Alice Wanamaker, '25

Summer 2024

PDF available with citations and footnotes here

Introduction

‘Asylum’ is a word that carries weight, an aura of international responsibility. It is the right of individuals experiencing persecution, violence, and threats of death in their country to flee and find safety upon another nation’s borders. Prior to spending this semester in southern Arizona as part of a Border Studies program, I lived under the subconscious assumption that this international right was somehow separate from the tidal waves of xenophobia and bigotry surrounding news and policy around the U.S.-Mexico border in the past few years. I had been fooled into thinking there was some distinction between refugees —those who meet the internationally defined criteria for asylum— and the ‘migrants’ Trump uses as a calling card, not realizing both phrases are describing the same people. And I knew almost nothing about the requirements or reality of the legal process for asylum seekers within the United States. 

For the past three months, I’ve worked as an intern at Casa Alitas, a shelter providing emergency services to asylum seekers in southern Tucson. I made travel plans for people to reunite with the families they had come to the U.S. to live with, explaining to clients who spoke no English where in the country they were and how to navigate a U.S. airport. As a result of Congress’s heavily delayed agreement on funding the Department of Homeland Security, which nearly caused a partial government shutdown, I spent the majority of my time at Casa Alitas expecting the facility I was working in to close in a few weeks, so I also spent a lot of time preparing emergency fundraising materials and applying for grants on the organization’s behalf. While Casa Alitas is a nongovernmental organization, it is also an established (and eventually funded) part of governmental border procedure. Our clients are brought to our facility by Customs and Border Protection (CBP) officials on buses with bars on the windows, and the vast majority of our funding comes from federal money allocated to Casa Alitas by the county. The work of organizations like Casa Alitas channels the energy of activists who believe in humane treatment for asylum seekers into work which does not undermine government policies or classification of migrants. Volunteers at Casa Alitas are warned that if someone without documentation somehow makes it to our facility, we are not even allowed to give them a bottle of water without risking losing our funding.

Casa Alitas has two functions. The first is to ensure that after being granted entrance into the United States, asylum seekers are able to successfully complete the journey to their family or sponsor elsewhere in the country. While the organizations’ finances are strained enough that we barely manage to host our entire clientele even with funding, we provide enough services to meet this basic goal: a cup of ramen, a night’s sleep in a room full of four hundred cots, a pair of donated shoes, and a ride to the airport. The second goal, and the central motivator for the City of Tucson, is to ensure that the city’s infrastructure is not forced to absorb these arrivals of asylum seekers without a designated place for them to go, a situation city administrator Jan Lesher referred to as “homelessness on steroids” while advocating for a solution to the funding crisis. As long as Casa Alitas remains open, the average Tucsonian doesn’t have to see or even know about the up to 1,800 people entering their city every day in desperate need of help; most of the people I told about my job during my time in Tucson had never heard of the program. 

The needs of asylum seekers are confined to a scattering of facilities around the outskirts of the city, ranging from a pigeon-filled defunct call center (where I worked) to a former juvenile detention facility. We keep the danger and mistreatment these individuals face invisible to the U.S. proper. And many other creations of the U.S. asylum system, from keeping potential applicants on the ‘invisible’ Mexico side of the border for months or even years to forcing them to languish in detention facilities for the entire period in which their case is being litigated, also serve to keep asylum seekers invisible: to ensure that the presence and voices of asylum seekers themselves are largely absent from discussions of immigration policy, except when they are forced to defend themselves in abbreviated, underresourced, and heavily biased legal settings. This ensures that, as much as possible, asylum seekers are politicized and defined in policy while being conceptualized as an ‘other’ existing elsewhere. In this way, the asylum system functions to remove asylum seekers from the public eye and ensure that only distant, contrived perceptions will inform how most citizens of the U.S. think and behave towards asylum seekers. 

After witnessing the conditions and circumstances facing our clients —not needing to ask if they had checked bags while booking flights because no one makes it through border processing without their belongings being confiscated, hearing a staff member say casually that ‘eighty percent of our clients will eventually be deported’ while giving a tour of the facility— I became curious about the reality of the legal landscape these asylum seekers were facing, convinced as I had been of the existence of legal protections for this group. What I learned very quickly was that even the idea of ‘legal protections,’ when applied to the U.S. asylum process, was an oversimplification. Asylum seekers, particularly those from Central America, face deplorable treatment at every stage of the asylum process, and this treatment’s relationship with legality changes at every turn. The U.S. has found many ways to ignore both domestic and international mandates regarding the treatment of asylum seekers, and even more ways to use the gaps in these mandates to establish punitive, discriminatory policies without violating any protective laws at all. In this way, punitive and hostile treatment of asylum seekers is both “legal” and “illegal.” It is both legitimated by formal policies and facilitated by official ignorance of policy, and sometimes both at once. 

This article attempts to chronicle the scope of these relationships between legality and governmental treatment of asylum seekers. It is a modern-day study of the asylum system, focusing on governmental behavior under the Trump and Biden administrations. While I do not claim that any of the discriminatory practices listed here occur one hundred percent of the time, they do all prevent or frustrate many asylum seekers in their attempts to seek safe haven in the United States. This article also operates under the base assumption that it would be a good thing if every migrant fleeing violence and seeking asylum in the U.S. were afforded a fair, dignity-affirming process once they arrived. In describing the range of methods/justifications used to facilitate punitive treatment of asylum seekers, I hope to complicate the idea of legally mandating fair treatment for asylum seekers and other migrants by demonstrating that putting the right words on a page, no matter how important the page, will not block every path to injustice continuing. Trying to patch up the asylum system with legislation or court decisions is at best, a game of whack-a-mole, and at worst, like trying to train a hungry animal by reading it a book.

Before getting into questions of legality, I want to offer an overview of the asylum process as it works for most asylum-seekers, as I’ve learned from serving many of them at Casa Alitas. Most asylum seekers are making a defensive application, meaning they present themselves or are apprehended at the border and the government initiates removal proceedings pending the resolution of their asylum claim. Individuals seeking asylum are first given a credible fear interview, a preliminary method of determining whether someone has a strong enough asylum claim to be worth litigating. If someone fails their credible fear interview, they are deported; if they pass, they receive an asylum hearing. Prior to the credible fear interview or asylum hearing, an asylum seeker can either be placed in an immigration detention facility or be paroled into the U.S. (Casa Alitas receives paroled individuals from CBP; our clients’ paperwork shows that we receive people awaiting both credible fear interviews and asylum hearings.) Asylum hearings and even credible fear interviews can be scheduled years in advance, and asylum seekers are permitted to remain in the U.S. (in detention or on parole) while awaiting these dates.

I also want to summarize a few key asylum policies of the Trump and Biden administrations, each of which has a complex relationship to legality and a profound impact on those applying for asylum while it was in place:

1. The Trump administration’s “Migrant Protection Protocols,” referred to colloquially as the ‘Remain in Mexico’ program, required asylum seekers to wait in Mexico for their court dates, rather than the United States. The program ran in some capacity from January 2019 to August 2022 (a time period including over a year and a half of Biden’s tenure in office) and returned 70,000 people from the border to Mexico in that time.

2. When the COVID-19 pandemic began in March 2020, the Trump administration began using Title 42, a policy prohibiting asylum seekers from entering the U.S. or having their claims considered under the auspice of responding to the U.S. public health crisis. Title 42 affected drastically more people than MPP, excluding hundreds of thousands of people from the U.S., and remained in place until May of 2023, when the Biden administration declared the COVID-19 public health crisis officially over.

3. Since the end of Title 42, the Biden administration has put a new policy in place, known popularly as “Biden’s asylum ban”. International human rights lawyers Ana Luquerna and Christy Crouse describe Biden’s new requirements: “First, asylum seekers must use the CBP One App to schedule an appointment, unless they already have another lawful pathway into the U.S. (i.e. DHA-approved parole process). Second, they must have sought asylum and have been denied in any country they transited through that has signed the 1951 United Nations Convention relating to the Status of Refugees or its 1967 Protocol.”

Each of these policies will be discussed in substantially greater detail in the first section of this article, which discusses the question of compliance with the law — namely, how consequences for noncompliance can be avoided and/or ignored. The second section discusses the creation of policy within the areas of detail unenumerated by broad protective statutes, therefore avoiding scrutiny by those statutes. Finally, the third section discusses communal perception of immigration issues and asylum seekers in the U.S. and how these attitudes often matter more than whatever laws exist on paper. 

Compliance

When one thinks of legal protections for refugees or the rights of asylum seekers, they imagine more than nothing. Before beginning this research, for example, I imagined United Nations protections for refugees (at about that level of detail), and probably some domestic statutes as well. And it’s true that the treatment of asylum seekers entering the United States is governed by both domestic and international law. So when examining the circumstances under which asylum seekers are harmed and unprotected within the U.S. legal process, I begin with the idea of compliance with these protective statutes and decisions, and the differences between protective policies and actual protection. These distances occur in two ways: when compliance with laws protecting asylum seekers can be avoided, and when compliance with the letter of the law does not actually enable asylum seekers to exercise the rights those laws claim to provide.

Both international observers and domestic watchdogs agree that U.S. asylum policy broadly violates international law governing the treatment of refugees. The main international doctrine governing U.S. behavior in this area is the 1967 United Nations Protocol on the Status of Refugees, which extended the reach of the 1951 convention on the same topic. Among many other things, the protocol prohibits signatories from requiring asylum seekers to enter the country in which they are seeking asylum through a legal or proscribed process, provided they apply for asylum with some efficiency once in said country. Subsequent decisions by the United Nations High Commissioner for Refugees have since clarified that signatories may not place individuals in detention with the purpose of deterring refugee migration or prosecute asylum-seekers for unlawful entry prior to deciding their asylum claims. Yet, as will be discussed throughout this article, all of these practices (and many other illegal and dehumanizing ones besides) are central components of U.S. asylum procedure. As summarized by Denise Gilman of the University of Texas at Austin School of Law, “Authoritative human rights bodies have repeatedly found that elements of the U.S. asylum system, especially widespread detention and denials of access to asylum at the U.S. southern border, violate those international standards.”

These ‘authoritative human rights bodies,’ though, are entirely lacking in enforcement power, and the normative and coercive methods which generally serve to enforce international law have been found broadly insufficient to control a nation with the global clout of the United States. “In our underdeveloped and decentralized international legal system, the primary enforcement tool available to address another party's own treaty violations is a responsive breach by the wronged party.” Setting aside the fact that the U.S. lacks a large population of fleeing emigrants to be targeted by this hypothetical responsive breach, and even setting aside the fact that few countries have the desire or capacity to play strict U.S. enforcer about virtually anything, this system is bound to be ineffective in the case of asylum law in particular because the field concerns people who have fled the borders and regulations of their home countries —people who, in search of their own survival, are actively cutting their ties with the international body who could theoretically come to their defense in the case of mistreatment by another country. It is as a result of this state of statelessness that University of Winnipeg professor Shauna Labman notes how “[o]bservations on globalized rights amount not to an actualization of these rights but to a growing global ‘rights consciousness.’” While the utility of international law to define and identify inhumane treatment of asylum seekers should not be ignored, international protocol does not provide any sort of effective consequences for U.S. violations of its terms —because of the fundamental nature of refugee status, and because of the U.S.’s global might. 

That being said, international treaties are often clarified and codified within the domestic law of their signatories. While on a global scale, this system amounts to “little more than an honor system in which states retain autonomy to evaluate their own compliance” with the treaty in question, it does mean that a state’s chosen definition of compliance will be enforced domestically —and U.S. laws, while by no means perfectly enforced, do have some benefits, notably an enforcement system capable of delivering actual consequences to U.S. institutions. The Protocol on the Statute of Refugees was incorporated into U.S. code in the Refugee Act of 1980, a law with which our current asylum processes are —once again— egregiously out of compliance. Gilman summarizes a few aspects of the Act which stray drastically from our current reality: “The Refugee Act of 1980 provided a refugee definition that purported to eliminate political or nationality-based asylum determinations. In addition, the asylum statute includes no limit on the number of asylum seekers who could be granted protection. Finally, the law explicitly guarantees the opportunity to seek asylum without regard to location or manner of entry.” None of these mandates are being carried out in the U.S. today, and the answer to why is varied.

How To Avoid A Domestic Ruling

The U.S.’s first method of noncompliance is particularly heinous in its denial of legal restitution and its impacts on peoples’ lives. Just as the international legal system lacks actors with the capacity or motivation to challenge the U.S. for its treatment of asylum seekers, U.S. asylum denials minimize the number of actors within the domestic legal system who have both the impetus and the resources to challenge those denials. Put simply, a violation of a law will not be challenged if the violation stops the affected individual from challenging it. So while the Biden administration’s determination “that large numbers of migrants are ineligible to claim asylum if they arrive illegally at border points between ports of entry” may clearly violate the Refugee Act’s text, which “expressly permits asylum seekers to access protection anywhere along the border – not just at ports of entry” and “does not require appointments to be made in advance,” the individuals denied asylum based on this policy find it extremely difficult to say so in court, because they have not been able to access protection (entry to the U.S.) along the border. 

Biden’s government has also denied asylum seekers entry to the U.S. through an egregious misreading of the ‘safe third country’ provision of the Refugee Act. Normally, this provision requires the U.S. to make an agreement with a different country and confirm that asylum seekers in that country will receive fair procedure and a basic level of safety, at which point the U.S. may require asylum seekers to first apply for asylum in that country if they pass through it on their way to the U.S. (and apply again in the U.S. only if that initial application is rejected). Instead, the administration’s policy “categorically assumes that all countries who have signed the Convention [on the Status of Refugees] or its Protocol fit the criteria of a safe third country, or at least, fit the criteria of having a functioning enough legal system to process asylum-seekers’ applications as they pass through.” This is a clear violation of the Act’s text, but those denied entrance into the U.S. as a result of this violation are in no effective position to say so. 

Most frightening of all are violations of legal mandates which remove plaintiffs from the equation by allowing —in the darkest interpretation, betting on— the end of their lives. One such instance is occurring in southern Arizona. Asylum seekers and other migrants who enter the U.S. via a section of the border other than a port of entry often have hundreds of miles of sparsely populated desert to walk across before reaching any possible assistance; the journey is far from over when they switch countries. Many people walking through the Arizona desert call 911, having become lost, run out of food and water, suffered an injury rendering them unable to walk, or found themselves in one of the many other types of mortal danger which can be caused by that environment. Constitutional law requires that governmental services such as emergency response be provided to citizens and noncitizens within the U.S. in equal measure. But a 2023 report by the humanitarian aid and advocacy group No Más Muertes (No More Deaths) found that for callers in the Pima County desert (“one of the country’s largest and most dangerous migration corridors”) who operators knew or suspected were migrants who had not passed through a port of entry, “the county almost never sent out its own search-and-rescue deputies,” either passing the call on to Border Patrol (who virtually never responded either) or simply hanging up. 

“In cases between 2016 and 2018 that involved possible migrants, the county’s teams were never called in — not even when the caller dialed 911 repeatedly for hours, or the Border Patrol was unable to respond.” In some cases, the ‘evidence’ leading an operator to make that judgment was nothing more than the caller speaking in Spanish. And none of the individuals who died in the desert after a denial of emergency response services —the remains of almost 4,000 people have been found in the Southern Arizona immigration corridor in the past 20 years— will later appear in court alleging an equal protection violation. This pattern of emergency (non)response is a systematic denial of a legally protected right, but it’s not a policy with text flouting an established law like the Biden ‘safe third country’ rewrite or denial of asylum claims that don’t follow the administration’s procedures. The personal, informal nature of this noncompliance provides another level of shielding by requiring any hypothetical challenges to the system to first spend resources gathering evidence that the system exists in the first place, such as the No Más Muertes report. 

Systematic failures to follow established, necessary-for-due-process-and-humane-treatment procedures are incredibly common at the border. Customs and Border Patrol officers “frequently turn people back and refuse to inspect them if they don’t have CBP One appointments,” despite the Refugee Act’s aforementioned ban on procedural requirements to make asylum claims and the fact that the administration’s “rule issued in May does not permit CBP officers to turn people away and allows for migrants to claim certain exemptions to the CBP One appointment requirement.” Many asylum seekers have been systematically and racially denied the opportunity to present a potential asylum claim and trigger the U.S.’s domestic and international responsibility for non-refoulement (ensuring refugees are not sent back into the danger they have just escaped). “A study of 607 people sent back to Mexico under MPP 1.0… determined that just 40.4 percent of asylum seekers who expressed a fear of returning to Mexico to CBP were given the required fear-screening interview,” while “Human Rights Watch concluded that border officers fail to refer Central American asylum seekers for credible fear screenings and a recent study of Mexican deportees by the American Immigration Council found that more than half of the survey respondents were not asked the required fear of return questions by U.S. border officers.” Relying on migrants’ lack of knowledge of the questions they are required to be asked at the border, their lack of resources to make or enforce a non-refoulement suit, and even that unexamined fear of return itself, the U.S. allows its immigration officials to violate policy as the norm. 

Another systematic but difficult-to-prove violation of established domestic law is the presence of quotas for asylum grants. Theoretically speaking, asylum cases are decided based on the strength of each individual’s asylum claim, and the U.S. attorney general is legally obligated to ensure that this is the case: “statutory provisions require him to ensure that the immigration court system provides genuine case-by-case adjudications by impartial judges who apply existing law to the evidence on the record following a full and fair hearing.” But after reviewing the past quarter century of asylum case decisions, Gilman found that “[s]ince 1996, the first year for which full data is available, grants of asylum have never risen above 50,000 per year. Effectively, there is a numerical limitation on asylum grants, even though the law includes no such ceiling,” and even though application rates in this period have varied from under 100,000 to over 300,000 annually. This pattern would be extremely difficult to prove in court, as an accusing attorney would have to reckon with the merits of the individual cases involved and the discretion afforded to immigration judges. But the numbers tell the story —a story of consistency unrelated to the facts of the cases which came before immigration courts within this period, and a story which is allowed to continue. 

Inconsistency in the behavior of immigration courts is, in fact, virtually ubiquitous. A wide-ranging report on the politicization of immigration courts and the behavior of its judges found that “In 2017, immigration judges granted asylum at rates ranging from 97 percent to 0 percent. These discrepancies persisted both between jurisdictions and within courts in a single jurisdiction.” As asylum seekers are not assigned to particular immigration courts based on any information about their cases, there is no reason that differences in clientele would account for these discrepancies. By surveying immigration attorneys, the report found broad evidence of biased, contemptuous, extraprocedural behavior on the part of judges accounting for many asylum denials; “as one attorney explained, the judges “basically create their own narrative with self-serving yes or no questions— something that fits the judge’s preconception and has no basis in your client’s actual story.”” Immigration judges’ hostility towards asylum applicants is well-documented, often incentivized (as will be discussed later), and generally unchecked. And while clear, humane guiding policy would not necessarily shift the character of this decision-making, it’s important to note that clear, humane guiding policy does not exist for these courts, as evidenced by the report’s characterization of the body which hears immigration court appeals: “The BIA [Board of Immigration Appeals] is neither developing a helpful body of case law nor engaging in sufficient error correction to guide immigration judges in rendering more uniform decisions. Indeed, the BIA itself has issued conflicting decisions on the same legal question on the same day.”

How To Avoid Consequences From A Domestic Ruling

Thus far, I’ve discussed types of noncompliance which function by making procedural findings of illegality difficult to achieve. But those domestic rulings of illegality are not a silver bullet either. Next, we’ll examine the ways in which a domestic court’s finding that an asylum practice must be changed can be postponed or ignored entirely. The easiest way to do this is to simply trust that executive governmental bodies will not use physical force to back up the judiciary’s findings. The Trump Administration both postponed and ignored court mandates successfully using this strategy. Despite a 2018 district court order requiring the government to end their practice of categorically denying parole for asylum-seekers and keeping them in detention as a class, a 2019 report found that “ICE [had] reportedly rejected 75 percent of requests for parole made by asylum-seekers deemed to have a credible fear of persecution (often referred to as “passing the credible fear interview”).” The administration also ignored the court-ordered timeline for ending its notorious family separation policy; “Although the administration halted family separations in June, over 100 children remained separated from their parents in October 2018—several months after the court deadline passed for the government to reunite families separated at the border.” U.S. court decisions are not toothless. Despite the judiciary lacking its own enforcement mechanisms, its decisions tend to be followed for both procedural and normative reasons. At the same time, though, the branch of government responsible for the enforcement of court decisions has a considerable ability to ignore those decisions if they so choose.

Domestic court procedure can also be used to delay a practice being shut down. For example, a governmental body can refuse to reveal necessary evidence in a lawsuit. While plaintiffs can then sue for that evidence under the Freedom of Information Act (FOIA), this process can add years before a decision on the policy itself is made. This delay is currently preventing litigation on the treatment of asylum seekers without CBP One appointments. “DHS has failed to inform the public about what CBP officers do when individuals try to seek asylum at ports of entry but don’t have a CBP One appointment. The rule issued in May does not permit CBP officers to turn people away and allows for migrants to claim certain exemptions to the CBP One appointment requirement. But recent media and non-profit reports suggest that CBP officers frequently turn people back and refuse to inspect them if they don’t have CBP One appointments.” The legal process to acquire this information has been ongoing since July 2023, with no clear end in sight.

More insidiously, states can use court processes to prevent the termination of punitive asylum policies, a strategy used to slow down Biden administration attempts to end Trump-era policies. When Biden attempted to halt the MPP Remain in Mexico policy (on a largely performative basis, as denials of entry drastically increased in the same period under Title 42), two states successfully ensured that the policy could not end immediately:

“On August 15 [2021], as part of a lawsuit brought by the states of Texas and Missouri, a federal judge ordered the Biden administration to “enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA [Administrative Procedure Act] and until such a time as the federal government has sufficient detention capacity to detain all [noncitizens] subject to mandatory detention under Section 1255 without releasing any [noncitizens] because of a lack of detention resources.” Despite the extraordinary and unprecedented nature of this decision, which forced the Executive branch to engage in diplomatic negotiations with Mexico, the Supreme Court refused to temporarily halt the order while it went through the appeals process.”

The MPP program ultimately continued until 2022 as a result of this delay. Another string of lawsuits blocked the termination of the Title 42 program, with states suing to prevent the enforcement of a March 2022 D.C. circuit ruling against the policy and an April 2022 CDC order to end it. The case eventually traveled up to the Supreme Court, but was taken off the docket after the Biden administration announced the official end of the COVID-19 public health crisis justifying Title 42 in May of 2023. Ultimately, Title 42 ended that May, over a year after the CDC made its order. CBP reported that nearly 550,000 people were removed from the U.S. under Title 42 in fiscal year 2023. 

Even when policies are ruled illegal, the legal struggle is not over. Enforcement of those decisions depends on neverending watchdog work by attorneys and other activists. As will be discussed in greater detail later, it is immensely difficult for asylum seekers to obtain effective legal representation for their asylum claims or other denials of rights, partially because virtually no asylum seeker has the financial means to hire an attorney for months or years after the cost of reaching the U.S. in the first place, and partially because substantial barriers are put between attorneys and a successful defense of their clients. This minimally resourced legal environment does not put an enforcement strategy dependent on continued legal work on strong footing. 

Take the character of Padilla v. ICE, a 2019 decision requiring credible fear interviews to be administered within 60 days of an asylum seeker’s referral but clarifying that those asylum seekers “remain subjected to expedited removal and detention” during and after this 60-day period whether or not they have received a credible fear decision. The decision mandates an enforcement protocol if this timeline is not consistently being followed: “In the event of a pattern and practice of noncompliance with the timelines set forth in the settlement agreement, class counsel will provide written notice to government’s counsel and, within 21 calendar days, counsel for the parties will engage in good faith efforts to resolve the compliance dispute.” Not only does this establish a long and effortful path to restitution if this ‘pattern or practice’ is found, but evidence of that ‘pattern or practice’ would be dependent on contact between asylum seekers and lawyers — contact which is circumscribed by economic landscapes, procedural hurdles, and intentional governmental actions. This enforcement structure is by no means unique to the asylum process, and it is a victory for the plaintiffs, but it’s a victory which is notably unlikely to be efficient or effective in the asylum setting. 

It’s also important to recognize how small the scopes of decisions prohibiting a policy are. A given policy may be shut down, but the same illegal practice can begin again immediately under another name —and will then require a whole new lawsuit to prove that the same violation has occurred another time. This ‘revamping’ has occurred in the case of metering, the practice of limiting the number of asylum applications processed each year. The legality of the Trump administration’s metering policy was contested over a multi-year process: “Metering was implemented under the guise of US Customs and Border Protection (CBP) lack of processing capacity. However, this was debunked in a 2018 DHS internal investigation which found that daily processing was well below capacity… In fall 2021 metering was ruled an illegal practice in federal court.” However, metering is currently occurring as an extraprocedural extension of the Biden administration’s CBP One policy. And as previously described, attorneys trying to stop that policy first have to complete the FOIA process and prove the existence of that metering before they can use precedent to demonstrate its illegality. 

A similar revolving door has occurred on the question of who will conduct credible fear interviews and thereby determine whether an individual receives an asylum hearing. This part of the asylum screening process has traditionally been the purview of asylum officers employed by U.S. Citizenship and Immigration Services, but was put in the hands of CBP agents instead under Trump. In 2020, a district judge ruled that CBP officers did not have sufficient training to take responsibility for this part of the asylum process, finding that “the government had failed to show that CBP officials have received adequate training "to overcome their adversarial instincts and act as neutral decision-makers."” But a 2023 investigation into Biden-era asylum policy revealed that “in April [2023], prior to the lifting of Title 42 expulsions, DHS and DOJ began allowing CBP officers to conduct credible fear interviews as a way to expedite the screening process at the Southwest border.” The fact that allowing CBP officers to conduct these interviews has been previously deemed illegal does very little in practice to decrease the time it will take to get the practice shut down through the courts once again. 

How To Make Rights Unusable

Asylum seekers are also limited by rights they are granted on paper, but almost universally unable to access in practice. As minimally resourced actors attempting to protect themselves in a legal system lacking a strong positive-rights tradition, such instances of inaccessibility are incredibly common. A legal opportunity existing on paper does not mean it exists in real time, and a wide variety of legal ‘opportunities’ available to asylum seekers are either reliant on the presence of resources this population generally does not have or rendered unusable by burdensome procedural rules. In this way, rights can be denied without coming out of compliance with the rules ‘providing’ them. 

Rights to potentially protective legal processes can be rendered useless by the absence of counsel, as can the right to counsel itself. Although individuals in domestic criminal proceedings are provided counsel by the state, no such affirmative provision is granted to asylum seekers; “while federal statutes afford immigrants in deportation proceedings the right to access counsel, this right has been interpreted as a right to supply their own legal counsel; thus, immigrants in immigration court are not entitled to counsel paid for by the state.” To exercise the right to counsel, then, asylum seekers have only two options: try to find a rare available pro bono attorney, or pay the prohibitive cost of private counsel. Neither path is available for many defendants in removal proceedings; as a result, “an increasing number of children, some as young as 3 years old, are appearing in court without family or an attorney.” A ‘right to counsel’ that the majority of a population, including three-year-olds, cannot exercise is a right in name only. This means that asylum seekers must traverse highly inaccessible legal systems without any guidance, rendering some such systems —for example, the right to appeal a denied asylum claim while also entering active deportation proceedings— virtually nonexistent.

The ‘right’ to make asylum claims and present them in court is also limited by prohibitively short time limits, which are also especially punitive for individuals navigating an unfamiliar legal system with minimal support. One such time limit is the one-year filing deadline to make an affirmative asylum claim for the rare applicant who enters the U.S. without being placed in removal proceedings. Gilman details how the deadline “serves to exclude many applicants since: (1) asylum seekers may not be aware of the deadline, and the authorities do not provide clear information about the time limit (2) asylum seekers take time to recover from physical and mental health challenges caused by persecution before they can present a claim and (3) asylum seekers face challenges in securing counsel to assist in completing the lengthy asylum application in English and presenting a claim under the complicated legal standards.” A 2010 study determined that “more than 30 percent of the affirmative asylum cases over an 11-year period failed to meet the one-year deadline, and many more were undoubtedly discouraged from seeking asylum.” And while there are many reasons why asylum seekers may be unable to make their affirmative claim within one year, the one-year limit applies even in cases where an application was delayed by a lag in governmental processes rather than any failure on the part of the asylum seeker to take the requisite steps. Kerwin and Millet put it best: “Above all, the law punishes asylum seekers, including those with good reasons not to request asylum within one-year. It can bar consideration of asylum claims even when DHS fails to serve an NTA on the immigration courts in a timely way, or when the backlog in pending cases results in court delays.” 

Time limits impact not only individuals’ ability to make asylum claims, but their ability to effectively prepare a case once court proceedings begin. The attorneys interviewed for The Attorney General’s Judges reported that as of 2017, “Immigration judges now give respondents mere weeks to find attorneys, collect evidence, prepare witnesses and testimony, and submit such other materials as may be required by judges’ sub-regulatory rules.” These insufficient timeframes can have profound effects on attorneys’ ability to provide representation to their clients: “Lack of notice limits respondents’ time to gather evidence and impedes their ability to fully prepare for their hearings… In many cases, attorneys report an inability to prepare for or even attend a client’s hearing due to schedule changes.” If trained professionals are unable to build a successful case in the time allotted by immigration courts, the many asylum seekers representing themselves are going to have an even more difficult time. 

These punitive time delays are especially ironic considering that asylum procedure offers the U.S. government an astonishing amount of leeway in regards to their pace. Statutes of limitations which exist in other areas of law are not applicable to migrants: “DHS can initiate removal proceedings, no matter how much time has elapsed since commission of the offense that gave rise to the grounds of removal. Thus, undocumented immigrants can be removed for an illegal entry committed 50 years in the past… An LPR can be removed in proceedings that occur well beyond the statute of limitations for the criminal conviction that underlies the civil grounds for their removal.” Temporal flexibility is given to these officials in abundance, while applicants attempting to protect their lives and exercise their international rights are given none.

Time is not the only factor interrupting court processes for clients and attorneys. Geography can render courts themselves inaccessible as well. As explored by Valeria Gomez of the University of Baltimore School of Law, “the geographic distribution of immigration courts in the United States, which in some cases requires that respondents travel five hundred miles or more for hearings, can make access to the immigration courts nearly impossible for respondents.” Just as grace is not granted to applicants for time challenges, standards are not relaxed in the case of geographic hardship. Instead, “failing to appear or arriving late to a hearing most often leads to the severe consequence of having an in absentia order of removal entered, an outcome that can permanently separate a person from their family and home, and for which opportunities for appeal or recourse are limited as a matter of law.” And just as the government’s side of proceedings can receive nearly unlimited leeway in terms of time, neither are they penalized for struggling to reconcile the asylum system with geographic conditions they themselves create. When MPP was put in place, for example, “DHS built new stand-alone (not satellite) court facilities” to serve asylum seekers now trapped in Mexico. “EOIR attempted to hold initial hearings in MPP cases within 30–45 days, typically via video conference. Because of the high volume of enrollees in this program, EOIR [the Executive Office for Immigration Review] did not meet these goals and backlogs increased significantly.”

The MPP program as a whole was arguably the most profound geographic limitation of rights ever imposed on U.S. asylum seekers, making it virtually impossible to access counsel, prepare a case, and attend court. The American Immigration Council provides insight into the details of these egregious procedural hurdles:

“Data suggests that just 7.5 percent of individuals subject to MPP 1.0 ever managed to hire a lawyer, though the true representation rate may be even lower… The lack of counsel, combined with the danger and insecurity that individuals faced in border towns, made it nearly impossible for anyone subjected to MPP to successfully win asylum. By December 2020, of the 42,012 MPP cases that had been completed under MPP 1.0, only 521 people were granted relief in immigration court.” 

“Thousands of people subjected to MPP were unable to return to the border for a scheduled court hearing and were ordered deported for missing court. Some missed hearings because the danger and instability of the border region forced them to abandon their cases and go home. Others missed hearings because they were the victims of kidnapping or were prevented from attending because their court paperwork was stolen… In total, 44 percent of all people sent back to Mexico under MPP were unable to return to court for a hearing.”

While MPP is no longer in place (although the severity of its limitation on peoples’ movement is comparable to immigration detention procedures applied to many asylum seekers today), it demonstrates how policy and circumstance can render trial procedure rights essentially nonexistent. Policymakers can establish geographic layouts which essentially break the asylum system without consequences. Asylum seekers can be deported for being geographically inconvenienced. And these disparities can occur entirely within the bounds of asylum law. 

Creation

The previous section detailed ways in which ‘protective’ legal structures are rendered useless to the people they are written about. The following examples of injustice within the asylum system may share similar or even identical relationships to legality with those discussed above, but they are used here to illustrate a different point: the amount of leeway anti-immigrant lawmakers have to create hostile environments for asylum seekers within the U.S. legal system. UN procedures and the Refugee Act are broad documents, and many definitions and procedures must be created to fill in the gaps they leave. Occasionally violating (unenforced) provisions of these outlining statutes, but mostly existing within these unregulated gaps, definitions and procedures have been created which, despite being of ‘smaller’ scale, ultimately control many applicants’ experience of and outcome within the asylum process. 

How to Define Asylum Claims

One definitional project available to individual actors within the asylum system is the question of which claims will grant someone asylum status. Immigration judges get to make many such decisions on a case-by-case basis, which then determine the overall treatment of certain categories of claims via precedent. Both Congress and the U.S. Attorney General are also able to dictate guidelines for those judges to use. These definitions of what constitutes a ‘compelling’ asylum claim have limited access to asylum for ‘deserving’ applicants —those who have experienced persecution and danger in their home country— through what Gilman calls a “focus on exceptionality,” the idea that a compelling asylum application is one describing a rare or unusual experience, not a national crisis impacting millions. Gilman argues that “the focus on exceptionality leads policy decision-makers and individual adjudicators to draw up limited images of the types of persons who may be seen as asylees and should therefore be entitled to asylum,” and therefore reject applications from asylum seekers with a legitimate fear of persecution if that persecution applies to more than a small, discrete segment of a country’s population. 

Exceptionality defines the persuasiveness of asylum claims not just in terms of the percent of a country’s population a crisis is affecting, but in regards to that country’s distance from the United States. Examining U.S. asylum decisions, Gilman found that “the relationship between the distance of a country of origin and the asylum grant rate for applicants from that country is statistically significant, and grant rate increases at greater distance from the United States.” In particular, “the claims of asylum seekers arriving as part of wide-scale refugee flows, particularly from nearby nations in Central America, are discounted in law and practice because they are not exceptional.” Central American asylum seekers, whose countries are geographically near the U.S. and who are generally trying to escape a broad national crisis, have been disadvantaged by this exceptionality bias for decades. In 1985, a years-long suit granted asylum seekers fleeing civil war in El Salvador and Guatemala the opportunity to relitigate their cases after it was found that claims from those countries had been disproportionately rejected, but the problem has since persisted. On the other hand, groups from distant countries with ‘unusual’ asylum claims can receive U.S. protection beyond that which is required by the UN Protocol or the Refugee Act. Gilman notes that “Congress specifically mandated through legislation that claims from China based on coercive population control should be treated as valid asylum claims even where viability of these claims under the refugee definition was not immediately obvious.” I am strongly in favor of Chinese refugees experiencing involuntary sterilization being granted the protection of asylum, but the difference between asylum acceptance rates for Chinese and Central American migrants is not based on a difference in the amount of danger the two groups are in. In a fair asylum process, that would determine variance in asylum acceptance rates between countries. 

The political bent of asylum definitions is particularly evident when one notes how asylum definitions have been changed in recent years: primarily to exclude crises affecting Central Americans. Gilman details how, “as Central American claims relating to gang violence became more commonplace in the first decades of the twenty-first century, Immigration Courts issued decisions that tightened the standards for claims based on membership in a particular social group to screen out the claims,” making it more difficult for people to receive asylum based on violence facing a large segment of the population. Under the Trump administration, the Attorney General’s office was also a vehicle of exclusion for Central American asylum claims, especially those based on gender: “Trump’s first Attorney General, Jefferson Sessions, largely disqualified as grounds for asylum even the most brutal and terroristic persecution of women and violence perpetrated by inescapable quasi-state gang actors,” both extremely common asylum arguments from Central American refugees. The exclusion of Central American migrants from U.S. asylum is an active project, and while lawsuits like the 1985 one can sometimes force immigration courts to redo their work in regards to a particularly large disparity, the political freedom of xenophobic actors to design the right to asylum remains. 

How To Define Asylum Procedure

U.S. lawmakers and other governmental actors are also responsible for defining and establishing asylum procedures. The Refugee Act and the international policies it codified “provided little guidance regarding a process for asylum recognition and assumed that the number of asylum grants would be small.” As a result, the vast majority of actual asylum policy has been codified in subsequent legislation, procedures created by executive agencies responsible for carrying out vague laws like the Refugee Act, and court decisions determining the scope of the rights asylum seekers are entitled to. And many of the policies created by these bodies have been —you guessed it!— punitive towards asylum seekers, limiting the rights afforded to them within the legal process and damaging to their chances of making a successful case. 

For example, immigration cases have been classified as civil (rather than criminal) proceedings, meaning that asylum seekers lack a criminal defendant’s right to be provided counsel. Tabak notes the specious nature of this distinction in regards to deportation proceedings. The criminal/civil disparity in trial rights is generally justified by the fact that the consequences in civil proceedings are less severe, but “the liberties at stake in asylum claims are particularly significant and arguably comparable to the liberties at stake in a criminal case with one immigration court judge even referring to immigration cases as "death penalty cases in a traffic court setting."” Ultimately, “the logic of criminal law is incorporated in immigration detention without the guarantees of due process meant to protect criminal defendants,” legitimating detention and denial of due process protections with many fewer boundaries than would be acceptable in the criminal context. Asylum hearings and removal proceedings for asylum seekers determine the country in which they will live out the next stage of their lives, and whether they will be sent directly back into the environment of chaos and fear they have just fled. These are not ‘lower-stakes’ decisions. But neither international law nor the Refugee Act makes any mention of a criminal-civil divide. Those protective statutes are not violated by categorizing asylum proceedings as deserving of a lesser degree of due process.

I.N.S. v. Lopez-Mendoza, declaring that asylum seekers lack the right to be provided counsel, is far from the only case limiting applicants’ due process rights. In 2018, for example, the Supreme Court ruled in Jennings v. Rodriguez that asylum seekers who present themselves at the border and pass a credible fear interview are not required to be granted periodic bond hearings if they are subjected to mandatory detention. The attorney general has the remarkable power to issue decisions dictating immigration procedure on their own, vacating decisions of the BIA, and anti-immigrant attorneys general have used this authority to further limit due process in asylum proceedings. For example, “In Matter of E-F-H-L-, [Trump’s attorney general] Sessions reopened and vacated a decision that had required immigration judges to hold an evidentiary hearing before ruling on a respondent’s asylum claim, discarding important precedent that had clearly precluded judges from pretermitting asylum claims without a full hearing.” Once again, neither the Refugee Act nor international statutes dictate what type of hearings asylum seekers must receive, so the U.S. violates none of them by providing asylum seekers with extremely limited legal proceedings compared to those afforded to most defendants by domestic law.

Some such decisions occur as a result of beliefs held by immigration judges; as discussed earlier in regards to judge demeanor, xenophobia and bias among these judges is extremely common. But these judges are also actively incentivized to treat noncitizens unfavorably, and unsurprisingly, the Refugee Act says nothing to regulate the employment structures within immigration courts. Republican attorneys general have a long history of removing immigration judges whose decisions were overly favorable to noncitizens’ claims, and the rules ensuring that most judges’ job security is unrelated to their decision record do not exist in the immigration context. In fact, “in contravention of every known norm respecting impartiality, [Trump’s] attorney general has pitted immigration judges against due process by threatening to punish the judge—including through termination—for failing to adhere to enforcement-driven case quotas.” Attorneys general have also been known to incentivize BIA judges “by giving them personal stakes in the outcome of cases through individual performance reviews.” An administration hoping to create an unfriendly legal environment for asylum seekers has more opportunity to shape the judiciary’s behavior than in virtually any other area of U.S. law. Neutrality of judges —a guiding legal principle for U.S. citizens— is neither valued nor protected in the immigration context. Instead, legal analysis of asylum claims is “viewed (incorrectly) as an adjunct to its homeland security agency,” a project of national security rather than refugee protection. 

A final way the government shapes asylum procedure, and possibly an even more disturbing exercise of control over trial proceedings than manipulation of judge behavior, is the State Department’s role in shaping trial evidence. The State Department produces annual Country Reports on Human Rights practices, which are often the central evidence for asylum applicants that persecution is occurring in their country. “For the vast majority of asylum-seekers who are unrepresented (and who often lack English proficiency and literacy, access to computerized resources or even books and newspapers, and increasingly are detained in remote facilities or… cabined in Mexico), these official publications, routinely entered into evidence at asylum hearings, may be their sole means to corroborate the torture and persecution they have suffered or fear.” 

But an analysis by Pace University law professors Thomas McDonnell and Vanessa Merton revealed that the Trump administration had deliberately falsified many of these reports, rendering asylum seekers from targeted countries unable to prove their claims. They found in particular that, “In a campaign worthy of the Orwellian term "memory hole,' State Department compilers obviously are being ordered to eliminate information specifically about the oppression of female and LGBTQ residents.” The fact that the U.S. —the prosecutorial side— gets to be the author of the only evidence most defendants have access to in defensive asylum proceedings is yet another departure from standard U.S. trial protections, and once again demonstrates the profound lack of respect asylum seekers receive in court. The actors responsible for creating asylum trial procedure are not interested in ensuring that asylum claims receive fair, impartial consideration. 

Further, as evidenced by the impact of decisions by individual immigration judges or the attorney general, the choice of who is carrying a policy out has a substantial impact on how that policy works, and substantial effort is made in many procedural areas to ensure that actors with a hostile, national-security perspective towards asylum seekers are made responsible for critical parts of the process. The practice of allowing CBP officers to conduct credible fear officers is a clear example of this phenomenon. This system was struck down by a federal court precisely because of officers’ antagonistic behavior. Even when CBP officers are not responsible for credible fear interviews, they can still get in the way of those interviews being carried out fairly. First of all, “human right monitors and federal oversight bodies have repeatedly warned that some CBP officers and Border Patrol agents fail to appropriately and professionally carry out even these minimal requirements to simply identify individuals who must be referred for credible fear interviews with a USCIS asylum officer.” And even when the interviews do take place, the American Immigration Council found that “CBP officials pressure USCIS to arrive at negative outcomes.” Whether direct or indirect, CBP officers’ engagement with the credible fear interview process has given the process a more distrustful, criminal character. 

A similar character has been sought out in immigration courts by the Trump administration in particular. The authors of The Attorney General’s Judges found that “roughly three-fourths of immigration judges hired by the Trump administration have prosecutorial experience, and many previously worked for ICE as trial attorneys who represented the government in removal proceedings,” concluding that “anybody other than somebody with a government background has basically been shut out of the 21st century immigration judiciary.” Immigration judges are broadly replaced during administration changes, so these hostile actors will generally remain on the bench for decades. No matter what policies are governing them, they will have the discretion within their positions to make life-changing determinations about the fates of countless asylum seekers. But large-scale statutes do not consider what temperament or experience asylum judges should have. Hostility can be put into place without violating any rules. 

How To Establish Extralegal Rules

I next want to draw attention to procedures which are put in place with no official procedural affirmation —no law, no court case, no employment decision. I highlight these procedures to demonstrate that ‘official’ policymaking processes do not have a monopoly on the making of policy. Policies exist when they are carried out and followed, not when they are approved by a government body. A clear example of this is the unwritten but mandatory trial procedures created by individual immigration judges. “Attorneys tell of judges who fail to apply binding legal standards and make decisions based on illegally invented rules… Judges in multiple courts fail to comply with regulations for the submission of evidence, in some cases imposing a submission deadline three or six months in advance of a respondent’s hearing—rather than the 15 days dictated by the courts’ own procedures manual… One practitioner also explained that judges may weigh evidence inconsistently, giving little to no consideration to a respondent’s supporting declarations while giving full weight to any police report, even if presented with conflicting evidence.” These systems determine the decisions immigration judges make, so they are real, even if they have no place in ‘official’ court requirements. And in their reality, they deny people asylum based on reasons which have nothing to do with the circumstances they faced in their home country. 

Another unofficial but entirely real procedure is what UT Austin professor Rebecca Maria Torres has identified as ‘la lista,’ the practice on the Mexican side of the border of determining which asylum seekers will approach border checkpoints on a given day when those checkpoints communicate a quota of people they will take. Torres’s interviews with the individuals participating in el proceso de la lista provide clear evidence of so-called ‘banned’ asylum quotas. They are sometimes facilitated by border humanitarian groups, but most often they are kept in the hands of one person, which turns out to be a very dangerous job for the chosen individual. This is a highly informal system, but as Torres explains, “The informal waiting lists had hardened and become formal practice… Some believed this in fact initiated the formal asylum process, others recognized this as the de facto alternative now that the border was effectively closed to asylum applications.” Asylum seekers believe they have to follow la lista —they do, in fact, have to, because of those ‘nonexistent’ quotas— so they follow la lista, so “as the lists became the de facto approach to asylum, this once-informal, yet imposed, tool became enmeshed in formal, state-managed border policy.” And by preventing individuals from seeking asylum when they arrive at the border (some wait years on la lista), the system “enables a normalization of informal migration governance mechanisms, which block the right to asylum.” All without ever formalizing the procedure. 

It’s difficult to overstate how much asylum seekers’ perceptions of the process influence how they act within it. Their impressions of la lista make it a ubiquitous system on the border; while CBP officials also know about la lista and could very well take the final step to formalize it by refusing to process asylum seekers who did not participate, it’s the impression that stops so many asylum seekers from even attempting to bypass la lista and exercise their international right to claim asylum regardless of the method by which they enter the U.S. Perceptions determine whether rights are real in the eyes of individuals, and many actors within the asylum system use this power to manipulate asylum seekers into giving up their claims. The Attorney General’s Judges found that “judges in multiple courts attempt to convince respondents at master calendar hearings that their claims will inevitably fail, so it is in their best interest to give up without finding attorneys and take voluntary departure orders.” Judges are expected to be neutral arbiters, and they are also the ones with the final say over asylum claims, so hearing a judge say there is no point in continuing to seek asylum can be extremely persuasive. Without changing anything about the actual asylum litigation process —only by changing what asylum seekers believe and expect from it— judges reduce the number of people who attempt to make a case. 

The final, critical thing to consider when analyzing how the U.S. creates conditions for asylum seekers without establishing official asylum procedures is the U.S.’s impact on conditions people face outside of our borders. An in-depth analysis of U.S. relations with countries with a high preponderance of asylum seekers is beyond the scope of this article, but there is a well-established and chilling body of scholarship documenting the U.S.’s culpability in the Central American conditions causing the very waves of migration that the U.S. subsequently tries to write out of its definition of asylum. I would strongly encourage any reader coming to this article from a domestic legal perspective to at least take a look at some of these works. Understanding the scope of the U.S.’s impacts in Central America is necessary to comprehend that the U.S. is a bad-faith actor on both sides of the asylum process, cause and effect. We do not just deny Central Americans asylum, we cause them to flee their homes and then deny them asylum. We work on both sides of the coin.

In addition to helping create the conditions that lead asylum seekers to need asylum in the first place, the U.S. also creates an environment of extreme vulnerability at the border itself. By forcing asylum seekers to languish along the border for months or even years, and by maintaining constant uncertainty in regards to when or how asylum policies will change, a group is placed in northern Mexico with minimal resources, minimal cohesion, and no way to advocate for themselves if they want to maintain their tenuous status as almost-asylum-applicants. Gilman explains how, “greater than any purported threat presented by asylum seekers, ever-changing asylum exclusion policies do lead to danger by creating chaotic situations on both sides of the border. The imposition of barriers preventing access to U.S. territory allows for the involvement of violent actors who exploit migrants desperately in need of reaching the United States.” The atrocities resulting from this situation during the Trump and early Biden administrations are well-documented. “According to Human Rights First, through February 2021 there were at least 1,544 publicly documented cases of rape, kidnapping, assault, and other crimes committed against individuals sent back under MPP.” And under MPP, Title 42, CBP One, and la lista, an identically vulnerable population has remained on the northern edge of Mexico ever since, the U.S. having taken no responsibility for making it a safe place to wait. 

How To Constructively Refoul

I want to end this section on the U.S.’s creation of inhospitable environments for asylum seekers with a mention of the international legal standard which prohibits countries from doing exactly that. The concept of nonrefoulment, a nation’s responsibility to not send refugees back into the danger they have just escaped, was discussed earlier, but it has another dimension also recognized by the UNHCR: what is called “constructive refoulment.” As explained by Tabak,  “Constructive refoulement arises when a state orchestrates material conditions so intolerable for an asylum-seeker that she has no choice but to return to the country from which she fled;” in other words, coercing asylum seekers to give up their claims by giving the appearance or reality of a U.S. in which there is no better treatment waiting for them (sound familiar)? Unsurprisingly, the U.S. is not being convicted of constructive refoulment by international judicial bodies, but scholars and observers agree that a great deal of U.S. asylum policy constitutes the active construction of ‘intolerable material conditions’. We’ve discussed the hostility that exists for asylum seekers in court and while waiting on the Mexico side of the border, but I want to use the concept of constructive refoulment to specifically discuss the experience for asylum seekers who are waiting for a credible fear interview or asylum hearing within the U.S.

The most fully contrived waiting condition asylum seekers face, and the ones which most clearly constitute constructive refoulment, is the experience of immigration detention. “Conditions in detention centers— largely operated by for-profit companies—are often so deplorable they force respondents to abandon winning claims in exchange for their freedom,” The Attorney General’s Judges found. More than poor management by corporations is responsible for the horrible conditions asylum seekers face while in detention; the American Immigration Council and the ACLU are currently bringing forward a lawsuit criticizing the government’s response to the finding that “ICE actively impedes detained people from accessing the most basic modes of communication necessary for attorney-client communication.” And it isn’t just the conditions of detention that make it unbearable, it’s the sense of being in limbo. Asylum seekers can be trapped in these facilities for years, with no idea when their case can be concluded —and, after their previous experiences with the U.S. immigration system, with no confidence that it will end in a just process. The potential of these conditions to cause asylum seekers to give up on their cases and leave the U.S. is not just a possibility; it is a well-documented phenomenon that has become much more common since the Trump administration, when the rate of voluntary departure applications by migrants in detention facilities doubled in 2018 and over 93% of individuals detained at the worst few detention facilities in the country were either deported or gave up their cases. It’s hard to think of better evidence for constructive refoulment than data on the increasing number of people being driven away from making or continuing their asylum claims.

There is less evidence on the number of paroled asylum seekers (those waiting for their cases in the U.S. proper and not a detention facility) who give up their cases, but hostile conditions for them certainly exist, beyond the previously-discussed instances of judges persuading applicants that their cases are not worth arguing. A main barrier to waiting in the U.S. can be economic. A 1996 federal law established a 180-day waiting period before asylum seekers can receive a work permit once they are paroled in the U.S. This number is an underestimation of the difficulty asylum seekers face in obtaining a work permit, though, as processing and permit renewal delays can significantly increase the amount of time people spend without legal work authorization. Trump also increased the waiting period to 365 days for about a year and a half of his time in office. Most asylum seekers enter the U.S. with very little money and join family members without much more (I personally have left several asylum seekers at Casa Alitas with under $10 left on a family member’s credit card after purchasing their flights to reunite with those family members). 

With no way to support themselves during an extended waiting period, many have no choice but to either engage in illegal, exploitative wage labor or return to a country in which they can find employment.  I am not making a formal legal argument on whether the inability to work while waiting several years for a hearing meets the definition of constructive refoulment —as discussed in the early section on international law, that determination would likely make very little difference in terms of what actually happens— but the concept is relevant to describing how this policy makes it difficult for asylum seekers to wait. It’s very difficult to stay in a place in which you have no way to support yourself. And while there may be some tenuous international opportunities to indict a country creating these conditions for an international legal violation, the Refugee Act certainly doesn’t mandate that work opportunities be made available to asylum seekers. Without explicitly saying so, and without breaking any protective rules, the U.S. has the opportunity to economically drive them out. 

How To Make Legality Meaningless

The last topic I want to cover in this discussion of legality is social in nature: how the creation of xenophobic narratives changes U.S.-located people’s ideas about legality and behaviors within the legal landscape. Like the U.S.’s impact on Central American countries, racism and xenophobia against Latines and Central American migrants is a subject which is too broad to summarize or analyze effectively in this article but is necessary to analyze if one wishes to understand the U.S. asylum system on any level. But these social forces are what make punitive laws against asylum-seekers get written and passed, what inform the content of immigration court decisions, what make immigration officials treat asylum seekers as criminals and force their subordinates to do the same. At every turn in the asylum system, racism either evades protective statutes or creates its own. Here, I want to offer a few instances where public narratives about asylum seekers define or erase legality, where the question of legality is brought to unexpected corners of the asylum debate, and where these public narratives are made drastically more visible to most of the U.S. than people themselves. 

I’ve talked a lot, mostly ironically, about the global conception of the rights of refugees and the ways it’s ignored. But when constructing the image of asylum seekers, the U.S. does more than ignore the ‘protections’ they’re supposed to have. Instead, they write them onto the other side of the law, designating them as ‘illegal entrants’ and making the asylum process a last-ditch effort to avoid a justly deserved deportation. I’ll say it again: asylum seekers have the right to enter a country illegally and not be penalized for it, if that’s what is necessary to escape their circumstances. But as asylum seekers at the U.S.-Mexico border are placed immediately in deportation proceedings, “migrants are re-categorized into a legal/illegal dichotomy that removes refugees from the equation. The refugee discursively disappears and is replaced by the illegal. While refugees have the right not to be sent back, illegals do not and have by definition already performed a transgression by entering the state illegally.” The rhetorical nobility given to the hypothetical asylum seeker is not granted to the people actually seeking asylum in the U.S. Gilman explains how this categorization of asylum seekers creates a cycle preserving this conception of threat and illegality:

“Exclusionary measures like detention and expedited removal are based on unsubstantiated allegations of a threat presented by refugee flows and further a vision of asylum seekers as problematic. At the same time, substantive law interpretations designed to preserve exceptionality combine with the exclusionary apparatus to ensure low grant rates for asylum seekers, especially those within larger flows from nearby countries. The low grant rates are used to “prove” that the asylum claims presented are specious and should be blocked.”

This immediate definition of asylum seekers as ‘illegal entrants’ also opens the door for what Labman calls discourse around “special rights” —xenophobic presentation of asylum seekers as asking for ‘special treatment’ “characterized as exorbitant demands,” a way to avoid the consequences of their actions (these consequences, of course, being an inhumane violation of international law). Once a refugee has been defined as dangerous or attempting to somehow game the system, “Anti-rights and counter-rights mobilization and discourse mean that the attainment of rights risks reverberating against the rights claimant. Rather than protection, a rights claim risks vilification of the refugee and a diminished willingness on the part of the state to protect.” Rather than being seen as a survivor after making an asylum claim, asylum seekers are seen as opportunists. 

When judges are convinced of these narratives, they become the ideas determining whether people receive asylum. And judges are convinced, by racial stereotypes and by actions in the asylum process which occur prior to a hearing. “Attorneys reported that some judges’ decisions are shaped by their “perceptions of people’s home country, and their own personal perceptions of what might motivate someone”—such as the misconceived notion that “all young men from El Salvador are here to work.”” “Attorneys in multiple courts also noted differences between judges presiding over detained versus non-detained dockets, with some commenting that judges on detained dockets were more “vicious” and had more “antagonism” than judges on non-detained dockets.” So now a state-sponsored presumption of illegality violating an international mandate of assumed legality has the power to spur a binding, life-altering determination of illegality, and it starts to become difficult to tell what the word means.

Public ideas of what’s illegal, what’s protective, and what’s right trump legal mandates in the world of asylum law, largely because those mandates come from an international field which is never going to come crashing down on the U.S. system. The UNHCR, for example, has ruled that deterrence of migration cannot be used as a rationale for putting or keeping asylum seekers in detention, but “U.S. officials have often explicitly justified detention as a deterrence measure targeting asylum seekers.” Considering whether bond or non-excessive bond must be made available to asylum seekers, “when asylum seekers sought review of no-bond or high-bond determinations ICE argued —often against pro se litigants— the policy was necessary to "significantly reduce the unlawful mass migration of Guatemalans, Hondurans and Salvadorans."” The point here is not that the U.S. is (unsurprisingly) following a UNHCR decision, but that, following that decision, an argument explicitly violating it, and an argument being made against an unrepresented, minimally resourced defendant trying to escape horrific detention conditions, is persuasive in court —is, in other words, constitutive of legality in the U.S. context. What, then, does legality mean? 

It may, in fact, be illegal to treat asylum seekers and other refugees with dignity and respect. In the past few years, states have repeatedly sued to prevent policy changes that would have given asylum seekers more (or any) opportunities for entry, from the lawsuits which delayed the ends of both MPP and Title 42 by more than a year to a 2024 suit which challenged the legality of a refugee program allowing the entrance of 30,000 refugees per month and which was only struck down because of a lack of standing. The provision of humanitarian aid in the Sonoran desert, to prevent migrants from being the ones making those ignored 911 calls, has also been criminalized. No Más Muertes has been the main target of this hostility on the part of the state. The Associated Press reported in 2018 that “hours after [the] humanitarian group released videos showing border patrol agents kicking over water bottles left for migrants in the Arizona desert, a volunteer for the organization was arrested and charged with harboring undocumented immigrants.” Volunteers with the organization have been “charged with a variety of offences including driving in a wilderness area, entering a wildlife refuge without a permit and abandoning property – the latter an apparent reference to leaving water, food and blankets on migrant trails.” 

So destroying supplies left to keep migrants alive is legal —is, in fact, a practice of officers acting in an official governmental capacity— but leaving those supplies or bringing migrants to the hospital is a crime. Keeping asylum seekers in Mexico based on a public health justification the CDC emphatically rejects is legal; ending that policy is a crime. Detaining asylum seekers in detention facilities explicitly on the basis of deterrence is legal; having fewer than 34,000 beds within those detention facilities is, currently, a crime. In all of these cases, xenophobic perceptions of asylum seekers trump clear inconsistencies in the legal standards being used, suggesting that if one wants the above conclusions to change, the shift that is needed is a shift in the ideas people approach the decision making process with rather than a shift in the rules they are using or interacting with. Asylum laws can be manipulated or ignored; there’s no real way around that. Ultimately, it matters more what actors within the asylum system want the system to do than what it is designed to do. For better and for worse. 

Conclusion

In the early 1980s, responding to a wave of Central American refugees who were fleeing extreme violence in their countries but being categorically denied asylum in the U.S., Southside Presbyterian Church in Tucson, Arizona began sheltering migrants in their church and transporting them to other areas of the U.S. — the beginning of what would come to be called the sanctuary movement. Sixteen religious leaders from the Tucson area were convicted for their involvement in this scheme, and eight were eventually indicted. But instead of arguing that they had not sheltered migrants, the defendants created the legal framework of ‘civil initiative’. They argued that because the government was violating both the Refugee Act and the U.N.’s guidance on refugee treatment, it was the responsibility of citizens to violate domestic law in order to make good on those commitments. The precedent used for this idea of citizen accountability was the Nuremberg trials. While the civil initiative argument was never used in court (as it was excluded from the trial by a judge), it was widely publicized by the defendants against their attorneys’ wishes, and its effect on public opinion succeeded in changing legal outcomes. None of the defendants served time in prison, and a law was passed in 1986 mandating that these Central American refugees be made eligible for asylum.

The more I’ve studied U.S. law (I specify the country to describe my field of knowledge, not to establish a difference between the U.S. and the rest of the world), the more I come to see it as a landscape where there are virtually no conclusive answers. The central conceit of an adversarial justice system is that the opposing argument can always be made, and this opportunity extends far beyond the courtroom or the passage of a law. There’s no magic bullet to fix the asylum system. There’s no level of government we can put in charge and be confident will make humanity-affirming decisions; there’s no mandate that will do exactly what its text says it will if the people carrying it out oppose those words. And there’s nothing unique about the prerogative granted to officials within the asylum system. Any written policy will have several levels of human decision-making sandwiched between text and implementation. This is neither solvable nor inherently a problem; the problem is that so many actors in the asylum system see their job as other than protecting the welfare of someone who fled to the U.S. because their home country failed to do exactly that. By ignoring words or writing new ones, by preventing asylum seekers from making a case against them or from accessing the resources to win that case, actors like these are able to do the job they feel they have. And a new law or a new case will not stop this from happening. All these options will still be available. 

But my goal in writing this article was not to provide fatalistic advice to asylum advocates. Just as there is danger in freedom for individual actors, there is also possibility. In the 1980s, the federal government said that refugees from El Salvador and Guatemala would not find shelter and safety in the U.S., but because of the work of sanctuary activists, that was not true. The fact that the advocates’ behavior was an act of civil disobedience/initiative is, to me, not the most important thing about that story; circumstances for asylum seekers can also be changed within the gaps of government policy, as the work of Casa Alitas began. What’s important is that it acts as the direct inverse of the (non)compliance examples I discussed earlier. Because of actors’ behavior, an unprotective official decision was unable to create an absence of protection. Actions like this do not always work out well, but sometimes they do. 

I wrote this article to counter assumptions that I once held, assumptions that I believe are dangerous for activists and lawyers and policymakers. When I first decided to become a lawyer, it was because I believed that text enshrined in the right place could fix the world. But as illustrated here in the asylum case, and as is true in virtually every area of law, a regulated population’s circumstances are determined more by who is acting to determine them and what goals those people are acting with than by any broad idea of rights. To me, this focus doesn’t point towards or away from the legal arena as a place to advocate for asylum seekers. It points towards creativity, presence, and continued commitment, and away from the idea of a tidy written ending for even the smallest of problems in a field like this one. Nothing is ever settled out of the reach of individual opinions and desires, and this understanding has drastically shifted my idea of what ‘creating a better environment for asylum seekers’ looks like. I feel good about the work this framework is drawing me towards. And while I still have a lifetime of course corrections to make as an activist, I expect this one to stick.