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May 14, 2013

Asylum and the Bipartisan Senate Immigration Bill

Last week members of the Senate Judiciary Committee filed potential amendments to the bipartisan immigration bill (S. 744) negotiated by the “Gang of 8” – Senators Michael Bennet, Richard Durbin, Jeff Flake, Lindsey Graham, John McCain, Robert Menendez, Marco Rubio and Charles Schumer.  Among the proposed amendments are two sponsored by Senator Grassley (Grassley 27 and Grassley 52) that would eliminate or substantially delay two targeted reforms to the U.S. asylum system included in the bipartisan bill:  section 3401 which would eliminate a filing deadline bar that prevents genuine refugees from receiving US asylum; and section 3404 which authorizes some asylum cases to be resolved through a full asylum office interview conducted by trained Department of Homeland Security –U.S. Citizenship and Immigration Services (DHS-USCIS) asylum officers.

Refugee Council USA, a coalition of faith based and other organizations (including Human Rights First) ,  sent a letter on the amendments to the Senate Judiciary Committee members specifically asking them to oppose Grassley 27 and Grassley 52 as well as other amendments that would impact refugees and asylum seekers. Faith and other community leaders in Arizona, California, Florida, Texas, and Utah also sent letters directly to their Senators in support of the refugee and asylum provisions in the bipartisan bill. Last week, a diverse group of faith leaders urged U.S. Senators to protect the refugee and asylum provisions in the immigration bill. On April 26, 2103, over 200 humanitarian, faith-based and refugee-serving organizations from across the United States wrote to the Gang of 8 to welcome and support their inclusion of provisions in the Senate bill that would protect refugees, asylum seekers and stateless persons – including a provision that would eliminate the asylum filing deadline.

Should these amendments prevail, the United States would continue to deny or delay asylum to credible refugees with well-founded fears of political, religious and other persecution (see Human Rights First’s 2010 report on the effects of filing deadline).  These refugees would be denied asylum even if U.S. adjudicators found them credible and even though they pose no risk to the country and have satisfied all security and other screening measures.  They would be denied asylum due to a quixotic bureaucratic inefficiency – a filing deadline that bars many asylum seekers who do not file their papers within one year of arrival in the United States.

Section 3401 of the Senate bill would eliminate the arbitrary deadline on asylum applications, which has caused the United States to deny asylum to many credible refugees with well-founded fears of persecution. In 2011, DHS concluded that the filing deadline should be eliminated because it denies asylum to genuine refugees, expends resources without helping uncover or deter fraud, and makes the process more difficult. This is consistent with findings in Human Rights First’s report, and a comprehensive statistical study by academic experts at Georgetown University Law Center and Temple University’s School of Law. These studies have confirmed that the deadline diverts time and resources that could be more efficiently allocated to assessing the actual merits of cases, and shifted thousands of cases to the increasingly backlogged and delayed immigration court system when they could have been resolved at the Asylum Office level.

Section 3404 of the Senate bill would allow trained DHS-USCIS asylum officers to assess eligibility for asylum for “arriving” asylum seekers who have successfully passed through the “credible fear” screening process, instead of initially referring these cases into the immigration court process.

Asylum officers already conduct these asylum interviews in thousands of other asylum cases each year. Referring asylum cases for adjudication by asylum officers, instead of initially referring them into the adversarial immigration court system, would as the bipartisan U.S. Commission on International Religious Freedom has noted, ease the burden on the immigration courts. The American Bar Association’s Commission on Immigration concluded that a shift to initial asylum office interviews could have a “substantial impact on the immigration courts’ workload” because it would reduce the number of cases that are ultimately adjudicated by the courts. Full asylum interviews would occur after the screening process is completed, and only after security measures have been satisfied.

In addition to  the practical implications of the filing deadline, Dr. Richard Land, President of the Southern Baptist Convention’s Ethics & Religious Liberty Commission and Human Rights First President and CEO Elisa Massimino have described why the barrier is inconsistent with American ideals:

“When people escape horror and come to the United States in desperate need of freedom and safety, we shouldn’t turn them away because of a bureaucratic technicality. Yet we do. And every time we do, we betray our ideals.”

One of Senator Grassley’s amendments seeks to delay the reforms outlined in the Gang of 8 bill until a year after the Director of National Intelligence submits to Congress reports, and sub-reports, on the government’s handling of the Boston Marathon bombing. The Boston bombing was a tragedy, and the government should certainly take steps to address and prevent another attack.  There is no reason to use the Boston tragedy to derail or delay reforms to strengthen the asylum system.

The few asylum provisions in the immigration bill would not lower in any way the many security measures that have been built into the asylum system. They would, however, strengthen the system, improve its efficiency, and ensure that our asylum system is consistent with American values.

U.S. immigration laws have for many years barred from the United States people who pose a danger to our communities or threaten our national security, even if they would otherwise qualify for refugee protection. Bars to refugee protection also exclude people who have engaged in or supported acts of violence that are inherently wrongful and condemned under U.S. and international law.  The asylum system and U.S. immigration law already include an extensive array of measures that prohibit the granting of asylum and legal residence to anyone who poses a threat to U.S. security or plans to engage in terrorist activity.

Among the many existing measures in place to prevent abuse of the asylum system and protect national security are steps such as:

  • mandatory biographical checks in FBI, Department of State, Department of Homeland Security  and other databases;
     
  • mandatory biometric checks using the applicant’s fingerprints and photograph;
     
  • additional biographical screening by the National Counterterrorism Center (NCTC);
     
  • mandatory supervisory review of all asylum decisions; and
     
  • full-time Fraud Detection and National Security (FDNS) officers who conduct in-depth vetting on cases with national security concerns, liaising with Joint Terrorism Task Forces and also monitor asylum system for fraud.

An extensive list of the measures in place is available in this backgrounder

This country’s commitment to protecting refugees is a core component of our identity.  We should embrace - not run away from - American values, and immigration reform is a logical vehicle to do so.  The asylum and refugee reforms in the bipartisan Senate bill – including elimination of the unnecessary and harmful filing deadline bar – reflect this country’s values and should move forward as critical components of immigration reform legislation.