For Fairness, Keep Asylum Distinct From Immigration

The Supreme Court has soundly repudiated the government’s requirement that applicants for political asylum show that they are “more likely than not” to be persecuted if returned to their country. Instead, the court tells us, Congress intended the Refugee Act of 1980 to be “more generous” than that. However, experience teaches us that generosity is quickly sacrificed in the face of large-scale first-asylum influxes such as those that the United States has seen since 1980.

The Refugee Act gave us a method and criteria to decide on admittance of people directly from their home country. Scant attention was devoted to the situation of people who got here on their own and then sought asylum as refugees. The problem of “first asylum” became overwhelmingly evident with the Mariel boatlift, Premier Fidel Castro’s export of 125,000 Cubans to Florida one month after the act passed.

Other Western nations have experienced similar pressures, unprecedented in size and suddenness, and have concluded that their asylum provisions were being abused to circumvent traditional refugee selection processes. Most have tightened their systems significantly to discourage access to the judicial system through claims and appeals that can take years. Our government did the same just as the full weight of the Central American migration of the 1980s, particularly that from El Salvador, began to be felt.

Although the recent Supreme Court decision arose from a Nicaraguan’s case, the facts were typical of thousands of Salvadoran claims, by far the largest caseload from Central America. Migration from El Salvador had traditionally been economic in origin. The surge began during the late 1970s when severe political repression became widespread.

No one can know what the percentage of true refugees among Salvadoran claimants might have been, because the Administration’s approach and procedures foreclosed an honest review. Probing the line separating economically and politically generated flight was a new complexity that officials brushed aside. Overwhelmed by applications, they believed that Salvadorans were filing for political asylum to stop the legitimate enforcement of departures so that they could remain here to work. Thus the Salvadoran claims were judged particularly harshly: The approval rate was 2%.

This record stood in stark contrast to widespread reporting of death-squad activity and personal accounts of atrocities in El Salvador. Still, to this day the Immigration and Naturalization Service and the Department of State steadfastly insist that Salvadorans have essentially been economic migrants.

Characteristically, State acts as a refugee advocate within the government. In this instance, however, generous refugee admissions hardly would serve the larger foreign-policy agenda of support for the governments generating the major flows.

Had a humanitarian refugee policy been an important component of U.S. policy toward Central America, and had the INS made a successful effort to evaluate claims quickly and fairly, a best guess is that 15% to 20% of Salvadoran claimants who arrived before 1982-83 would have been granted refugee status. The debate would then have shifted to the truly difficult issue: How does a nation fashion an asylum policy and system that are at once fair and resistant to abuse?

The starting point must be fairness. A corps of specialized asylum officers is required to decide applications based on current information about country conditions. These officers should be specially trained and insulated from competing law-enforcement tasks. Information to guide their decisions must be drawn from many sources, not only from the State Department, to ensure objectivity. The legal standard to assess persecution must be consistent across nationality groups, and decisions must be based predominantly on in-depth interviews with applicants.

Next, the major objective must be timeliness. Applications should be decided quickly, within three months at most, to deter the filling of claims to gain authorization to work in the United States. If a fraction of the resources that have been devoted to detention centers for asylum-seekers had been directed instead at the asylum adjudicatory process, crippling backlogs that invite frivolous applications would not have appeared. Moreover, interim regulations, hastily prepared after the act passed, have never been replaced with definitive guidance for field personnel.

Finally, foreign-policy measures that inflame migration must be reexamined. The rapid increase in the size of human population coupled with growing income disparities among nations, especially in the Americas, and growing political instability worldwide have greatly increased the potential for first-asylum influxes. There will surely be more.

The Administration has severely mishandled the asylum mandate in the name of immigration control. In setting the record straight, the Supreme Court has ruled that time-honored humanitarian principles embodied in U.S. law cannot be set aside to choke off unwanted asylum requests. But the generosity that it correctly demands will be in short supply again unless we translate our traditions and law into a system that speaks to the reality around us.