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.”
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.