Fear and Loathing in the Asylum System, Part Deux

by Jason Dzubow on August 25, 2011

in Asylum, Asylum Seekers

Digg This
Reddit This
Stumble Now!
Buzz This
Share on Facebook
Bookmark this on Delicious
Share on LinkedIn
Bookmark this on Technorati
Post on Twitter
Google Buzz (aka. Google Reader)

In this series (I suppose two posts counts as a series), I’ve been writing responses to some restrictionist proposals to reform the asylum system.  My first piece was a response to Professor Jan C. Ting, who suggested we move asylum adjudication from DHS and EOIR to the U.S. Department of State.  Today, I will examine Mark Krikorian’s suggestion in the New York Times that we expand the concept of a “safe third country.”

Mr. Krikorian is the Executive Director of the Center for Immigration Studies.  He writes that under the safe third country principle, which is “widely used elsewhere,” a foreigner “should not even be allowed to apply for asylum if he has passed through another country where he could have applied first.”  “Because claims are so hard to prove, asylum will always be one of the most fraud-ridden parts of the immigration system.”  By cutting out all who pass through “safe” third countries, such as Mexico, which is supposedly implementing a new law to protect asylum seekers, we would reduce the number of asylum seekers eligible to apply in the U.S.  Mr. Krikorian believes that by “narrowing the focus of the system, we can more easily cope with the lies and fraud that are an inevitable part of asylum adjudication.”

Mexico doesn't seem like such a safe third country to me.

The idea that we should not allow people to pass through other safe countries before seeking asylum in the United States seems reasonable.  However, there are several reasons why I don’t support Mr. Krikorian’s proposal (aside from the fact that it probably wouldn’t be in compliance with our current treaty obligations): 

The first issue is how to determine whether a given third country is “safe.”  For example, if an Eritrean escapes from her country and enters Sudan, and then flies directly to the U.S., is she barred from asylum here because Sudan is “safe?”  Most people would agree that Sudan is not safe, and specifically, it is not safe for Eritrean refugees, who are sometimes kidnapped and returned to their country (usually to complete their compulsory national service).  What about a person who passes through several different countries and then comes to the United States?  How do we decide if a given country is safe for that person?  To give another example, it is perfectly safe for me to go to Kenya for a vacation.  However, it is probably not safe for an Ethiopian refugee to live in Kenya.  So under Mr. Krikorian’s system, an asylum seeker would need to prove that every country she passed through was unsafe.  To present that proof would require a certain amount of resources–and probably a decent lawyer.  Only those who could afford to make their case would qualify for asylum.  This seems like an arbitrarily way to determine who qualifies for protection in our country.

A related problem is that adjudicators would have to make an independent determination about the safety of each country that the asylum seeker traveled through.  Such a burden on asylum adjudicators would complicate the cases, cause additional delay, and probably result in less fair decisions.

Another issue is that, as a world leader, other countries follow what we do.  If we reduce the humanitarian benefits we provide to asylum seekers, other countries will likely follow suit.  This would generally weaken the international system for protecting persecuted people.

Finally, behind Mr. Krikorian’s suggestion is the supposition that asylum seekers coming to the U.S. is a bad thing.  I think this is dead wrong.  Our country greatly benefits from asylum seekers.  This has been historically true, and continues to be true today.  My clients include doctors, journalists, people who are working with U.S. forces in the war on terror, engineers, and scientists.  I don’t always know whether they are telling me the truth about their asylum claims, but I have no doubt about the positive contributions they make to our country.  While I certainly do not support allowing fraudulent asylum seekers to take advantage of our generosity, I do not accept the premise that asylum seekers are a burden on our country. 

So, in the end, I oppose Mr. Krikorian’s “safe third country” idea.  As I mentioned in my first post in this series, the problem of asylum fraud is simply not severe enough to warrant dramatic restrictions on relief.  At least in my estimation, any reduction in fraud from tightening the system is not worth the inevitable harm to legitimate asylum seekers.

{ 7 comments… read them below or add one }

bill holston August 25, 2011 at 12:50 pm

well said sir. I particularly like the your promotion of the idea that we BENEFIT from the presence of asylum seekers. My experience with asylum seekers is that they believe in the rhetoric of America. It causes them to underestimate how hard it will be to obtain asylum.They believe that we are a democratic safe country more than most native born Americans.

I’ve never talked to an asylum seeker that really could have stayed in any country they passed through. Your illustration of Eritreans is spot on.

sanu kc August 26, 2011 at 4:58 pm

the question of “safe third country” is a logical solution in some country context. take for example india is a “safe” country for assylum seekers from tibet and nepal. but they choose to come to america to apply for assylum. they spend a few thousand dollars for this purpose. but this amount of money could sustain them a comfortable lifestyle in india for an extended period of time. let us consider an example of a prospective refugee from nepal coming to america.
after she arrives she has to wait a few months to file I589. and during the process if she is a law abiding person will not engage in any work and has to sustain herself with fooding and boarding charges. and if reffered to immigration court will have to fork out another few thousand dollars to process her case. therefore the amount of money involved is very high which hints at the possibility of seeking assylum solely for the purpose of obtaining a legal staus in the usa. therefore emphasis of “safe third country” based on country context can be a reliable way of detering illegitimate assylum seekers.

Jen August 27, 2011 at 6:43 pm

I realize it is quite possible that I have misunderstood something in this article, but I don’t believe that the third country principle indicates that a person may not apply for asylum if they have passed through another “safe” country. I think the conversation might be confused with “first country of application” which refers to the concept that a person cannot go “asylum shopping” by applying in several different countries and so cannot apply in a country after they have already applied somewhere else. As stated in a background paper from the UNHCR in 2001:

Access to a substantive procedure can legitimately be denied to a person who has already found protection in a first country of asylum provided that such protection continues to be available. When it comes to the issue of return to a “safe third country” of an asylum-seeker whose claim has yet to be determined, UNHCR Executive Committee Conclusions No. 15 (XXX) and No. 85 (XLIX) have laid down the following basic rules:
(i) the circumstance that the asylum-seeker has been in a third State where he could have sought asylum does not, in and by itself, provide sufficient grounds for the State in whose jurisdiction the claim has been submitted to refuse considering his/her asylum request in substance and return him/her instead to the third country;
(ii) the transfer from one State to another of the responsibility for considering an asylum request may only be justified in cases where the applicant has meaningful links or connections (e.g. family or cultural ties, or legal residence) with that other State;

Jen August 27, 2011 at 6:49 pm

Yes. I now know I misread the article. Egg on face.

Jason Dzubow August 27, 2011 at 11:33 pm

No worries – actually your comment was quite helpful as it points to the existing international law that Mr. Krikorian seeks to amend (or at least he seeks to amend how the US implements that law).

Jason Dzubow August 27, 2011 at 11:42 pm

I think you point out a legitimate argument (as does Mr. Krikorian). I believe the problem with that argument is that no country is safe for everyone all the time. For example, India might not be safe for certain asylum seekers from Nepal, even if it is safe for the majority of Nepali asylum seekers. We could create a blanket prohibition–for example, banning all Nepali asylum seekers who come to the US via India–but this would invariably result in some Nepalis being denied asylum unjustly (specifically, Nepalis who passed through India but who could not remain safely in India). I think this form of justice is a bit too rough. A counter-argument to my point is that perhaps the journey from India to the US is unsafe, and so maybe we help people by deterring them from making the journey. Again, though, I feel that each individual needs to balance for himself whether it is safer to risk a trip to the US or safer to remain where he is.

Asylum seeker March 5, 2012 at 2:41 am

RE: SANU KC

Your comments are out of line. I am more than confident (since your name is nepalese and you seem to have the knowledge that Nepalis travel to India without any travel document) that you want Nepali asylum seekers to not come to USA for the asylum purpose or want the asylum seekers already in USA to save attorney fees and go to India and live a luxurious (in your view) life. It should be, always, the choice of asylum seeker where to flee. It is different that someone living in third country for a longer period of time should be taken differently but questioning the choice of protection is very very bad. First, asylum is straight forward LEGAL WAY of showing humanity, kindness and a helping hand. How can same system says go to 13 different countries and finally show up here if you have no success. That will be flies in the face (in Attorney’s words) of international obligation of US government. And for a asylum seeker it will not make any sense. For example: I am a Nepali and I need protection, and I chose to flee to India since a treaty allows Nepali and Indians to travel across the border without any travel document. In this case I did not bring the issue of my persecution risk and silently traveled to India and started living there not as an refugee but as a Nepali protected by a treaty. What will be my situation if both countries proceed to terminate the treaty and I am required to go back again? So your Indian Idea could be different tomorrow.

Also as an asylum seeker, I consider myself a legal beggar. For me, it is no different than a homeless guy holding a banner saying ” Hungry!!” Only difference is most of the time drivers passing his way are not in the position to say, “go for it, if you are hungry, ask for it, I gatch you”. Here in this scenario, person (US Government) being begged is encouraging, showing sympathy and providing helping hand. Now if same person (US government) says you should have begged with others before begging me, how does that sound? How is generosity and action match here? A beggar is and will always going to decide not to beg with someone. If you don’t even think he is hungry do not give him anything, end of the story but not giving him food just because he failed to beg with others is ridiculous especially when you go out in the group of friends (for example: US in international conventions) and say hey you know what, a guy was as asking for a food and I fed him. Just imagine how cheap would it sound if he says, hey you know what, a guy was hungry and I didn’t fed him because he should have asked with others first.

We all know and we don’t even need to discuss that who passed thorough 13 countries had a straight forward intention to apply asylum only in the united states. Its clear and do not know why people like professors waste time talking about this. But, even for a refugee being safe is not the end of the life. We, just like anyone else, want to become a better person in life after protection. And just like anyone else, have to think the life ahead of protection, and just because we do that does not make us NOT REFUGEE and does not entitle us a be a possible applicant just for legal status. For example: One left home because he is broke but hungry. He went to market and saw three shops offering free food which is distributed after verifying he is broke and signing up a document that said he was given food. He knows that shop 1 and 2 offers food but does not offer free drink, but the third shop, which lies further deep in the market does because its in the news all the time. Now when he goes to the third shop passing 1st and 2nd people yell at him that he is there just because others don’t offer free drink and he could have feed himself on 1st or 2nd shop. What is the guy’s fault? When he left home shamelessly anyway for free food, what is wrong with finding the right shop so he can feed himself good? Bottomline is, just because he ended in third shop does not mean he was not hungry at all, the discussion should focus if he really was hungry rather than if he should have feed himself in 1st or 2nd shop if he got there earlier. If this really is an issue why even offer free food?

Leave a Comment

{ 1 trackback }

Previous post:

Next post: