Guest Blog Post: Requesting Asylum is not an Illegal Act by Luis Campos, Esq.
Requesting Asylum is not an Illegal Act by Luis Campos
The narrative surrounding the recent surge in migration relies on a potent and corrosive discourse that portrays the act of seeking asylum as either gaming the system, at best, or lawlessness, at worst. I am writing this as a prominent journalist Fareed Zakaria closed his recent one-hour special report Immigration Breakdown with liberal use of this phraseology. Mr. Zakaria spoke of a broken asylum-immigration system and also feigned understanding, perhaps even sympathy, for the desperate plight of persons seeking asylum at our southern border. I use the term feign because he simultaneously seemed to parrot rhetoric that draws a direct line between illegality and persons seeking refuge. Zakaria should know better. His choice of language inflames the border crisis narrative. The numbers of people arriving at the southern border have indeed been striking, even alarming. However, Zakaria’s choice of language is not only a mischaracterization of the act of seeking asylum, but it also functions as an accelerant to American xenophobia, particularly against persons of color.
Adding to my concern are concrete, yet ill-conceived measures taken against asylum seekers. Programs, like the controversial Title 42 and the Biden Parole Strategy have the objective of turning people away at our borders, precluding the fair and meaningful processing of an asylum claim. This leaves them to face significant risk in Mexico. The U.S. Department of State acknowledges these dangers in numerous published warnings to persons traveling to Mexico. These strategies for deterrence may not be as morally problematic (really barbaric) as the past policies of taking children from asylum-seeking mothers, but they remain legally dubious.
Perhaps even more problematic is the incarceration of asylum-seekers. Many have been subjected to federal criminal prosecution for illegal entry. For federal prosecutors this is the kind of low-hanging fruit that serves to enhance conviction rates. For a person fleeing persecution and hoping to apply for asylum here, a conviction sadly means spending time in federal prison facility. Others, who have not been subjected to formal criminal prosecution, may nonetheless face lengthy incarceration in immigration detention centers, while the viability of their credible fear or asylum claim is determined.
Border states have also joined this assault on asylum. Texas has tried to “stem the tide” by implementing ham-handed, clumsy tactics such as the floating barriers and razor wire installed in the Rio Grande. Gov. Greg Abbott publicly and proudly proclaimed: “What these buoys will allow us to do is to prevent people from even getting to the border.” Legalities aside, Abbott forgets that many, if not most, are desperate people fleeing life-endangering circumstances in their home countries. Floating barriers simply constitute another unsophisticated stunt to drive a political narrative, rather than an effective, humane, and legal attempt to address surges of people at the southern border.
My objective here is to set the record straight: the act of seeking asylum, irrespective of manner of entry to the United States, is far from unlawful. Rather, it is entirely legal—at our border or within our borders. It is recognized as a lawful act by U.S. asylum law and the international refugee treaty law to which we have subscribed and upon which our national asylum system is based. The U.S. congress enacted the Refugee Act of 1980 (“The Act”), which states in section 208: The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 101(a)(42)(A). Significantly, the Act also chose to track and adopt the international definition of refugee, as delineated in the 1967 Protocol to the International Refugee Treaty of 1952. The American law, in effect, seeks to implement our legal obligations pursuant to these international instruments.
To be clear, the United States is a signatory to this treaty. It fully ratified the 1967 Protocol through Senate approval (vote of 98-0), adopting its contents, including the duties imposed on party states. It did so without reservation. Indeed, in enacting the law, the House Judiciary characterized the Refugee Act as necessary “so that U.S. statutory law clearly reflects our legal obligations under International agreements.” The House Judiciary Committee also noted: “The committee wishes to insure a fair and workable asylum policy which is consistent with this country’s tradition of welcoming the oppressed of other nations and with our obligations under international law …”. And by signing and implementing the treaty, the United States chose to adopt a set of legal obligations toward asylum-seekers.
The treaty, among other things, stipulates that subject to specific exceptions, refugees “should not be penalized for their illegal entry or stay. This recognizes that the seeking of asylum can require refugees to breach immigration rules. Penalties prohibited by the treaty might include being charged with immigration or criminal offenses related to the seeking of asylum or being arbitrarily detained purely on the basis of seeking asylum.” Significantly, the treaty notes that the principle of non-refoulement “is so fundamental that no reservations or derogations may be made to it. It provides that no one shall expel or return (refouler) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom.” Indeed, the principal of non-refoulement has the legal status of jus cogens, that is, it is a peremptory norm of international law from which no derogation is permitted. (Indeed, in submitting the 1967 Protocol for Senate consideration, President Johnson stated: “foremost among the humanitarian rights which the Protocol provides is the prohibition against expulsion or return of refugees to any country in which they would face persecution.”)
To those doubting the validity of our obligations under international law, refer to Article 6 of the Constitution, which states that the laws and treaties of the United States made in accordance with it as the supreme law of the land. Under the supremacy clause, they have the force of federal legislation, and like federal legislation, treaties that we have ratified take precedence over state law. In other words, our legal obligations under the International Refugee Treaty are considered not only as incorporated into U.S. law (as through the 1980 Refugee Act), but, and independently, the United States Constitution mandates that they be considered the supreme law of the land.
Clearly, not everyone will qualify for asylum. Indeed, most will lose their asylum cases. Absent the availability of an alternate form of legal relief, individuals losing their cases are required to return to their home countries. This is how it should be. However—and this a BIG however: everyone is legally entitled to a fair and meaningful process and procedure without fear of penalty, punishment, or summary expulsion, particularly to a dangerous country. Our law mandates it. In other words, there is no such thing as gaming the system or acting unlawfully in the act of requesting asylum, even for those that arrive at our borders without the consent of our government.
This discussion has bigger implications and exposes a national crisis—not the one at the border, but the one in our legal institutions and our collective commitment to law. We seemingly want to disregard law when it purports to clash with other discourses residing in politics, economics, culture, and race. Disguised as national priority, these manufactured and often fictionalized accounts are lazy attempts to disregard and even punish a vulnerable and voiceless people. The false narratives also are a patent assault on our laws. At the risk of recycling and peddling clichés, we proudly proclaim that we are a nation of laws. Among the many things that make our country unique is not only our belief in the rule of law, but in its actual application. We have heard this patriotic trope in the context of American exceptionalism, probably since elementary school. Let’s now make it meaningful. Apply the law of asylum correctly, as the law mandates, and do not summarily turn away or punish asylum seekers—otherwise the concept of lawlessness surrounding requests for asylum can only be attributed to us as a nation.
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Luis Campos (J.D., SMU Law; LL.M. and S.J.D., U Toronto) is a former law professor in Canada and currently works as a U.S. attorney focusing on migration and international human rights law. He has extensive experience defending clients in removal proceedings, with a focus on asylum and convention against torture cases. He also frequently represents clients detained by DHS along the border. He splits his time between Sun Valley, Idaho (home to a significant Peruvian and Central American population) and Tucson, AZ.