Trading Asylum Rights for Ukrainian Aid is Wrong-Headed #saveasylum

Written by: Bill Ong Hing, Professor of Law and Migration Studies

     President Biden’s willingness to negotiate away fundamental rights for asylum seekers at a time when violence-driven migration is at an all time high is very disappointing. Apparently, the White House is willing to make significant concessions on US immigration policy in order to secure Republican support for foreign aid for Ukraine. Among the concessions would be a heightened standard for asylum screenings at the border, an arbitrary cap on asylum, a transit ban denying asylum to migrants who pass through another country en route to the United States, and the expansion of a fast track deportation process known as "expedited removal." The authority would be employed nationwide instead of its current application at the border, The policies, if enacted, would reinstate Trump-era policies and put millions of immigrants settled throughout the U.S. at risk of detention and deportation.

     Instead of bowing to political pressures to define situation as a border crisis, the President should be taking the opportunity to explain that we are facing a humanitarian challenge because migrants are largely being forced to flee their homelands because of gang, cartel, and domestic violence. A recent visit to the border confirms what I have been witnessing for several years: the desperation of asylum seekers waiting at the border or in detention centers flows from their fear of persecution at the hands of public officials in their home countries or private actors that their governments cannot control.

     Instead of curtailing the rights of asylum seekers, President Biden should boldly announce a new commitment to our international refugee obligations and make sure that immigration judges and asylum officers use a humanitarian approach to asylum decisions. I was proud to be co-counsel in INS v. Cardoza-Fonseca, the 1987 case when the Supreme Court held that a 10 percent likelihood of persecution was sufficient to qualify for asylum. The Supreme Court recognized the compassionate purpose behind asylum. That recognition is consistent with the approach endorsed by the UN High Commissioner on Refugees that it is “frequently necessary to give the applicant the benefit of the doubt.” Given the risks of an erroneous decision in an asylum case, providing the applicant with the benefit of the doubt makes sense. After all, if you are going to make a mistake in an asylum case, you should prefer granting asylum to someone who is not going to be persecuted over deporting an asylum seeker who gets killed.

     Unfortunately, because immigration judges are political appointees in the Department of Justice regulated by their boss—the Attorney General—some of them have asylum approval rates of less than 3 percent! Thus, if they President really wants to make a difference, he should be promoting legislation that create an independent federal immigration court. A new court system needs to be institutionalized in a form to minimize political influence and with better tools. The new system would stop the detention of asylum seekers, provide applicants with free counsel and mental health services, and train decision makers on a humanitarian and trauma-informed approach to adjudication.

     As part of the new system, we should adopt a policy modeled after criminal procedure. In criminal law, the concept of “innocent until proven guilty” or “presumed innocent” is fundamental. Similarly, in the asylum arena, we should presume eligibility once the application is filed, and the applicant should be granted asylum, unless the government can prove beyond a reasonable doubt that the applicant will not be persecuted. The life-and-death stakes in asylum cases could not be higher and demand this presumption.

     Additionally, the funds being put on the table for further border enforcement would be better spent in investing in entities and programs in sending countries designed to address the root causes of violence. That investment is something that anyone—Democrat or Republican—should support. If they really want to see fewer migrants approaching the US southern border, then they should invest in addressing root causes of migration rather than treating asylum seekers like criminals.

Bill Ong Hing

Professor of Law and Migration Studies

University of San Francisco

Author of Humanizing Immigration (Beacon Press 2023)

Email: bhing@usfca.edu

Cell: 415-846-2122