U.S. law enshrines the protections of the international Refugee Convention, drafted in the wake of the horrors of World War II. The law provides that any person “physically present in the United States or who arrives in the United States … irrespective of such [person’s] status, may apply for asylum...” This means that all people seeking asylum, regardless of their race, national origin, or method of entry, have the legal right to seek asylum in the United States.
Despite this codified right, asylum seekers have faced rapid deportations and push-backs instead of protection for decades—starting with Haitian asylum seekers, and continuing for countless Black, Brown, and Indigenous people in need of safety. People seeking asylum in the United States are fleeing persecution, torture, and sometimes death. But upon their arrival, they face a new odyssey of navigating complex U.S. immigration laws and an increasingly restrictive environment that bars asylum seekers from winning protection. Restrictions include family separation, prosecution under racist laws, rapid processing for deportation, and a sprawling detention and surveillance system.
Violation of asylum protection is no partisan matter, as Republican and Democratic administrations alike have taken turns in curtailing access to protection. NIJC documented a timeline of anti-asylum policies unleashed under the Trump administration. Prior to taking office, President Biden vowed to protect the right to asylum and bring the U.S. into long-awaited compliance with domestic and international obligations. However, the Biden administration has continued recycling restrictive policies first implemented by the prior administration, including asylum bans, summary expulsions, and lightning-fast fear screenings for people who are detained in Border Patrol custody after entering the United States to seek protection.
The United States has the resources and capacity to protect people fleeing persecution. In the aftermath of the Russian invasion of Ukraine, there was an outpouring of support and political will to welcome Ukrainians forced to flee their homes. The Biden administration adopted a temporary parole program, showing the United States’ capacity to center the dignity and humanity of people in need of protection. But even parole programs cannot replace a functioning asylum system.
It is never too late to protect the fundamental right to seek asylum.
Recommendations
To uphold the U.S. obligation to provide refuge for families, adults, and children seeking freedom from persecution, NIJC recommends:
- Invest in humane processing across the nation, while putting an end to failed and deadly deterrence policies that continue to harm individuals, families, and children.
- Protect due process and eliminate summary removal procedures that prevent asylum seekers from pursuing existing protections. All asylum seekers should have the opportunity to present their case to an immigration judge, including those who have previously been deported.
- Appoint counsel to everyone in immigration proceedings. Access to counsel is critical to help people, especially children, individuals in detention, and vulnerable populations, navigate the complex immigration system.
- End U.S. practices of turning back asylum seekers or tasking other nations with either detaining or pushing back asylum seekers in violation of international law.
- End immigration detention, including the detention of asylum seekers. Arriving asylum seekers should be released on parole or recognizance and supported in the community with their loved ones while their cases proceed.
- End criminal prosecutions for unauthorized entry (8 U.S.C. § 1325) and reentry (8 U.S.C. § 1326), which violate the rights of asylum seekers, deny due process rights, and discriminate along racial and ethnic lines. The administration should phase out the use of such prosecutions, ensure that involvement in the criminal legal system does not preclude access to asylum, and support Congressional efforts to repeal 8 U.S.C. Sections 1325 and 1326.