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Ideology, International Law, and the INS: The Development of American Asylum Politics 1948–Present

Abstract

American asylum policy has developed gradually over many decades, which can be divided into five distinct eras. The relationships between the categories of refugee, asylum seeker, and undocumented immigrant have shifted frequently, and answers about which asylum seekers qualify for refugee status in the United States have been both politically constructed over time and contingent on the politics of the moment. Asylum seekers, therefore, have sometimes been assumed to be refugees, and at other times have been automatically lumped together with undocumented economic migrants. Asylum policy development has also been driven by a much larger conflict in American politics: the rise of legal institutions representing a commitment to international human rights, and the conservative backlash to that emergence. All of these forces have contributed to the current era, which is characterized by deterrence policies and litigation challenging their enforcement.

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Notes

  1. U.S. Customs and Border Patrol reported 51,705 unaccompanied minor arrivals in FY 2014 compared to 20,805 in FY 2013 and 10,146 in FY 2012.http://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children, accessed on April 8, 2015.

  2. Haeyoun Park, “Children at the Border,” New York Times, July 15, 2014.

  3. Ed O’Keefe and Robert Costa, “House Passes Two Republican Measures in Response to Surge of Child Migrants,” Washington Post, August 1, 2014.

  4. Sonia Nazario, “A Refugee Crisis, Not an Immigration Crisis,” New York Times, July 11, 2014.

  5. UNHCR, “UN Pushes For Migrants to Be Called Refugees,” Associated Press, August 7, 2014.

  6. Phil Orchard, A Right to Flee: Refugees, States, and the Construction of International Cooperation (Cambridge: Cambridge University Press, 2014), 157.

  7. Gil Loescher and John A. Scanlan, Calculated Kindness: Refugees and America’s Half-Open Door, 1945-Present (New York: The Free Press, 1986), 14.

  8. Orchard, A Right to Flee, 173.

  9. Orchard, A Right to Flee, 186.

  10. Carl Bon Tempo, Americans At the Gate: The United States and Refugees During the Cold War (Princeton, NJ: Princeton University Press, 2008); E.P. Hutchinson, Legislative History of American Immigration Policy, 1789–1965 (Philadelphia: University of Pennsylvania Press, 1981).

  11. Executive parole power was originally included in the 1952 Immigration and Nationality Act, which granted the Attorney General the ability to temporarily admit people to the country in emergency situations. Presidents would use that power throughout the 1950s, 1960s, and 1970s to admit large numbers of people. Section 212(d)(5) INA. 66 Stat. 163.

  12. Deborah Anker and Michael H. Posner, “The Forty Year Crisis: A Legislative History of the Refugee Act of 1980,” San Diego Law Review 19 (19811982): 989; see also: Loescher and Scanlan, Calculated Kindness; Bon Tempo, Americans At the Gate.

  13. Philip. E. Wolgin, Beyond National Origins: The Development of Modern Immigration Policymaking, 1948–1968, Doctoral Dissertation, University of California, Berkeley, Department of History, 2011, 14143.

  14. Section 203(a)(7) of the Immigration and Nationality Act as amended by the 1965 Immigration Act.

  15. Author interview, Michael Posner, Immigration Attorney, Chicago (19751978), Lawyers’ Committee for Human Rights (19781980), June 28, 2010.

  16. Rebecca Hamlin and Phillip E. Wolgin, “Symbolic Politics and Policy Feedback: The United Nations Protocol Relating to the Status of Refugees and American Refugee Law during the Cold War,” International Migration Review 46 (2012): 596; Aristede Zolberg, A Nation By Design: Immigration Policy in the Fashioning of America (Cambridge: Harvard University Press, 2009), 345.

  17. White House Press Release, October 15, 1968. White House Central Files, ND 192, Box 418, Displaced Persons Refugees, LBJ Presidential Library (quoted in Hamlin and Wolgin, “Symbolic Politics and Policy Feedback,” 59798).

  18. Anker and Posner, “The Forty Year Crisis”; Edward M. Kennedy, “The Refugee Act of 1980,” International Migration Review, 12 (1980): 14156.

  19. Author Interview, Skip Endres, Counsel, House Immigration Subcommittee (19711986), June 15, 2010.

  20. Hamlin and Wolgin, “Symbolic Politics and Policy Feedback,” 607.

  21. Current Laws; Title 8, Code of Federal Regulations 108.2 “Operations Instructions and Interpretations: Aliens within the United States,” issued July 26, 1972.

  22. Naomi Flink Zucker, “The Haitians versus the United States: The Courts as a Last Resort,” Annals of the American Academy of Political and Social Science, 467 (1983): 15162.

  23. Ira L. Frank, “Effect of the 1967 United Nations Protocol on the Status of Refugees in the United States,” International Lawyer 11 (1977): 304. See also Matter of Dunar, Board of Immigration Appeals, Interim Decision #2192, April 17, 1973.

  24. Author Interview, Rick Swartz, Alien Rights Project of the Washington Lawyers Committee for Civil Rights under the Law (1970s), June 15, 2010.

  25. Posner Interview, June 28, 2010.

  26. David A. Martin, “The Refugee Act of 1980, its Past and Future,” Michigan YBI Legal Studies 3 (1982): 91; Christopher T. Hanson, “Behind the Paper Curtain: Asylum Policy Versus Asylum Practice,” New York University Review of Law and Social Change 7 (Winter 1978): 132; Hamlin and Wolgin, “Symbolic Politics and Policy Feedback,” 61516.

  27. Anker and Posner, “The Forty Year Crisis”, 41.

  28. Posner Interview, June 28, 2010.

  29. Author Interview, David Martin, Special Asst. to the Asst. Sec. of State for Human Rights and Humanitarian Affairs, (19781980), June 18, 2010; Author Interview, Doris Meissner, Deputy Associate Attorney General, Dept. of Justice (19731980). See also: Hearings on the Refugee Act of 1980.

  30. 1951 Convention Relating to the Status of Refugees, Article 1, Section 1.

  31. Steven M. Teles, “Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment,” Studies in American Political Development, 23 (2009): 67.

  32. Loescher and Scanlan, Calculated Kindness, 185.

  33. Bon Tempo, Americans at the Gate, 183.

  34. Author Interview, Rick Swartz. See also: SD Fla District Court 503 F. Supp. 442 (1980).

  35. INS Reporter, “The Cuban Boatlift,” Winter 19811982, 30 (2): 6.

  36. Quoted in Norman L. Zucker and Naomi Flink Zucker, The Guarded Gate: The Reality of American Refugee Policy (Orlando, FL: Harcourt Brace Jovanovich, Publishers 1987), 143.

  37. Immigration and Naturalization Service, Fiscal Year 1998 Statistical Yearbook, Table 27: “Asylum cases filed with INS District Directors and Asylum Officers: Fiscal Years 197498.”

  38. Author Interview with Frank Loy, Director, Bureau of Refugee Programs, Department of State, (19791981), June 22, 2010.

  39. Peter Koehn, “Persistent Problems and Political Issues in U.S. Immigration Law and Policy,” in Refugee Law and Policy: International and U.S. Responses, ed. Ved P. Nanda (New York: Greenwood Press, 1989), 69.

  40. Barbara M. Yarnold, “The Refugee Act of 1980 and the Depoliticization of Refugee/Asylum Admissions: An Example of Failed Policy Implementation,” American Politics Research, 18 (1990): 532.

  41. Government Accounting Office, “Report on the Immigration and Naturalization Service.” 1987.

  42. Daniel J. Tichenor, Dividing Lines: The Politics of Immigration Control in America. (Princeton: Princeton University Press, 2002), 267.

  43. SD Fla District Court 544 F. Supp. 1004, 1005 (1982).

  44. Jean v. Nelson 472 U.S. 846 (1985).

  45. Charles R. Epp, The Rights Revolution: Lawyers, Activists, And Supreme Courts in Comparative Perspective (Chicago: IL. University of Chicago Press, 1998).

  46. Michael Serrill, “A Booming but Tainted Specialty,” Time, July 8, 1985.

  47. Susan B. Coutin, “Cause Lawyering and Political Advocacy: Moving Law on Behalf of Central American Refugees,” in Cause Lawyers and Social Movements, ed., Austin Sarat and Stuart Scheingold (Stanford, CA: Stanford University Press, 2006), 105.

  48. http://www.ilrc.org/about-the-ilrc, accessed on April 8, 2015.

  49. H. Tolley Jr, “Interest Group Litigation to Enforce Human Rights,” Political Science Quarterly, 105 (1990): 623.

  50. Wayne King. “Hispanic Alien Surge Fuels Asylum Debate,” The New York Times, August 19, 1985.

  51. Coutin, “Cause Lawyering and Political Advocacy,” 105.

  52. American Baptist Church v. Thornburgh, 760 F.Supp. 796 (1991).

  53. Teles, “Transformative Bureaucracy.”

  54. I discuss this critical juncture in much more detail elsewhere: Rebecca Hamlin, “Illegal Refugees: Competing Policy Ideas and the Rise of the Regime of Deterrence in American Asylum Politics” Refugee Survey Quarterly, 31 (2012): 3353.

  55. Norman Zucker and Naomi Flink Zucker, “From Immigration to Refugee Redefinition: A History of Refugee and Asylum Policy in the United States,” Journal of Policy History 4, (1992): 68.

  56. Deborah Anker, “The Mischaracterized Asylum Crisis: Realities Behind Proposed Reforms,” American University International Law Review, 9 (1994): 37.

  57. Gregg Beyer, “Establishing the United States Asylum Officer Corps: A First Report,” International Journal of Refugee Law 4 (1992): 455–86.

  58. United Nations High Commissioner for Refugees, Asylum Trends reports, 19802010. See also: Immigration and Naturalization Services, Statistical Yearbook, 1996, Table 27: “Asylum Cases Filed with INS District Directors and Asylum Officers, Fiscal Years 19731996.”

  59. Tim Weiner, “Pleas for Asylum Inundate System for Immigration,” New York Times, April 25, 1993; Michael S. Arnold, “Calls to Change Asylum System Gain Urgency,” Washington Post, June 13, 1993.

  60. Philip Schrag, A Well-Founded Fear: The Congressional Battle to Save Political Asylum in America (New York and London: Routledge, 2000).

  61. Hamlin, “Illegal Refugees,” 1718.

  62. Leilia Kawar, Contesting Immigration Policy in Court: Legal Activism and Its Radiating Effects in the U.S. and France (Cambridge: Cambridge University Press, forthcoming 2015).

  63. The Executive Office of Immigration Review, which reviews the decisions of Asylum Officers, is still housed within the Department of Justice, which remains separate from the Department of Homeland Security.

  64. Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag, eds., Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform (New York: New York University Press, 2009); Jaya Ramji-Nogales, Phillip Schrag, and Andrew Schoenholtz, “Refugee Roulette: Disparities in Asylum Adjudication,” Stanford Law Review 60 (2007): 295412.

  65. Rebecca Hamlin, Let Me be a Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia (New York: Oxford University Press, 2014), 81.

  66. Ibid., 133.

  67. Ibid., 135.

  68. Press Release: Center for Gender and Refugee Studies, August 26, 2014. http://cgrs.uchastings.edu/news/highest-us-immigration-tribunal-recognizes-domestic-violence-basis-asylum, accessed on April 8, 2015.

  69. Karin Brulliard, “Law Students Rush to Meet Needs In Booming Field of Immigration,” The Washington Post, July 7, 2008.

  70. Senate Hearing 109537, “Immigration Litigation Reduction,” Serial No. J-10967, April 3, 2006.

  71. “Goodlatte Demands Investigation into Mexico Asylum Claims, Calling Them 'Fake,'” Huffington Post, August 22, 2013. http://www.huffingtonpost.com/2013/08/22/goodlatte-mexico-asylum_n_3797209.html, accessed on May 25, 2015.

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Thanks to Ming Hsu Chen, Cybelle Fox, Anna O. Law, Ron Schmidt, Rogers Smith, Dan Tichenor, Steve Wasby, and Cyrus “Ernie” Zirakzadeh for their helpful feedback on earlier drafts of this article.

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Hamlin, R. Ideology, International Law, and the INS: The Development of American Asylum Politics 1948–Present. Polity 47, 320–336 (2015). https://doi.org/10.1057/pol.2015.9

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Keywords

  • Reagan presidency
  • legal mobilization
  • undocumented immigration
  • American asylum policy
  • refugee policy
  • international human rights