Asylum Law Archives - Regent University School of Law https://jgjpp.regent.edu/tag/asylum-law/ Journal of Global Justice and Public Policy Tue, 25 Feb 2025 14:50:41 +0000 en-US hourly 1 https://wordpress.org/?v=6.8.1 https://jgjpp.regent.edu/wp-content/uploads/2022/02/cropped-Regent-Favicon-32x32.png Asylum Law Archives - Regent University School of Law https://jgjpp.regent.edu/tag/asylum-law/ 32 32 ASYLUM FROM THE NORTHERN TRIANGLE: IS ASYLUM THE ANSWER FOR THOSE FLEEING THE MOST VIOLENT COUNTRIES? https://jgjpp.regent.edu/asylum-from-the-northern-triangle-is-asylum-the-answer-for-those-fleeing-the-most-violent-countries/?utm_source=rss&utm_medium=rss&utm_campaign=asylum-from-the-northern-triangle-is-asylum-the-answer-for-those-fleeing-the-most-violent-countries Tue, 25 Feb 2025 14:50:41 +0000 https://jgjpp.regent.edu/?p=1204 The post ASYLUM FROM THE NORTHERN TRIANGLE: IS ASYLUM THE ANSWER FOR THOSE FLEEING THE MOST VIOLENT COUNTRIES? appeared first on Regent University School of Law.

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Tyler B. Barnes | 6 Regent J. Glob. Just. & Pub. Pol. 191

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ADDRESSING THE FAILURES OF INTERNATIONAL ASYLUM LAW IN REGARD TO VICTIMS OF HUMAN TRAFFICKING https://jgjpp.regent.edu/addressing-the-failures-of-international-asylum-law-in-regard-to-victims-of-human-trafficking/?utm_source=rss&utm_medium=rss&utm_campaign=addressing-the-failures-of-international-asylum-law-in-regard-to-victims-of-human-trafficking Fri, 07 Feb 2025 18:16:14 +0000 https://jgjpp.regent.edu/?p=1139 The post ADDRESSING THE FAILURES OF INTERNATIONAL ASYLUM LAW IN REGARD TO VICTIMS OF HUMAN TRAFFICKING appeared first on Regent University School of Law.

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Rikkilee Moser† | 4 Regent J. Glob. Just. & Pub. Pol. 73

I. INTRODUCTION

One of the most horrific and exceedingly pervasive human rights violations today is human trafficking—otherwise known as modern slavery. The United Nations Office on Drugs and Crime (UNODC) has admitted that it is not only one of the largest sources of income for organized crime, but also the fastest growing.1 Despite heightened attention by activist groups and the international community as a whole, victims continue to be exploited at alarmingly high rates.2 In fact, with upwards of 21 million victims worldwide, it has become one of the largest illegal industries, second only to drug trafficking.3 Human trafficking earns roughly $150 billion USD a year ($99 billion of which comes from sexual exploitation alone).4 To put that into perspective: the enslavement of human beings earns well over the annual revenue of Microsoft, Nike and Starbucks combined.5 Yet despite the blatant human rights crisis implied by these gut wrenching numbers, survivors of human trafficking are often unfairly overlooked as deserving recipients of international asylum protection.6

So what exactly is human trafficking, and why has it been allowed to fester into such a global atrocity? Although the term trafficking may imply movement, it is not required by definition, and in fact is much more inclusive in its scope.7 Article 3(a) of the United Nations’ Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (“Trafficking Protocol”) defines trafficking in persons as:

[T]he recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.8

This definition comprises three essential elements: action, means, and purpose. The actus reus (action) of recruiting, transporting, transferring, harbouring, or receiving can normally be neutral on its own, but when combined with the mens rea (purpose) of exploitation any innocence in the behavior itself is distorted.9 In most cases all three elements must be present before finding that trafficking in persons has occurred, yet in instances where the victim is a minor, the means requirement is vacated and courts focus solely on the action and the purpose.10

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The means of exploitation, as evidenced by the lengthy list offered in Article 3(a), can be numerous. Although abduction or sale by a family member is not uncommon, one of the most prevalent approaches used by traffickers is to recruit individuals using false pretenses of lavish jobs with better earning capabilities.11 Presented with the promise of a better life, these often poor and uneducated individuals leave home with their recruiter only to find themselves in situations drastically different than they expected.12 Additionally, because the recruiter typically covers the cost of travel, victims are considered indebted and forced to work without compensation in order to pay off the recruiter’s fees and other travel expenses.13 Furthermore, although the Trafficking Protocol provides no definition of exploitation, international law recognizes that it can be carried out in many ways.14 The most common are through sexual slavery, which makes up 72% of all trafficking occurrences, and forced labor, which makes up 20% of all trafficking occurrences.15 The remaining 8% is a conglomeration of equally appalling methods, including trafficking children to be used as soldiers or for forced and sham marriages, as well as pornography, street begging, and even organ removal.16 Once enslaved, victims face repeated rape and sexual abuse, violent beatings, humiliation, degradation and other forms of psychological manipulation. 17 Additionally, in order to assert control, traffickers often implement forced drug use in order to keep the victim in a weakened state and, once addiction takes hold, dependent on the traffickers themselves.18


† Rikkilee Moser earned her J.D. in 2016 from Northern Illinois University, and in 2017, she earned her L.L.M. in Human Rights from UCL in the United Kingdom. She currently lives in London and works as an immigration attorney for a U.S. immigration firm.
1 See Human Trafficking: Organized Crime and the Multibillion Dollar Sale of People, U.N. OFFICE ON DRUGS AND CRIME (July 19, 2012), http://www.unodc.org/unodc/en/frontpage/2012/July/human-trafficking_-organized-crime-and-the-multibillion-dollar-sale-of-people.html.
2 See The Scale of The Issue, STOP THE TRAFFIK, https://www.stopthetraffik.org/about-human-trafficking/the-scale-of-human-trafficking/ (last visited Jan. 26, 2018).
3 See id.; CAL. DEP’T OF JUSTICE , THE STATE OF HUMAN TRAFFICKING IN CALIFORNIA 3 (2012), http://www.courts.ca.gov/documents/BTB24-4L-4.pdf.
4 Human Trafficking by the Numbers, H UM . RTS . F IRST (Jan. 7, 2017), http://www.humanrightsfirst.org/resource/human-trafficking-numbers.
5 The combined revenue of Microsoft, Nike, and Starbucks in 2017 totaled $146.03 billion. See Microsoft Corp., MARKET WATCH,
http://www.marketwatch.com/investing/stock/msft/financials (last visited Apr. 29, 2018); Starbucks Corp., MARKET WATCH ,
http://www.marketwatch.com/investing/stock/sbux/financials (last visited Apr. 29, 2018); Nike Inc., MARKET WATCH , http://www.marketwatch.com/investing/stock/nke/financials (last visited Apr. 29, 2018).
6 See Smuggling and Trafficking, RIGHTS IN EXILE PROGRAMME,
http://www.refugeelegalaidinformation.org/smuggling-and-trafficking (last visited Feb. 14, 2018).
7 See Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, art. 3(a), Dec. 25, 2003, 2237 U.N.T.S. 319, 344 [hereinafter Trafficking Protocol].
8 Id.
9 U.N. Office of Drugs & Crime, The Role of ‘Consent’ in the Trafficking in Persons Protocol 2, 24 (2014), http://www.unodc.org/documents/human-trafficking/2014/UNODC_2014_Issue_Paper_Consent.pdf [hereinafter The Role of ‘Consent’].
10 See id. at 25.
11 U.S. DEP’T OF S TATE, TRAFFICKING IN PERSONS REPORT 15 (2015), http://www.state.gov/documents/organization/245365.pdf.
12 See id.
13 Id. at 15, 17.
14 U.N. Office of Drugs & Crime, The Role of ‘Exploitation’ in the Trafficking in Persons Protocol 2, 21, 23–24 (2014), https://www.unodc.org/documents/congress/background-information/Human_Trafficking/UNODC_2015_Issue_Paper_Exploitation.pdf [hereinafter The Role of ‘Exploitation’].
15 U.N. Office of Drugs & Crime, Global Report on Trafficking in Persons 1, 28 (2016), https://www.unodc.org/documents/data-and-
analysis/glotip/2016_Global_Report_on_Trafficking_in_Persons.pdf [hereinafter Global Report on Trafficking in Persons].
16 See id. at 8, 28.
17 Kelly Karvelis, The Asylum Claim for Victims of Attempted Trafficking, 8 NW. J. L. & SOC. POL’Y 274, 277 (2013).
18 Id.

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PROSECUTION AS A MERE PRETEXT OF PERSECUTION: GRANTING REFUGEE STATUS TO CHINESE CITIZENS WHO FACE PROSECUTION UNDER UNSPOKEN, UNOFFICIAL CHINESE “LAW” https://jgjpp.regent.edu/prosecution-as-a-mere-pretext-of-persecution-granting-refugee-status-to-chinese-citizens-who-face-prosecution-under-unspoken-unofficial-chinese-law/?utm_source=rss&utm_medium=rss&utm_campaign=prosecution-as-a-mere-pretext-of-persecution-granting-refugee-status-to-chinese-citizens-who-face-prosecution-under-unspoken-unofficial-chinese-law Wed, 23 Oct 2024 17:27:09 +0000 https://jgjpp.regent.edu/?p=978 The post PROSECUTION AS A MERE PRETEXT OF PERSECUTION: GRANTING REFUGEE STATUS TO CHINESE CITIZENS WHO FACE PROSECUTION UNDER UNSPOKEN, UNOFFICIAL CHINESE “LAW” appeared first on Regent University School of Law.

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Ra Hee Jeon | 2 Regent J. Glob. Just. & Pub. Pol. 37 (2015)

INTRODUCTION

Clara Zheng is from Zilin, China, the closest providence to the ChinaNorth Korea border.1 For the past several years, her church in Zilin has been operating a secret safe house for North Korean defectors. Clara has read in the Korean news and international reports that many North Korean families risk their lives by crossing the river from North Korea to flee to China.2 In North Korea, being a Christian is considered one of the gravest political crimes.3 Clara wondered how anyone could sit idly by and watch the Chinese government force countless starving North Korean families to repatriate.4 In Clara’s church, people talk about how the Chinese government may punish Chinese citizens who help North Koreans. Last month, despite the well-planned church operation, Clara’s friend who accompanied her on many operations was arrested and put in jail. Fearful of being punished by the Chinese government, Clara paid $15,000 to travel to the United States, hoping for a safe haven. She was hopeful because, in the past, the U.S. government has granted refugee status to couples that faced forced sterilization of their second child under China’s One-Child Policy.5 However, last week, an immigration judge denied Clara refugee status and ordered her to be removed from the U.S. Her lawyer told her that the court’s decision is not surprising because the U.S. does not generally grant refugee status to a Chinese citizen who aided North Korean defectors, in violation of a generally applicable law.6

The 108th Congress, with the assistance of President George W. Bush, acted to lend American support to the North Korean refugees by passing the North Korean Human Rights Act of 2004.7 The congressional act implies that the U.S. will protect, or at least endorse, groups that support North Korean human rights, including the people who feed, house, and protect North Korean defectors.8 Ironically, however, the U.S. government still denied refugee status to many Chinese citizens who were punished by their government for aiding North Korean defectors.9 The Third Circuit Court of Appeals denied refugee status to the Chinese applicants because they violated a “fairly administered [Chinese] law” and the punishment did not amount to “persecution.”10 However, is there really such a law that outlaws assistance to North Korean defectors? If there is, is this Chinese law and policy in violation of certain international human rights?How should the U.S. courts analyze “persecution” by non-democratic governments like that of China and North Korea? How do diplomatic relations between the U.S. and these two countries affect America’s open disapproval of China’s human rights violations?

The Third Circuit has held that if a law is (1) fairly administered or (2) generally applicable to all citizens, then the presumption is that the law is legitimate and may be rightfully enforced.11 In other words, if a court decides that: (1) there is a Chinese law prohibiting assistance to North Korean defectors, and (2) such law is generally applicable to Chinese citizens, then no protection would be granted to the applicant, whose act was the exact behavior the North Korean Human Rights Act wished to protect.12 As a result, the courts may deny asylum/refugee status to these Chinese citizens who then might be forced to return to China, where he/she faces the possibility of punishment, often severe, for aiding the defectors.13

Thus, the current analysis needs to include whether prosecution was a mere pretext for persecution. Specifically, is the punishment the applicants face upon return so severe, when compared to the crime, that the prosecution amounts to persecution? This Article suggests that China might be using criminal punishment as a pretext for persecution, and the evidence is based on disproportionately severe punishment compared to the severity of the actual crime.14 Hence, even if one assumes that a Chinese law was fairly and generally applied to all of its citizens, it is  possible that the Chinese citizens who aid North Korean defectors are persecuted through disproportionately severe punishment.15 This Article argues that the courts should first examine an applicant’s criminal history, if any, and secondly, use a hybrid approach for granting refugee status to Chinese citizens who would be prosecuted (vis-a-vis persecuted) for assisting North Korean defectors. These two approaches are of paramount importance especially when the courts are uncertain whether the Chinese penal code outlaws such activity.16

Part I of the Article begins with a brief discussion of U.S. refugee law, international human rights law, applicable Chinese law, and recent U.S. case law under Long Hao Li v. Attorney General. Part II analyzes whether criminal prosecution of Chinese citizens who assist North Korean defectors may be a mere pretext for political prosecution. Part III argues that the U.S. courts should consider a hybrid approach; a totality of the circumstances test that considers additional grounds of appeal for a refugee application.17 The hybrid approach is juxtaposed with the dominant, current approach, where refugee status is denied or granted on account of five possible grounds (race, religion, nationality, membership in a particular social group, or political opinion).18 The Article will then explain how the hybrid approach can better reflect Li’s situation and better complement the international human rights standard. Part IV applies the two approaches analyzed in Parts II and III to someone in Clara’s situation. Finally, the Article will discuss prospects for human rights implementation and legal development in China. 

I. INTERNATIONAL HUMAN RIGHTS STANDARD AND THE U.S. REFUGEE LAW

The Attorney General may grant refugee status to an alien who has suffered past persecution or has a well-founded fear of future persecution.19 The applicant must prove that he is unable or unwilling to return to the country of origin, because of persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.”20

A. Persecution

Even though the United Nations Handbook on Procedures and Criteria for Determining Refugee Status does not offer a definition of persecution,21 U.S. courts traditionally held that persecution means that there is a subjectively genuine and objectively reasonable threat to life or freedom that an ordinary person would regard as offensive (i.e., death, torture, confinement, or extreme economic deprivation).22 Also, the harm is “inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control.”23 In regards to the objective standard of “reasonable fear,” an applicant’s testimony without corroborating evidence may be sufficient, as long as it is “credible, persuasive, and refers to specific facts.”24

Still, applying a general definition of persecution is not easy for the courts, as they are tasked with the challenge of determining whether a government had a “legitimate, prosecutorial purpose” in punishing people who allegedly committed a crime.25 In deciding whether a government has a legitimate ground to prosecute a person or a group, some courts have focused their analysis on whether a government has reason to believe that the person was engaged in criminal activity.26 Other courts have focused on whether a government has undertaken “any formal prosecutorial measures” regarding the actions committed.27 A marginally smaller number of courts have also discussed whether a government was driven by a political motive in excessively or arbitrarily punishing a person.28

1 Clara Zheng’s story as portrayed in this Article is entirely fictitious. Her story serves to illustrate the typical plight of an individual who violates Chinese law in order to aid North Korean defectors. While not every story is the exactly the same, every Chinese citizen that gives assistance to a North Korean risks much in doing so, and if caught faces serious repercussions. The story of Clara Zheng is meant to personalize for readers the challenges such people encounter regularly.
2 See, e.g., Those Who Flee: North Korean Refugees, N. KOR. NOW, http://www.northkoreanow.org/the-crisis/those-who-flee-north-korean-refugees (last visited Aug. 27, 2015).
3 Human Rights Council, Rep. of the Comm’n of Inquiry on Human Rights in the Democratic People’s Republic of N. Kor. on its Twenty-Fifth Session, U.N. Doc. A/HRC/25/63, at 7–8 (Feb. 7, 2014); see also HUMAN RIGHTS WATCH, WORLD REPORT 2013: NORTH KOREA (2013), http://www.hrw.org/world-report/2013/country-chapters/north-korea [hereinafter WORLD REPORT 2013: NORTH KOREA] (reporting that many North Korean defectors flee to neighboring countries because of serious food shortages, insecurity, and fear of torture and inhumane treatment, political prisoner/labor camps, and execution for “vaguely defined offenses such as ‘crimes against the state and crimes against the people.’”).
4 See Those Who Flee, supra note 2.
5 Sun Wen Chen v. Att’y Gen., 491 F.3d 100, 108–09 (3d Cir. 2007), overruled by Guang Lin-Zheng v. Att’y Gen., 557 F.3d 147, 157 (3d Cir. 2009).
6 See, e.g., Long Hao Li v. Att’y Gen., 633 F.3d 136, 137–38 (3d Cir. 2011); but see Xun Li v. Holder, 559 F.3d 1096, 1110–11, 1113 (9th Cir. 2009).
7 North Korean Human Rights Act of 2004, Pub. L. No. 108-333, 118 Stat. 1287 (codified as amended at 22 U.S.C. § 7801–7845 (2012 & Supp. I 2013)).
8 See id. § 203, 118 Stat. at 1294 (codified as amended at 22 U.S.C. § 7833 (2012 & Supp. I 2013)).
9 Alyce S. Ahn, Note, Prosecution or Persecution: Contradictions Between U.S. Foreign Policy & the Adjudication of Asylum Claims Involving the Harboring of North Korean Refugees, 24 GEO. IMMIGR. L.J. 311, 311–12 (2010).
10 Long Hao Li., 633 F.3d at 138, 141, 147.
11 Id. at 137–38, 141.
12 See Xun Li, 559 F.3d at 1112–13. However, “a generally applicable law can provide the basis for withholding of removal, but only where the petitioner establishes a connection between the prosecution and his or her political opinion . . . .” Long Hao Li, 633 F.3d at 137.
13 See, e.g., Long Hao Li, 633 F.3d at 137–38, 143–44; see also Xun Li v. Holder, 559 F.3d at 1112 (finding clear evidence that the Chinese petitioner would be subjected to severe punishment upon return to China).
14 Long Hao Li, at 151 (Roth, J., dissenting).
15 Xun Li, 559 F.3d at 1109 (quoting Fisher v. INS, 79 F.3d 955 (9th Cir. 1996)).
16 Compare Long Hao Li, 633 F.3d at 144 (finding “that Chinese law penalizes people who assist others who cross the border illegally”), with Xun Li 559 F.3d at 1098 (stating that the court has not “discovered a Chinese law that prohibits providing assistance to foreign refugees”).
17 See Ang v. Gonzales, 430 F.3d 50, 55–56 (1st Cir. 2005).
18 See infra section I(B).
19 8 U.S.C. § 1158(b)(1)(A) (2012); 8 U.S.C. § 1101(a)(42)(A) (2012); see also 8 C.F.R.
§ 208.13(b)(1), (b)(1)(i)(A)–(B) (2013) (stating that the well-founded fear of future persecution is presumed when suffering from a past persecution is proved; however, the government can
rebut this presumption by a preponderance of evidence that the conditions in the applicant’s country have changed or that the applicant is reasonably expected to relocate to another part of country).
20 8 U.S.C. § 1158(c)(2) (2012).
21 Michel Moussalli (Director of International Protection), Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, ¶ 51, U.N. Doc. HCR/IP/4/Eng/REV.1 (1979)
[hereinafter U.N. Handbook].
22 13 Am. Jur. 3D Proof of Facts § 4 (1991) [hereinafter Proof of Facts]; see also U.N. Handbook, supra note 21, ¶ 52 (“The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. It is also in the light of such opinions and feelings that any actual or anticipated measures against him must necessarily be viewed.”).
23 Proof of Facts, supra note 22, § 4.
24 Tafreshi v. McElroy, 112 F.3d 505, No. 96-2755, 1997 WL 234670, at *2 (2d Cir. 1997) (unpublished table decision (quoting Melendez v. U.S. Dep’t of Justice, 926 F.2d 211, 215 (2d Cir. 1991); 8 C.F.R. § 208.13(a) (2013); see also Doptante v. INS., 198 F.3d 253, No.
97-71408, 1999 WL 801509, at *1 (9th Cir. 1999) (unpublished table decision); Velis v. INS, 47 F.3d 1178, No. 94-9526, 1995 WL 66536, at *3–4 (10th Cir. 1995) (unpublished table decision).
25 Proof of Facts, supra note 22.
26 Ramirez Rivas v. INS, 899 F.2d 864 (9th Cir. 1990), vacated, 502 U.S. 1025 (1992) (mem.).
27 Blanco-Lopez v. INS, 858 F.2d 531, 534 (9th Cir. 1988) (holding that a government’s prosecution is “legitimate” if it has undertaken “formal prosecutorial measures”), superseded by statute, Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, as recognized in Parussimova v. Mukasey, 555 F.3d 734, 739–40 (9th Cir. 2008).
28 See, e.g., Ramirez Rivas, 899 F.2d at 868 (citing U.N. Handbook, supra note 21, ¶ 85).


† Ra Hee Jeon was born and raised in South Korea. She graduated cum laude from George Washington University in 2011, and she received her Juris Doctorate degree from Regent University School of Law in 2015. She currently practices immigration law in Virginia Beach, Virginia.

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Legitimate Persecution: The Effect of Asylum’s Nexus Claim https://jgjpp.regent.edu/legitimate-persecution-the-effect-of-asylums-nexus-claim/?utm_source=rss&utm_medium=rss&utm_campaign=legitimate-persecution-the-effect-of-asylums-nexus-claim Sun, 18 Aug 2024 03:59:40 +0000 https://jgjpp.regent.edu/?p=623 Nicholas Bolzman* | 1 Regent J. Glob. Just. & Pub. Pol. 3 (2014) Download PDF INTRODUCTION For the past forty years, the United States has suffered from a schizophrenic asylum policy. To obtain asylum, applicants must meet two requirements—that they fear or have experienced actual persecution, and the persecution was on account of one of five listed grounds: race, religion, nationality, membership in a particular social group, or political opinion.[]...

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Nicholas Bolzman* | 1 Regent J. Glob. Just. & Pub. Pol. 3 (2014)

Download PDF

INTRODUCTION

For the past forty years, the United States has suffered from a schizophrenic asylum policy. To obtain asylum, applicants must meet two requirements—that they fear or have experienced actual persecution, and the persecution was on account of one of five listed grounds: race, religion, nationality, membership in a particular social group, or political opinion.[1] While the first requirement is expansive and able to adapt to whatever new creative forms of harsh treatment persecutors develop, the second, called the nexus clause, finitely and arbitrarily narrows and limits asylum to only those who have suffered a type of persecution foreseeable to the statute’s drafters.

Although an improvement to the prior ad hoc and geographically limited criteria for asylum, the internal tensions in today’s asylum law have resulted in both inconsistent results and distracting litigation— both of which harm the very people asylum law is supposed to help. Despite being an attempt to modify the persecution element, the nexus clause, as interpreted by the courts, has become, at best, an unnecessary complication and, at worst, an inadvertent legitimation of the persecution that an asylum law should protect against. The result is a policy that arbitrarily excludes victims of persecution when their persecutor’s motivation is not recognized under the limited nexus clause, a practice that inadvertently declares the persecution legitimate. Examples of such exclusions are victims of persecution based on gender and sexual orientation, those targeted for female genital mutilation (FGM) or recruitment as child soldiers, and those subjected to persecutory laws of general application.

This shortcoming could be addressed by adding gender, age, or laws that violate other basic human rights to the nexus clause list. But this would only be a surface fix. The heart of the difficulty is an inherent conflict written into the asylum law itself. Identifying this conflict makes the solution simpler than creating a laundry list of the various types of persecution that people may face around the world. Instead, the United States can simply offer asylum to those who are persecuted for any illegitimate motivation. This would recast the nexus clause as a classification, instead of an additional criterion, or could even be used to remove the clause altogether.

HISTORY OF THE U.S.’S ASYLUM POLICY

The United States’ asylum policy is historically intertwined with— and is still a subset of—its immigration policy. When immigration rules were lax, there was no need for a separate asylum procedure for refugees to obtain permission to enter the United States. The only time the issue of asylum would come up was in response to extradition procedures when an alien’s home country demanded its citizen back.[2] Refugees were not even given legal recognition until 1948.[3]

From the nation’s founding until 1875, there were virtually no immigration restrictions.[4] Refugees could enter the same as anyone else. Restrictions began in 1875 with prohibitions on prostitutes and criminals,[5]and continued over the next several decades: Chinese immigration was prohibited in 1882,[6] anarchists were excluded in 1903,[7] and illiterates were barred in 1917.[8] The first quotas restricting the number of foreigners allowed to enter the country annually were enacted in 1921, but there were still no affirmative eligibility requirements to meet before entry.[9] During this era, because the immigrants’ reason for seeking entry was simply irrelevant and there was no need to place refugees into a separate class, refugees would be admitted or excluded on the same criteria as any other alien. Yet, with the adoption of quotas, refugees competed with all other types of immigrants. The result, as Fragomen and Bell explain, was that refugees were increasingly squeezed out:

While restrictions on immigration increased, no special provision was made to permit the continuing entry into the United States of persons seeking sanctuary from persecution in their home countries. The result was that the previously open doors were shut completely to refugees; the worst example of this policy came in the 1930s, when Congress refused on several occasions to enact legislative exceptions to the strict quota policy then in effect in order to permit the entry of refugees from Nazi terror, including proposed exceptions for groups of Jewish orphans.[10]

Although likely unintended, the effect of the increasingly restrictive immigration policies adopted in the early twentieth century was to leave out refugees altogether.

It was not until after World War II, in the Displaced Persons Act of 1948, that refugees first received legal recognition.[10] However, it was so highly restrictive and technical that ninety percent of displaced Jews, whom this act was supposed to help, did not qualify.[11] This act was extended in 1950, 1951, and 1952, but remained geographically limited to the countries liberated from German rule.[12]

In 1953, Congress also adopted the Refugee Relief Act, which provided for the admission of 28,000 refugees, half of which needed to be from Eastern European countries.[13] The purpose was largely political: “[s]pecial allotments were provided for Sweden, Iran, and Greece (countries viewed as bulwarks of democracy against Soviet expansionism).”[14] Sponsorship by U.S. citizens was required for all applicants.[15] However, these combined acts, which addressed refugees “on an ad hoc basis . . . while failing to devise an overall policy,”[16] were inadequate for the refugee crisis following the 1956 Hungarian revolution and the subsequent invasion of Hungary by the Soviet Union.[17]

The Hungarian revolution produced approximately 200,000 refugees, and the United States was unable to meet its portion of the demand under the Refugee Relief Act of 1953.[18] Once all refugee slots were full, President Eisenhower, after consulting with Congress, authorized the Attorney General to use the newly created parole power to admit additional 15,000 refugees.[19] This new parole power had been added by the Immigration and Nationality Act of 1952.[20] Anker and Posner describe it as follows:

Section 212(d)(5) was originally enacted to authorize the parole of otherwise inadmissible aliens. Derived from early administrative practice and operational instructions, it was designed to overcome some of the stringent entry requirements contained in the INA without allowing the alien the legal protections granted with formal entry into the United States. While both the prior administrative practice and the legislative history of the INA indicate a purpose to benefit individual aliens in emergency situations, the 1956 Hungarian crisis heralded “the first, but by no means the last,” use of the parole provision for the mass admission of refugees.[21]

The parole power was again used to admit refugees from the Cuban revolution of 1959, and then again for Chinese, Czechs, and Indochinese in the 1960s and 1970s.[22] Each time Congress tacitly approved the measure by passing legislation permitting the paroled refugees to adjust their statuses to that of legal permanent resident.[23]

Congress finally created an immigration category for refugees in the 1965 amendments to the Immigration and Nationality Act.[24] These amendments also did away with the national quota system and replaced it with the priority system that is the basis for today’s immigration policy.[25] However, most of the refugee restrictions from the prior ad hoc acts were kept.[26] To be eligible for asylum, applicants had to meet four criteria:

1) departure from a communist-dominated country or from a country within the general area of the Middle East; 2) the departure constituted a flight; 3) such flight was caused by persecution or fear of persecution on account of race, religion, or political opinion; and 4) an inability or unwillingness to return.[27]

Because of these geographic and ideological limitations, the act was inadequate to deal with refugees globally, and de facto refugee policy continued to be largely set by the executive branch’s parole power.[28]

Congress eventually adopted today’s refugee policy in the Refugee Act of 1980.[29] This new policy was designed to “remedy the ideological and geographical biases that had infected earlier US refugee policy.”[30] To accomplish this end, it opened up the refugee definition to applicants worldwide, rather than limiting it to certain geographic areas.[31] It also modeled the definition of refugee devised by the 1967 United Nations Protocol Relating to the Status of Refugees.[32] As Price explains, this act “for the first time created an explicit statutory basis for asylum.”[33] This definition of refugee is still in effect today. But as will be shown, while it eliminated the arbitrary geographic limitations and opened up the ideological restrictions, it still falls short of providing a truly expansive refugee policy.

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  1. 8 U.S.C. § 1101(a)(42). ↩
  2. See MATTHEW E. PRICE, RETHINKING ASYLUM: HISTORY, PURPOSE, AND LIMITS 25 (2009). ↩
  3. See AUSTIN T. FRAGOMEN & STEVEN C. BELL, IMMIGRATION PRIMER 194 (1985).   ↩
  4. See id. ↩
  5. See id.; Act of March 3, 1875, ch. 141, §§ 3, 5, 18 Stat. 476, 477. ↩
  6. See FRAGOMEN & BELL, supra note 3, at 194 n. 3; Act of May 6, 1882, ch.126, § 1, 22 Stat. 58, 58–59. ↩
  7. See FRAGOMEN & BELL, supra note 3, at 194; Act of March 3, 1903, ch. 1012, § 2, 32 Stat. 1213, 1214 (repealed 1907). ↩
  8. See FRAGOMEN & BELL, supra note 3, at 195; Act of Feb. 5, 1917, ch. 29, § 3, 39 Stat. 874, 875 (repealed 1952). ↩
  9. See FRAGOMEN & BELL, supra note 3, at 195; Act of May 29, 1921, ch. 8, § 2, 42 Stat. 5 (repealed 1952). ↩
  10. Id. at 194; Displaced Persons Act of 1948, ch. 647, 62 Stat. 1009. ↩
  11. Deborah E. Anker & Michael H. Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980, 19 SAN DIEGO L. REV. 9, 13 (1981-82). ↩
  12. See FRAGOMEN & BELL, supra note 3, at 195; Anker & Posner, supra note 12, at 13; Act of June 16, 1950, ch. 262, 64 stat. 219; Act of June 28, 1951, ch. 167, 65 Stat. 96; Act of June 27, 1952, ch. 477, 66 Stat. 277. ↩
  13. See BARBARA M. YARNOLD, REFUGEES WITHOUT REFUGE: FORMATION AND FAILED IMPLEMENTATION OF U.S. POLITICAL ASYLUM POLICY IN THE 1980’S 13 (1990); Refugee Relief Act of 1953,,ch. 336, 67 Stat. 400. ↩
  14. Anker & Posner, supra note 12, at 14. ↩
  15. See YARNOLD, supra note 14, at 13. ↩
  16. FRAGOMEN & BELL, supra note 3, at 195. ↩
  17. See Anker & Posner, supra note 12, at 14–15. ↩
  18. See id. at 14–15. ↩
  19. Id. at 15; FRAGOMEN & BELL, supra note 3, at 195–96. ↩
  20. See FRAGOMEN & BELL, supra note 3, at 195–96; 8 U.S.C. § 1182(d)(12). ↩
  21. Anker & Posner, supra note 12, at 15 (footnotes omitted). ↩
  22. FRAGOMEN & BELL, supra note 3, at 196. ↩
  23. Id. ↩
  24. See Anker & Posner, supra note 12, at 17. ↩
  25. See id. at 18. ↩
  26. Id. at 17. ↩
  27. Id. ↩
  28. See YARNOLD, supra note 14, at 15; Anker & Posner, supra note 12, at 18–19. ↩
  29. Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (codified as amended in scattered sections of 8 USC, 20 USC & 22 USC); 8 U.S.C. § 1101(a)(42). ↩
  30. PRICE, supra note 2, at 86. ↩
  31. See id. ↩
  32. Id.; Protocol Relating to the Status of Refugees art. 1(2), Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967) (removing date cut-off from Convention Relating to the Status of Refugees art. 1(A)(2), July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150). ↩
  33. PRICE, supra note 2, at 86. ↩

*J.D. 2013, Michigan State University College of Law. Special thanks to David and Veronica Thronson for teaching me immigration law and assisting with this article.

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