Although Asylum functions as a major element of the U.S. Immigration system today, asylum has not been a pillar of the U.S. Immigration system as long as you may believe. It was not until the first laws involving recognized protection efforts and measures for refugees, in general, were codified by the 1951 U.N. Convention Relating to the Status of Refugees, or more commonly known as the “Geneva Convention,” that discussions for U.S. Refugee laws were even on the government's radar.[1]
Aimed specifically at World War II refugees, the 1951 U.N. Convention defined a “refugee” as:
[A]ny person who…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside of the country of his former habitual residence…is unable or, owing to such fear, is unwilling to return to it.[2]
These protections where then expanded in 1967,[3] granting protection to “future refugees,” not just World War II victims.[4] The United States acceded to the Protocol in 1968 and passed their first refugee law in 1980,[5] which adopted nearly identical language of the U.N.’s definition and has remained virtually unchanged since.[6] Thus, under U.S. immigration law, an individual may qualify for asylum either because they have suffered past persecution or hold a well-founded fear of future persecution, and can establish a nexus between the persecution and one of the five protected grounds: race, religion, nationality, membership in a particular social group, or political opinion.[7]
Moreover, it is important to note that under these rules, not all individuals fleeing some form of hardship are protected even though the protections extend to both documented and undocumented aliens.[8] The applicant’s claim MUST be on account of one of the protected classes.[9] You may be surprised to find out that gender, gang violence, familial relationship, and many other areas that are cause to an individual's persecution in their home country are not protected and the list continues to grow under the current actions of the Department of Justice and Attorney General. [10]
Just 39 years ago, the United States adopted its first asylum laws and they have virtually remained the same since. It most certainly can and should be argued that the political and social climates have change drastically since 1980 and the U.S. Government (not just the president or attorney general) should truly take a closer look at the status of Asylum and Immigration Law and the overarching impact these laws have within our country.
[1] Convention Relating to the Status of Refugees, art. 1, opened for signature July 28, 1951, 189 U.N.T.S. 150, reprinted in 19 U.S.T. 6259 (entry into force Apr. 22, 1954) [hereinafter 1951 Convention]; see also Ellen A. Jenkins, Taking the Square Peg out of the Round Hole: Addressing the Misclassification of Transgender Asylum Seekers, 40 Golden Gate U. L. Rev. 67, 71 (2009).
[2] 1951 Convention, supra note 1, art. 1A(2).
[3] Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.
[4] Leonard Birdsong, "Give Me Your Gays, Your Lesbians, and Your Victims of Gender Violence, Yearning to Breathe Free of Sexual Persecution...": The New Grounds for Grants of Asylum, 32 Nova L. Rev. 357, 358–9 (2008).
[5] Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102.
[6] INA § 101(a)(42), 8 U.S.C.A § 1101(a)(42) (Westlaw 2016).
[7] Jenkins, supra note 1, at 71.
[8] Birdsong, supra note 4, at 363.
[9] Id.
[10] Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018). See also M-E-V-G-, 26 I&N Dec. 227 (BIA 2014).