Asylum - The development of contemporary asylum law and policy

Since the passage of the Hart-Celler Act in 1965, four major U.S. laws have been written regulating immigration, and each has contained provisions governing the treatment of refugees and asylum-seekers. In chronological and substantive precedence was the Refugee Act of 1980, the first omnibus refugee law ever passed by Congress. Prompted by the acute refugee crisis following the Vietnam War and the atrocities of the Khmer Rouge in Cambodia as well as the long-term problems of Cuban emigration, the legislation enlarged the annual permitted total of refugees (defined along the lines of the 1967 UN protocol) from 17,400 to 50,000, within an overall raising of the immigration ceiling from 290,000 up to 320,000. This figure of 50,000 would be reviewed after three years. Meanwhile, increases for "grave humanitarian" reasons would be possible—if agreed to by the president and Congress, who would also determine the initial annual per-country allocation. (Refugee admissions during the 1980s averaged twice this rate.) Five thousand places within the refugee total were assigned specifically for asylum-seekers, but within a very short time the applications ran at ten times this number. (In later years acceptances for asylum status would move toward 10,000 per year.) Individual states would be reimbursed for the costs of both the future refugee and past asylum programs. Those arriving with refugee status, which is accorded outside the United States, would be permitted to convert to "permanent resident alien" status within one year and thus embark on the road to citizenship.

Three specific features of the act were politically significant: the twenty-year-old Cuban refugee program would be phased out, the previous requirement (a legacy of the 1950s) that refugees hail either from the Middle East or communist regimes was ended, and a proviso was added that, in following the UN definition of refugees, future policy would be guided by the victims' "special humanitarian concern to the United States"—a qualification for selective U.S. engagement. Thus the 1980s would show far more admissions from unfavored regimes in eastern Europe than from favored regimes in Latin America—prima facie evidence of the political definition of refugees and the political selectivity of asylum grants. As a result of the 1980 act, total immigration under the refugee and asylee categories rose to an exceptional peak of 140,000 in fiscal year 1991 (including 23,000 asylees). The figure dropped back to 54,000 in 1998 from 112,000 in 1997, the latter aggregate figure being more representative of the 1990s as a whole.

The next law, the Immigration Reform and Control Act of 1986 (IRCA), was primarily designed to regularize undocumented Hispanic aliens ("illegals" who lacked or had abused appropriate entry visas) by a double tactic of penalizing employers and offering amnesty to those who had evaded existing immigration regulations. While these aspects of the IRCA harked back to the labor-control elements of earlier immigration legislation (notably the bracero program for migrant Mexicans, 1942–1964), other sections of the law eased the plight of Cuban and Haitian "illegals" who were regarded as political rather than economic victims. Legislators and commentators agreed that the IRCA was designed as the first in a two-stage revision of existing procedures, and four years later Congress more systematically revised the Hart-Celler Act. Under the Immigration Act of 1990, visas for specified labor skills were increased almost threefold (to 140,000) at the relative cost of family-reunification within a larger aggregate of immigrants (up from 500,000 to 700,000, then dropping to 675,000). Asylum-seekers and refugees, if qualified, were to be admitted outside of quota limits: an estimated 131,000 in the first year with an allocation of 10,000 for asylees. Furthermore, the attorney general was given powers to widen the categories (and thus the potential numbers) of aliens in need of "temporary protected status," such as victims of natural disasters and civil wars.

The fourth law in this important quartet was the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. Beginning its legislative life in the Senate and House as bills to reduce legal immigration as well as to police illegal immigration, the final product in an all-purpose appropriations measure was eventually designed mainly to minimize the numbers, penalize the presence, and expedite the expulsion of "illegals" in general. The annual number of legal immigrants approached pre–World War I highs—against a host population almost three times larger. Fiscal year 1993 was the decade's peak for "new arrivals." Even so, the 1996 act treated asylum-seekers somewhat ambivalently. The grounds for claiming persecution were enlarged to include state-enforced family planning (most obviously in the People's Republic of China), yet the numbers so protected were arbitrarily limited to one thousand per annum.

An authorized speed-up in processing and a later actual increase in rejecting asylum claims, together with limitations on the judicial review of rejections, were part of a growing general hostility to such claimants. (There were comparable immigrant increases and legislative and bureaucratic responses in the European Union.) Asylum applications were running at an annual average of 140,000, with almost four times that number unresolved. This huge figure was mainly due to the acceptance by the INS of an out-of-court settlement of a lawsuit, American Baptist Churches v. Thornburgh (1991), in which the churches charged that INS asylum policy toward Central American appellants during the 1980s had been driven by political priorities (hostility to the left-wing Sandinistas in Nicaragua and opponents of the U.S.–supported Salvadoran and Guatemalan governments) rather than disinterested application of the refugee criteria. More generally, under the new law the discretion of the executive to parole fugitives en masse would be inhibited by the offset of these parolees against the permitted totals for legal, "documented" immigrants. This particular provision was less the legacy of the Reagan administration in Central America than the particular case of "boat-people" from Cuba and Haiti.