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3. Does the United States Welcome Refugees?

U.S. REFUGEE POLICY DEVELOPED out of a Cold War focus on defeating communism. For many years, refugees were explicitly defined in U.S. law as people fleeing Communist rule. This priority resulted in unequal treatment for people attempting to reach safety—even after 1980, when the legal definition of a refugee was made politically neutral. People displaced by U.S.-sponsored wars, or fleeing U.S.-backed human rights violators, have historically been denied asylum, while those migrating from Communist countries have generally been given the benefit of the doubt. The asylum process has gradually evolved away from its Cold War origins, yet many forms of bias still affect who is granted protection.

What’s a refugee?

In ordinary usage the word refugee refers to people forced to leave their country because of war, persecution, or natural disaster. The term has a narrower definition in international law.

The 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol define a refugee as “a person who is outside his or her country of nationality or habitual residence; has a well-founded fear of being persecuted because of his or her race, religion, nationality, membership of a particular social group or political opinion; and is unable or unwilling to avail him- or herself of the protection of that country, or to return there, for fear of persecution.”¹ In other words, you must be part of a group specifically targeted for persecution. Wars or disasters that affect the whole population don’t count. Under regional conventions in Africa and Latin America, the definition of a refugee has been expanded to cover migrants fleeing foreign aggression, occupation, internal conflicts, foreign domination, massive human rights violations, or events seriously disturbing public order. However, these broader criteria have not been adopted by the United Nations.²

Refugees are people whose claim to refugee status has been established; you are considered an asylum seeker if your claim hasn’t been evaluated yet.³ The office of the United Nations High Commissioner for Refugees (UNHCR) includes refugees and asylum seekers in a broader category of forcibly displaced people, along with internally displaced people (sometimes referred to as IDPs), who flee their homes due to violence or persecution but do not cross an international border.

At the end of 2015, the UNHCR counted 65.3 million people as forcibly displaced worldwide, the highest level since 1989, when the agency began tracking this data. Included were 40.8 million internally displaced people and 3.2 million asylum seekers; the other 21.3 million were refugees, or people in what the UNHCR calls “refugeelike situations.” Some 16.1 million of these refugees were under the UNHCR’s mandate, more than half of them from Syria, Afghanistan, and Somalia. Another 5.2 million were Palestinians under the mandate of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). The proportion of forcibly displaced people among the world’s population remained relatively stable at between 0.6 and 0.7 percent from 1996 until 2011, when Syria’s civil war began, triggering what the UNHCR calls “one of the largest displacement crises in recent history.” Since then, this figure has increased rapidly and steadily, reaching 0.9 percent in 2015.⁴

What’s the difference between a refugee and an immigrant?

Refugees have special rights to protection under national and international law, compared to people who are seen as migrating for economic or other reasons. Some people use terms like “survival migrants,” “forced migrants,” “people in distress,” or “vulnerable irregular migrants” to describe migrants who don’t necessarily fit the strict definition of a refugee but who didn’t voluntarily leave their countries.⁵

For most refugees and other migrants, there are complex political, economic, social, structural, and personal factors that determine why, when, and how they leave, and where they end up. Each time a humanitarian crisis erupts somewhere in the world, or a particular group is subjected to persecution, some people feel they have no choice but to flee—sometimes abandoning homes, land, livelihood, possessions, family, and community—while others make an equally difficult decision to remain, in the hopes of surviving and, in some cases, of taking action from within to effect social change. Many who seek safety as refugees also get involved in efforts to influence political and social conditions in their home countries. Some people stay behind not by choice, but because they lack the minimum resources or conditions needed to migrate.⁶

How do we decide who the “real” refugees are?

In the United States until 1980, a patchwork of laws and provisions allowed for the entry of individual refugees and groups of refugees based on ethnicity, nationality, and specific geographic or political circumstances. Several of these laws, starting with the Displaced Persons Act of 1948, provided quotas or access to a certain number of nonquota visas for refugees and other displaced persons. Refugees were generally still required to fulfill the standard immigration criteria of the time: they had to have job offers, a place to live, and proof that they would not become a “public charge.”⁷

Throughout the Cold War period, the U.S. government’s active opposition to communism guided refugee and asylum policy; U.S. law generally defined refugees as people fleeing a “Communist or Communist-dominated country.” Accepting and even encouraging refugees and asylum seekers from such countries served to discredit their governments as oppressive regimes, recruit away their educated elites in what’s referred to as “brain drain,” and bolster exile-led opposition movements to attack them. Not until the Refugee Act of 1980 did the U.S. government finally adopt the politically neutral definition of a refugee established by the 1951 UN Convention and its 1967 Protocol, and lay out procedures for the processing of refugees and asylum seekers.⁸

But foreign policy still plays a role in asylum policy: “Immigration judges are required to consult and incorporate in their decisions the official country report published by the United States Department of State in any asylum case,” Dana Leigh Marks, an immigration judge in California and the president of the National Association of Immigration Judges, told a reporter in 2011. “Obviously our foreign relations position with regard to a country from which the asylum seeker comes is an important factor in the judge’s decision.”⁹

FLEEING THE NAZIS

As people persecuted on the basis of their religion and their perceived ethnic characteristics, the Jews fleeing the German Nazi regime in Europe from the 1930s to 1945 clearly fit today’s definition of refugees. Unfortunately, most were not able to reach safety, as worldwide anti-Jewish and anti-immigrant sentiment led many countries to close their doors.

In the 1930s, the United States was facing the widespread unemployment and poverty of the Great Depression. From the mid-1930s through the mid-1940s, polls showed the U.S. public firmly opposed to accepting more refugees from Europe or elsewhere; polls also reflected strong anti-Jewish sentiment in the United States during this period.10

The U.S. Immigration Act of 1924 had imposed strict nationality caps and economic requirements on people seeking to come here. There was no exception for people fleeing persecution. Many European Jews had family and friends in the United States who tried to help them escape, as well as the support of a large and active Jewish community here. Some U.S. citizens made extraordinary efforts to save the refugees by providing information—sometimes falsified—about family relationships, financial support and job offers for U.S. visa applications.11 U.S. diplomatic officials rejected the vast majority of visa applicants, claiming they were “likely to become a public charge.”12

In May 1939, the German ocean liner St. Louis sailed from Hamburg to Havana with 937 passengers, nearly all of them Jews seeking asylum from the Nazis. The Nazi government backed the voyage as part of its efforts to encourage Jews to leave Germany voluntarily.13

The Nazis also hoped the voyage would justify its anti-Semitic policies by highlighting the world’s rejection of Jews. This rejection was already apparent in July 1938, when delegates from thirty-two countries, including the United States, met at the French spa town of Évian-les-Bains to discuss the European refugee crisis. Only one country at the Évian conference agreed to accept Jewish refugees: the Dominican Republic, whose brutal dictator Rafael Trujillo believed European immigration could “whiten” his country’s largely African-descended population. The other countries declined to increase their limited quotas or to take any action to save Jews or others fleeing persecution.14

The majority of the St. Louis passengers hoped to wait in Cuba while the U.S. government processed their visa applications. But the Cuban government, then a close U.S. ally, allowed only twenty-eight passengers to disembark—four Spanish citizens, two Cubans, and twenty-two people who already had valid U.S. visas. After six days, the ship left Havana and sailed toward Miami as passengers cabled President Franklin Roosevelt asking to be allowed to come ashore. The U.S. State Department answered that they had to “await their turns on the waiting list and then qualify for and obtain immigration visas before they may be admissible into the United States.”

Unable to land anywhere in the region, the St. Louis turned back toward Europe on June 6, 1939. Because of the high profile of the voyage, Jewish organizations were able to negotiate entry visas to Britain for nearly a third of the passengers, and to the Netherlands, Belgium, or France for the rest. Of those who went to the European continent, more than 40 percent—254 people—died in the Holocaust.15

The St. Louis was one of many ships carrying desperate refugees from Europe, seeking to enter the United States. At the end of May 1939, 104 German, Austrian, and Czech Jewish refugees aboard the French ship Flandre were turned away from Havana and forced to return to France. Another two hundred refugees from Germany aboard the Orinoco were denied entry to the United States and were returned to Germany in June 1939. The fate of these rejected refugees remains unknown.16

At least half a million European Jews managed to flee to safer countries, and many later found their way to the United States to join friends and relatives already living here. Others were trapped by the war and unable to escape. Once the war started, the United States closed its doors to the refugees, seeing them as potential spies.17

When the war ended in 1945, an estimated six million Jews had been killed in the Holocaust.18 Could more have been done to save those fleeing genocide? Some people broke laws and took personal risks to help the refugees, including individual diplomats from a number of nations who issued unauthorized travel documents and visas. But the United States played a minimal role in such rescue efforts.19

Most of the activity that helped European refugees to escape was illegal, violating not only the unjust laws of the Nazi regime but often the restrictive immigration laws of allied and neutral nations. In an April 1997 speech at the United States Holocaust Memorial Museum in Washington, then-UN High Commissioner for Refugees Sadako Ogata noted that those who managed to escape Nazi-occupied Europe “often did so by using fraudulent documents,” an action for which asylum seekers are now criticized.

“In looking back, the refugee issues of the 1930s and 1940s seem simple,” observed Ogata. “Yet at the time, the issues seemed to be as complex as similar issues appear today.”20

Does the United States accept too many refugees?

The number of people who arrived in the United States as refugees averaged just over 80,000 a year between 1980 and 2013, ranging from a high of 207,000 in 1980 (a year that saw nearly 130,000 migrants arriving from Cuba) to a low of 26,800 in 2002, after the September 2001 terrorist attacks prompted a review of the refugee program, dramatically slowing admissions. In fiscal year 2013, just under 70,000 people entered the United States as refugees.²¹

Each year the U.S. president sets a cap on refugee admissions after consulting with Congress. Since 1980 the number of refugees admitted has reached this limit only once—in 1992. Actual admissions plummeted after 2001, even as the cap stayed at 70,000 to 80,000 a year. Between 2002 and 2012, actual admissions averaged less than 70 percent of the allotted number. Since 2013, each year’s 70,000 limit has essentially been reached.²²

The U.S. government granted asylum status in an additional 23,000 cases each year on average between 2000 and 2013.²³

Can’t refugees go somewhere else?

Most refugees do go somewhere else. The vast majority of the world’s refugees—86 percent in 2015—are living in “developing” countries, generally near the country they fled, often in temporary shelter under precarious conditions.²⁴

Many refugees spend years or even decades awaiting a resolution to their situation; by the end of 2013, the average time spent in a situation of displacement was seventeen years.²⁵ The UNHCR lays out three “durable solutions” for refugees: voluntary repatriation to their country of origin when it is safe to return there; integration in the country where they have sought refuge; and resettlement to a third country when voluntary repatriation is unsafe and integration in the country hosting them is not possible.²⁶

Refugees may prefer a particular “durable solution,” but they don’t generally have much power to choose. The political situation that led them to flee their country often stretches on, while the country where they sought refuge denies them any permanent status or rights. Many hope for resettlement, but only a tiny fraction will be lucky enough to get it. Sometimes refugees return to their homeland even though it remains unsafe, because conditions end up being worse in the country where they sought asylum. While this may count as “voluntary” repatriation, it is hardly a free choice.²⁷

A country that is temporarily hosting refugees and doesn’t want to grant them any permanent status is likely to see their repatriation as a preferred solution. When arranging for repatriation, the UNHCR tries to ensure that conditions are adequate in the home country and that returnees won’t face persecution.²⁸ Some refugees have been so traumatized that they don’t want to return to their native country under any circumstances; in some cases, they have nothing left to return to. The 1951 Refugee Convention recognized that some refugees with “compelling reasons arising out of previous persecution” may never go back to their countries of origin.²⁹ (The Convention was drafted after the Second World War, when most Holocaust survivors had no homes or communities to return to, and could not imagine living among neighbors who had participated in their persecution.)

As migration scholar Katy Long notes, a real integration of returned refugees requires “a meaningful citizenship and full political membership of the community from which they were previously excluded.” It’s not enough for the returnees to be simply tolerated by society, and safe from persecution, in their home country. They must also be able to play an active role in influencing the political environment there, so that they and future generations can enjoy full rights and opportunities.³⁰

For these reasons, resettlement—a permanent move to a diaspora community, generally in a more developed country—can seem preferable to returning to a devastated homeland.³¹ But fewer than 1 percent of refugees are ever accepted for permanent resettlement. Refugees get priority for resettlement when they are living in especially perilous situations, or have specific needs that cannot be addressed in their country of first refuge.³²

Most of the people who enter the United States as refugees come through the resettlement program. As a large and diverse country with many resources and extensive diaspora communities, the United States is a logical option for resettlement. Refugees can move to locations where they will receive support from extended family and community networks and can integrate quickly and become self-sufficient. Refugees and asylum seekers who are able to select a destination will often base their choice on similar criteria.

In 2015, at least twenty-three countries, mostly in the “developed” world, provided permanent status to 107,100 refugees through resettlement. The United States consistently resettles more refugees than all other countries combined—66,500 in 2015. The total U.S. population is also much larger than that of other countries offering resettlement. Canada, Norway, and Australia all resettled more refugees per capita than the United States did in 2015.³³

How do refugees get here?

People whose refugee status is granted outside the United States, including refugees selected for resettlement, enter the country through the U.S. Refugee Admissions Program (USRAP), a collaboration between various U.S. government agencies and international and domestic humanitarian partner organizations.³⁴ Resettled refugees generally arrive on special flights arranged by the U.S. government; the nonprofit agency hosting them reimburses the government for their airfare, then collects payment from the refugees through a loan program.³⁵

Asylum seekers come to the United States the same ways other migrants arrive: at a land or sea border, or through airports. If they don’t have a valid visa, and immigration authorities try to stop them from entering the country, they may ask for asylum on the basis that they have been persecuted in their country of origin and are afraid to return there. Those who are able to enter the United States legally (or who manage to enter undetected) may apply for asylum through an “affirmative” process within a year after arriving.³⁶ People who are ordered deported from the United States can apply for asylum, “withholding of removal,” or protection under the Convention Against Torture through a “defensive” process if they are afraid to return to their country of origin.³⁷

People who succeed in winning asylum have the same rights and status as people who arrive in the United States as refugees.³⁸

SPECIAL TREATMENT FOR CUBANS

Discriminating based on national origin would seem to violate basic principles of fairness. But in the case of Cubans, their privileged treatment is written into law.

Some 800,000 Cubans immigrated to the United States between 1960 and 1980. They left Cuba for many reasons: some were opposed to the leftist revolution of 1959 and feared persecution; wealthy and middle-class Cubans lost property or economic opportunities because of socialist policies; and poorer Cubans fled the island later as its economy stagnated, at least in part because of a U.S. embargo. But they were able to come here because the U.S. government actively encouraged Cubans to immigrate.

From 1959 to 1961, about 125,000 Cubans arrived in the United States. The U.S. Coast Guard did nothing to stop them from entering the country, and the administration of John F. Kennedy then used executive parole authority to admit them, and those who followed, without regard to the quota limits established by the 1952 Immigration and Nationality Act.39

In 1966 Congress passed the Cuban Adjustment Act, which allowed Cuban immigrants to apply for permanent resident status after two years in the United States; the 1980 Refugee Act reduced the wait time to one year. Most restrictions on other immigrants are waived for Cubans; they can apply for resident status even if they entered without permission.40 The government even supplied assistance to Cuban immigrants as they arrived—$1.4 billion by 1980.

Welcoming Cuban immigrants fit in with U.S. efforts in the early 1960s to bring down President Fidel Castro. The policy provided a pool of people who could be recruited to fight the Cuban government; at the same time, it hurt the Cuban economy by luring away academics, scientists, professionals, and experienced managers. And the streams of refugees fleeing the island hurt the reputation of the Cuban revolution.41

Over a seven-month period from April 15 to October 31, 1980, starting just a few weeks after the passage of the Refugee Act, some 130,000 Cubans landed in Florida in a “freedom flotilla” from the Cuban port of Mariel. This time the migrants were primarily young working-class men, many of them black.42 The Refugee Act now provided a process for determining whether individual migrants qualified for asylum, but the administration of then-president Jimmy Carter chose not to apply the Act’s provisions to the new wave. Instead, Carter used executive authority to parole the Marielitos, as they became known, into the United States under a new category of “Cuban-Haitian entrants.”43

The United States was happy to receive the first wave of Cuban immigrants, who were “disproportionately well-educated, white, and of upper-echelon occupations and income,” according to New York University professor David M. Reimers. But as the later waves of Cubans turned out to be less well educated and less white, they “were not as welcome as earlier groups had been.” A Gallup poll in 1980 indicated that 59 percent of the U.S. public felt immigration by the Marielitos wasn’t good for the country, with only 19 percent feeling it would be good.44

The U.S. government changed its policy in 1994 and 1995 after a series of negotiations with the Cuban government. The two countries agreed to let 20,000 or more Cubans apply for U.S. immigrant visas each year from inside Cuba, and the U.S. government modified its treatment of Cubans who try to enter the United States without permission. Under what became known as the “wet-foot, dry-foot” policy, Cubans who make it to land are still accepted under the old Cuban Adjustment Act, while Cubans who are intercepted by the U.S. Coast Guard while at sea are returned to Cuba—although they may be treated as refugees and settled in a third country if they express a credible fear of persecution in Cuba.45

Why should we accept refugees?

So-called developed nations have more resources for hosting refugees than poorer nations do. These richer countries are often also partly responsible for the plight of refugees because they help to trigger or deepen the conflicts that cause people to flee “underdeveloped” or “third world” nations. Governments and their corporate allies in the United States, Canada, Australia, and Western Europe expand their power and profits by extracting resources, selling weapons, and engaging with corrupt and brutal leadership in less-developed countries.

For example, in eastern Congo, militia forces profit from the global demand for coltan, a mineral used in manufacturing computers and mobile phones. The militias are responsible for the violent persecution of local residents, provoking displacement.⁴⁶ Meanwhile, the West’s four major arms exporting countries—the United States, Germany, France, and the United Kingdom—are engaged in exporting arms “to countries which serve supplying states’ domestic economic and security interests” without consideration of human rights records or other ethical factors, according to researchers Richard Perkins and Eric Neumayer. In fact, the researchers found that countries known to abuse human rights received a greater than average share of U.S. weapons transfers.⁴⁷

Do asylum seekers have it easy?

If you’re fleeing for your life, you may have a hard time obtaining valid travel documents before you leave, let alone gathering proof of the harm you suffered. And if you arrive without valid documents, or are caught trying to enter the United States without permission, you will be subjected to a process called “expedited removal.”⁴⁸

This means the border agency can send you back to your country without giving you a chance to plead your case to an immigration judge. If you tell border agents that you are afraid to return to your country, they are supposed to grant you a “credible fear interview,” where you can try to convince an asylum officer that your fear of persecution is real, and that there is a “significant possibility” that you will win your asylum case.⁴⁹

Under UNHCR guidelines, anyone fleeing persecution is supposed to be granted a meaningful opportunity to seek asylum. But in practice, this doesn’t always happen: the advocacy group Human Rights First reported in 2012 that a number of asylum seekers who had expressed a fear of return were not referred by U.S. officials for credible fear interviews. In particular, migrants from Haiti who arrive by sea and are intercepted by the U.S. Coast Guard are generally not informed that they may be entitled to a credible fear hearing.⁵⁰

For those who do get a chance, the wait time for a credible fear interview is generally about two weeks.⁵¹ In the meantime, you’ll be locked up under jail-like conditions in crowded immigration detention facilities or holding cells. As an “arriving alien,” your detention is mandatory under the restrictive provisions of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). You have no right to free legal representation. Even if you can afford a lawyer, it’s hard to find one when you’re in detention. Many detention facilities actively try to block effective legal representation.⁵²

If your credible fear claim is rejected, you can ask that an immigration judge review the decision. But if the reviewing judge rejects your claim, you’ll be summarily returned to your country of origin.⁵³

If you pass the “credible fear” test you might be paroled or bonded out of detention to await an immigration court hearing on your asylum case. But it’s up to the discretion of the immigration agent in charge of your case, and if you don’t have a lawyer to help you win parole, or you can’t afford to pay a bond, you will likely remain locked up.⁵⁴ If you’ve suffered torture or abuse, you may be re-traumatized by the conditions you experience in detention, where you will generally be treated as a criminal, whether or not you have violated any laws.⁵⁵

Asylum seekers and migrants detained at the border are routinely subjected to extremely cold temperatures in the short-term holding cells of U.S. Customs and Border Protection (CBP). Border agents refer to the cells as “hieleras,” Spanish for iceboxes or coolers. Exposing people to cold temperatures appears to be part of a strategy to deter them from pursuing options to stay in the United States. Some detainees remain in the hieleras for more than a week.⁵⁶ Ironically, U.S. federal courts have recognized forced exposure to extreme cold as a form of torture that can serve as a basis for granting asylum.⁵⁷

If you pass your credible fear interview but are denied asylum, you can appeal the decision. The appeals process may take years; in the meantime, even if you are able to avoid detention, you may have trouble supporting yourself. Asylum seekers have to wait at least six months before they qualify for permission to work. Immigration judges and asylum officers have discretion to extend the waiting period, and it often stretches out for additional months or years. (This policy is another legacy of the 1996 IIRIRA.) Asylum seekers are also barred from receiving any government benefits. While many countries pose restrictions on asylum seekers, the United States is alone among the wealthier nations in denying them both work authorization and government benefits.⁵⁸

Is the U.S. asylum system fair?

The asylum process may look impartial on paper, but studies suggest that in practice it is plagued with disparities. For example, the criteria for granting asylum aren’t supposed to be applied differently to people who enter the United States with a valid visa, compared to people who cross the border “without inspection,” enter with false documents, or request asylum on arrival. Yet researchers from the Georgetown University and Temple University law schools found that applicants who entered with a visa were 45 percent more likely to be granted asylum by the Department of Homeland Security (DHS) than those who did not. Applicants from Latin America, the Caribbean, and China were more than twice as likely to be granted asylum if they entered with a visa. “This factor probably favored wealthier and more educated applicants, as they were more likely to have been granted tourist, business, student, or other visas by U.S. consular officers and had no need to evade border inspection,” the researchers concluded.

Legal representation also generally improved the chances of winning asylum—especially for applicants who entered without inspection, for those without dependent children in the United States, and for single men, who make up “the least sympathetic category” of asylum applicants, according to an unnamed senior asylum official interviewed by researchers.⁵⁹ In 2010, immigration courts granted asylum to 11 percent of unrepresented applicants, compared to 54 percent of those who were represented, according to Transactional Records Access Clearinghouse (TRAC), a nonpartisan research organization associated with Syracuse University.⁶⁰ A 2009 report from the U.S. Commission on International and Religious Freedom found that among asylum seekers detained in the “credible fear” process, those with legal representation were granted asylum at a rate twelve times greater than those who were unrepresented.⁶¹

Asylum grant rates for applicants of the same nationality were dramatically different between the eight regional DHS offices. Within each office, grant rates also varied depending on the characteristics of the asylum officers who handled them: whether they had law degrees; whether they were married, single or divorced; how much experience they had on the job; and where they were born.⁶²

Similar disparities emerge among immigration judges, who review the cases that DHS asylum officers reject. Immigration judges also decide “defensive” asylum cases, removal proceedings, and other kinds of immigration cases. At thirteen of the nineteen busiest immigration courts, with all other factors being equal, if you were assigned the judge who granted asylum most often, your chances of winning asylum were at least four times greater than if your case was heard by the judge in the same court who rejected the most cases.⁶³

The imposition as part of the 1996 IIRIRA of a one-year filing deadline for asylum claims has deprived a number of genuine refugees of a fair hearing on their asylum cases, and has delayed thousands of cases by shifting them into the backlogged immigration court system. An independent academic analysis found that between 1998 and 2009, more than 21,000 refugees would likely have won asylum through an administrative process, without the need for further litigation in the immigration courts, if not for the filing deadline.⁶⁴

A September 2008 review by the United States Government Accountability Office (GAO) cited nine factors affecting the asylum decisions of immigration judges, including nationality of the applicants, whether the applicants were represented or detained, whether they applied within the one-year time limit, and whether they applied affirmatively or defensively. Other factors included the length of time the asylum decision took, and the gender and length of experience of the immigration judge. After statistically controlling for these factors, the GAO found major disparities among different immigration courts: affirmative applicants in San Francisco were twelve times more likely to be granted asylum than those in Atlanta.⁶⁵ These findings confirmed what TRAC had reported in 2007. “The unusual persistence of these disparities—no matter how the asylum cases are examined—indicates that the identity of the judge who handles a particular matter often is more important than the underlying facts,” noted TRAC.⁶⁶

In a separate study, researchers concluded that strong diaspora communities and the presence of refugee support organizations in a particular area increased the local asylum grant rate. Local economic and employment factors also had an impact; for the average immigration judge, high unemployment in the surrounding community decreased the likelihood of granting asylum.⁶⁷

Since there is no systematic follow-up with asylum seekers who lose their cases and are deported from the United States, there is no way to determine how many legitimate refugees may be rejected. The consequences can be dire. Researchers who have tracked asylum seekers returned by the United Kingdom, Australia, and other nations have exposed cases of imprisonment, torture, murder, and forced disappearance. Returnees may be persecuted for the same reasons they sought refuge. They may face persecution as deportees, or because they are seen as influenced by foreign cultures or governments. They may be subjected to harsh treatment based on their connections to politically active exile groups, or simply because they brought unwanted attention to their country’s human rights record by seeking asylum.⁶⁸

HAITIANS FACE “FLOATING BERLIN WALL”

The nonprofit Human Rights Watch estimates that some 20,000 to 30,000 civilians were murdered by Haitian authorities during one of the most brutal regimes in the history of the hemisphere: the twenty-nine-year dictatorship of Haitian “presidents for life” François Duvalier (“Papa Doc,” 1957–1971) and his son Jean-Claude Duvalier (“Baby Doc,” 1971–1986).69

Thousands of Haitians began fleeing to the United States by boat in the 1970s. U.S. immigration authorities declared almost all of them “economic migrants” and sent them back to Haiti. Nearly 5,000 Haitians charged the U.S. government with discrimination in a lawsuit, Haitian Refugee Center v. Civiletti. The U.S. District Court for the Southern District of Florida ruled for the Haitians in July 1980. The court’s detailed and scathing decision said the plaintiffs had “proven their claim” that the U.S. immigration agency engaged in “impermissible discrimination on the basis of national origin” when it used a special expedited processing program to reject their asylum claims summarily without review.

A similar program had been created for Cubans, except that it was used to swiftly approve, not reject, their cases. The court suggested “a possible underlying reason why these plaintiffs have been subjected to intentional ‘national origin’ discrimination. The plaintiffs are part of the first substantial flight of black refugees from a repressive regime to this country. All of the plaintiffs are black. In contrast, for example, only a relatively small percent of the Cuban refugees who have fled to this country are black.” The court noted that nearly all the Cubans were granted asylum, while none of the Haitians were accepted. “No greater disparity can be imagined,” the court declared.70

This decision came in the midst of the 1980 Mariel boatlift of migrants from Cuba, which coincided with a dramatic increase in the number of Haitian “boat people.” About 25,000 Haitians arrived by boat to South Florida that year. The administration of U.S. president Jimmy Carter responded by including the Haitians with Cubans in a special category, “Cuban-Haitian entrants,” and releasing them in the United States with parole status. Most of the Haitians who arrived in that period eventually became permanent residents through the 1986 amnesty.71

The administration of Ronald Reagan, inaugurated in January 1981, came up with a new policy. In September 1981 it made an agreement with the Duvalier regime allowing the U.S. Coast Guard to stop Haitians in international waters and summarily return them to Haiti. In exchange, the Haitian authorities gave “assurances” that they wouldn’t prosecute the returnees unless they were charged as smugglers. Migrants captured under this “interdiction program” were not generally offered a chance at asylum. From 1981 through 1990, during the final years of the Duvalier dictatorship and the turbulent interim regime that followed, the U.S. government stopped 22,940 Haitians at sea; only eleven of them were allowed to apply for asylum.72

In 1990 many Haitians put their hopes in the presidential campaign of the popular priest Jean-Bertrand Aristide, who won by a landslide but was deposed by a right-wing coup in late September 1991.73 The number of Haitians fleeing fell dramatically during the 1990 campaign, and rose again just as dramatically in the repression that followed the coup, with 37,618 Haitians intercepted at sea in 1992 alone. Between November 1991 and April 1992, a U.S. military joint task force helped the Coast Guard seize Haitian migrants and take them to the U.S. naval base at Guantánamo Bay, Cuba. (After 2001, that same base became known worldwide as a prison where the U.S. government holds Muslim men alleged to be “enemy combatants” as part of its “war on terror.”)

Fewer than a third of the more than 34,000 Haitians who passed through the Guantánamo camp during that period were eventually found to have a credible fear of persecution and were paroled into the United States. The rest were sent back to Haiti. In May 1992, once the base was at capacity with more than 12,000 Haitians, President George H. W. Bush ordered the Coast Guard to intercept all Haitians and immediately return them to Haiti without trying to determine whether they were at risk of persecution.74

Although Bill Clinton denounced the interdictions as “cruel and unjust” during his campaign, and pledged to close the Guantánamo camp, he maintained the policy after becoming president in January 1993. At that point the Coast Guard had a fleet of at least twenty-two ships and patrol boats encircling Haiti’s coastline, along with a dozen aircraft. Aristide spokesperson Reverend Antoine Adrien called the blockade a “floating Berlin Wall, around those seeking freedom.”75

A combination of litigation, public pressure, and a hunger strike by the detainees finally led to the closure of the Guantánamo camp in June 1993. At that point the camp held about a hundred and fifty Haitians deemed to be HIV-positive or suffering from AIDS; all were flown to the United States.76 President Aristide terminated the interdiction agreement after returning to power in 1994, but the United States has continued to stop Haitians at sea, at a rate of more than a thousand a year since 1998.77

How are refugees treated?

Like asylum seekers, refugees who arrive in the United States through the resettlement program have survived persecution, torture, war, and other trauma prior to arriving in the United States. Unlike asylum seekers, they are not detained upon arrival. Resettled refugees arrive with legal status and permission to work, can apply for certain family members to join them, and are eligible for permanent residency after one year. They even get some limited temporary cash assistance to help them get on their feet, and can apply for certain other needed benefits.

But that doesn’t mean resettled refugees have it easy. They have often spent years or even decades languishing in refugee camps with no opportunities for employment or higher education. Many arrive speaking little or no English, and some have limited literacy or education in their native language. Others are highly educated but unable to make use of their qualifications in the United States. Despite these impediments, resettled refugees are required to find employment quickly after arriving; most benefits run out after ninety days. Like many other migrants, they are forced to accept physically challenging jobs with low pay, low status, no benefits, and long hours.

Refugees who are resettled in the United States are assigned to specific communities where they are “hosted” by nonprofit organizations working under contract with the federal government. Many of these communities are smaller cities, often with high rates of unemployment, where arriving refugees may face discrimination and resentment. After arriving, refugees are free to relocate on their own to anywhere within the United States, but when they do so, they may lose access to resettlement services and benefits. Still, many do move, especially to follow jobs. The meatpacking industry actively recruits recently arrived refugees.⁷⁸

Are refugees sent home when their countries become safer?

In the United States, refugee and asylum status are supposed to offer permanent protection. A year after entering the United States, refugees must apply for permanent resident status; people who win asylum status may also seek permanent residency after a year but are not required to do so. After five years of residency, refugees and people who have been granted asylum can apply for U.S. citizenship.⁷⁹

If they don’t become citizens, and are convicted of certain criminal offenses, even longtime permanent residents who came here as refugees can be sent back to their countries. This has happened, for example, to hundreds of Cambodian refugees—most of whom came to the United States as young children.⁸⁰

In 1990, the U.S. government created Temporary Protected Status (TPS) as a reprieve from deportation for migrants whose homelands have suffered a severe environmental disaster, armed conflict, epidemic or other “extraordinary and temporary” conditions. TPS is not for refugees who flee these conditions, but rather for migrants who are already living in the United States when the traumatic event happens, to protect them from being sent back to a country in crisis. Anyone convicted of a felony or two misdemeanors is not eligible for TPS. As of July 2014, some 340,000 people were beneficiaries of TPS, more than 60 percent of them Salvadorans (212,000).

TPS temporarily protects beneficiaries from detention and deportation, and allows them to work legally here, but it doesn’t provide a path to lawful permanent residence or citizenship. The special status can be renewed—and has been, repeatedly, for nationals of several countries. But if the U.S. government doesn’t renew the status, its protections expire, and its beneficiaries can again be returned to their countries, no matter how long they have been in the United States. Even while the status remains available, those who qualify are required to re-register for it and renew their work authorization every year or so, a process that costs hundreds of dollars.⁸¹

CENTRAL AMERICANS: ASYLUM DENIED

From 1984 to 1990, while war raged in Central America, the United States granted asylum to 25 percent of the 48,000 applicants from Nicaragua, whose leftist government the U.S. administration violently opposed. Over the same period, only 2.6 percent of the 45,000 applicants from El Salvador and 1.8 percent of the 9,500 Guatemalan applicants won asylum—the rest were dismissed as “economic migrants.” At the time, both El Salvador and Guatemala had brutal right-wing governments closely allied with the United States and widely known to be responsible for serious human rights violations.82

U.S. religious and activist groups pressed the government to loosen its restrictions. More than 150 religious congregations openly defied immigration laws by offering sanctuary in places of worship for out-of-status refugees from Central America. The American Baptist Churches brought a class action suit against the U.S. government on behalf of the asylum seekers, which the government finally settled in 1991 by agreeing to reopen the cases of Salvadorans and Guatemalans who had applied for and been denied asylum in the 1980s.83

But by then the conflicts were ending. IIRIRA, the Illegal Immigration Reform and Immigrant Responsibility Act, which Congress passed in 1996, allows the government to deny asylum by claiming that there has been “a fundamental change in circumstances” in the applicant’s country.84

A year later, in 1997, Congress passed the Nicaraguan Adjustment and Central American Relief Act. Even as it addressed the disparate treatment of Central Americans, NACARA continued to privilege Nicaraguans, allowing those who had failed to win asylum to gain permanent legal residency, while granting some Guatemalans and Salvadorans a chance to seek “suspension of deportation” under pre-1996 terms. Under heavy pressure from the Haitian immigrant community, in 1998 Congress passed the Haitian Refugee Immigration Fairness Act (HRIFA), allowing nearly 50,000 Haitians to finally seek permanent residence under a process similar to that extended to Nicaraguans under NACARA.85