Refugees / Asylum
Since 1948, international law–The Universal Declaration of Human Rights–has guaranteed the right to seek and receive asylum in other countries. Since 1965, refugee admissions have been the smallest of the three main paths for legal admission to the United States, along with preferences for family unification and skilled employment. To receive refugee visas, applicants must demonstrate their endangerment and inability to return to their homes and undergo extensive vetting while abroad. The U.S. government retains authority to set standards and manage approval processes, which usually emphasize political considerations. For example, Cubans fleeing communism have received some of the highest levels of U.S. welcome, whereas Haitians fleeing an abusive dictatorship are regularly turned away. U.S. refugee policy began systematically developing after World War II and regular annual allocations of refugee visas started with the 1965 law. [Pathways to legal citizenship since 1965] As early as 1917, immigration law had exempted asylum seekers from general immigration restrictions. Unlike refugees, asylum seekers arrive at the United States without preauthorization and request permission to enter and gain safety. The United States is obligated to evaluate their applications and on the principle of non-refoulement should not force refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution. However, such international standards conflict with the priorities of many nations seeking to limit what and how many persons they allow to immigrate, leaving millions of persons displaced without permanent legal homes.
International laws provide for immigration and asylum by persons fleeing persecution or fear persecution based on their race, religion, nationality, or membership in a targeted political or social group. In the United States, refugees enter with immigrant visas after undergoing an extensive vetting process that confirms their status. Asylum seekers arrive without this prior authorization but are allowed by international law to request asylum and under the principle of refoulement cannot be forced to return to situations of danger. The U.S. government is required to assess their claims and has authority to decide whether to grant asylum.
As early as 1917, such concerns for human rights became part of general immigration law. The chief goal of the 1917 Immigration Act was to drastically reduce overall immigration by imposing a literacy test, but allowed exemptions for asylum seekers, especially those fleeing religious persecution. Requesting asylum became more difficult during the 1920s with the enactment of a new system for immigration restriction which emphasized numeric caps. These quantitative limits were enforced by requiring potential immigrants to apply for entry visas while abroad by going to the U.S. diplomatic office closest to their point of origin. Persons without visas could not embark for the United States, thus preventing potential asylum seekers from reaching U.S. shores. These methods sharply reduced overall levels of immigration in conjunction with the Great Depression, including the rejection of thousands of visa applications from Jews seeking to escape Nazi persecution during the 1930s.
The alliances of World War II and the Cold War elevated international concern for the millions displaced by war and the reconfiguration of international borders and political alignments. The founding of the United Nations in 1945 paved the way for global cooperation regarding world affairs, including the 1948 Universal Declaration of Human Rights which guaranteed refugee rights to seek and receive asylum in other countries. In concert with growing attention to human rights, the United States began admitting limited numbers of refugees in 1945 at the urging of President Harry Truman but without changing existing immigration laws. Congress passed the first law directly addressing the refugee situation in 1948. The Displaced Persons Act lifted quota restrictions for European refugees who could find employment in the United States without displacing U.S. workers. Almost 350,000 people immigrated before the program expired in 1952.
In 1950 the United Nations created the United Nations High Commissioner for Refugees (UNHCR) and defined legal protections for refugees in the 1951 Convention Relating to the Status of Refugees. The United States did not sign this convention although it later joined the 1967 Protocol Relating to the Status of Refugees whereby it agreed to uphold international standards for refugee relief.
Provisions for refugees increasingly became part of regular immigration laws. In 1952, a general reform effort retained the national origins quota limits without making provision for regular refugee admissions. However, this law, the McCarran-Walter Act, granted the attorney general authority to parole asylum seekers into the United States on a temporary basis, with Congress holding the power to vote later whether to grant them permanent status. Parole authority was used three times—for over 30,000 Hungarians in 1956-1957, Cubans in 1961-1962, and Chinese in 1962—each on behalf of refugees from communism. Responding to criticisms from the White House and the Department of State, Congress passed the 1953 Refugee Relief Act providing about 200,000 nonquota immigrant visas for refugees and escapees from communism, including 5,000 for refugees in the Far East. After the Refugee Relief Program concluded at the end of 1956 without exhausting the visa allocations, several temporary laws redistributed them to groups whose allocations had been inadequate. Between 1946 and 1967, about 775,000 refugees immigrated to the United States through such temporary legal measures.
In 1965 refugee admissions became a permanent aspect of immigration law. Through the Hart-Celler Immigration Act, refugee admissions were the narrowest of the three main paths for legal admission to the United States alongside family unification and skilled employment. Although the law capped annual admissions at 17,4000, unpredictable outbreaks of crises drove numbers of refugees well above this limit in some years, as with the airlifting of about a quarter million Cubans fleeing communism under Castro between 1965 and 1973 and the 1980 Mariel Boatlift. In some instances, Congress acted to provide additional resources and immigration rights, for example with the 1966 Cuban Adjustment Act and the Indochinese Immigration and Refugee Act of 1975 that followed the fall of Saigon. About 130,000 Southeast Asians, mostly Vietnamese, were able to resettle in the United States, followed by several additional waves of refugees fleeing persecution by the newly established communist governments of Vietnam, Laos, and Cambodia. In response to the inadequacy of the provisions set forth in 1965, the 1980 Refugee Act raised the annual ceiling for refugees from 17,400 to 50,000 and created a process for reviewing and adjusting the refugee ceiling to meet emergencies. It also funded a new Office of U.S. Coordinator for Refugee Affairs and an Office of Refugee Resettlement and formally established procedures for asylum seekers.
During the 1980s, U.S. policies for asylum further developed with the arrival of hundreds of thousands of El Salvadorans, Guatemalans, Nicaraguans, Haitians, Uruguayans, Chileans, Colombians, and Argentinians fleeing warfare and politically dangerous conditions in their homelands. Although they sought safety, the United States did not recognize their asylum applications because the 1980 Refugee Act had defined refugees as those fleeing individual persecution, rather than general conditions of violence. The Reagan administration characterized Guatemalans, Nicaraguans, and Salvadorans as economic refugees without consideration for the violence in their homelands. A coalition of religious and refugee assistance organizations filed suit to challenge the federal government’s denial of asylum applications from Salvadorans and Guatemalans. Widespread protests followed and produced the modern sanctuary movement. These pressures produced the out-of-court American Baptist Churches (ABC) settlement which permitted applicants to have their cases re-evaluated if they had arrived before 1990. Many Guatemalans and Salvadorans were able to regularize their statuses through these new procedures. After 1992, about 50,000 Chinese were also able to claim asylum through the Chinese Student Protection Act which Congress passed in response to the brutal Chinese government crackdowns on student protesters in Tiananmen Plaza in 1989. The 1997 Nicaraguan Adjustment and Central American Relief Act (NACARA) offered suspension of deportation to Nicaraguans and other Central Americans meeting certain requirements as did the 1998 Haitian Refugee Immigrant Fairness Act for Haitians.
These laws and procedural precedents configure current standards and practices for U.S. management of refugee and asylum-seekers, although annual limits, regularizations of status, and admissions have varied according to policy and changing conditions of need.
Students will be able to identify asylum as a path to lawful status in the United States and explain the main criteria for receiving asylum.
Students will be able to evaluate the asylum application process.
Sample i-589 Form from American Bar Association
Internet access for students
Deportation rates and stories are in the news on a recurring basis. Different presidents, in particular, get criticized for their policies on deportation.
Ask students to discuss these questions in pairs:
What is deportation?
If you are in deportation proceedings, is there any way you can stay in the United States?
Have students share out answers and discuss them.
In this lesson we will learn about one way that you can stay in the United States if you are in deportation proceedings, called asylum. You can also apply for asylum if you are in the United States as a lawful visitor, or if you are in the United States without lawful status, but are not in deportation proceedings.
- In pairs or small groups students look at Part A of the i-589 asylum application form. They will put themselves in the shoes of an asylum seeker and critically read this portion of the document to assess what it would be like to fill it out. They will read through it together and code anything that stands out to them as follows:
Question mark– anything you don’t understand
Exclamation mark– anything that would be difficult for you to fill out, or imagine would be difficult for someone else to fill out
Star– anything else interesting
- Teacher can model by directing students’ attention to item 8. Teacher could put exclamation mark or star, imagining that if they were applying without lawful status and without being in deportation proceedings already, it would be worrisome to send their address to the government. Or, teacher could point out item 19c and put an exclamation mark, imagining that if they lived near a border and crossed the border regularly, it would be almost impossible to list each entry into the U.S.
- Once students finish working in pairs, teacher can lead discussion of what in the application merit a question mark, exclamation mark, and star. Teacher can encourage students to notice issues with the application as a whole, like the fact that it is in English and requires a high degree of literacy to navigate.
- In pairs or small groups students will look at samples of Part B of the i-589 form.
- Directions for students:
- Students must work together to assess whether the asylum application they received would likely be accepted or denied by the United States based on whether or not they qualify for asylum.
- In order to qualify for asylum the applicant has to be persecuted by the government of their home country, or an entity that the government can’t control, for their race, religion, nationality, political opinion or membership in a particular social group.
- Students must work together to assess whether the asylum application they received would likely be accepted or denied by the United States based on whether or not they qualify for asylum.
- Students will first read the asylum application in their pair or small group.
- Students will then do internet research to see if the asylum applicant’s claims seem credible. It is important to look for trustworthy sources that describe these countries’ conditions. For example, students should look at U.S. Department of State Human Rights Reports for the year that the asylum seeker is claiming to be persecuted. Other sources might be: Amnesty International, the United Nations, national news from those countries, etc.
- Finally, students will discuss with their group what they found in their research and then decide as a group whether they believe that their asylum seeker qualifies for asylum. Students should be prepared to share their answer with the whole class and explain their reasoning.
- Student groups share out whether they believe their applicant qualifies for asylum and why. Teacher should encourage students to support their conclusions based on their research and not personal opinion. Teacher may facilitate respectful discussion during this time.
- Teacher can share these strengths and weaknesses of the applications:
- The application from the gay man from Honduras qualifies for asylum because he is seeking asylum on the grounds of their immutable membership to the LGBT social group. It is also well documented that police in Honduras harassed and abused members of the LGBT community during the time of the application. The applicant may have difficulty because they did not apply within a year of arriving to the United States and they have committed a crime in the United States.
- The application from the store owner from Eritrea qualifies for asylum because he is seeking asylum on the grounds of his political opinion. It is also well documented that the government in Eritrea tortured and killed civilians based on political dissent during the time of the application.
- The application from the Tamil woman would qualify for asylum because she is seeking asylum on the grounds of her immutable membership to the Tamil nationality. This application would struggle, however, because the United States had identified the Tamil Tigers as a terrorist organization and the applicant would likely find it difficult to convince the government that she has no affiliation with this group.
- The application from the bus driver from Mexico may not qualify for asylum. The MS-13 gang is not a part of the Mexican government. The applicant would have to prove that the government of Mexico is unable to control the MS-13 gang, and that there would be no part of the country, in which they could live without being persecuted by them. Furthermore, the applicant is not being persecuted based on their race, religion, nationality, or political opinion, so the applicant would have to convince the government that he is being persecuted for being a member of a particular social group, like bus drivers, which may be difficult. Finally, some American administrations have policies that deny claims to asylum based on gang persecution.
Students will write two to three sentences about whether they believe asylum law is too strict or too lenient. They must support their opinion with at least two examples from the i-589 applications they looked at in the lesson.
Although this law is best known for its creation of a “barred zone” extending from the Middle East to Southeast Asia from which no persons were allowed to enter the United States, its main restriction consisted of a literacy test intended to reduce European immigration.
In contrast lawmakers' widespread indifference before World War II, after the war, under pressure from the White House and Department of State, Congress authorized admissions for refugees from Europe and permitted asylum seekers already in the U.S. to regularize their status.
This UN Refugee Convention set international standards for refugee rights and resettlement work. It is administered by the United Nations High Commission on Refugees. Wary of international obligations, President Truman refused to sign the U.S. government on to the convention.
The McCarran-Walter Act reformed some of the obvious discriminatory provisions in immigration law. While the law provided quotas for all nations and ended racial restrictions on citizenship, it expanded immigration enforcement and retained offensive national origins quotas.
Dissatisfaction with the 1952 McCarran-Walter Act inspired support for this legislation which provided 214,000 visas to refugees, primarily from Europe but with 5,000 designated for the Far East.
The parole authority granted the attorney-general in the 1952 McCarran-Walter Act was used three times to aid refugees fleeing communism. To avoid public outcry, each use of parole was accompanied by extensive publicity campaigns to promote acceptance.
This law added more exceptions to immigration restriction by national quotas by categorizing international adoption as a form of family reunification.
This law set the main principles for immigration regulation still enforced today. It applied a system of preferences for family reunification (75 percent), employment (20 percent), and refugees (5 percent) and for the first time capped immigration from the within Americas.
After Fidel Castro's revolution, anti-communist Cubans received preferential immigration conditions because they came from a historically close U.S. neighbor and ally. This law provided them permanent status and resources to help adjustment to life in the U.S.
The UNHCR issued this protocol in 1967 to implement the goals of the 1951 Refugee Convention, which set forth the key principle of refoulement, or that persons in flight from persecution and danger cannot be forced to return to places of danger.
The United States made provisions to admit about 135,000 Vietnamese and other Southeast Asians in the months following the fall of Saigon, resettle them across the United States with resources to help them establish new lives.
While adhering to the UN standard for defining refugees, this law made U.S. refugee policy more responsive to changing situations through the implementation of annual admissions quotas that could be adjusted annually after consultation between Congress and the White House.
The Mariel boatlift refers to the mass movement of approximately 125,000 Cuban asylum seekers to the United States from April to October 1980. It prompted the creation of the Cuban-Haitian Entrant Program.
Congress revised the Immigration Act of 1965 by implementing the H-1B visa program for skilled temporary workers, with some provisions for conversion to permanent status, and the diversity visa lottery for populations unable to enter through the preference system.
The regular denial of asylum applications from Salvadorans and Guatemalans fleeing violence in their homelands during the 1980s led to this legal challenge which forced changes to U.S. procedures for handling such cases.
Legislated in response to the brutal Chinese government crackdowns on student protests in Tiananmen in 1989, this law permitted Chinese students living in the United States to gain legal permanent status.
The Nicaraguan Adjustment and Central American Relief Act (NACARA) allowed certain Salvadorans, Guatemalans, and Nicaraguans who had fled violence and poverty in their homelands in the 1980s to file for asylum and remain in the United States.
Under the Haitian Refugee Immigration Fairness Act (HRIFA), enacted by Congress on Oct. 21, 1998, certain Haitian nationals who had been residing in the United States could become legal permanent residents.
This Supreme Court case ruled that immigration authorities cannot indefinitely detain aliens ordered deported, but for whom no destination can be arranged.