The right to seek asylum is a pillar of international law. The underlying principle is the non-refoulement doctrine (from the French refouler, to drive back or to repel). This doctrine prohibits nations from returning asylum seekers to a country in which they are in danger. As a signatory to the 1951 U.N. Convention relating to the Status of Refugees, built on the principle of non-refoulement, the U.S. has agreed to abide by this norm. Beyond long-standing tenets of international law, the concept also has been enshrined in U.S. law in the Immigration and Nationality Act (INA), which requires individualized investigation of asylum seekers’ cases.
It is worth noting that the non-refoulement doctrine is tangentially referenced in President Trump’s stump speeches that make unfounded claims about refugees constituting a criminal element that poses an immediate danger to this country. This fear-mongering rhetoric is a somewhat clumsy effort to invoke one or more of the three exceptions to application of non-refoulement: First, the benefit may not be claimed by a refugee who may pose a danger to the security of the country in which he or she is seeking asylum; second, the principle does not apply to a person who, having been convicted by a final judgment of a particularly serious crime in their home country, is a danger to the country of refuge; and third, the benefit of non-refoulement is denied to any person suspected of committing a crime against peace, a war crime or a crime against humanity in the country they are fleeing. Even if such exceptions exist, they still would need be determined only after the individual analysis required by the INA.
In a June opinion entitled “The Matter of A-B,” then-Attorney General Jeff Sessions arbitrarily decreased the types of threats that could qualify as bases for credible fear — a prerequisite for asylum. Sessions stated that neither the imminent threats of domestic violence nor gang violence could be accepted as a cause of credible fear. Sessions made clear the Trump administration would ignore the non-refoulement doctrine in such instances. The immediate response was a series of lawsuits challenging Trump over his asylum policy.
Two recent court rulings may help re-establish the U.S. as a country abiding by international law and its own legislative guidelines regarding asylum seekers. Kicking off the return to the rule of law was a decision by Judge Jon Tigar in San Francisco blocking the Trump administration from enforcing a ban on asylum for any immigrants who illegally cross the US-Mexico border. Prior judicial decisions had established that asylum seekers’ violation of the normal entry requirements did not constitute an illegal act that allowed ignoring their rights otherwise as asylum seekers. U.S. immigration law states that immigrants can apply for asylum regardless of how they enter the country. Judge Tigar’s ruling keeps the ban on hold pending the outcome of a lawsuit challenging it. The case could take months, if not years, to resolve. The U.S. Supreme Court recently affirmed Tigar’s legal basis for rejecting the ban.
In a more dramatic ruling, 12 plaintiffs suing under pseudonyms won a critical victory in the U.S. District Court for the District of Columbia. Judge Emmet G. Sullivan’s 107-page opinion nullifies The Matter of A-B, rejecting Sessions’ attempt to narrow eligibility for asylum. Sullivan called Sessions’ decree “arbitrary and capricious” and stated that making asylum decisions by sweeping reference to fear based on broad categories such as domestic or gang violence, rather than individual assessment of claims, violates the INA. Death and injury can come at the hands of a domestic partner or a gang member as surely as from armed insurgents, as long-recognized by U.S. and international law.
Judge Sullivan’s tone was somber and measured, but he clearly condemned the Trump administration’s goal-oriented — rather than fact or law-based — approach to ignoring existing law. Judge Sullivan drew a distinction between “the will of Congress,” which is paramount when interpreting legislation, versus “the whims of the Executive,” as expressed in Sessions’ screed. Judge Sullivan’s lack of patience with abuse of power at the federal level is consistent — the same week he presided over a sentencing hearing for former national security adviser Michael Flynn.
The stories of asylum seekers are heartbreaking and illustrate the importance of listening to the concerns of the individuals involved, rather than labeling whole groups of people as “illegal” or “criminal.” It is heartening that the rule of law, as reflected in the recent decisions by Judges Tigar and Sullivan, can still temper the heated and crazed headlong rush to ignore humanity’s better tendencies to protect the defenseless among us.
With diligence and vigilance, we can, and should, ensure legislators make this country’s commitment to humane and fair treatment of all asylum seekers unmistakable and unambiguous. As concerned people of faith, we can help directly by supporting the work of organizations such as Catholic Charities in providing aid and relief, including legal services, to refugees. Ultimately each of us only deserves the comfort and protection we are willing to extend to our most vulnerable neighbors.
