The sudden implementation, if not spirit, of Executive Order 13769 caught many travelers and immigrant advocates by surprise. The order–signed on the afternoon of Friday, January 27th–modified the manner in which the United States accepts certain immigrants and all refugees. It instantaneously changed the legal status of some people as they were in the air, en route to the U.S.
To briefly summarize: the entry of all refugees was halted for 120 days, Syrian refugees were barred entry indefinitely, all immigration from seven countries was halted for 90 days and the cap on total admitted refugees for the 2017 fiscal year was reduced by more than half of its previous target. Certain details, including the status of some Legal Permanent Residents and dual citizens, were eventually clarified after a chaotic weekend in which children and former military translators, among others, were detained for multiple hours at U.S. airports. The substance of the order and the myriad legal challenges to it remind us that the long-term evolution of U.S. immigration law has entered a phase of particular uncertainty.
On February 9th, the Ninth Circuit Court of Appeals upheld an earlier temporary restraining order that suspends implementation of E.O. 13769. This granted a reprieve to the estimated 90,000 people whose lives and travel plans had been disrupted by the Order. The administration has not yet acted, although statements indicate a response of either pursuing further litigation in the courts or issuing another E.O. that advances the sought changes to immigration policy while avoiding the legal stickiness of 13769.
Because asylum seekers and refugees seeking readjustment are among the people served by American Gateways, we want to explore the background of asylum and refugee law in the U.S. as it stood before the recent changes. Our country’s legal approach has developed within a multi-decade convergence of several historical, diplomatic and legal streams. It remains to be seen how recent events will contribute to that approach.
The now well-known atrocities perpetrated during World War II prompted creation of the Universal Declaration of Human Rights by a commission of the United Nations. Eleanor Roosevelt chaired the drafting committee. Upon its release in 1948, this bold and concise document plainly stated that: “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” This concept underlies the mission statement of American Gateways and many other immigrant services organizations. The Declaration also says that “everyone has the right to seek and to enjoy in other countries asylum from persecution.”
The U.N. General Assembly followed this non-binding document with the 1951 Convention Relating to the Status of Refugees. The initial focus was only on people displaced by World War II and the document was amended in 1967 to apply to similarly affected people at any time and in any place. The U.S. ratified the 1967 Protocol. The definition of, and rights accorded to, refugees via the federal Immigration and Nationality Act and its 1980 Refugee Act amendment closely follow the language and concepts used in the U.N. documents.
Nonetheless, there have been cases where U.S. immigration courts appear to diverge from the standards established by the 1951 Convention, 1967 Protocol and customary international law. Discretion given to immigration judges, for example, has led to situations where immigrants are returned to countries in contravention of the non-refoulement principle, which states that a person should not be forced to return to a place where their life or freedom would be at risk.
The power of judicial discretion over national and international legal standards can also be seen in the difference in asylum grant rates among immigration courts. If legal standards were evenly applied, one would expect to see similar grant rates among the 57 courts. In fiscal year 2015, however, the grant rate varied from zero percent of cases at three low volume courts to 84 percent at the New York City court. Atlanta, a medium volume court, granted just two percent of its 244 applications. The overall grant rate for all U.S. immigration courts was 48 percent. These numbers indicate one aspect of the hill that asylum applicants must climb and the ongoing effort that immigration attorneys must undertake in order to bridge the gap between the high aspirations of international human rights law and its uneven application in U.S. courts.
An explanation of vocabulary: refugees and asylum seekers must meet the same legal standard to attain formal status in the U.S. The difference in terminology pertains to where and when an individual applies for status. Refugees undergo the entire process abroad and must be referred to the U.S. government, often by the U.N. High Commissioner for Refugees. Asylum seekers apply from within the U.S., under either the affirmative process or defensive process. The affirmative asylum process is initiated by the immigrant at a port of entry or within one year of arrival. The defensive asylum process is undertaken after an immigrant is placed in removal proceedings by an immigration court.
The process of achieving legal status for refugees and asylum seekers can be lengthy, lasting in some cases for two or more years. It involves the initial application, presentation of documents, an extensive security check (including fingerprinting and/or retinal scans) as well as multiple interviews and hearings. The applicants are often required to revisit traumatic life events during the interviews and hearings. The legal standard that must be met during this process is proving persecution or the reasonable fear thereof based on race, religion, political opinion, nationality or membership in a particular social group. As stated above, judicial discretion plays a strong role in whether or not an applicant successfully meets this standard. You can read firsthand stories of the asylum process as told by former American Gateways clients on our Facebook page.
Because the ultimate status of E.O. 13769 and any future Orders regarding refugees and asylum seekers remains unknown, we also don’t know how the already long and difficult path to attaining status will change. It’s unlikely to get any easier.
The answers to the above questions will not only clarify immigration procedure but could also illuminate the government’s broader approach to immigration law, Constitutional law and international law. The basis of many of the legal challenges to the Order, as well as the general controversy in the public sphere, include questions as to whether the government can or should discriminate against immigrants based on nationality or religion. Does the order put us in violation of treaty obligations? Defenders of the recent changes cite a president’s broad power, as stated under the Immigration and Nationality Act, to exclude those who “would be detrimental to the interests of the United States”. And yet the same Act also prohibits entry preference based on nationality. As often happens, multiple facets of our broad and complex legal system find themselves in conflict.
For those working in immigration law and advocacy, the questions expand to include those of current and future positioning vis-à-vis the Universal Declaration of Human Rights. Will the compassionate statements made within, now so widely accepted as to almost constitute common sense, form less of a guiding principle going forward than they did in the painful and optimistic years following World War II?