Asylum: a Concept and a Construct
Asylum in United States Law after 1980
The First Reforms: 1990
The Need for Further Reform Grows, But is Stuck in Impasse
1993: Time for Reform as Impasse Broken
January 1995: Implementation of Asylum Reform Begins
Fast Forward: Success of Reform

In 1980, changes in U.S. asylum law and practice began years of controversy and change. Until 1995, the goal of asylum processing -- achieving a balance between the need for compassion in assessing the claims of asylum-seekers and the need for controls adequate to deter fraud and abuse -- proved elusive.

However, sweeping administrative changes to the INS Asylum Program that became effective in January 1995 ("asylum reform") successfully transformed a barely functional but fair process into one that has become a model of efficiency. The previous system had become a magnet for fraud, and asylum applications languished for years in a growing backlog. As a result of asylum reform, genuine refugees are quickly identified and granted protection, incentives for abuse have been minimized, and individuals who are not found eligible for asylum are promptly placed into removal proceedings.

Background

Asylum: a Concept and a Construct

Asylum is both an ancient religious concept and a modern legal construct. Whether in the Biblical six cities of refuge or a modern state implementing the constructs of international refugee law, asylum involves two essential components: protection from immediate punitive action and a careful objective determination of the need for longer term protection.

Despite its long history, asylum as it is known today started evolving only in the early 20th Century when the League of Nations authorized international officials to care for Russian refugees fleeing the Communist takeover. More often than not, refugees in those early days were members of specific ethnic groups, and refugee status was conferred on the basis of ethnicity or group membership more than on any other criteria. Thus, membership was usually sufficient to qualify an applicant for care. Care from the international community came to involve not only the material assistance of clothing, food and shelter, but also legal protection from persecution by the country of origin and legal protection from arbitrary action by the country of refuge.

Following the events of World War II, there was a flurry of activity in the international arena.

The United Nations was established (1945), a Universal Declaration of Human Rights was adopted (1948) (Article 14.1 concerned the "right to seek and enjoy in other countries asylum from persecution"), and the International Refugee Organization (IRO) was established on December 15, 1946, to care for and protect refugees displaced by the War. In December 1950, the Office of the United Nations High Commissioner for Refugees (UNHCR) was created [it replaced the IRO] to oversee international protection of refugees and to coordinate the provision of assistance to them when needed. In 1951, the United Nations Convention relating to the Status of Refugees was signed. Included in the 1951 Convention was a more widely used definition of refugee: someone outside his or her country of origin who was unable or unwilling to return home owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion.

An important Protocol ("addendum") to the 1951 Convention was developed and signed in 1967. While the United States did not sign the 1951 Convention, it did accede ("sign" or "subscribe") to the 1967 Protocol in 1968. The 1968 accession to the 1967 UN Protocol committed the United States to follow certain elements of international law in the treatment of refugees, including use of the international definition of refugee. As a consequence of refugees' need to flee with little time to prepare or get proper documents, it also agreed to suspend for refugees many of its otherwise normal immigration restrictions, procedures and requirements.

In addition to the formal guidance provided by the 1951 Convention and the 1967 Protocol, international refugee and asylum law continues to evolve. The Executive Committee of the High Commissioner's Program, the governing body of UNHCR, meets at least annually. The United States is one of its 54 members.

Since, 1975, part of the work of the Executive Committee has been "to study in more detail some of the more technical aspects of the protection of refugees . . . and report . . . on its findings." If adopted, these findings are incorporated into formal Executive Committee Conclusions. In the 24 years between 1975 and 1999, 86 Conclusions have been issued. These Conclusions, carefully worded and always adopted unanimously, provide additional guidance to countries such as the United States on protection responsibilities and procedures.

While international law does not prescribe the refugee and asylum procedures governments should use, UNHCR has developed guidelines. Conclusion No. 8 (1975) detailed basic requirements for national procedures in the determination of refugee status. In 1979, following the mandate of this Conclusion, the UNHCR issued "for the guidance of governments" its "Handbook on Procedures and Criteria for Determining Refugee Status". Important recent Conclusions deal with international protection (1997), safeguarding asylum (1997), and in 1998, again with international protection.

As a member of the United Nations family of organizations and programs, and as part of its protection function, each July UNHCR is required to send an annual report to the UN General Assembly in New York concerning the state of refugee and asylum protection in the world (e.g., their reports of July 7, 1999, and July 3, 1998).

Asylum in United States Law after 1980

The Refugee Act of 1980 explicitly incorporated the UN definition into U.S. law, and for the first time provided a clear legal foundation for the grant of asylum in the United States (section 208 of the Immigration and Nationality Act). Section 208 of the INA makes the Attorney General responsible for deciding asylum claims and for developing specific regulations establishing the criteria and procedures for granting asylum in the United States "irrespective of status" and manner of entry. According to University of Virginia Professor David A. Martin, writing in a 1982 article, "Little thought was given during consideration of the Refugee Act . . . to the difficulty inherent in making the individualized and fine-grained determination of likely persecution which the UN definition seems to require."

The determination of refugee status is one of the most complex and difficult determinations any government official has to make. The adjudicator has to determine facts often based solely on the testimony of the asylum-seeker, about events in a far away land with laws and customs that may be quite different from her own, and all this in an interview conducted not completely in English but usually through a friend or family member as interpreter. That difficulty is heightened by the stress on an adjudicator of daily hearing tales of inhumanity and degradation and of having to sort out the genuine claims from those that are fraudulent.

During the first ten years after passage of the 1980 Refugee Act, attempts by several Attorneys General to promulgate final administrative regulations did not succeed. Proposed regulations were discussed, and some even published for comment, but none became final. During that time, operating under the authority of interim regulations, asylum claims were among the many kinds of applications and requests adjudicated by Examiners (Adjudications Officers) in INS District Offices.

The First Reforms: 1990

Finally, on July 27, 1990, the Department of Justice issued a final asylum rule fully implementing the 1980 Refugee Act. This rule mandated the establishment of a new U.S. Asylum Officer Corps that would be specially trained to make the "fine-grained" asylum determinations foreseen in international and domestic asylum law. The regulations required that Asylum Officers receive training in international human rights law, conditions in countries of origin, and relevant national and international refugee law. Additionally, the INS Resource Information Center (RIC), an in-house library and documentation center, was required by the 1990 regulations and opened in late 1991. The RIC collects and disseminates to Asylum Officers and other INS officers information on the human rights situation in countries of origin.

An essential feature of the 1990 reforms was the retention of what was called the "two bites of the apple." This system gave most asylum applicants two chances to have their asylum claims heard and adjudicated, one by an INS official and the other by an Immigration Judge.

Using this system after 1990, most asylum applicants would be interviewed in a "non-adversarial" setting (that is, in an office, not in a courtroom) by an INS Asylum Officer. The Asylum Officer would hear the case, and if not approved, would draft and send an official Notice of Intent to Deny (NOID), and give the applicant time to rebut the proposed decision. After reviewing a rebuttal, or after a specified period of time had elapsed, the Asylum Officer would draft and issue the final denial. Applicants denied by an Asylum Officer, and who were in the U.S. illegally (for example, because they entered without permission or by fraud, or their previous documentation had expired), could then present their asylum case for a second, de novo, hearing before an Immigration Judge. These hearings were conducted in a courtroom setting, hearing evidence and arguments presented by two opposing sides (the "adversarial process"): by the applicant arguing for asylum and by the INS often arguing against. Even under the reforms of 1990, it could take many months, if not several years, for an asylum applicant to go through the complete "two bites of the apple."

Therefore, before the new Asylum Corps was even hired, the problem of insufficient resources was worrisome to those inside and outside the Government. Already on December 28, 1990, the INS Deputy Commissioner had warned the Commissioner that without additional resources to the new Asylum Program, "backlogs will continue to grow at perhaps politically unacceptable rates." On the eve of the debut of the new Asylum Corps, The Washington Times published an article warning that the new Asylum Program "will be overwhelmed by a huge backlog when it begins work next week."

Amid considerable fanfare and expectation, the original 82 Asylum Officers began work out of seven specialized offices in April 1991. Significant positive changes came from this new Corps (see below). But, as predicted, the Asylum Corps was never able to keep up with incoming new asylum applications. On top of this workload of new cases, responsibility for hearing what eventually became an additional 240,000 Central American asylum claims was mandated by a 1991 class action settlement agreement (American Baptist Churches v. Thornburgh). And finally, Asylum Officers were responsible for granting work permission to asylum applicants, which, while a secondary duty, was time consuming as the number of asylum applications skyrocketed. No new resources were added for any of these responsibilities.

Then, shortly after the startup of the new Asylum Program, a significant percentage of the Asylum Corps was sent to the U.S. Naval Station at Guantanamo Bay, Cuba, to adjudicate the protection claims of Haitian migrants (This Month in Immigration History for November 1991). Soon the new asylum program was hopelessly backlogged.

The Need for Further Reform Grows, But is Stuck in Impasse

Despite its inability to be timely, the Asylum Corps attracted positive reviews. One report "noted that [immigration] attorneys expressed [pleasant] surprise at the degree of difference between the interviews with asylum officers and the interviews . . . of the past regime" (see Uncertain Haven, Lawyers' Committee for Human Rights, 1991, p. 105). In June 1992, the Catholic Legal Immigration Network, Inc. (CLINIC) honored the INS with a plaque given: "In recognition of the dedication of the Asylum Corps of the Immigration and Naturalization Service for its professional excellence in pursuing fair and humanitarian asylum processing."

And, by early 1994, the Department of Justice had such confidence in the INS Asylum Program that it disbanded the Asylum Policy and Review Unit, a watchdog unit set up by the Reagan Administration to ensure that INS did not improperly deny asylum applicants.

But backlogs kept growing and adjudication delays lengthened, for some, indefinitely. Another LCHR report noted that despite improvements, "some reports are disturbing. Backlogs are growing, and delays in adjudication . . . have been inordinate" (The New Asylum Procedures: An Interim Assessment by Practitioners, LCHR, September 1991, p. 2).

Although the addition of another 68 Asylum Officers in March 1992, for a total of 150 Asylum Officers nationwide, had helped somewhat, almost two-thirds of all new asylum applications went straight into the asylum backlog. Under existing policies, once a case got into the backlog, it would stay there. As word spread of the availability of a work permit by filing an asylum application and sitting in a backlog for many years, more and more asylum requests were received than ever before. [The Immigration Reform and Control Act (IRCA) of 1986 made it more difficult for people to work in the United States without proper documentation. Filing an asylum application was one of the few ways for undocumented aliens to obtain an otherwise hard-to-get work permit from the INS.]

In its first full year of existence, the new Asylum Program had received 56,000 new filings, but had completed only 16,550. The next fiscal year, the number of asylum applications filed rose to almost 104,000 while the number completed barely reached 22,000. By 1995, over 425,000 applications would be in the asylum backlog, almost all with work authorizations. Many of them had no real claim to asylum, but did enjoy the benefit of the work permit. Others with real claims for asylum also were in the backlog, but without the grant of asylum they remained in legal limbo, unable to begin a new life or bring legally their families out of harm's way at home.

However, in the absence of a real felt need for reform, contending viewpoints remained at an impasse. Supporters of the 1990 reforms said that additional resources -- not changed procedures -- would make the system work well. Inside the government, the prevailing view was that changed procedures -- not additional resources -- were needed to improve the system. While everyone agreed that the current system had become dysfunctional, neither side could convince the other of the direction of reform.

1993: Time for Reform as Impasse Broken

Then, in early 1993, things changed dramatically. A series of high profile events (most specifically the bombing of the World Trade Center and the shooting deaths of CIA employees outside their Headquarters in Virginia) were linked to asylum seekers -- people who had asylum applications pending. Then a ship called the Golden Venture went aground on Long Island and disgorged a human cargo of smuggled Chinese who promptly claimed asylum. And a 60 Minutes segment showed foreigners arriving at the JFK Airport with no papers or illegal documents, claiming asylum, and getting into the United States for their asylum processing.

A popular impression at the time was that the U.S. had lost control of its borders. Asylum procedures were seen as one primary culprit. The clamor mounted for asylum reform. In that atmosphere, President Clinton made immigration reform in general and asylum reform in specific an early priority. In late July 1993, he directed the INS to develop within two months an administrative (not legislative) plan to reform asylum.

Draconian remedies in the name of asylum reform were being proposed from various quarters. Some of these proposals would make several substantive changes to asylum laws. Other ideas would change the regulations but leave the law unchanged.

It became obvious to all concerned that only through dialogue -- and compromise -- among contending viewpoints would a workable set of reforms be identified that had a chance of being accepted by all parties and of making it through the regulatory approval process.

Working groups were established consisting of people inside the Government and some from outside. A series of consultations was held. The goal was to retain the positive features of the 1990 reforms while adopting procedures that could keep up with demand and deter abuse. [For a good description of the process of developing a consensus reform program, see David A. Martin, "Making Asylum Policy," Washington Law Review (Vol. 70, No. 3, July 1995), p. 725-755.]

To be successful, a reformed asylum program needed to establish that elusive balance between the "asylum tradition" and the "need for control." The new program would have to approve quickly those who needed asylum, while keeping those who did not qualify from benefiting just by filing an asylum application. This was not easy to achieve.

According to one well-respected expert in international law, "Reaching [asylum] decisions quickly and removing those who are found not to require international protection are perceived by many [countries] as essential to reduce instances of abuse and to render the asylum process more manageable. In practice, few [governments] have succeeded in marrying an efficient and expeditious national process . . . to the fulfillment of international obligations" (Guy S. Goodwin-Gill, The Refugee in International Law, Second Edition, Oxford University Press paperback, 1996, p. 328-329).

After considering several options, a comprehensive package of reforms was developed and announced in October 1993. The INS drafted proposed regulations revising the July 1990 final asylum rule which were published for public comment in March 1994. The draft was revised in light of comments received, including dropping some of the provisions originally proposed, and then promulgated in final form on December 5, 1994. They became effective on January 4, 1995.

Reflecting the 1993-1994 perspective on asylum reform, first year funding for the reform program came from the Violent Crime Reduction Trust Fund authorized by the 1994 Violent Crime Control and Law Enforcement Act. This Trust Fund was created to use savings anticipated from a proposed reduction of 252,000 jobs from the Federal workforce; Section 130010 under Title 13 of this Act mandated reform of the U.S. asylum system. [The Asylum Program is no longer funded from this Trust Fund.]

January 1995: Implementation of Asylum Reform Begins

The 1995 asylum reforms were a comprehensive package integrated into a program that brought change at many levels. This package kept the best of the previous system, reformed procedures that had not been working, and provided additional new funding. Most notably, the reform program retained the "non-adversarial" interview by INS Asylum Officers, and final denials in most cases only by Immigration Judges.

Under reform, the "two bites of the apple" (see above) was streamlined. Asylum Officers make final and complete decisions, including approval and denial, for asylum applicants in the United States. But, for applicants whose claims are not approved by the INS and who are in the U.S. illegally, the reform system retains the possibility of presenting a second asylum claim before an Immigration Judge. Under reform, these two processes are linked into one continuous process with short timeframes. Therefore, denials in most asylum cases still come only from Immigration Judges, but usually within 180 days from first filing an asylum application. And, if the applicant's asylum request is not approved, the Immigration Judge can rule immediately on the issue of deportability.

Also under this combined and streamlined process, applicants who apply on or after January 4, 1995, are not automatically eligible for a work permit. Work permits are granted only if applicants are approved for asylum or, and this is important, if the government takes longer than 180 days to reach a final decision, whichever comes first.

Other procedural bottlenecks were addressed, including the need to establish and verify applicant identity throughout the asylum process. And the necessity for applicants to personally collect (with only a few exceptions) their decisions at an INS Asylum Office ensured that any referral to an Immigration Judge would be properly served: the package collected by an applicant not approved by an Asylum Officer includes a formal "Notice to Appear."

Importantly, sufficient additional resources were made available to the reformed asylum process to double the U.S. Asylum Corps from 150 to over 300 Asylum Officers and permit an equal doubling of the number of Immigration Judges in EOIR hearing asylum cases.

Thus, the major elements included in the 1995 reforms (You will need Adobe Acrobat Reader to view this file):

• Decoupled asylum requests from employment authorization
• Created the link between initial grant/referral by INS and the final adjudication by an Immigration Judge at EOIR
• Streamlined decisionmaking procedures by eliminating the need for an Asylum Officer's Notice Of Intent to Deny and the opportunity to rebut an Asylum Officer's decision in most cases
• Ended the practice of mailing Asylum Officer decisions (instead, requiring personal service)
• Made available additional resources

At the beginning of reform, the new Asylum Program faced a continuing onslaught of applications being filed at the rate of over 127,000 per year (excluding applications filed under the ABC settlement agreement), coupled with a backlog of almost 425,000 cases.

Fast Forward: Success of Reform

As a result of these reforms, the number of non-meritorious filings has significantly decreased, productivity within the streamlined asylum system has increased nearly fourfold, the great majority of applicants are receiving decisions from the Asylum Program within 60 days of filing for asylum, and from Immigration Judges within the 180 days of filing.

Since FY 1993, asylum applications made to the INS have decreased from 127,000 a year (excluding those applications filed under the ABC settlement) to approximately 32,000 a year in FY 1999, a decrease of 75%, and approval rates by INS Asylum Officers have increased from approximately 22% to 38%. This demonstrates that genuine refugees are being identified, rather than languishing in the backlog, and fewer frivolous applications are being filed.

The success of these reforms persuaded Congress to reject radical restrictions on asylum proposed in 1995 and 1996. Instead, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) largely codified the asylum reform regulations (although it did also impose further identity check requirements and a 1-year deadline to apply for asylum, subject to certain exceptions). These changes revised section 208 of the INA.

While keeping up with newly filed cases, Asylum Officers have reduced the asylum backlog to 340,000 cases. Of this backlog, a vast majority (up to about 240,000) is cases filed with the INS under the ABC settlement agreement. These applicants, along with approximately 10,000 former Soviet-bloc applicants in the backlog, are now eligible to apply for suspension of deportation or cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA).

In the past few years, recognizing the special training and professionalism of the U.S. Asylum Officer Corps, the Department of Justice has expanded its duties beyond asylum.

By the end of 1999, legitimate claimants were being granted asylum within six months of filing, often sooner, while those found ineligible were decided quickly and, if in the United States illegally, were placed in deportation proceedings. With that, the INS Asylum Program and the reforms of 1995 had regained the confidence of the government and public -- finally achieving the balance that had previously been so elusive.