Asylum

Michael Dunne

John Bassett Moore, the greatest American international lawyer of his age, wrote in his monumental Digest of International Law (1906): "No legal term in common use is perhaps so lacking in uniformity and accuracy of definition as the 'right of asylum.' " A century later, the same can still be said. Asylum, originally conceived as a right claimed by an individual fugitive, is now more readily regarded as a privilege abused by hordes of foreigners, self-styled refugees seeking to avoid the immigration restrictions of beneficent countries. The twentieth century, which began at the high point of intercontinental and peaceful migration, ended as intracontinental migration became increasingly salient and more and more contentious politically. Western and northern Europeans worried about "economic migrants" from the Balkans and the former Soviet bloc. From the Horn of Africa through the Great Lakes to the mouth of the Congo millions of people have been displaced through war and famine; South and Southeast Asia have seen comparable human exoduses. In the Western Hemisphere the debate has concerned the movement of migrants, over-whelmingly Spanish-speaking people, into the United States from the Caribbean and Central America. Thus to understand "asylum" in an American context we need to look at the historical evolution of the term as it has become entangled with the twin issues of immigration and refugee policy, both of which are themselves part of the larger pattern of domestic and foreign policymaking in the United States.

THE EVOLUTION OF ASYLUM

The practice of asylum (like the word itself) can be traced to ancient Greece, where particular altars and similar holy places offered sanctuary to fugitives, especially ill-used slaves. In the early Roman Republic the comparable custom protected aliens fleeing from other states, and though the practice was weakened during the first centuries of the Roman Empire, losing what little legality it originally possessed, the tradition that fugitives might seek at least temporary protection against those with greater physical power or apparent right reemerged with the establishment of Christianity. Churches were now designated as places of sanctuary, and the rights and duties of both fugitive and pursuer became formulated in increasing detail through imperial promulgations (such as the fifth-century Codex Theodosianus, books 9 and 16) and customary law. So it was for a thousand years in Europe until the Reformation began eroding such religious privileges—a process of abatement that continued until the late eighteenth century and the advent of the American and French revolutions.

As the authority of Rome and the Catholic Church declined, so conversely grew the power of the secular though usually Protestant state. For many centuries asylum had been understood as the granting of a privileged and protected area within a wider jurisdiction (the precincts of a church within the territory of a feudal lord). Since the seventeenth century, however, asylum has been understood as the creation by one jurisdiction (a "sovereign" state) of a privileged status for an individual from the reach of an opposing claimant, invariably another sovereign state whose "subject" the fugitive was. Thus, the common theme that links present-day notions and practices of asylum to those of the classical and premodern world is the special or "privileged" status of the would-be asylum-seeker vis-à-vis the state of original jurisdiction and the sought-after haven or sanctuary within a state of refuge.

Against this element of continuity, which emphasizes the individual's pursuit of safety from the executive and judicial power of one authority, has to be set the distinctive feature of asylum as it developed in the twentieth century, especially in the years since World War II. Now when the term "asylum" is used, attention focuses upon the mass movement of people. The involuntary migration of people, of minorities expelled or fleeing from a hostile majority, is nothing new: so it was for the Jews and Muslims after the Reconquista in Spain in the late fifteenth century and for the Huguenots in France following the revocation of the Edict of Nantes in 1685. In the twentieth century similar enforced population movements met the barriers created by the immigration policies of host countries. Thus, in the discourse of the early twentieth-first century, asylum became a term connoting mass migration, the laws and practices of host states in dealing with would-be immigrants, and the formal responsibilities of such states in the face of the legal rights and humanitarian demands of such alien refugees. The putative rights of a single individual are now overshadowed by the vision of those self-same rights exercised by thousands, even millions, of prospective incomers.

Given that the United States was rhetorically created partly as a haven for the oppressed; given the historical fact that the United States is a country of immigration ("a nation of nations"); and given the range of responsibilities that positive and customary international law now places upon the United States and all other sovereign states toward refugees, the issue of asylum has unsurprisingly become intensely debated and highly controversial. Even so, one element may be briefly—and relatively uncontentiously—explicated. Paradoxically, it is the topic that was once regarded as synonymous with asylum tout cour, namely diplomatic asylum.

DIPLOMATIC ASYLUM

In the course of the rise of the modern state system, diplomats became invested with various privileges and immunities, part and parcel of the convenient but necessary fiction that ambassadors and their entourage occupied within their country of posting (the "territorial" sovereign) an enclave of their own sovereign power. Thus persons and property of the "sending state" enjoyed within the protected zone customary (so-called extraterritorial) rights and were exempt from the normal reach of the executive and judicial power of the host or "receiving state," to cite the language of the two Vienna conventions of 1961 and 1963 governing diplomatic and consular practice, respectively. Accordingly, an embassy could by custom extend the protection of its premises to fugitives from the summary justice or even lynch law of the host country. (Warships and merchant vessels were treated similarly.)

This tradition of diplomatic asylum became particularly strong in Latin America during the nineteenth century—a reflection of the political violence that frequently accompanied regime changes within the continent. By custom such asylum was not extended to ordinary criminals ("persons accused of or condemned for common crimes") but rather to "political offenders," those refugees whose only offense, it was asserted, lay in their beliefs. To regulate this tradition, in the first half of the twentieth century the Latin American republics negotiated a series of conventions (Havana in 1928, Montevideo in 1933, Caracas in 1954), though not all the countries ratified the results. The Caracas convention followed a bitterly fought dispute between Peru and Colombia before the International Court of Justice at The Hague. In two connected decisions, the Asylum and Haya de la Torre cases, 1950–1951, the court held that the right of diplomatic asylum did not exist through customary international law but, if at all, only by virtue of explicit bilateral or multilateral treaties, or through the established and reciprocal action of both countries. (Ironically, in the absence of a legal solution, the court urged the parties to resolve their dispute by negotiations and compromise, in other words, through what in lay terms would be called diplomacy.) Surveying the history and jurisprudence of diplomatic asylum, sub voce the scholar and advocate Ian Brownlie writes that, despite the examples drawn from "Latin American regional custom, … it is very doubtful if a right of asylum for either political or other offenders is recognized by general international law."

The United States, like other major powers, has generally disapproved of the invocation of diplomatic immunity for fugitives. But not long after the eventual resolution of the Colombian-Peruvian case, the U.S. embassy in Budapest granted diplomatic asylum to the Roman Catholic primate of Hungary, Joseph Cardinal Mindszenty, as the Americans registered their profound opposition to the Soviet repression of the Hungarian uprising in October–November 1956. This episode—an exception to normal U.S. policy—was a deliberate Cold War tactic and has to be seen as part of a larger pattern of American diplomatic and legal responses to the political and ideological challenges of communism. At the end of the Korean War (1950–1953), for example, the U.S.–led United Nations negotiators offered asylum en masse to North Korean and mainland Chinese prisoners of war who did not wish to be repatriated to their home countries.

INTERNATIONAL EXTRADITION AND INTERSTATE RENDITION

Diplomatic asylum, understood as a particular form of sheltering fugitives, may be seen as the correlative to extradition, the mainly executive but also partly judicial process whereby an escapee is denied asylum (whether territorial or extraterritorial) and surrendered by one sovereign power to another for trial and punishment of criminal offenses. The usual protections for political offenders have been part of the custom and treaty law governing such rendition since the 1830s, the pioneering work of French, Belgian, and Dutch jurisconsults and legislators who reversed the pre-French Revolution tradition of surrendering political opponents and harboring ordinary criminals. In the United States, the paradigmatic act of 1848, "for the apprehension and delivering up of certain offenders," limited U.S. extradition practice not by category of alleged offense but through reciprocal international treaty. (The United States in 2001 had extradition treaties with more than one hundred other states.) As for multilateral extradition treaties, once again the republics of the Western Hemisphere led the way, beginning with the somewhat abortive treaties of 1889 and 1902, the distant precursors of the 1981 Inter-American Convention on Extradition, which explicitly protects "the right of asylum when its exercise is appropriate." There the burden of the proviso is to protect "political" fugitives specifically, though not exclusively. But, as the U.S. Departments of Justice and State both glossed apropos a typical extradition treaty with Jordan, "political offense" is a category frequently used but never defined in such treaties.

Until the post–World War II period the most controversial example of the political exemption for asylum-seekers was the refusal of the Dutch authorities to surrender Wilhelm II of Hohenzollern to the victorious Allies for trial as a war criminal under the terms of the Treaty of Versailles (article 227), which had arraigned the former kaiser for his "supreme offence against international morality and the sanctity of treaties." Since World War II and particularly the establishment of the ad hoc Nuremberg and Tokyo International Military Tribunals for the trial of war criminals (1945–1948), various multilateral instruments have diminished such residual protections, allusively so in the exhortatory Universal Declaration of Human Rights and specifically in the Convention on the Prevention and Punishment of the Crime of Genocide, both adopted by the UN General Assembly in December 1948. Controversies that have remained have usually been not for substantive reasons but rather on procedural grounds, for example grants of domestic immunity, the forceful seizure (kidnapping) of the accused, and unfitness to plead, the latter being argued in the high-profile case in 1998–2000 of the former president of Chile, General Augusto Pinochet, whose case was taken on appeal against extradition to the highest court in England, the House of Lords. (In this instance the executive rather than the judicial branch—an uncertain distinction in the British constitutional system—released Pinochet from extradition to Spain.)

Here again, American and European attitudes have been similar: "forcible abduction" is permissible, provided the terms of any extradition treaty are applicable; such was the decision in United States v. Verdugo-Urquidez (1992). Undoubtedly the most famous modern case in which kidnapping was ruled to be inconsequential to the prosecution of inter alia "war crimes" and "crimes against humanity" was that of the German Nazi leader Adolf Eichmann, which was decided on appeal before the Israeli Supreme Court in 1962. In this case the judges, as they put it, "rel[ied] on a long array of local, British, American and Continental precedents" to deny the appellant "asylum" in his former refuge of Argentina.

In the federal system of the United States extradition between states rests upon article 4, section 2, of the Constitution, requiring that "A Person charged in any State with Treason, Felony, or other Crime … shall … be delivered up" on demand by the applicant state. Significantly, the following paragraph implicitly invalidates the competence of any state to offer asylum and hence possible freedom to a fugitive slave—an interpretation borne out by the provisions of the contemporaneous Northwest Ordinance. (Congress passed a combined fugitive slave and extradition act in 1793.) This conjunction of principles in the federal Constitution acts as a valuable reminder of the intimate relationship between law and politics in American history, the permeability of the socalled domestic and foreign spheres, and that general and particularly universal statements of rights—what we would today call "human rights"—must always be seen in their historical and specific context. The defense of slavery by the signatories of the Declaration of Independence is the locus classicus of this discordant interplay, and the invocation of this same Declaration by the delegates to the Convention of Seneca Falls in 1848 likewise confirms the general rule, with this latter meeting on American women's rights itself deriving from the worldwide antislavery campaign.

Slavery and particularly the slave trade were a constant irritant in Anglo-American relations from Jay's Treaty of 1794 (which provided for limited extradition for certain felonies—hence conditional denial of "asylum"—between the two countries) through the War of 1812 and the abolition of slavery within the British empire in 1833 until the time of the Civil War. In the case of the slave mutiny upon the brig Creole in 1841, law officers in England ruled that the colonial authorities in the West Indies could not surrender the fugitives to the U.S. government without specific parliamentary approval. (There was also the separate though weighty matter of the slaves' gaining freedom by virtue of their arrival within the jurisdiction of the English courts—an issue that had pre-independence roots in the ground-breaking Sommersett case of 1772.) Extradition, in other words, though an executive function of government, required in this case statutory authority—a process of legitimation that came most notably through the first (British) Extradition Act of 1870, with its protections for political refugees.

The negotiation of the Webster-Ashburton Treaty of 1842 between Britain and the United States helped to resolve the legacy of the Creole dispute while agreeing on the terms of nonpolitical extradition. But the difficulties between American and British jurisdictions and jurisprudence over the definition of political as distinct from criminal ("terrorist") offenses reemerged with the resumption of the Irish Troubles in the late 1960s. Yet the two countries are not unique in their differences. As Guy Goodwin-Gill authoritatively observed: "International law provides no guidance on the substance of the concept [political offence exception], other than its outermost limits." Inside the United States, the early federal legislation on interstate rendition was interpreted by the U.S. Supreme Court in Kentucky v. Dennison (1861) as merely declaratory and thus discretionary. It remained until long after the abolition of slavery for the Supreme Court (Puerto Rico v. Branstad, 1987) to rule that state authorities had no discretion on rendition. Interstate asylum, in other words, did not exist.

PRE–WORLD WAR II BARRIERS TO ASYLUM AND REFUGE

Diplomatic and territorial asylum (the latter term employable even in an interstate context) are concepts with a largely nineteenth-century resonance, privileges understood as benefiting individuals. Since the early part of the twentieth century, however, asylum has become linked with the fate of groups. Thus, to understand U.S. asylum law as currently practiced and debated, three different chronologies or narratives must be brought together. The first is the pattern of formal U.S. immigration legislation and executive action since the 1870s, the second is the contemporaneous and related history of international migration, and the third is the development of an international regime governing refugees and asylum-seekers, particularly in the years since World War II.

Whatever the proper interpretation of the discretionary power or mandatory obligations of the individual states in interstate rendition, the exclusive power of Congress over the admission and deportation of aliens is beyond dispute. Such was the import of two groups of cases the Supreme Court adjudicated in line with article 1, section 8, of the Constitution: the so-called Passenger Cases of 1849 and 1876, followed by the notorious half dozen Chinese Exclusion Cases from 1884 to 1893. This was the jurisprudential context in which Congress drafted immigration policy along explicitly racial lines and thus set in place for eight decades one of the three basic categories of inclusion and exclusion of aliens (and ultimately their safe refuge and asylum). In the first phase, from the Chinese Exclusion Act of 1882 until the Immigration Act of 1917, Asian immigration was severely restricted. Meanwhile, as increasing numbers of immigrants came from southern and eastern Europe, Congress reacted in the 1920s with two laws, the (Temporary) Quota Act of 1921 and the (Johnson-Reed) Immigration Act of 1924. Together these two laws placed for the first time a descending ceiling over the annual number of immigrants, so that the aggregate of permitted immigrants dropped from a pre–World War I average of just under one million down first to approximately 360,000 and then to 150,000. Within this shrinking total the ratio of new to old immigrants was also drastically reduced, with the countries of the old immigration being eventually awarded more than four-fifths of the final quotas: Germany, for example, was allocated some 26,000 visas, versus Italy's 6,000. The unprecedented "national-origins" or "quota" system, which required entry visas to be issued in the country of application, came fully into operation in 1929. These basic formulas set American immigration policy until the 1960s, not least in excluding from the calculations those born in the Western Hemisphere, mainly Mexico and Canada, who would form a growing number relatively and absolutely of the "non-quota" immigrants.

As immigration into the United States from Europe was severely limited under the legislation of the 1920s, migration within Europe and Asia Minor took on a new importance during and immediately after World War I. Hundreds of thousands of Armenians, Bulgarians, Greeks, Russians, and Turks were displaced as so-called nation-states succeeded former multinational empires in eastern Europe and the Near East. Under the new League of Nations regime, negotiated population transfers (notably between Greece and Turkey), the protection of remaining minorities (in Poland and Romania), and the relief of indigent refugees (Bulgaria, Czechoslovakia, and Yugoslavia) became international responsibilities, with League of Nations bodies such as the High Commission for Refugees and the International Labor Office (predecessors of today's Office of the United Nations High Commissioner for Refugees and the International Labor Organization, respectively), individual countries (France particularly), and nongovernmental agencies such as the Red Cross supplying various kinds of help. The legacy of these different responses would be most clearly seen during and shortly after World War II, when the United Nations, with the United States in the leading role, assumed a comparable role in meeting the needs of the latest generation of refugees.

If the 1920s was the decade of a new international responsibility for displaced persons, then the 1930s and the first half of the 1940s produced forced migrations and displacement on a scale not seen for centuries in Europe and Asia. (Events in China had no effect upon U.S. refugee policy; but experts calculate that the onset of all-out war by the Japanese in 1937 led to the flight of tens of millions of Chinese inland from the coastal regions toward the north and west.) Figures capture the horror rather than express precisely the enormity of the human suffering: an estimated minimum of 40 million Europeans were displaced in two main stages, first under the Nazis and their allies until the failure of Operation Barbarossa, the German invasion of the Soviet Union, in 1942–1943. The war was followed by a decade of "ethnic Germans" (Volksdeutsche ) removing to the defeated fatherland and Slavs migrating mainly eastward and within the enlarged Soviet Union and its satellites (especially the Ukraine and Poland). Despite calling an intergovernmental conference at Evian, France, in July 1938 on the refugee crisis, President Franklin D. Roosevelt provided no leadership at home to effect changes in immigration policy to permit extra-quota places for victims of Nazi persecution.

After the net emigration that characterized the first (Great Depression) half of the 1930s came a net immigration in the second half of the decade and early war years that saw a maximum of 250,000 refugees enter the United States within quota. The end result was the lowest absolute decennial total admission of immigrants into the country since the census period 1820–1830, when 143,000 persons had arrived on U.S. shores. (The period 1831–1840 saw 600,000 immigrants, while in 1931–1940 it was just 528,000.) Thus, despite the arrival of some famous asylum-seekers (Hannah Arendt, Albert Einstein, Thomas Mann) into the United States from the Europe of the impending Holocaust, numerically the impact of such refugees was minimal. Indeed, Eichmann argued in his own defense that the "final solution to the Jewish question" was facilitated by the general resistance to Jewish immigration—a claim corroborated by contemporary American opinion polls.

THE POST–WORLD WAR II YEARS

The interwar years had shown no sign of the adaptation of the immigration laws to cope with asylum-seekers en masse: such is the message authoritatively recorded in the 1945 analysis by Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States. The legacy of national quotas in U.S. immigration law lasted beyond the weakening of the anti-Asian nativism that had been at work since the 1880s, the latter hostility mitigated and overlapping in the short term with more overtly political criteria for exclusion.

The Immigration and Nationality (McCarran-Walter) Act of 1952 exemplified this more recent mixture in a tense Cold War context, as did the earlier Internal Security (McCarran) Act of 1950, which also dealt, inter alia, with alien exclusion. Yet there was a wartime hint of the remaking of U.S. immigration policy by different criteria from the national-origins ideals of the 1920s, when in 1943 the total prohibition against Chinese immigration was minutely but significantly eased as part of the American conciliation of Nationalist China, one of the Big Five in the wartime anti-Axis alliance. Two years later President Truman by executive order gave priority to "displaced persons" in the allocation of European quotas—though within the existing national totals. Only with such measures as the Displaced Persons Acts of 1948 and 1951 and the Refugee Relief Act of 1953 were the annual quotas actually increased, at first simply by amortizing initial excesses against correspondingly reduced later totals. (An exception was made for the entry of non-quota wives, husbands, and orphans.) From 1945 until 1960 some 700,000 people were admitted to the United States under various "refugee-escapee" exemptions and programs—the beneficiaries of a deliberate Cold War policy directed against the Soviet bloc and communism in general by encouraging disaffected emigrants.

It required the more liberal, 1960s civil rights atmosphere to eliminate (via the landmark 1965 Hart-Celler Immigration Act) the ethnically coded national-origins system as the basis for the selection of immigrants. Yet quotas remained under the 1965 act, as they had under McCarran-Walter. But now they were absolute, limited to 20,000 for any one country, while for the first time immigration from within the Western Hemisphere was restricted to 120,000, effective in mid-1968, within a global maximum set initially at 290,000. (The 20,000 per country limit was extended to the Americas in 1976, and in 1978 the hemispheric subtotals were aggregated to 290,000 worldwide.) Within this changing ideological and numerical framework exceptions would be made for refugees, who under the new seven-category "preference" system of the Hart-Celler Act would technically occupy the last and smallest category at a maximum of 6 percent of the total for extrahemi-spheric entrants: an estimated 10,200, who would also include victims of natural disasters. (The refugees were expected to come from the Soviet bloc and the Middle East.) Finally, an unspecified number of refugees could be "paroled" into the United States by the attorney general—in other words, given a conditional right to reside despite their irregular status. This latter provision gave statutory form to the situation after the Hungarian uprising, when the great majority of the 38,000 refugees were initially admitted through the attorney general's parole power.

Edward P. Hutchinson, concluding his classic account Legislative History of American Immigration Policy with an analysis of the Hart-Celler Act, emphasizes the interconnection of legislation since the formative post–Civil War Immigration Act of 1875 with both the older tradition of political and religious asylum and the development of a post–World War II refugee regime by the U.S. government. He then blends all these factors together under the rubric "refugee asylum" as an "element of immigration law and policy." Indeed, at least half a dozen legal instruments between 1875 and the consolidating Immigration Act of 1917 contained provisions protecting political and religious freedoms—what we would call offering "political asylum"—while simultaneously barring racial undesirables. Thus, like other authorities Hutchinson endorses the argument that "asylum" in its more technical sense has to be understood within the wider context of the roads and obstacles to would-be migrants to the United States. As Colin Harvey perceptively writes, "Law is Janus-faced, it both coerces and enables. Refugee law … both excludes and includes."

The mutation of the quota system from its 1920s ethnic bias and the introduction of an allotment for refugees were two innovations in the Hart-Celler Act. (For all its ideological importance, the law was technically an amendment to the 1952 Immigration and Nationality Act.) Conversely, a more recent tradition was continued outside the provisions of Hart-Celler, with asylum privileges extended ad hoc sometimes by formal legislation and at other times by presidential action. This twin-track approach has characterized federal policy since the 1940s, despite at least six major general laws passed by Congress in the succeeding decades. Yet other factors have also been involved, the practical force of which is difficult to quantify but which have been important at a rhetorical, symbolic level.

One example is the role of the United States as the most powerful country within the United Nations and, therefore, inescapably identified with exhortatory UN pronouncements, even when the United States has either opposed or not signed the relevant multilateral treaties, later failed to ratify such binding instruments, or qualified ratification with terms seriously limiting the resultant obligations—a three-way method of American conduct traced by scholars such as David Forsythe, Louis Henkin, and Natalie Kaufman. (The Genocide Convention, which provided for extradition and voided pleas of "political crimes," was signed by the U.S. government in 1948, submitted to the Senate in June 1949, and finally received conditional consent from the Senate almost four decades later, in 1986.) Thus, the years since World War II show a pattern of complicated adjustments to U.S. immigration policy (which ultimately determines the legal entry for refugees and asylum-seekers) alongside an international rhetoric and the growth of a legal regime governing refugees and asylum-seekers, both of which are significantly shaped by the United States but not necessarily put into practice within its own borders.

THE UN ASYLUM AND REFUGEE REGIME

The Hart-Celler Act became fully operational in 1968, by coincidence the Human Rights Year celebrated by the United Nations to mark the twentieth anniversary of the Universal Declaration of Human Rights (UDHR). Endorsed by the UN General Assembly in December 1948, the UDHR echoed those provisions of the 1945 UN Charter that explicitly "reaffirm faith in fundamental human rights," stating, in the precise formulation of the UDHR article 14: (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution; (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Given the crucial role of the United States in the establishment in 1945 of the United Nations Organization—the multifaceted structure that gave institutional and eponymous form to the U.S.–led wartime alliance initially created by twenty-six states in January 1942 "to preserve human rights and justice in their own lands as well as in other lands"—there might seem no possible exception to an American obligation to provide asylum to asylum-seekers. Yet a number of factors show the weakness of this deduction. At the most general level the UN Charter (chapter 1, article 2) forbade any UN "interven[tion] in matters which are essentially within the domestic jurisdiction of any state." The government of the United States, both the Congress and the executive, had traditionally regarded immigration (under the broader heading of the admission of aliens) as a matter determinable solely by the United States itself—a claim of national prerogative amply demonstrated in the senatorial and wider public debate in 1945–1946 over the conditions for American adherence to the UN Charter and Statute of the International Court of Justice. Furthermore and specifically, even the terms of the nonbinding UDHR simply expressed traditional legal practice: the right of an individual to seek asylum was not disputed, but it remained for the host state or sovereign to grant asylum so that it might then be enjoyed—a qualification repeated passim in the Declaration on Territorial Asylum adopted by the UN General Assembly on 14 December 1967. Moreover, even the granting and enjoyment of so-called diplomatic asylum was not unconditional. Such considerations must be borne in mind when we read the later resolution of the General Assembly (24 October 1970) that the UN Charter precepts "constitute basic principles of international law."

As for refugees and would-be asylees, here the UN formulated two documents detailing international obligations toward those in need of such "social and humanitarian" protection: the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. Although "asylum" is a term absent from the body of both texts, the respective preambles and the context of the documents make the identification clear. The United States became a party to both instruments by signing and ratifying the later protocol, the purpose of which was to remove the temporal and geographical limits of the convention. Aside from the shift of UN (and American) concern from postwar Europe to Cold War Africa and Asia, the accession of the United States to the Refugee Protocol was yet another sign, paralleling the Hart-Celler Act, of the erosion of overt racialism in foreign policymaking. In refugee law, the convention and later protocol established an important textual commitment. In the formula of the convention, article 33 (subsumed in the protocol, article 1): "No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

This paragraph gave multilateral treaty form to the principle of nonrefoulement (from the French refouler, to turn back, expel)—the obligation of a state not to expose a refugee within its territorial limits or under its jurisdiction to expulsion into the hands of former or likely persecutors. To this particular commitment two rather different qualifications can be made here. First, the convention's governing condition was the "well-founded fear of being persecuted" in the mind of the refugee, phrasing that would allow judges and officials of the host state to consider a mixture of subjective and objective factors in determining entitlement to asylum for the supplicant. Second (as noted by Hannes Tretter in International Human Rights ), the wording left unanswered the question "how human rights standards and principles of humanitarian law could be guaranteed to war-refugees or refugees fleeing on economic and social grounds, considering … that neither the Convention nor its Protocol offers protection for them." While the United States would become a (conditional) signatory to a number of other human rights treaties—though not, perhaps paradoxically, the 1969 American Convention on Human Rights within an inter-American juridical regime—these parameters of nonrefoulement and the selective extension and denial of asylum to economic, social, and political mass-migrants would constitute part of the framework of U.S. immigration policy in the last third of the twentieth century. (The American Convention on Human Rights must be distinguished from the American Declaration of the Rights and Duties of Man, in which article 27 speaks of the right "to seek and receive asylum," adopted at the Ninth International Conference of American States at Bogotá in 1948, where the Charter of the Organization of American States was approved.)

THE DEVELOPMENT OF CONTEMPORARY ASYLUM LAW AND POLICY

Since the passage of the Hart-Celler Act in 1965, four major U.S. laws have been written regulating immigration, and each has contained provisions governing the treatment of refugees and asylum-seekers. In chronological and substantive precedence was the Refugee Act of 1980, the first omnibus refugee law ever passed by Congress. Prompted by the acute refugee crisis following the Vietnam War and the atrocities of the Khmer Rouge in Cambodia as well as the long-term problems of Cuban emigration, the legislation enlarged the annual permitted total of refugees (defined along the lines of the 1967 UN protocol) from 17,400 to 50,000, within an overall raising of the immigration ceiling from 290,000 up to 320,000. This figure of 50,000 would be reviewed after three years. Meanwhile, increases for "grave humanitarian" reasons would be possible—if agreed to by the president and Congress, who would also determine the initial annual per-country allocation. (Refugee admissions during the 1980s averaged twice this rate.) Five thousand places within the refugee total were assigned specifically for asylum-seekers, but within a very short time the applications ran at ten times this number. (In later years acceptances for asylum status would move toward 10,000 per year.) Individual states would be reimbursed for the costs of both the future refugee and past asylum programs. Those arriving with refugee status, which is accorded outside the United States, would be permitted to convert to "permanent resident alien" status within one year and thus embark on the road to citizenship.

Three specific features of the act were politically significant: the twenty-year-old Cuban refugee program would be phased out, the previous requirement (a legacy of the 1950s) that refugees hail either from the Middle East or communist regimes was ended, and a proviso was added that, in following the UN definition of refugees, future policy would be guided by the victims' "special humanitarian concern to the United States"—a qualification for selective U.S. engagement. Thus the 1980s would show far more admissions from unfavored regimes in eastern Europe than from favored regimes in Latin America—prima facie evidence of the political definition of refugees and the political selectivity of asylum grants. As a result of the 1980 act, total immigration under the refugee and asylee categories rose to an exceptional peak of 140,000 in fiscal year 1991 (including 23,000 asylees). The figure dropped back to 54,000 in 1998 from 112,000 in 1997, the latter aggregate figure being more representative of the 1990s as a whole.

The next law, the Immigration Reform and Control Act of 1986 (IRCA), was primarily designed to regularize undocumented Hispanic aliens ("illegals" who lacked or had abused appropriate entry visas) by a double tactic of penalizing employers and offering amnesty to those who had evaded existing immigration regulations. While these aspects of the IRCA harked back to the labor-control elements of earlier immigration legislation (notably the bracero program for migrant Mexicans, 1942–1964), other sections of the law eased the plight of Cuban and Haitian "illegals" who were regarded as political rather than economic victims. Legislators and commentators agreed that the IRCA was designed as the first in a two-stage revision of existing procedures, and four years later Congress more systematically revised the Hart-Celler Act. Under the Immigration Act of 1990, visas for specified labor skills were increased almost threefold (to 140,000) at the relative cost of family-reunification within a larger aggregate of immigrants (up from 500,000 to 700,000, then dropping to 675,000). Asylum-seekers and refugees, if qualified, were to be admitted outside of quota limits: an estimated 131,000 in the first year with an allocation of 10,000 for asylees. Furthermore, the attorney general was given powers to widen the categories (and thus the potential numbers) of aliens in need of "temporary protected status," such as victims of natural disasters and civil wars.

The fourth law in this important quartet was the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Beginning its legislative life in the Senate and House as bills to reduce legal immigration as well as to police illegal immigration, the final product in an all-purpose appropriations measure was eventually designed mainly to minimize the numbers, penalize the presence, and expedite the expulsion of "illegals" in general. The annual number of legal immigrants approached pre–World War I highs—against a host population almost three times larger. Fiscal year 1993 was the decade's peak for "new arrivals." Even so, the 1996 act treated asylum-seekers somewhat ambivalently. The grounds for claiming persecution were enlarged to include state-enforced family planning (most obviously in the People's Republic of China), yet the numbers so protected were arbitrarily limited to one thousand per annum.

An authorized speed-up in processing and a later actual increase in rejecting asylum claims, together with limitations on the judicial review of rejections, were part of a growing general hostility to such claimants. (There were comparable immigrant increases and legislative and bureaucratic responses in the European Union.) Asylum applications were running at an annual average of 140,000, with almost four times that number unresolved. This huge figure was mainly due to the acceptance by the INS of an out-of-court settlement of a lawsuit, American Baptist Churches v. Thornburgh (1991), in which the churches charged that INS asylum policy toward Central American appellants during the 1980s had been driven by political priorities (hostility to the left-wing Sandinistas in Nicaragua and opponents of the U.S.–supported Salvadoran and Guatemalan governments) rather than disinterested application of the refugee criteria. More generally, under the new law the discretion of the executive to parole fugitives en masse would be inhibited by the offset of these parolees against the permitted totals for legal, "documented" immigrants. This particular provision was less the legacy of the Reagan administration in Central America than the particular case of "boat-people" from Cuba and Haiti.

U.S. ASYLUM AND REFUGEE PRACTICE: CUBA AND HAITI

From the early 1960s Cuba has played a peculiar role in the making and conduct of U.S. refugee policy. Since Havana and Washington have periodically agreed to limit Cuban emigration and immigration, both governments have conspired to deny asylum to actual and would-be refugees. Nowhere does the interplay between the domestic and foreign spheres, or the practical limitations of multilateral commitments, appear more starkly than in the control of exit and entry between the two countries. (Article 13, section 2, of the Universal Declaration of Human Rights, for example, defines the right to leave and return to one's country as fundamental; but Cuba is not a party to the Refugee Convention or Protocol.) Given the level of official U.S. rhetoric about the denial of human rights in Cuba, the implementation of selective admission for Cuban refugees must be seen as politically inspired.

There have been three notable stages in the pattern of U.S. immigration policy toward Cuba. For two decades following Fidel Castro's assumption of power in 1959, Cuban émigrés in the United States enjoyed a privileged position as refugees not subject to the prevailing immigration regulations. The legislative pinnacle was the Cuban Adjustment of Status Act of 1966 (CASA), which permitted some 130,000 Cubans living mainly in Florida and New Jersey to become "permanent resident aliens … lawfully admitted for immigration" and thus start on the road to citizenship (and, in some states, register their professional qualifications to obtain appropriate employment). Having come as refugees, these beneficiaries of CASA had originally entered under visa waivers or as parolees (at the ultimate discretion of the attorney general), and the Hart-Celler Act had just outlawed such change of status.

The second significant chapter in the Cuban refugee story began in 1980, when as many Cubans left the island in five months as had benefited under CASA. More dramatically—and with much greater political effect—these fugitives, many encouraged by Castro himself in the Mariel boat lift episode, were joined by some 35,000 fugitives from nearby Haiti in a common armada of fragile and tiny boats sailing toward Florida. The 1980 Refugee Act had just been passed; but neither group of bolseros had been formally classified as refugees, which meant that neither they nor the host communities (Dade County and Greater Miami) would be eligible for earmarked federal funds such as Medicaid and Aid to Families with Dependent Children for individuals and a support program for school districts.

As in 1966, Congress and the president agreed on a solution, in this case to accord refugee status to the fugitives—thus repeating the process that had brought almost a million Indochinese refugees into the United States. Through the 1980s the numbers of fugitives from Cuba fell back to the hundreds, then in the early 1990s, as a consequence of the deep economic crisis following the collapse of the Soviet Union, the numbers rose to thousands, with almost 40,000 intercepted by the Coast Guard and other agents in 1994 alone. Such numbers (all potential beneficiaries of CASA) led to the 1994–1995 U.S.–Cuban compromise, whereby Washington agreed to accept 20,000 refugees while Havana would seek to discourage emigration. Those Cubans denied entry (even after an appeal along the terms of the Refugee Act of 1980) were to be repatriated without reprisals. Complicated in its details (which included using the U.S. naval base at Guantánamo Bay on Cuba as a transit camp, operating the parole provisions of CASA to increase the numbers of legal permanent residents, and instituting a "visa lottery" to bridge the gap between applicants and available places), Washington's Cuban immigration policy of the 1990s confirms the general point that asylum, despite the formidable bureaucratic and judicial framework in which it operates, has been employed in practice as a means of promoting broader foreign policy goals while responding to domestic lobbies.

A similar lesson may be drawn from U.S. policy toward Haitian refugees. During the 1980s more than 20,000 Haitian boat people were interdicted (arrested) by U.S. officials at sea—and only one in a thousand was permitted to make an application for asylum. Although the UN High Commissioner for Refugees and the Organization of American States Inter-American Commission on Human Rights demurred, the U.S. Supreme Court in 1993 (Sale v. Haitian Centers Council Inc., et al. ) upheld 8 to 1 the authority of the executive effectively to refoul such migrants despite the explicit commitments of the 1951 Refugee Convention and 1967 Protocol and the provisions of the 1980 Refugee Act. Supporters of the interdiction policy, begun in earnest by President Ronald Reagan and continued through Bill Clinton's presidency, argued that the Haitians were "economic migrants" instead of political refugees, while some critics, particularly from the Congressional Black Caucus, detected racism at work. (The 1980 post-Mariel settlement had been less favorable to the Haitian refugees.) But there was another echo of the Cuban saga: in 1998 the Haitian Refugee Immigration Fairness Act, modeled on CASA, was passed by Congress to allow more than 40,000 Haitian asylum claimants or parolees to adjust to "legal permanent residence"—while the policy of interdiction continued.

CONCLUSION

Tracing the pattern of executive and congressional actions in the twentieth century bears out the general point made by Joyce Vialet, an authority on the law and history of U.S. immigration, that "the distinction between immigrants and refugees, unheard of during the mass migrations of the 19th century, … developed in the wake of World War II, primarily as a means of reconciling our traditional ideal of asylum with restrictions in the immigration law." With the designation of the "Asiatic barred zone" in the 1917 act, tightened by the Johnson-Reed Act of 1924, the barriers to immigration from Asia and the Pacific were made virtually impregnable. In the 1920s the former "open door" was almost closed to Mediterranean Europe, the Balkans, Asia Minor, and the Black Sea region, where the "push" of poverty, often associated with the minority status and religious and ethnic persecution of disadvantaged groups (notably pogroms against Jews in czarist Russia), drove increasing millions toward the attractive "pull" of the United States during the three decades preceding World War I. (The Catholic Irish immigration of the 1840s–1850s was an earlier microcosm of similar economic, religious, and ethnic factors driving exiles to the United States.) This was the "new immigration" so distasteful to the older, established immigrant groups who in the 1960s would be dubbed the WASPS: White Anglo-Saxon Protestants.

After World War II, which had brought no real opening of the immigration door, those who once would have come to the United States as ordinary immigrants now could come in any numbers only as refugees. Likewise in the 1980s and 1990s, many poor, frightened, persecuted migrants—and the simply ambitious—came from Central America and the Caribbean to the United States seeking a better life, economically, politically, and socially. The great majority came legally as admitted immigrants, and others came as technical refugees; the "illegals" arrived surreptitiously without documentation, and the desperate appealed for formal asylum. Where once "Asian" race and then European "ethnicity" had been categories of exclusion, now family unification, employment skills, and even levels of social and personal threats and violence became the criteria for admission. Such has been the recent history of asylum in the much longer history of American immigration—a history of inclusion and exclusion that was encapsulated in the exhortation of Thomas Paine's Common Sense on the eve of American independence:

O ye that love mankind! Ye that dare oppose, not only the tyranny, but the tyrant, stand forth! Every spot of the old world is overrun with oppression. Freedom hath been hunted round the globe. Asia, and Africa, have long expelled her—Europe regards her like a stranger, and England hath given her warning to depart. O! receive the fugitive, and prepare in time an asylum for mankind.

BIBLIOGRAPHY

Anker, Deborah E. Law of Asylum in the United States. 3d ed. Boston, 1999. The standard work written for lawyers; very detailed text and heavily footnoted.

Bessiouni, M. Cherif. International Extradition: United States Law and Practice. 3d ed. Dobbs Ferry, N.Y., 1996. A substantial work that, like Vialet, makes the argument that asylum and refugee regimes must be seen in the context of reducing immigration.

Bolesta-Koziebrodzki, Léopold. Le Droit d'Asile. Leiden, 1962. An older work, useful for a non-U.S. perspective and valuable for Latin America.

Brownlie, Ian. Principles of Public International Law. 5th ed. Oxford, 1998. A manageable introduction by an authoritative scholar and practitioner before the bar of the International Court of Justice.

Columbey, Jean-Pierre, ed. Collection of International Instruments and Other Legal Texts Concerning Refugees and Displaced Persons. 2 vols. Geneva, 1995. A publication of Office of the UN High Commissioner for Refugees, Division of International Protection; volume 1 contains "Universal Instruments"; volume 2 deals inter alia with Latin America.

Dunne, Michael. "American Judicial Internationalism in the Twentieth Century." Proceedings of the American Society of International Law 90 (December 1996): 148–155. Discusses the work of David Forsythe, Louis Henkin, and Natalie Kaufman.

Ermacora, Felix, Manfred Nowak, and Hannes Tretter, eds. International Human Rights: Documents and Introductory Notes. Vienna, 1993. The comparative materials are intelligently contextualized with excellent references.

Frey, Linda S., and Marsha L Frey. The History of Diplomatic Immunity. Columbus, Ohio, 1999. Set to become the standard account.

Goodwin-Gill, Guy S. The Refugee in International Law. 2d ed. Oxford, 1996. The detailed and authoritative starting point for the subject, written by a former member of the UNHCR. The text is wide-ranging and fully referenced; indispensable for the world picture.

Grahl-Madsen, Atle. Territorial Asylum. London, Rome, and New York, 1980. Half this book, by a contemporary leader in the field, is documentation pleading for a convention on asylum comparable to the 1951 Refugee Convention.

Hailbronner, Kay. Immigration and Asylum Law and Policy of the European Union. The Hague, London, and Boston, 2000. An exhaustive work that deals with refugees and asylum-seekers.

Hall, William Edward. A Treatise on International Law. 8th ed. Edited by A. Pearce Higgins. London, 1924. A classic, relatively brief work.

Harvey, Colin. Seeking Asylum in the UK: Problems and Prospects. London and Dublin, 2000. Contextualizes somewhat dated "critical legal theory" and useful for European developments, political and legal.

Hathaway, James C. The Law of Refugee Status. Toronto, 1991. Monograph on the 1951 Refugee Convention by an authority.

Hutchinson, E. P. Legislative History of American Immigration Policy, 1798–1965. Philadelphia, 1981. The classic and indispensable account.

Hyde, Charles Cheney. International Law Chiefly as Interpreted and Applied by the United States. 2d rev. ed. 3 vols. Boston, 1945. First published in 1922, this work by an eminent international lawyer reveals how little interwar crisis affected U.S. immigration policy and practice.

Jennings, Robert, and Arthur Watts, eds. Oppenheim's International Law. 9th ed. London and New York, 1996. In this classic work, volume 1 examines asylum and refugees from a very wide international perspective with voluminous references.

LeBlanc, Lawrence J. The United States and the Genocide Convention. Durham, N.C., and London, 1991. Deals in chapters 8 and 9 with the "reserving" of international treaties by the Senate.

Morgenstern, Felice. "'Extra-territorial' Asylum." British Year Book of International Law 25 (1948): 236–261. The first in a trio of essays discussing asylum from an international, comparative perspective. See also "The Right of Asylum," British Year Book of International Law 26 (1949): 327–357; and "Diplomatic Asylum," Law Quarterly Review 67 (July 1951): 362–382.

Nicholson, Frances, and Patrick Twomey, eds. Refugee Rights and Realities: Evolving International Concepts and Regimes. Cambridge, 1999.

Ronning, C. Neale. Diplomatic Asylum: Legal Norms and Political Reality in Latin American Relations. The Hague, 1965. The appendices and bibliography are useful in a study that puts the Columbia-Peru Asylum Case in context and also covers U.S. practice.

Skran, Claudena M. Refugees in Inter-War Europe: The Emergence of a Regime. Oxford, 1995. Places the Evian conference of 1938 in the larger picture of U.S. interwar policy.

United Nations High Commissioner for Refugees. The State of the World's Refugees, 2000: Fifty Years of Humanitarian Action. Oxford, 2000. This important serial provides the annual monitoring of the implementation of the 1951 Refugee Convention and 1967 Protocol; contains factual information and statistics together with essays by regions, periods, and topics.

U.S. Committee for Refugees. World Refugee Survey. This annual survey is the most outstanding of relevant unofficial publications and presents the global picture.

U.S. Immigration and Naturalization Service. Statistical Yearbook. Annual review that contains informative and clear essays on the published data.

Vialet, Joyce. "A Brief History of U.S. Immigration Policy." 91-141 EPW (25 Jan. 1991): 2.

See also Extraterritoriality; Humanitarian Intervention and Relief; Human Rights; Immigration; Nativism; Reciprocity; Refugee Policies.

ELIÁN GONZÁLEZ

On Thanksgiving Day 1999 a five-year-old Cuban boy, Elián González, was found floating on a tire tube in the sea off Florida. His mother, stepfather, and ten others had drowned when their small boat had capsized during the hazardous voyage. The rescue was un milagro (a miracle) in the eyes of many Cuban Americans, especially the powerful Cuban American National Foundation. For the next seven months the fate of Elián filled the media and involved at least four different courts, all three branches of the federal government, and lobbyists nationwide, as family members in Greater Miami and in Cárdenas near Varadero in Cuba struggled over the wellbeing of the Cubanito. Human interest aside, Elián's story showed the workings of the immigration and asylum system in dramatic form.

Initially, as an undocumented alien and a minor, Elián was paroled formally by the attorney general into the care of Miami relatives, who unsuccessfully used the Florida courts to gain long-term legal custody. The state court determined that the matter was properly within the federal remit of the Immigration and Naturalization Service, to which the local family applied for asylum status for Elián, and was not a matter of state family law. (In Cuba, Elián's father, Juan Miguel González, opposed these actions, later coming to the United States to plead for the return of his son.) The INS meanwhile refused an asylum application, filed both by Elián and on his behalf by a great-uncle, Lázaro González, adjudging that Elián did not qualify under any statutory provisions, specifically the likelihood of persecution and torture if returned to Cuba. This executive decision, supported by Attorney General Janet Reno, was upheld first at the local level by a U.S. district judge and then by the U.S. Court of Appeals for the Eleventh Circuit sitting in Atlanta.

In the several judicial decisions it was reiterated that the discretionary though delegated powers of the executive over immigration are virtually plenary; and even a paroled alien does not enjoy the constitutional protections of a U.S. citizen. (Bills were introduced in Congress to confer citizenship upon Elián.) The Eleventh Circuit also emphasized that if there was an issue about Elián's age (born 6 December 1993), then this made the role and wishes of his father, Juan, that much more important—rather than the counterclaims of Lázaro and his cosuitors. (For jurisprudential guidance the INS had examined even the Cuban Family Code as well as the 1989 UN Convention on the Rights of the Child, though the United States is not a party to the CRC.) Furthermore, the Eleventh Circuit accepted the appropriateness of the INS's considering the foreign policy aspects of any decision. Thus, by late June 2000 state and federal courts had moved to retain the jurisdiction of Elián's status within the INS under the higher authority of the Department of Justice—a sequence confirmed on 28 June, when the U.S. Supreme Court announced it would not take cognizance of the controversies. Later that same day, Elián was flown back to Cuba in the company of his father, having been seized nine weeks earlier—by armed federal agents—from his Miami relatives, whose temporary guardianship had been revoked by the INS. The federal operation, technically authorized or not, shocked even supporters of Elián's reunion with his father.

Asylum

Asylum (Sp./Port. asilo) is a distinctive diplomatic and political practice employed primarily in Latin America and a major institution for human rights protection in the Western Hemisphere. Asylum may be defined as the right to offer protection to individuals suffering from political persecution. United Nations Resolution 2312 (XIII) of 1967 defines asylum to be a state's right, the concession of which does not constitute a hostile action toward the asylee's original territorial state.

Based on Roman law, the notion of asylum dates to pre-Christian times, although one of its greatest historical expressions has been through canon law. Asylum has evolved principally as a result of custom, rather than legal factors. In the nineteenth and twentieth centuries, the institution of asylum has become largely a Latin American practice. It grew there as a result of local political volatility which manifested itself in the recurrence of uprisings and revolutionary upheavals. Furthermore, for the young Latin American nation-states, concession of immunity in asylum cases implied diplomatic recognition by the major powers.

In modern usage, two types of asylum exist: internal and external. Internal asylum, more commonly referred to as territorial asylum, was the only type of asylum known until relatively recently. It is generally considered a consequence of territorial sovereignty. States grant this type of asylum to foreigners fleeing their own countries. Although a state possesses the right to not admit any person to its territory, no state, after providing a persecuted individual hospitality, may expel him or turn him over to a state which requests him.

External asylum is that granted on an extraterritorial basis and is permitted in legations, embassies, consulates, warships, and military camps. Diplomatic asylum, which applies to the former three locations, is the most common form of external asylum and may be conceded to nationals of the country in which the diplomatic entity is accredited and located. Diplomatic asylum arose when the European states began to maintain permanent representatives abroad and thus since the inception of diplomatic immunity.

EARLY EVOLUTION OF ASYLUM

Diplomatic asylum in Latin America dates to the late nineteenth century and stemmed from the political organization of independent states. Once the ascendency of anticlerical liberals eradicated religious asylum, and as states began to consolidate, the new governments perceived recognition as a significant priority. Thus, they did not breach the sovereignty of another nation's diplomatic premises. As a result, individuals persecuted for their political beliefs attempted to obtain asylum inside those premises.

Although the practice of asylum became relatively common in the first twenty-five years after Independence, its legal basis remained ambiguous, as reflected in early asylum treaties. In 1865 an agreement was signed in Lima regulating political asylum. In 1867 various European and American legations convened in Lima at a conference which recognized diplomatic asylum as a common practice in the region. The diplomats, however, did not claim that asylum represented a basic rule of international law, nor was it claimed to be a practice native to Latin America. The Lima conference also required that the practice of asylum not interfere with the sovereignty of the American people.

The Convention on the International Penal Law, adopted on 23 January 1889, by the First South American Congress on Private International Law at Montevideo, represented an affirmation of the conclusions of the former conference. The 1889 assembly reasserted the notion that asylum should be regulated through international law. It also recognized the diplomatic asylum of political offenders as a right permitted by the usage, conventions, or laws of the South American countries.

The Sixth International Conference of American States, held in Havana, resulted in the adoption of a Convention Fixing the Rules to Be Observed for the Granting of Asylum on 20 February 1928. The United States was the only American state expressing reservations about the doctrine of asylum. The Convention of Havana established several important principles of diplomatic asylum in Latin America. First, asylum may be conceded only in urgent cases and only for the time strictly necessary for the asylee to secure his safety. Second, asylees may not be disembarked in any part of their national territory nor anywhere near it. Third, as long as asylum lasts, asylees are not permitted to practice acts contrary to public security. Fourth, the right to asylum may be given to political delinquents only in diplomatic legations or military locations. Finally, the government of an asylee's national territory can demand that the asylee be removed from the territory as soon as possible, and the diplomatic agent that has agreed to grant asylum can demand the necessary safe-conducts for the asylee.

In 1933 the Seventh International Conference of American States, held in Montevideo, adopted a Convention on Political Asylum on December 26, 1933. This rather vague agreement permitted the state granting asylum to define the crime of the asylee as political. The significance of this treaty and the 1928 Havana Convention lies in their widespread acceptance. Treaties which declare asylum as a basic human right have not been embraced so inclusively. The Second South American Conference on Private International Law at Montevideo adopted the Treaty on Political Asylum and Refuge on 4 August 1939, revising the 1889 Montevideo treaty.

HAYA DE LA TORRE CASE

On 28 March 1954, the Tenth Inter-American Conference held in Caracas adopted conventions on diplomatic and territorial asylum, partially as a result of the Haya De La Torre case between Colombia and Peru. The Caracas Convention defines territorial asylees as individuals who come from states in which they suffer persecution as a result of political convictions, ideas, or associations or for political crimes. In 1954, Caracas also hosted the Convention on Diplomatic Asylum, which asserted that each state may decide whether to grant or refuse asylum to any individual. The asylum-granting state also was res-ponsible for stipulating the nature of an asylee's crime. It also established the principle of non-refoulement, or the proscription of forced return of an asylum seeker to a country of persecution. Finally, the Convention also expressed the boundaries of rights to freedom of expression, assembly and association. While guaranteeing them, it prohibited asylees from provoking or organizing against a sovereign state.

One of the most important cases in Latin American asylum history has been the Haya de la Torre case. In January 1949, Víctor Raúl Haya de la Torre, leader of the Peruvian APRa party, sought refuge in the Colombian embassy in Lima. Colombia argued that custom represented a sufficient legal foundation for asylum. Peru, by contrast, historically has tended to reject this claim. The two countries carried the case to the International Court of Justice for clarification, because they could not agree on the interpretations of the 1928 Havana Convention regarding the determination of the nature of the asylee's crime and the obligation of a territorial state to concede the necessary safe-conduct.

Following a series of disputes regarding these issues, the International Court of Justice in 1950 produced a jurisprudential doctrine, concluding that Peru was not required to grant Haya de la Torre safe-conduct, that Colombia was not required to turn him over to Peruvian authorities but was required to put an end to the irregularly conceded asylum. After an asylum of five years, Peru issued Haya de la Torre a decree of exile from the country. Colombia agreed to turn him over to the Peruvian minister of justice for one hour for judgment before issuance of the exile decree. Peru reserved extradition rights and demanded that Haya de la Torre never be granted territorial asylum in Colombia. The Haya de la Torre case is important as an example of asylum acting as an impetus for jurisprudence. The involvement of the International Court of Justice as a juridical actor in an asylum case is significant.

FAJARDO, CÁMPORA, AND HONECKER CASES

Two other relevant cases for the legal interpretation of asylum principles and asylum's institutional evolution are the Saúl Fajardo case in Colombia in 1952 and the Hector José Cámpora case in Argentina in 1976. From 17 March to 4 April 1952, the Colombian guerrilla Saúl Fajardo was sheltered in the Chilean embassy in Bogotá. The two governments involved disagreed on the nature of Fajardo's crime, with Colombia declaring the asylum illegal because they considered Fajardo not a political delinquent but rather a common criminal. This case reflects the importance of the distinction between political and common crimes and the weight of political expediency.

Ex-president Hector Cámpora remained in the Mexican embassy for over three years as a result of the Argentine government's refusal to grant him a safe-conduct. The Cámpora case represents the first time an asylum had been so prolonged when the asylee was not charged judicially. With Cámpora were his son Hector Pedro and ex-secretary of the Peronist Movement, Juan Manuel Abal Medina. These individuals requested and were granted asylum in April 1976. In November 1979, ex-president Cámpora was allowed to go to Mexico, where he was diagnosed with a terminal illness.

The Argentine government, though recognizing the right of asylum and allowing it to function in other cases, refused to grant the safe-conducts necessary for these particular asylees to leave the country. The refusal resulted not from the existence of charges of common crimes, as in the case of Haya de la Torre. Rather, the Argentine government admitted that Cámpora was a political criminal but still refused him the safe-conduct. By late 1979, Mexico threatened to carry the case to the International Court of Justice, using the Haya de la Torre case as a precedent. In effect, the Argentine government denied the obligation of a territorial state to issue the safe-conducts. The Cámpora matter illustrates, first, that the Haya de la Torre case proved to be a precedent in the institution of asylum. Second, it shows that political expediency often shapes, and sometimes undermines, the operation of the institution.

An important contemporary case is that of Erich Honecker, former prime minister of East Germany, who was charged with manslaughter and misappropriation of state funds. Honecker fled his country in March 1991 and lived in the Chilean embassy in Moscow from December 1991 to July 1992. Some members of the post-Pinochet Chilean government, including the Chilean ambassador in Moscow, Clodomiro Almeyda, felt the country owed a debt to Honecker, who had provided asylum to many of Salvador Allende's supporters. Although the Chilean government announced in March 1992 that it would not grant asylum to Honecker, it allowed him to remain in the embassy until Russian authorities determined his future. In July the Chilean government asked Honecker to leave its Moscow embassy. Honecker's trial in Germany began in November 1992, but in January 1993 the German court, recognizing that Honecker suffered from terminal cancer, canceled the trial and allowed Honecker to travel to Chile.

MASSIVE DIPLOMATIC ASYLUM

Although historically asylum has been determined on an individual basis, the establishment of military governments in Brazil, Argentina, Chile, Ecuador, Peru, Bolivia, and Uruguay in the 1960s and 1970s stimulated massive requests for asylum. Most asylees from these countries sought protection in Mexico, Venezuela, Costa Rica, and to a lesser extent, in Colombia.

The most relevant and visible case of massive diplomatic asylum in modern Latin American history is the case of Chile after the 11 September 1973, military coup in which President Salvador Allende was deposed. In the months following the coup, many embassies, including the missions of countries outside the region, admitted thousands of asylum seekers. Among the asylees were Hortensia B. de Allende, the wife of the assassinated president, who was asyled in the Mexican embassy; most of Allende's cabinet ministers; journalists, intellectuals, professionals, and bureaucrats associated with the deposed regime; and leaders of political parties and labor unions, along with other social activists.

In a different political and international context, another modern case of massive request for diplomatic asylum is that of the Cubans who stormed the Peruvian embassy in 1980 to request asylum. The Cuban government announced that any Cuban who wished to leave the country should go to the Peruvian embassy. More than 10,000 people appeared in three days. Although not all of those who requested asylum did so as a result of political persecution, Peru eventually granted asylum to 740 Cubans. The balance either decided to remain in Cuba or fled to the United States in the Mariel Boatlift which the Peruvian embassy incident precipitated.

Until recently the overwhelming majority of exiles protected by asylum came from relatively prosperous sectors of society and from all sides of the ideological spectrum depending on the country and circumstance. Asylees were typically prominent politicians, skilled workers, social leaders, religious figures, university graduates, intellectuals, artists, businessmen, and women. With variations from case to case and country to country, this was the general profile of asylum seekers from Guatemala after an armed coup deposed the reformist government of President Jacobo Arbenz in 1954; from Cuba after 1959 when Fidel Castro took power and instituted revolutionary trials against thousands of people believed to be associated with the old regime; from Brazil, Argentina, and Uruguay during several years after the military seized power in 1964, 1966, and 1973, respectively; from Chile in 1973 after General Augusto Pinochet deposed the Allende government; and from Nicaragua after Sandinista guerrillas defeated the dictatorship of Anastasio Somoza Debayle in 1979. The social, political, or economic prominence of many asylum seekers accorded this international legal institution particular prestige and relevance in Latin America. Some countries, including Mexico, Venezuela, Costa Rica, and even the United States and Canada, have greatly benefited from often highly qualified, talented, and creative exiles.

REFUGEES

Political conflicts and revolutionary upheavals in South and Central America have increasingly been accompanied by a general decline in economic conditions as an exacerbation of social inequalities in the countries affected. These interrelated political and economic problems have stimulated waves of migrants seeking either safety and protection or employment and better economic opportunities in Latin American nations which are relatively more stable and developed, as well as in the United States, Canada, and Europe.

Although some of these migrants have applied for political asylum in diplomatic missions, the majority of them have left their country without diplomatic aid or protection. Few have applied for territorial asylum. A sizable proportion of migrants escaping political and economic problems in Latin America in the 1980s established residence in other countries or moved from one to another outside the legal protection of the asylum status. Instead, they were refugees using tourist visas and other temporary alien permits or were without documentation. Over time, these circumstances have created considerable confusion and overlapping between the cases of individuals fitting the classical definition of asylees, economic migrants, and the new phenomena of refugees legitimately concerned with their security as a result of membership in communities suffering political repression, such as ethnic groups or residents of areas affected by war and generalized violence.

As a consequence of the economic and political events of the 1980s in the hemisphere, the typical Latin American refugees are no longer persons who enter an embassy in search of protection, assured by their prestige and status of a friendly welcome and good treatment in the recipient country. Nor are they individuals capable of assuring their maintenance and economic well-being with little or no external support. During the 1990s, and directly as a consequence of the political unrest, violence, and economic stagnation in Central America and the Caribbean, large numbers of peasants, unskilled workers, indigenous groups, and marginalized populations have sought protection and welfare assistance outside their country of origin. Since they were migrating under very precarious conditions, their disadvantages are significant and their needs urgent. In contrast with the experience of most traditional exiles protected by the institution of asylum, many refugees of this new type have endured harsh conditions. They have often been perceived and isolated as active supporters of revolutionary movements posing a threat to the security of the host country or as social and economic burdens.

Diplomatic asylum has remained a crucial instrument of human rights protection, particularly at specific times of political crisis or as a mechanism to evade severe travel and migration restrictions imposed upon citizens, as in the case of Cubans storming the Peruvian embassy in Havana in 1980. A more diverse and complex migration process has emerged since 1980, however, extending the narrowly defined notion of asylum to the broader experience of refugees. Given its complexity and magnitude, the Central American and Caribbean refugee phenomena became a source of serious international controversy and a difficult political and economic responsibility for recipient countries and humanitarian organizations. Furthermore, the practical impossibility of clearly defining the borderline between political refugees and economic migrants has resulted in a more restricted application of asylum principles and tighter immigration controls on the part of recipient countries such as Mexico, Costa Rica, and the United States.

Central America and the Caribbean

The most significant waves of refugees in the hemisphere include Nicaraguans, Salvadorans, Guatamalans, Cubans, and Haitians. In 1981 indigenous people from the Atlantic coast of Nicaragua began entering Honduras from the Mocorón region, and in 1986 over 14,000 were in camps run by the United Nations High Commissioner for Refugees (UNHCR). They represented approximately half of the estimated 30,000 indigenous people from Nicaragua who, after the Sandinistas' seizure of power in 1979 and during the U.S.-sponsored anti-Sandinista civil war of the 1980s, escaped into the Miskito region of Honduras, were forcibly relocated, or joined the contra forces fighting the Sandinistas.

Simultaneously, 14,000 Nicaraguans, mostly peasants, crossed the border, either disaffected from the Sandinista regime or forced by the contras to the department of El Paraíso in Honduras, where they settled in camps under the protection of the Red Cross and the UNHCR. The Nicaraguans in El Paraíso represented part of a larger group of Nicaraguan peasants, mainly from the departments of Nueva Segovia, Jinotega, Esteli, and Madriz, in exile in Honduras. As many as 230,000 Nicaraguans also fled to Costa Rica in various waves. Only 30,000 of them were officially recognized as refugees by Costa Rican authorities.

The formal repatriation process of the Indians began in 1986. During 1987, 14,000 Indians repatriated with international assistance. By 1989, only 9,000 indigenous people were registered as refugees by the UNHCR in Honduras. All but a handful returned to Nicaragua after the elections of 1990, when the Sandinistas lost power to a coalition of opposition forces led by Violeta Chamorro. Most of the peasant refugees settled in the El Paraíso region in Honduras were repatriated to Nicaragua after 1989, and the return of refugees from Costa Rica also intensified after that year.

Between 1981 and 1985, 46,000 Guatemalan refugees entering the southern Mexican state of Chiapas, bordering on Guatemala, received refugee status. Initially, local peasant communities helped the refugees settle in camps run by the Catholic Church. Later, the Mexican government and the UNHCR took charge of many of those camps. These officially recognized refugees constituted part of a much larger group of peasants, mostly Indians of several different ethnic and linguistic groups. These refugees were often victims of the counterinsurgency campaign launched by the Guatemalan army in the highlands of the country, an area heavily populated by the Maya-K'iche' Indians. By the end of 1992, only 8,000 Guatemalans exiled in Mexican camps had returned to their country. In 1993 massive repatriations of Guatemalan Indians started under the leadership of the 1992 Nobel Peace Prize winner, Rigoberta Menchú, who was also an Indian refugee.

Between 1980 and 1986, Salvadorans suffering government repression or directly affected by the country's civil war emigrated in massive numbers to neighboring countries. Approximately 21,000 settled in internationally supervised refugee camps in Honduras. In 1987 refugees settled in Honduras began to return to El Salvador in large contingents. By 1990, without the explicit consent of the Salvadoran government, more than 16,000 had forced their return to their country in a series of very large convoys.

Cubans and Haitians have also left their countries in massive numbers, with the primary destination being the United States. Between 1959, when Fidel Castro took power, and 1980, almost 800,000 Cubans migrated to the United States. In 1980 more than 125,000 Cubans left their country in the Mariel boatlift. The Haitian "boat people" began migrating to the United States in large numbers in 1972, and by 1980 more than 1,000 a month were attempting the journey in boats that were often homemade and flimsy.

The examples of Cuban and Haitian immigration into the United States reflect the ambiguities involved in asylum and refugee policy, since one set of refugees, those abandoning Castro's Socialist Cuba, has been welcomed with open arms, while the other, fleeing the repression and poverty of Haiti's elite-dominated society, have been turned back. Cubans have been perceived as immigrating for political reasons, while Haitians have been said to seek improved economic conditions. The administration of U.S. president Jimmy Carter attempted to clarify the immigrant situation by creating the category Cuban-Haitian entrant, which meant that these groups received federal aid and were allowed to remain in the country on a two-year trial basis but did not receive refugee status. This classification was applicable to entrants before 1 January 1981, but it did nothing to halt immigration or resolve the status of later immigrants, particularly Haitians, who continued to enter South Florida at a rate of 10,000 a year.

Devising Solutions

A refugee may be generally defined as "a person outside his or her country of origin, who is unable or unwilling to return there owing to a well-founded fear of being persecuted on grounds of race, religion, nationality, social group, or political opinion." This definition is based on the Convention Relating to the Status of Refugees of July 28, 1951, and the Protocol Relating to the Status of Refugees adopted on 31 January 1967. Although the concept of refuge stems from the tradition of territorial asylum, refugees do not necessarily ask for individual protection; rather, they may seek refuge as a result of persecution due to their membership in some type of group. Refuge is a central aspect of human rights issues.

The Office of the United Nations High Commissioner for Refugees, the foremost international agency responsible for refugees, was created by the United Nations General Assembly on 14 December 1950. It is nonpolitical and its statute brings within the mandate of the United Nations' authority those refugees covered by previous bilateral treaties as well as those resulting from both pre- and post-1951 events or conditions. Since the creation of the UNHCR, the 1951 Convention and the 1967 Protocol have been the principal instruments for international regulation of refugees.

The Cartagena Conference of Experts of 1984 conducted a comparative study of the refugee question in Central America and attempted to formulate a regional solution. Although it is not a legal mechanism, the Cartagena Declaration is significant as a proof of consensus within the region regarding refugees. The Declaration also expanded the definition of a refugee to include persons fleeing not because of specific persecution but rather as a result of more general violence.

The Contadora negotiations of 1984, followed in 1987 by the Esquipulas II peace accords, or the Procedure for the Establishment of a Firm and Lasting Peace in Central America, further attempted to define solutions to the refugee problem in Central America by requiring that the matter be addressed; the parties also agreed to seek international support in their efforts. In response, the International Conference on Central American Refugees, Returnees and Displaced Persons (CIREFCA) was created in 1989. The region's governments have been compelled to collaborate with the UNHCR and other international organizations. Rather than refuge remaining a bilateral question, therefore, it has become internationalized as third actors have begun to participate actively. The Central American conflict represents a turning point from the Haya de la Torre asylum case, since it implies that the refugee must not only be regulated but also administered by international institutions. Protection of the politically persecuted is now granted internationally rather than based on sovereign national rights.

In the 1990s, the level of violence in Latin America lessened and democratic governments began to take over. Consequently, the number of political refugees has not been as great as it was during the regional wars and military dictatorships of the 1970s and 1980s. Nevertheless, there have been important cases. The civil war in Colombia caused hundreds of thousands of people to leave their homes. Many people in rural areas moved to cities or neighboring countries. Others fled to the United States to escape the violence. Also, while political leaders in Latin America in the past have found asylum in neighboring countries, this tradition has begun to change. In 2007 the former Peruvian president Alberto Fujimori went to Chile. Rather than granting him asylum, the Chilean courts ruled that he had to be returned to Peru to face criminal charges there.

See alsoUnited States-Latin American Relations .

BIBLIOGRAPHY

S. Prakash Sinha, Asylum and International Law (1971).

Atle Grahl-Madsen, Territorial Asylum (1980).

Guy S. Goodwin-Gil, The Refugee in International Law (1983).

David A. Martin, ed., The New Asylum Seekers: Refugee Law in the 1890s, International Studies in Human Rights Series, vol. 10 (1988).

Keith W. Yundt, Latin American States and Political Refugees (1988).

F. Markx-Veldjuijzden, The Right of Asylum: Selective Bibliography (1989).

Mary Ann Larkin, Frederick C. Cuny, and Barry N. Stein, eds., Repatriation Under Conflict in Central America (1991).

Additional Bibliography

Rodríguez de Ita, Guadalupe. La política mexicana de asilo diplomático a la luz del caso Guatemalteco, 1944–1954. Mexico: Instituto Mora, 2003.

Sikkink, Kathryn. Mixed Signals: U.S. Human Rights Policy and Latin America. Ithaca, New York: Cornell University Press, 2004.

                                 Adolfo Aguilar Zinser

Asylum

Sections within this essay:

Background

The concept of asylum is not new; the Old Testament mentions "cities of refuge" and in all likelihood the idea goes back farther than that. Asylum, as we understand it today, differs somewhat from refuge; the asylum-seeker (or asylee) seeks his or her status after arriving in what is hoped will be the welcoming country. The refugee is given that status before traveling to the final destination. The basic premise, however, is the same: People who face persecution, torture, or even death in their home country are sometimes compelled to seek shelter and protection in another land.

Asylum is a complex issue because people have many different reasons for leaving their homeland and not all asylum seekers warrant protection from another government. A person who leaves a country in which people are routinely tortured or killed for their political or religious beliefs may seem at first blush a prime candidate for asylum. If, however, that person was one of the torturers and merely wishes to avoid imprisonment when a new government takes over, asylum may not be justified. For this and other reasons, the process of obtaining asylum is a complicated one involving a series of interviews and paperwork that to many can seem daunting.

The history of asylum in the United States goes back to the days when America was still a group of British colonies. Roman Catholics, Jews, and certain Protestant sects (such as the Quakers from England and the Huguenots from France) sailed to America to seek the freedom to practice their religion without fear of recrimination. Historically, the United States has stood stands as a symbol of freedom and has attracted persecuted men and women from other shores. At times, the influx has been so great that legal restrictions have had to be imposed. Historical events, such as World Wars I and II, revolutions in other countries, and the attacks in New York and Washington D. C. on September 11, 2001, also play a role in how, when, and to whom asylum is granted.

Qualifying for Asylum

A person who has been granted asylum by the U. S. Immigration and Naturalization Service (INS) is free to remain in the United States. and will not be returned to his or her home country. That same person entering the United States. as an illegal alien, with no fear of persecution from another country, can be removed from the United States. This explains why some people attempt to seek asylum when in fact they have no need for this protection.

The U.S. Government is quick to point out that admission to the United States is a privilege, not a right, and INS has developed a series of regulations and guidelines for handling asylum or potential asylum cases.

Who Can Stay

Anyone who seeks asylum in the United States must be able to prove that he or she will be subject to persecution if returned home. That persecution may be based on race, religion, or political beliefs. In countries where local tribes or clans vie for power, a member of one such group may fear persecution if another group gains political control. Women are persecuted in a number of countries, particularly if they oppose their country's position on such issues as abortion and birth control. Homosexuals are a frequent target of persecution, especially in strongly religious countries. Students are another common target of persecution, especially if they engage in political or social activism (either at home or abroad).

Those who wish to emigrate to the United States solely for economic purposes (in other words, better job opportunities) must go through normal immigration procedures, not the asylum process. Trying to find a better job, while perhaps laudable, is not a reason to fear one's government.

Who Cannot Stay

A number of people are considered "inadmissible" by the United States. These individuals cannot enter the country as immigrants, refugees, or asylum seekers because they failed to meet the requirements for admissibility. Among the primary reasons for inadmissibility are the following:

• Communicable diseases: These include tuberculosis, AIDS, and other serious diseases that can easily be transmitted. The reason is obvious; someone carrying a serious or deadly disease can infect others and potentially endanger the health of large numbers of people. It is possible for someone with a serious communicable disease to have a finding of inadmissibility overturned, if he or she can prove that the disease in question has been cured. For some incurable diseases, such as AIDS, it is possible to get a waiver.
• Criminal record: Those found to have committed "aggravated felonies" are generally denied admission to the United States. Aggravated felonies include serious crimes such as murder, rape, and drug trafficking; they also include treason, espionage, and terrorist activities. Clearly the U.S. Government does not want to admit people who may commit violent crimes or engage in subversive activities. In some cases an asylum seeker can get a waiver, also known as a"Withholding of Removal." Someone accused of an aggravated felony but whose sentence ran less than five years and whose crime has been deemed "not serious" by a judge may be eligible for this protection.
• Physical and mental disorders: As with communicable diseases, decisions based on physical or mental disorders can be overturned if the asylum seeker can prove that the condition has been cured or is under control. In some cases, as well, waivers may be granted.
• People likely to become dependent on welfare: The United States does not wish to encourage people to seek asylum if they are unwilling to become productive citizens. While it is not obligatory for the asylum seeker to have a job waiting, it is important that those seeking asylum are doing so for legitimate reasons, not merely to gain entry into a country with more benefits for the jobless.
• Terrorists and spies: Anyone who is likely to engage in subversive activity against the United States will be denied asylum. There are no waivers available under these circumstances.

Individuals who wish to obtain a waiver of inadmissibility do not need to disprove the grounds of inadmissibility; in other words, the premise is that the asylum seeker will be granted asylum despite a situation that would normally result in inadmissibility. Asylum seekers who do wish to disprove their inadmissibility may do so. For example, those undergoing an INS medical exam may challenge the findings if INS says there are certain medical conditions that would prohibit asylum. The key to making a successful appeal is having strong documentation.

The Asylum Process

Individuals who seek asylum in the United States must meet the definition of "refugee" as provided by the Immigration and Nationality Act: essentially, a refugee is anyone who is either unwilling or unable to return to his or her home country because persecution (or well-founded fear of persecution) on the basis of race, religion, or social or political beliefs awaits the individual.

A person can apply for asylum at a port of entry into the United States (ports of entry include air-ports, seaports, and border crossings) or any time up to one year from the date of entry. The standard application, known as INS Form I-589, is the first step. There is no fee for filing this form. After the form is filled out, it must be sent to a processing center (which center depends on the place from which it is mailed.) All questions on the form must be answered, even if the answer is "none" or "unknown." If even one question is left blank, the entire form will be deemed incomplete and mailed back to the applicant. Applicants who do not speak English must find a competent translator to complete the form; INS does not supply translation services.

Applicants who wish to go to work while waiting for their application to be approved must wait 150 days from the date the application was accepted by INS. Accepting work also requires filling out a separate Employment Authorization Form.

Once the application has been received and processed, the applicant will be called in for an interview with an asylum officer. Applicants are allowed to bring legal counsel and witnesses to the interview. (As with the application, the asylum seeker is responsible for providing a translator if he or she does not speak English.) Usually the asylum officer will issue a decision that will be reported to the applicant at a later date, although officers sometimes announce their decision at the end of the interview.

Derivative Asylum

Frequently an asylum seeker will have a spouse and children who are also seeking asylum Anyone seeking asylum may include a spouse and children on his or her Form I-589. Individuals who have already been granted asylum may apply for derivative asylum for a spouse and all children under the age of 21. Stepchildren are also eligible if the applicant and spouse married before the child's 18th birthday. Adopted children must have been adopted before their 16th birthday and the applicant must have been the legal parent for at least two years. If an applicant has a child by a woman to whom he is not married, he can apply for derivative asylum for the child, but not for the mother unless he was married to her by the date he was granted asylum. Derivative asylum must be requested within two years of the applicant's own grant of asylum.

Torture

One type of "withholding of removal" is offered in response to the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. Under the terms of this 1999 Convention, a person who can show that he or she is more likely than not to be tortured if returned home can be granted asylum unless deemed to be a serious criminal or a potential subversive. Applicants who wish to be considered for this status are advised to check the box on the first page of Form I-589; an INS Immigration Judge will make the decision based on the evidence submitted.

Although Article 3 of the Convention Against Torture prohibits the United States from returning an asylum seeker to a country in which torture is likely, it does not prevent the United States from sending the applicant to a third country where there is no danger of torture.

Appealing a Rejected Application

The asylum officer may decide to refer an application to an Immigration Judge for a final decision. If the judge denies the application, the asylum seeker will get a letter explaining how to appeal. The appeal is sent to the Board of Immigration Appeals (it must be received within 33 days of receiving the denial notice), where a final decision will be made.

A derivative asylum application that is denied cannot be appealed, but the person who made the application may submit a motion to reopen or reconsider the case. A motion to reopen must be accompanied by new documentation that could change the decision. A motion to reconsider, however, needs to show that the denial was based on incorrect application of the law or of INS policy.

Asylum law and the procedures are complex, involved in seeking and getting protection are complex and the process of seeking asylum can leave people confused at a particularly vulnerable time. INS provides comprehensive information on its web site, http://www.ins.usdoj.gov. There are INS district offices throughout the country, and they are usually able to offer information about not-for-profit groups that help immigrants and asylum seekers through the process. The United Nations High Commissioner for Refugees, whose Washington D. C. phone number is (202) 296-5191, can also provide advice. Those who can afford legal counsel would do well to seek the advice and assistance of an experienced immigration lawyer.

Additional Resources

Emigrating to the USA: A Complete Guide to Immigration, Temporary Visas, and Employment. Beshara, Edward C., and Richard & Karla Paroutard, Hippocrene Books, 1994.

The Immigration and Naturalization Service Dixon, Edward H., and Mark A. Galan, Chelsea House, 1990.

Immigration Made Simple: An Easy-to-Read Guide to the U. S. Immigration Process. Brooks Kimmel, Barbara, and Alan M. Lubiner, Next Decade, 2000.

Meeting the Challenge through Innovation. U. S. Department of Justice, Immigration and Naturalization Service, 1996.

Refugee Law and Policy: International and U. S. Responses. Nanda, Ved P., editor, Greenwood Press, 1989.

Refugee Rights and Realities: Evolving International Concepts and Regimes Nicholson, Frances, and Patrick Twomey, editors, Cambridge University Press, 1999.

Organizations

United States Association for the United Nations High Commissioner for Refugees (UNHCR)

1775 K Street, NW, Suite 290
Washington, DC 20006 USA
Phone: (202) 296-1115
Fax: (202) 296-1081
URL: http://www.usaforunhcr.org
Primary Contact: Jeffrey Meer, Executive Director

United States Department of Justice

Immigration and Naturalization Service (INS)

425 I Street, NW
Washington, DC 20536 USA
Phone: (202) 514-2648
Phone: (800) 375-5283
Fax: (202) 514-1776
URL: http://www.ins.usdoj.gov
Primary Contact: James W. Ziglar, Commissioner

ASYLUM

Protection granted toalienswho cannot return to their homeland.

Asylum is not to be confused with refuge, although the terms are sometimes used inter-changeably. An alien who wishes to emigrate to another country is granted refugee status before leaving his or her native country. An asylum seeker (or asylee) seeks that status after arriving in the new country.

People who live in fear of being tortured or killed by their government often seek asylum, as do people who are persecuted for their religious or political beliefs. The United States has long been a haven for asylum seekers; in colonial days people came to America to escape religions persecution, and in later years people in danger of political torture have seen the United States as a place of hope and safety. In times of crisis, the United States has sometimes placed restrictions on who can enter the country. Immigration restrictions were enacted immediately after World Wars I and II. The september 11th terrorist attacks on New York City and Washington, D.C., likewise changed the picture for immigration. Nonetheless, the United States remains committed to providing a safe haven for people whose governments intend to do them harm.

Asylum in the United States is regulated under Section 208 of the Immigration and Nationality Act (INA), which was passed in 1952 and amended periodically afterward. Previously, asylum matters were handled by the Immigration and Naturalization Service (INS). The Homeland Security Act of 2002 created three new agencies to handle all matters formerly handled by the INS. These new agencies, the Bureau of Citizenship and Immigration Services (BCIS); the Bureau of Customs and Border Protection; and the Bureau of Immigration and Customs Enforcement were made part of the homeland security department that became operational in March 2003. Information about the new organizations and its structure was available online at <uscis.gov> (accessed December 5, 2003). Although the BCIS was technically a new agency, it was to continue to conduct all business, including processing applications and requests, as the INS had.

Eligibility for Asylum

People who can prove that they will be persecuted if they are returned to their home country can apply for asylum in the United States. Much persecution is based on race, religion, and politics, but there are other reasons as well. Students are frequently targeted for persecution, particularly if they choose to engage in social or political activism. Women in some countries may be subject to severe punishment (including execution) simply for having a baby out of wedlock. Homosexuals are persecuted in a number of countries, especially those in which religion is an integral part of the government.

People with a criminal record including aggravated felonies (serious crimes such as rape and murder) are generally not eligible for asylum, nor are those who have been found guilty of subversive activity against government agencies. Waivers are difficult to obtain; a person would need to provide substantive and irrefutable proof that he or she had been wrongfully or falsely charged by his or her government. Those who have communicable diseases or who have physical or mental disorders are ineligible for asylum unless they can provide proof that their condition is either cured or under control. Some people come to the United States to seek better job opportunities. Those people are not candidates for asylum; they are required to follow standard immigration procedures.

A person can seek asylum in the United States either through affirmative asylum or defensive asylum. In affirmative asylum, the person applying submits the proper paperwork (known as Form I-589) to the BCIS and is called to appear before an asylum officer for an interview. In defensive asylum, the person in question has been placed in removal proceedings by the Immigration Court and has to appear before an immigration judge from the Executive Office for Immigration Review (EOIR). Those who seek defensive asylum include undocumented aliens who have been caught entering the country illegally, but who also may be genuinely afraid of being persecuted if they are sent home. (Asylum officers often refer undocumented aliens to EOIR for a defensive hearing if they feel that the fear of persecution is credible.)

Article 3 of the United Nations Convention Against Torture (1999) states that no asylum seeker can be returned home if the threat of torture is strong enough. The BCIS does have the option, however, of sending an unsuccessful asylum seeker to a third country in which there is no danger of torture or persecution.

Derivative Asylum

Often asylum seekers want protection not just for themselves but for their families. Anyone seeking asylum may include a spouse and children under the age of 21 on the I-589 form. Derivative asylum is designed to give that same option to people who have already been granted asylum. Stepchildren are eligible if the applicant and spouse married before the child's eighteenth birthday; adopted children must have been adopted before their sixteenth birthday and the applicant must have been a legal parent for at least two years. Asylum seekers have two years from the date they are granted asylum to apply for derivative asylum.

Temporary Protected Status

In some cases, an alien in the United States may choose to obtain "Temporary Protected Status" (TPS). Typically, TPS is granted by the justice department to aliens whose home country is unsafe due to such causes as armed conflict or natural disaster. TPS generally lasts from six to 18 months; when TPS status terminates, the aliens generally return to the same immigration status they held before the status was granted.

The R-A Rule

In 1999, the Bureau of Immigration Affairs (BIA) ruled against an asylum seeker in In re R-A-, RESPONDENT, 22 I. & N. Dec. 906, Interim Decision (BIA) 3403, 2001 WL 1744475 (BIA, Jan 19, 2001), ruled against granting asylum in part because it saw domestic violence as a private matter within her own family. When the woman countered that she was in fact a member of a persecuted group (she belonged to a support group for abused women), the BIA was still not convinced. The woman appealed the case to the Ninth Circuit Court of Appeals, where as of early 2003 it was under review by the Justice Department. The Justice Department consulted with experts in domestic violence and noted that it feels certain forms of domestic violence may indeed constitute persecution. For example, if a country's domestic violence laws are weak or ineffective against protecting abused spouses, that could be construed as a public issue, not merely a private one within individual families.

further readings

Kimmel, Barbara Brooks, and Alan M. Lubiner. 2000. Immigration Made Simple: An Easy-to-Read Guide to the U.S. Immigration Process. Chester, N.J.: Next Decade.

Nicholson, Frances, and Patrick Twomey, eds. 1999. Refugee Rights and Realities: Evolving International Concepts and Regimes. Cambridge, U.K.: Cambridge Univ. Press.

cross-references

Aggravation; Aliens; Homeland Security Department; Felony; Refugees.

Asylum

A sanctuary, or place of refuge and protection; in relation to aliens, asylum may be claimed in a foreign country if the alien has a well-founded fear of persecution and reprisals in his or her country of origin.

U.S. Asylum Process Needs Further Reform, According to Commission Report

The U.S. Commission on International Religious Freedom concluded that the Homeland Security Department has failed to protect those who seek asylum in the United States. The report was a follow-up to one issued in 2005 in which the commission concluded that U.S. agencies treated those seeking asylum as if they were criminals. The report renewed calls by some organizations for Congress to approve legislation that would improve the asylum system.

Congress established the U.S. Commission on International Religious Freedom (USCIRF) as part of the International Religious Freedom Act of 1998, Pub. L. No. 105-292, 112 Stat. 2787. The USCIRF was created to monitor religious freedom in foreign countries and to provide advice as to how to promote religious freedom domestically. The statute also authorized the commission to appoint experts to study whether prior legislation interfered with the ability of those suffering from persecution to seek asylum in the United States.

The commission focused its study on the expedited removal procedures that were part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, 110 Stat. 3009. Prior to its enactment, immigration inspectors could not legally require an improperly documented alien from leaving the country without following certain procedures, such as referring the alien to an immigration judge for a hearing. Under the IIRAIRA, the inspectors can summarily remove aliens who lack proper travel documents. However, the statute also includes provisions that prevent the expedited removal of refugees who flee persecution. Refugees who state that they intend to apply for asylum or who fear return to their place of origin are entitled to a "credible fear interview" by an asylum officer.

The report that the USCIRF issued in 2005 revealed that while those who seek refuge from persecution were being evaluated, they were treated much like criminals. They were subjected to strip searches, shackling, and solitary confinement. Moreover, the report indicated great disparities in who was granted or denied asylum, depending on such factors as where the aliens was located, the place from where the alien originated, and whether the alien was represented by a lawyer. For instance, a person seeking asylum who was in a detention center in New York or New Jersey faced much harsher treatment and was much less likely to be freed than a person detained in such places as Chicago or San Antonio. Similarly, more than 80 percent of Cubans were granted a permanent right to stay, compared with the fewer than five percent of those from El Salvador who are given the same right. This disparity was due in large part to the political power that Cubans possess in some parts of the country.

The 2005 report received extensive coverage from the media and has been used a valuable resource by both lawmakers and scholars, due largely to the access that the commission's experts had to the process. Members of the commission met with the Secretary of the Department of Homeland Security as well as with the Director of the Executive Office for Immigration Review to discuss the report's findings and recommendations. The report's overarching message was that expedited removal should not be expanded by the federal agencies until the many problems identified in the report were resolved.

Although the Senate Appropriations Committee asked the Department of Homeland Security to consult with the Executive Office of Immigration Review and report by February 2006 about how it would implement the study's recommendation, the Department never responded publicly to the study. The House of Representatives' Appropriation Committee made a similar request, to which the Department also failed to respond. The lack of response led members of Congress to draft legislative proposals that would make implementation of the study's findings mandatory.

Before any legislation was introduced, however, the USCIRF issued a report card that reviewed the expedited removal process in the two years that followed the release of the 2005 report. The report card, issued in February 2007, concluded that the Department of Homeland Security had not only failed to resolve the problem, but had also expanded expedited removal. The commission organized the report card by agency and included a summary of the original questions posed by Congress as well as summaries of the findings from the 2005 study. The agencies include Customs and Border Protection (CBP), which is part of the Department of Homeland Security; Immigration and Customs Enforcement (ICE), part of Homeland Security; U.S. Citizenship and Immigration Services (USCIS), part of Homeland Security; the Department of Homeland Security as a whole; the Executive Office of Immigration Review, a part of the Department of Justice; and the Departments of Homeland Security and Justice jointly. Each department or agency received a letter grade ranging from A to F.

The Homeland Security Department did not provide any information about steps that CBP has taken to implement the study's recommendations, and so CBP received an F in every category. ICE and the Department of Homeland Security both received D grades for having implemented only a few of the recommended changes. The Executive Office of Immigration Review and the USCIS both fared better, earning grades of C + and B respectively. The report card credited the USCIS with implementing quality assurance review for certain determinations.

The commission's report card prompted the National Immigrant Justice Center, as well as other groups, to call for legislation that would mandate implementation of the 2005 study's recommendations. Senator Joe Lieberman (Ind.-Conn.) has expressed support for the introduction of such a bill.