Deadline Hinders Asylum Seekers
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A nurse in Zimbabwe who joined an opposition political party was assaulted after she tried to bring foreign medical supplies to a struggling hospital. A student from China who follows Falun Gong, a banned spiritual movement, left his country when most of the followers he knew were detained.
They both applied for political asylum after arriving in the United States, offering evidence that they risked attack or imprisonment if they returned to their home countries. But their requests were denied because they failed to meet a legal deadline requiring them to file their asylum claims within one year after coming here.
Since the filing deadline went into effect in 1998, about 21,000 refugees who would very likely have won asylum in this country were rejected because they did not meet it, according to a study published Thursday on the Social Science Research Network by law professors from Georgetown and Temple Universities.
"We have a very good asylum system," said Philip G. Schrag, a Georgetown law professor who is an author of the study, "but Congress introduced this particularly arbitrary feature that has resulted in the rejection of thousands of cases that would otherwise have been granted."
The law professors' findings are confirmed in a separate report, which will also be published Thursday by Human Rights First, a nonpartisan monitoring group, which argues that the one-year filing deadline has greatly increased costs and time delays for asylum cases in the immigration courts. According to that report, the courts have become clogged with cases stemming from missed deadlines that have distracted judges from focusing on the underlying merits of the asylum claims, which often involve life-threatening persecution for asylum seekers in their home countries.
The two reports use different methods to arrive at strikingly similar conclusions. Mr. Schrag and three other authors analyzed, for the first time, data from the Department of Homeland Security covering all asylum claims between April 1998, when the deadline took effect, and June 2009. Human Rights First examined official statistics as well as asylum cases its lawyers have handled. Both reports concern the cases of foreigners who requested asylum after they arrived in this country, saying they had a "well-founded fear of persecution," as the law requires, if they returned to their homelands.
The United States, the world's most generous country when it comes to receiving refugees, granted asylum in more than 22,000 cases in 2009 alone. While many immigration issues have become hotly contentious, the asylum program has generally enjoyed solid bipartisan support in Congress.
Congress imposed the filing deadline as part of a 1996 overhaul of immigration law, intending it as a measure to combat fraudulent claims. But according to Professor Schrag's study, the number of asylum-seekers who missed the one-year filing deadline appears to be far higher than Congress envisioned. Out of about 304,000 asylum applications presented during the 11 years since 1998, almost one-third, or 93,000 cases, were filed after the one-year deadline, according to the study.
In all, 54,141 people, about 18 percent of all asylum applicants, were rejected because they did not meet the deadline, the study found. By comparing those cases with asylum seekers who were accepted, the law scholars determined that at least 15,792 claims, involving more than 21,000 refugees, would have been approved if not for the missed deadline.
The Falun Gong follower from China, whose first name is Simon, said in an interview Wednesday that he was not aware that the United States offered asylum until years after he came to this country in 2001 as a student. Simon, now 35, said he became a student leader of the Falun Gong movement here, joining street protests outside Chinese consulates and at the United Nations.
"Because I attended lots of public activities here, if I go back I will definitely have problems," said Simon, who asked that his last name not be published. He said other followers who returned to China were immediately detained. He is fighting the rejection of his asylum claim in immigration court.
Other refugees who might be eligible for asylum are hampered from filing by the trauma that caused them to flee their home country, said Eleanor Acer, director of the refugee program at Human Rights First. "The refugees that are in the most difficult and distressing circumstances are the least likely to be able to file," Ms. Acer said.
The Georgetown study also found "enormous disparities" among asylum-seekers who were rejected because they missed the deadline, based on the country they came from. While only 17 percent of Iraqis who filed late were finally rejected by immigration officers, about 75 percent of Guatemalans who filed late were rejected, the study found.
Other authors with Mr. Schrag are Andrew I. Schoenholtz, a Georgetown law professor; James P. Dombach, a Georgetown law student; and Jaya Ramji-Nogales, a law professor at Temple University.
Since 1996, immigration officials have taken finely calibrated measures to eliminate fraud in asylum claims, including criminal investigation of suspected false claims and severe penalties for confirmed fraud.
"Officials have taken a lot of different steps to squeeze the real problem of fraud out of the system," said James W. Ziglar, a senior fellow at the Migration Policy Institute, a nonpartisan research group in Washington, who was head of the immigration service under President George W. Bush. The one-year deadline, he said, "has only operated to make the whole thing much more expensive and more unjust to asylum seekers."
First Published September 30, 2010 2:01 am