tv Asylum Law in the United States CSPAN June 26, 2016 9:10pm-9:48pm EDT
law in the united states. 1980,gues that prior to refugee status was based on foreign policy rather than internationally-accepted humanitarian criteria. this de-minute lecture is part symposium sponsored by the u.s. capital historical society on the history of immigration. >> our first speaker is renee redman. we had two people who went to some obscure school in ann arbor for their law degree, so now we have someone for michigan state where written a did her degree. importantly, she was a french horn major and played for the jerusalem symphony orchestra the unitedng back to
states to go to law school, where i had the fabulous, phenomenal good luck of having renee as a student. she has gone on to clerk for a federal district judge, work on wall street, and she moved to connecticut where, at one point, she was the litigation director of the aclu connecticut. she has taught at all of the law schools in connecticut or been affiliated with them in one way , sheother, and right now has an immigration law practice in connecticut. for all of the practical and we havecal's scholars there, we now have a scholar in the trenches on a day-to-day basis. renee. [applause] renee: i don't think i need -- andk you very much, paul, thank you, capitol historical society for inviting me.
true honor to be speaking in this room today. when i say a short history of u.s. asylum law, it's going to be short. we do not have time to go over all of it. i think i should start off by saying it's a very complex area of wall. it's very much in development. it's relatively young. the asylum regime was really only enacted in the refugee act of 1980. it is still very much part of litigation in the immigration courts and federal courts. the other thing i will do is limit my discussion to asylum. there are many laws and programs in our legal system that allow people to stay in the united states or humanitarian reasons that are not technically asylum. the convention against torture, protected status, various programs, and of course, regular family and employment
immigration. so, asylum law is different from refugee law in the sense that refugees are people outside of the united states brought into the united states because they meet the definition of refugee. asylum applications are by people already in the united states -- regardless of how they got here, whether they entered with or without a visa. they have to apply for asylum. but in order to be granted asylum, they have to meet the definition of refugee. which is in the united states -- and is virtually identical to be definition, and they have to face persecution on one of five grounds -- political, race, nationality, race, religion, national ity, membership in a social
group. there's a presumption that the person will be persecuted in the future. this is a loaded definition, right? a subject of lots of litigation, lots of discussion. the short definition is it is usually more than dissemination but it does not have to be the level of torture. on account of is a nexis between the persecution and one of five rounds, and many of the grounds are the subject of litigation. the hot topic these days is who belongs -- who has a membership in a particular social group? is the broadest definition -- on purpose. the u.n. purposefully made it a very broad group. here?w did we get 1980, as several speakers
have commented, we have been a nation where people came to escape persecution and discrimination all over the world. the many millions of migrants who came at the end of the 19th, 20th century, many came to escape programs, political and religious dissemination. we did not call them refugees, but that is why many of them came here. professor finkelman's relatives came here for that reason. really searchot of have any refugee policy until after world war ii, when of course, we have discussed there were lots of displaced people in europe. not only people who had survived the camps and the holocaust, but also people fleeing what was rapidly becoming the iron curtain. europe was built with people who home not go to their
country or did not desire to go back to their home country. 1951 u.n. refugee convention hcr, which still exists. it was charged with resettling in taking care of what the u.s. does call or did call a displaced person. there was a lot of resistance to this in the united states. the united states did not ratify the treaty. was a displaced persons act passed in 1948 which would allow some people to come into the united states, and that of course, we have the immigration and nationality act passed in 1952, which is still our basic the laws after that are amendments to that law. there are no provisions for asylum in that act. s used 1980, the president
their executive authority and congress passed a law to allow certain people to enter the united states, almost exclusively based on foreign-policy considerations rather than humanitarian. the focus, of course, was the on communism. the government did not see any need at that point to really look at individual situations. i can name a few of these programs. one has been referred to -- it's the refugee release act of 1953. actr the displaced persons expired in 1952, president eisenhower asked for a replacement. i'm not sure. thesethink about 200,000 as were allowed for what were termed refugees. it was a rather broad definition at that time. remember, these are people who were going to be designated as refugees and brought into the united states and it included
people who feared persecution or through displaced national calamity or military operations. usual placet of his of abode. it also provided for a very limited asylum. it did provide those who entered on a non-immigrant visa prior to 1953 and feared persecution could apply to the attorney general for residents, but of course, each case had to be individually approved by congress. this was not going to be a massive program by any means. granted eisenhower refugee status to about 12,000 hungarians who were fleeing be failed revolution. had beend states
involved in trying to fall meant that revolution and felt obligated. most people doubt every single one of those thousand was involved in the refuge -- in the revolution. there were many people who just wanted to get out of communist hungary. there was very little resistance to that in public or in congress. and similarly, congress did not oppose kennedy allowing an anti-castro cubans. cubans started coming out, both by plane and april, 1961, over 125,000 cubans arrived in the united states and every single one was allowed to stay. eisenhower and kennedy apparently -- at least on some level, viewed this to be temporary.
they believe these people would eventually return home. another wave came in 1965. and in 1966, the cuban adjustment act passed, and this basically provided that any wasve person from cuba status to apply for after being paroled in the united states for one year. that still exist. that still exists. we still have the cuban adjustment act. cuban refugees were arriving by boat and they did not receive this warm welcome, largely based foreign-policy. there was less ethnic support and there was a lot of believe these people were poor, black, it could not be resettled. a lot of resistance to allowing
haitians to stay in the united states. there was a lot of litigation about haitians and the right to apply for asylum and to some extent it continues today. we talked about -- earlier today, the immigration act of the did do away with national origin quota and it also provided visas for refugees. refugeest was 6% for playing persecution and a communist dominated country or a country in the middle east. and again, had nothing to do with individual consideration. only with where someone was from. before the fall of saigon in april 1975, the largest group other than cubans to be brought
in were czechoslovakian's after the prague spring. and jews were fairly welcome, latinos not quite so welcome, again for foreign-policy reasons. the united states tried to prevent the election of i and -- the cosi was a marxist, inclined to give refuge to people fleeing from the coup by pinochet. with thepleaded government apparently. after the fall of saigon, close to three quarters of a million came tose eventually the united states. so, that is what was going on with refugees. 1980's -- this started in the late 1970's -- it started to become apparent there was increasingly large population of
people here in the united states who realistically could not be sent back to their home can use and had no organized method of applying for asylum or applying .o stay here there are many theories as to why. i can give you some of them. there may be truth in all of them. from the third world were more exposed to the lifestyle of western democracies and freedoms we enjoyed through television and radio, and now, of course, through the internet, and rather than flee across the border in africa, they decided they would come to the united states naturally. you cannot blame people for doing that. for more people come here that reason. transportation was more available. there simply were more planes available in the 1980's then in the 1950's. there was also a phenomenon -- i do not have the numbers on this, but, people in some countries would see that their fellow
countrymen had gained refugee status and they thought, why not me? i should be able to do that, too. there were also people brought here for other reasons. the shaw of iran -- the shah of iran had brought thousands of students to study and the united states. when he fell in 1979, there they were. not expectstates did eturn home, but there's no mechanism to stay. so, we had the refugee act of 1980. this is when the u.s. finally made refugee and asylum law part of the immigration lot regime. -- the u.s. had ratified the u.n. protocol in 1967, which meant it had
ratified the definitions from the prior 1951 convention, and as i said before, the new to -- take did take of definition on the one five grounds. also, just as a side note, it did incorporate article 33 of the convention, which is the article that basically says the united states agrees to not expel a refugee in any manner whatsoever to territories where his life would be threatened. this is a mandatory decision. there is no discretion involved, as the reason asylum. that980 act provided anybody who was granted asylum even one you're later would be
eligible to apply for lawful permanent residents, the green with and like anybody else a green card, would be eligible to apply for citizenship five years later. withholding does not carry that. withholding and removal is essentially someone allowed to stay here in the united states and they are allowed to have temporary work authorization, but it is not a path to getting a green card, lawful permanent residents, or citizenship. but this is also when we started not looking at asylum seekers as part of a group from a country or a society, but we started to view each asylum seeker individually. there were no quotas. everybody had to be viewed individually. as you can imagine there was a huge backlog instantaneously and the government was not prepared,
did not have the infrastructure to be interviewing all of these people who instantly appeared. the groups i mentioned were , in march and april, they started coming from more cubans arrived by boat and what is now known as the mariel boat lift. most of those people applied for asylum. 11,000 haitians arrived. they also applied for asylum. the detention centers, the number of detention centers were increased. reagan did increase the number of the tension centers.
but also, reagan did seek congressf the law from that would help with this and part of that was the cuban-haitian adjustment act, which provided cubans and haitians who resided in the united states since janeway first, 1982 could apply for -- cheney where he first, could apply for lawful permanent old residents.ermanent these people were allowed to stay because they had been here and were from either haiti or cuba. , there weres similar bills. there were all of these acronyms. immigration law is killed with acronyms. there was the nicaraguan and the haitianment act immigrant act in 19 any eight.
-- 1998. , the numberst time have gone up and down. the numbers of pending asylum applications. ,n 1992, first of all created the asylum poor, which still exists, officers charged with only conducting asylum interviews and specialize in asylum interviews. think, eighti jurisdictions, offices around the country. right now they are incredibly behind. the numbers did spike again in 1992.
they spiked again in 1995. the practical effects were, of course, you have all of these people in the country waiting for pending asylum applications. but part of the rule had been when someone files for asylum, they could also apply for a temporary work authorization, person, whileat they were waiting for the asylum application to be adjudicated, she could usually that she could legally work and get a social security number. there are people who filed for asylum -- i know it is hard to believe -- so they could get a temporary work authorization, knowing it would be years before the case was heard. regulations were promulgated in 1995 that said that people who had filed for asylum could not
apply for work authorization of they filed.ys after and that became law in 1996 under the illegal immigration reform and immigration in theibility act, which immigration law your world is kind of considered a watershed. afterk about pre-1996 and 1996 and this is one of the reasons. to puts began restrictions on the ability to file for asylum within the united states. there were exceptions if a person could establish what were called extraordinary circumstances. general rule was and remains someone who wants to apply for asylum must do so
within a year of entry. people who were convicted of a particularly serious crime were barred from applying for asylum. effective length -- effective litigation, but it barred anyone considered a danger to the security of the united states. it also barred anyone who had been firmly resettled in a third country. someones not mean that had permission to stay in a third country. it meant someone who was allowed her minute status. we still have arguments over that. that is still a limiting factor. the purpose was to prevent people from obtaining refugee status among country and then deciding they wanted to live in the united days.
i will give you an example -- i'm sure you know there's a war going on in syria. the last number i saw was 4 million syrians have fled the country. this is part of the largest movement of people and the world since post-world war ii, that we and the rest of the developed world are dealing with. just as after world war ii were you had family split up and one person would be here and one person would be there, and the laws did not often make it easy or even possible to have families live together, we see the same thing here. we see families where the parents might be in the united states, the child might be in germany, another child might be in sweden, and because of our , those children cannot be
with their parents under the asylum regime. once their parents become lawful permanent residents, but you are talking years after. people who arrived with faults had ants, unless they credible fear of persecution and we still have that regime. people who arrived at the border with faults documents or no documents are removed, unless they have a credible fear of persecution, which enables them to have a full interview about their fear of persecution. 2005 createdct of proof.r burden of just remember your it when someone comes to the united states, it is very rare they
have an affidavit from their persecutor saying, we will kill you if you come back. it does happen. i have seen letters from fathers. it does happen. but very little direct evidence. asylum case, you have to provide subjective fear and objective here. you do not usually have direct evidence. but now there is a higher statutory burden of proof, which requires some sort of corroborating evidence. unless it can be shown that evidence is not reasonably obtained. more difficult to bring an asylum page. you practically do need a lawyer. it is a case.
before i stop, i will tell you where we are with numbers. there are two dove agencies that here asylum -- that here asylum hear asylum cases. one is the department of homeland security. the other is the immigration judges. the immigration judges have been pretty steady -- there are usually 40,000 cases pending in a year. the number of asylum grants tend -- china and india, 50% of the grants were people from china and india. uscis, the numbers have dropped
dramatically since 1996. 2013, there only 44,000 -- i say only -- only 44,000 applications. the weight right now to hear an affirmative asylum application before uscis, unless the person is a child -- children take priority -- but if the person is not a child, the weight in many jurisdictions is over two years. in april, the newark, new jersey office said they were looking at applications filed in 2013. this is not an easy way to emigrate to the united days. it's very unsettling. i will and by saying the u.s. immigration system is still this time lock
and grappling with when humanitarian decisions should take precedence over political considerations and developing considerations of filing as opposed to some other humanitarian thoughts. thank you very much. [applause] yes, i was curious. i heard no mention of the vietnamese refugees who came here during and after the war there in southeast asia, as well as people from other countries in southeast asia like cambodia. renee: there were. there were close to three quarters of a million who came -- >> that's what i thought. renee: they were refugees who were brought in. most did not file for asylum
while they were here. was a correct when you said judges, immigration china and india -- why india? i understand china. at renee: you can't? what do you understand about china? i don't know. i would guess the punjab. i don't know why there are so many. anybody know? i don't know either. yes, ma'am. so, these 40,000 to 45,000 ore come here and proven said at the border, help, i need to be here. they?are are they here living illegally or -- people who include
arrived at the border and said they wanted to stay asylum, they include people who crossed the border without speaking to anybody, they include people who arrived and other sorts of these is and just stay. many are living among us. they are living and working here . and many of them are detained. well, they call it the attention. the united states has a huge detention system of detaining asylum seekers and other people seeking to stay in the united states. i would not be able to tell you right now. i just know. localf them are -- sheriffs offices and offices where they pay for space and some are run by private contractors. a
i'm not surprised. it's hard to find out exactly how many. yes, sir. >> suppose someone comes from a country and they have an objective fear of persecution and while they are -- while the case is being adjudicated, the regime is overthrown and the subjective fear would disappear. cases, does any pattern emerge whether the asylum is revoked because there is no longer a fear or once granted, is it permanent? renee: technically it's not permanent, but i have never heard of anyone having an revoked. particularly after someone gets these arerd. at
people granted asylum from a certain country, not expected to go back to that country. which -- i have seen people have their asylum taken away for doing that. >> wasn't a factor in one of these tsarnaev brothers -- renee: yes. yes, ma'am. >> years ago, when i was taking a class at george mason, there were some somalis in the class and they had a crisis in somalia and they could not go back. do you remember that? renee: yeah. >> i-8 wonder what happened to my friend. i don't know it she was able to go back. renee: she may not have gone back. she may have applied for asylum. >> she may have applied for asylum? enee: yes, many somalis were. yes, ma'am. the microphone is coming.
>> is there information about those who fled the balkans war? a lot of them came and settled and there was the expectation that we would have some and some really did want to go back to their particular countries, but i have not heard anything since they settled here. what is the status of that? renee: i did not hear which war you are talking about. >> the balkans war. renee: oh, the balkans. i do not know how many people have returned or not, to tell you the truth. i really don't. i don't see, personally do not see many people from their applied for asylum anymore, but that's just my personal experience. times when people resettle here, they make provisions for health, education, all of the basic necessities and organizations are usually responsible for
helping them. i just wonder -- it's almost like they came and nothing actually happened. usually there is a support system. then of course, my understanding causing a state department, if they come, they stay in an area for at least a year, and they do not go anywhere because they become more acclimated to the culture. at is just extraordinary for some groups to come and you really do not know if it is help or that particular country. is there anything they can do to sustain themselves while they are here? speaking about the refugee resettlement programs, the state department has a very involved program. they are granted not very much money to help people get that on
their feet, to provide for housing, english language, , psychological care. as you can imagine, many people are completely traumatized. many people have experienced extreme torture and other kinds of trauma, and i don't think they have to stay in one place for a year. they may have to to receive hasfits, but once a refugee entered the united states, the refugee can live wherever he or she wants to live. there are countries that limit where someone can live, but we don't. to make thented comment -- there is the question earlier about the power of the internet and immigration -- that's essentially half.
renee: thank you -- thank you very much. have a good afternoon. [applause] >> on july 1, 1970 six, the smithsonian's national air and space museum opened its doors to the public with president gerald ford on hand for the dedication. 40thy marks the anniversary of the museum and live coverage starts at 6 p.m. eastern on c-span3. there will be one-of-a-kind artifacts like the apollo lunar module. learn more about the history of museum as we talk with its director, the museum curator, and valerie neal, chair of the museum forhistory department. you can join the conversation. we will be taking your phone calls, e-mails, and tweets. p.m. eastern on
c-span3's american history tv. >> next on american history tv, wu, and asian-american history professor, talks about the life and career of patsy takemoto mink. she was the first woman of color to be elected in hawaii. they interviewed her at this annual meeting of american historians in providence, rhode island. this is 10 minutes. host: who was patsy takemoto mink? judy wu: she was the first woman of color to be elected a member of congress. she served for 24 years.