America’s Asylum Paradox

Earlier this year I began digging into immigration and asylum jurisprudence as I tried to gain a better understanding of the issues surrounding the nation’s border policies, and the increase of illegal crossings of immigrants at the southern border.

            What I learned was that U.S. policy has been allowing immigrants who cross at a designated southern border crossing point to enter the country legally and to remain in the country after making a valid asylum request. Once the asylum request is filed it can then take years before that request is finally adjudicated. In the meantime, those who have crossed the border settle into new lives in the U.S. and become parts of their U.S. communities making it far more difficult to remove them once their asylum applications are ultimately denied in the majority of cases.

            However, what I found unsettling was that folks who have fled their home countries for legitimate reasons due to persecution over religious or political beliefs; who have suffered death threats and threats to family and friends; and who have been physically brutalized by gangs are almost universally denied asylum in the U.S.

            That reality seems completely opposite of what we all were taught about an America whose Statute of Liberty welcomed thousands of immigrants from around the world, commanding the world’s “tired, poor and huddled masses yearning to breathe free” to enter and thrive as Americans.

            The reality was emphasized by New York’s Second Circuit Court of Appeals, the federal court that governs New York, Connecticut, and Vermont. In a case that came before a three-judge panel at the court, a Nepali man was seeking asylum in America as he claimed to be fleeing political persecution by Maoist partisans in his home country.

The court found that he had refused to join the Nepal Communist Party, and party supporters came to  his home multiple times to deliver the message that if he did not join he would be killed.  He had also watched his father beaten by those same partisans before deciding to flee to America when he heard that indeed the partisans were coming to his home to kill him as promised. Despite accepting the facts, the court found that these incidents and threats to life were not “sufficiently imminent or concrete or menacing” enough to support his asylum application.

The court relied on precedent established in 2020 that unfulfilled threats cannot by themselves prove persecution sufficient to support an asylum application. The court reasoned that “claims of threats” are hard to disprove and that applicants could therefore obtain asylum simply by alleging persecution without providing other substantive proof of the claims.

But the court was too concerned about false claims rather than giving affirmation to otherwise provable claims of persecution. Certainly claims of threats without more should be insufficient to support an asylum claim. If claims alone were sufficient there would be a flood of approved asylum applications that otherwise might be not credible.

However when claims of death threats coupled with other evidence that supports their credibility can be presented by an asylum-seeker, that should be sufficient for authorities to grant an asylum application. America was built on the principle of being a haven for those fleeing unlawful persecution. We are a nation of freedom. Our immigration policies should project that bedrock principle that has always supported our national identity.