The Politics of Immigration (2nd Edition). David Wilson
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