“Asylum-Free Zones”: U.S. Violations of International Legal Obligations to Asylum-Seekers

Ava Morgenstern

Vol. 38 Associate Editor

  Certain U.S. Immigration Court jurisdictions, by almost never granting asylum, arguably violate international law obligations on fair hearings for asylum-seekers.  The problem of highly restricted access to asylum will worsen under the Trump administration.  Despite possible small measures to alleviate the situation, not much will change unless and until the arrival of a future Presidential administration and Congress more concerned with international human rights obligations. According to a coalition of U.S. law scholars and non-governmental organizations (NGOs) that presented at a December 2016 Inter-American Commission on Human Rights (IACHR) hearing, certain U.S. Immigration Court jurisdictions violate the due process protections of the American Declaration on the Rights of Man.[1]  These advocates call these jurisdictions “asylum-free zones”[2] – Immigration Courts where almost no asylum applicant succeeds and which thus deny applicants a fair adjudication. The advocates explained that U.S. Immigration Courts, which are administrative law courts run by the Department of Justice’s Executive Office for Immigration Review (EOIR), exhibit severe disparities between jurisdictions in terms of defensive asylum grants to non-citizens in removal proceedings.  Legal scholars and the U.S. Government Accountability Office (GAO) have repeatedly documented these disparities.[3]  Whereas the average nationwide asylum grant rate is about 50%, in the most restrictive jurisdictions, such as Atlanta, Charlotte, Houston, Dallas, and Las Vegas, it is far closer to 0%.[4]  In the latter jurisdictions – the “asylum-free zones” – asylum-seekers thus have effectively no fair hearing.[5] No rational reason explains these disparities, according to the academic and NGO advocates.[6]  These differing grant rates arise from local sub-regulatory practices such as the denial of expert testimony and the refusal to consult precedent.[7]  With no basis in widely accepted evidentiary and procedural norms, these practices violate U.S. law – the Refugee Act of 1980 and accompanying Immigration and Nationality Act additions, and refugee case law –  which codified the Refugee Convention’s 1967 Protocol.[8]  The “asylum-free zones,” staffed primarily by Immigration Judges who are former prosecutors and who carry a prosecutorial mindset, violate due process and are arbitrary and capricious under administrative law review standards.[9]  These Courts chill meritorious asylum claims and discourage both private and pro bono attorneys from representing asylum applicants.[10]  Any appeals to EOIR’s appellate body, the Board of Immigration Appeals (BIA), are case-by-case and do not reform the system or discipline judges.[11] IACHR intervention is necessary, argued the scholars and NGOs, because the U.S. government has not effectively responded to the violations.[12]  The advocates asked the IACHR to issue a public statement of concern, to visit U.S. Immigration Courts, to report on asylum-granting disparities, and to prioritize consideration of the advocates’ upcoming litigation against the U.S.[13]  As one scholar stated, “our hope is to get the OAS [Organization of American States] to investigate this matter and re-frame it from an issue of discretionary administrative procedure to one of fundamental human rights.”[14] Though the U.S. government responded at the hearing, the advocates found the response inadequate.  The EOIR claimed it was following the recommendations of the GAO reports.[15]  In 2008, following the first GAO report, the EOIR identified Immigration Judges with especially low grant rates, examined their professional conduct and legal performance, conducted trainings, and produced additional data analysis.[16]  In response to the GOA’s 2016 follow-up report finding disparities persisting, the EOIR is funding representation for unaccompanied minors.[17]  Advocates, however, contest that these measures have been ineffective, because problems have remained very similar between the GAO’s 2008 and 2016 reports.[18] In response to the hearing, the IACHR stated its concern over the situation and its commitment to the international law principles of the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, and the Refugee Convention.[19] In addition to the concerns presented at the IACHR hearing, many more potential U.S. violations of international human rights obligations loom on the horizon.  The Trump administration aims to make the asylum-seeking process much more burdensome.  Specifically, the administration is likely to follow the advice of prominent immigration restrictionists to deny due process to non-citizens in the Immigration Courts, to accelerate deportations, and to restrict grants of refugee and asylum status.[20]  The administration plans to invest more resources in the enforcement agencies of the Department of Homeland Security (DHS), especially Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).[21]  In contrast, the adjudicatory U.S. Citizenship and Immigration Services (USCIS) as well as the EOIR are the units best-positioned to grant due process to asylum-seekers, but what the administration plans to do to their budgets is uncertain. A few ideas aim to ameliorate some of the worst-case scenarios for asylum-seekers under the Trump administration.  For instance, many municipalities, universities, and religious centers want to enact “sanctuary” policies to protect persons at risk of federal immigration enforcement, which would include asylum-seekers.[22]  While these small measures might comprise the best responses at the moment, they are only temporary solutions, so long as asylum-seekers remain in removal proceedings or otherwise at risk of being removed.  In the long term, advocates will need to work for and wait for a future Presidential administration and a future Congress that will strengthen the capacity of the EOIR, DHS, and State to adhere to U.S. and international human rights obligations to persons fleeing persecution.

[1] Schedule of Public Hearings, Inter-Am. Comm’n H.R. (Dec. 9, 2016), http://www.oas.org/en/iachr/sessions/docs/Calendario-160-audiencias-en.pdf; Comisión Interamericana de Derechos Humanos, EEUU: Solicitantes de Asilo, YouTube (Dec. 9, 2016), https://www.youtube.com/watch?v=wtnPmtz08u4. [2] David Baluarte, et al., Before the Inter-American Commission on Human Rights: A Special Interest Hearing on the Human Rights of Asylum Seekers in the United States, Ctr. for Gender & Refugee Stud., U.C. Hastings C. of L. (Dec. 2, 2016), http://cgrs.uchastings.edu/sites/default/files/Human%20Rights%20of%20Asylum%20Seekers%20in%20US%20%5BPetitioners%5D_1.pdf. [3] Id. at 4-5. See U.S. Gov’t Accountability Off., GAO-17-72, Asylum: Variation Exists in Outcomes of Applications Across Immigration Courts and Judges (2016); U.S. Gov’t Accountability Off., GAO-08-940, U.S. Asylum System: Significant Variation Existed in Asylum Outcomes Across Immigration Courts and Judges (2008); Jaya Ramji-Nogales, Andrew I. Schoenholtz & Phillip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295 (1997); Transactional Records Access Clearinghouse, Judge-by-Judge Asylum Decisions in Immigration Courts: FY 2011-2016, Syracuse U., http://trac.syr.edu/immigration/reports/447/include/denialrates.html (last visited Jan. 5, 2017). [4] Baluarte, supra note 2, at 6. [5] Id. at 12-15. [6] Id. at 11. [7] Id. [8] Id. at 1, 2, 12. [9] Id. at 7, 11-12. [10] Id. at 7, 9. [11] Id. at 4, 12. [12] Id. at 15. [13] Id. at 15. [14] Peter Jetton, The Problem of Asylum Free Zones, Wash. & Lee Univ.: Columns (Dec. 8, 2016), http://columns.wlu.edu/the-problem-of-asylum-fee-zones/. [15] IACHR Wraps Up Its 160th Session, Org. of Am. St.’s (Dec. 19, 2016), http://www.oas.org/en/iachr/media_center/PReleases/2016/192.asp; Isaac Morales, Human Rights Situation of Asylum Seekers in the United States, Hum. Rts. Brief (Dec. 23, 2016), http://hrbrief.org/hearings/human-rights-situation-asylum-seekers-united-states/. [16] Morales, supra note 15. [17] Baluarte, supra note 2, at 6 n.23. [18] Morales, supra note 15. [19] IACHR Wraps Up Its 160th Session, supra note 15; Morales, supra note 15. [20] See Maurice Belanger, What the Immigration Restrictionists’ Agenda Will Look Like for the Next Four Years, Am. Immig. Council: Immig. Impact (Dec. 2, 2016), http://immigrationimpact.com/2016/12/02/immigration-restrictionists-agenda-will-look-like-next-four-years/. [21] See Aaron Blake, Trump’s Big Immigration Crackdown Comes with a Big 5-Year Price Tag: More Than $50 Billion, Wash. Post (Sept. 1, 2016), https://www.washingtonpost.com/news/the-fix/wp/2016/09/01/trumps-big-immigration-crackdown-comes-with-a-big-5-year-price-tag-more-than-50-billion/?utm_term=.a7c428de1dc2; Astrid Dominguez, 4 Ways Border Patrol Union’s Trump Endorsement is Filled with Lies and Misinformation, Am. C.L. Union (Apr. 20, 2016), https://www.aclu.org/blog/speak-freely/4-ways-border-patrol-unions-trump-endorsement-filled-lies-and-misinformation. [22] See Michele Waslin, Local Policies That Protect Immigrants, Outlined, Am. Immigr. Council: Immigr. Impact (Jan. 3, 2017), http://immigrationimpact.com/2017/01/03/local-united-states-immigration-policies-that-protect-immigrants/; Denise Lavoie, Churches Vow to Offer Sanctuary to People in U.S. Illegally, Wash. Post (Dec. 9, 2016), https://www.washingtonpost.com/national/churches-vow-to-offer-sanctuary-to-undocumented-immigrants/2016/12/09/d184d482-bdd9-11e6-ae79-bec72d34f8c9_story.html?utm_term=.ab04fde3b912; Emily Deruy, The Push for Sanctuary Campuses Prompts More Questions Than Answers, Atlantic (Nov. 22, 2016), http://www.theatlantic.com/education/archive/2016/11/the-push-for-sanctuary-campuses-raises-more-questions-than-answers/508274/.