringent entry requirements contained in the INA without allowing the alien the legal protections granted with formal entry into the United States. While both the prior administrative practice and the legislative history of the INA indicate a purpose to benefit individual aliens in emergency situations, the 1956 Hungarian crisis heralded “the first, but by no means the last,” use of the parole provision for the mass admission of refugees.^[21]

The parole power was again used to admit refugees from the Cuban revolution of 1959, and then again for Chinese, Czechs, and Indochinese in the 1960s and 1970s.^[22] Each time Congress tacitly approved the measure by passing legislation permitting the paroled refugees to adjust their statuses to that of legal permanent resident.^[23]

Congress finally created an immigration category for refugees in the 1965 amendments to the Immigration and Nationality Act.^[24] These amendments also did away with the national quota system and replaced it with the priority system that is the basis for today’s immigration policy.^[25] However, most of the refugee restrictions from the prior ad hoc acts were kept.^[26] To be eligible for asylum, applicants had to meet four criteria:

1) departure from a communist-dominated country or from a country within the general area of the Middle East; 2) the departure constituted a flight; 3) such flight was caused by persecution or fear of persecution on account of race, religion, or political opinion; and 4) an inability or unwillingness to return.^[27]

Because of these geographic and ideological limitations, the act was inadequate to deal with refugees globally, and de facto refugee policy continued to be largely set by the executive branch’s parole power.^[28]

Congress eventually adopted today’s refugee policy in the Refugee Act of 1980.^[29] This new policy was designed to “remedy the ideological and geographical biases that had infected earlier US refugee policy.”^[30] To accomplish this end, it opened up the refugee definition to applicants worldwide, rather than limiting it to certain geographic areas.^[31] It also modeled the definition of refugee devised by the 1967 United Nations Protocol Relating to the Status of Refugees.^[32] As Price explains, this act “for the first time created an explicit statutory basis for asylum.”^[33] This definition of refugee is still in effect today. But as will be shown, while it eliminated the arbitrary geographic limitations and opened up the ideological restrictions, it still falls short of providing a truly expansive refugee policy.

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1. 8 U.S.C. § 1101(a)(42). ↩︎
2. See MATTHEW E. PRICE, RETHINKING ASYLUM: HISTORY, PURPOSE, AND LIMITS 25 (2009). ↩︎
3. See AUSTIN T. FRAGOMEN & STEVEN C. BELL, IMMIGRATION PRIMER 194 (1985).   ↩︎
4. See id. ↩︎
5. See id.; Act of March 3, 1875, ch. 141, §§ 3, 5, 18 Stat. 476, 477. ↩︎
6. See FRAGOMEN & BELL, supra note 3, at 194 n. 3; Act of May 6, 1882, ch.126, § 1, 22 Stat. 58, 58–59. ↩︎
7. See FRAGOMEN & BELL, supra note 3, at 194; Act of March 3, 1903, ch. 1012, § 2, 32 Stat. 1213, 1214 (repealed 1907). ↩︎
8. See FRAGOMEN & BELL, supra note 3, at 195; Act of Feb. 5, 1917, ch. 29, § 3, 39 Stat. 874, 875 (repealed 1952). ↩︎
9. See FRAGOMEN & BELL, supra note 3, at 195; Act of May 29, 1921, ch. 8, § 2, 42 Stat. 5 (repealed 1952). ↩︎
10. Id. at 194; Displaced Persons Act of 1948, ch. 647, 62 Stat. 1009. ↩︎
11. Deborah E. Anker & Michael H. Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980, 19 SAN DIEGO L. REV. 9, 13 (1981-82). ↩︎
12. See FRAGOMEN & BELL, supra note 3, at 195; Anker & Posner, supra note 12, at 13; Act of June 16, 1950, ch. 262, 64 stat. 219; Act of June 28, 1951, ch. 167, 65 Stat. 96; Act of June 27, 1952, ch. 477, 66 Stat. 277. ↩︎
13. See BARBARA M. YARNOLD, REFUGEES WITHOUT REFUGE: FORMATION AND FAILED IMPLEMENTATION OF U.S. POLITICAL ASYLUM POLICY IN THE 1980’S 13 (1990); Refugee Relief Act of 1953,,ch. 336, 67 Stat. 400. ↩︎
14. Anker & Posner, supra note 12, at 14. ↩︎
15. See YARNOLD, supra note 14, at 13. ↩︎
16. FRAGOMEN & BELL, supra note 3, at 195. ↩︎
17. See Anker & Posner, supra note 12, at 14–15. ↩︎
18. See id. at 14–15. ↩︎
19. Id. at 15; FRAGOMEN & BELL, supra note 3, at 195–96. ↩︎
20. See FRAGOMEN & BELL, supra note 3, at 195–96; 8 U.S.C. § 1182(d)(12). ↩︎
21. Anker & Posner, supra note 12, at 15 (footnotes omitted). ↩︎
22. FRAGOMEN & BELL, supra note 3, at 196. ↩︎
23. Id. ↩︎
24. See Anker & Posner, supra note 12, at 17. ↩︎
25. See id. at 18. ↩︎
26. Id. at 17. ↩︎
27. Id. ↩︎
28. See YARNOLD, supra note 14, at 15; Anker & Posner, supra note 12, at 18–19. ↩︎
29. Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (codified as amended in scattered sections of 8 USC, 20 USC & 22 USC); 8 U.S.C. § 1101(a)(42). ↩︎
30. PRICE, supra note 2, at 86. ↩︎
31. See id. ↩︎
32. Id.; Protocol Relating to the Status of Refugees art. 1(2), Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967) (removing date cut-off from Convention Relating to the Status of Refugees art. 1(A)(2), July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150). ↩︎
33. PRICE, supra note 2, at 86. ↩︎

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*J.D. 2013, Michigan State University College of Law. Special thanks to David and Veronica Thronson for teaching me immigration law and assisting with this article.