We have laws requiring us to accept refugees. The laws define refugee very narrowly. These laws aren’t being followed by the people tasked with implementing and enforcing them.
Isaac arrived from Syria, a country with a relatively developed infrastructure before the war. With the help of his family back home, who mailed materials to support his asylum claim, Isaac could produce a passport, a birth certificate, a personal-identification card, high school and university diplomas, university records, a baptism certificate, a letter from his hometown priest (who called Isaac his “son in spirit” and asked that the reader “extend help to him according to his need”), a business license, and a military-recruitment booklet that exempted him, year after year, until 2016, when he was ordered to report for mandatory service.
Most promising, Isaac fit neatly into the definition of a refugee. Asylum law can skirt issues of morality, even logic, and can ultimately rest on the technical elements of a case. And technically, asylum law was designed for someone just like Isaac—a targeted religious minority from a country in the midst of a civil war.
To beat the extreme odds in El Paso, Isaac had spent fifteen months in detention and paid thousands of dollars in legal fees to an elite lawyer who then worked dozens of pro bono hours on his appeal. This feat required an enormous amount of translated and notarized evidence discretely sent overseas by family members in Syria, the emotional and financial support of his brother and his lawyer, and the wherewithal to withstand a complex, taxing, humiliating process. How many asylum seekers could or should have to endure such an ordeal in order to gain internationally recognized rights meant to protect the persecuted?
A condensed version of this article was published in The Guardian if you don’t have time for such a long read. They mostly excised details of why refugees were seeking asylum, how asylum law works, and details of the research supporting their reporting that the El Paso courts are not doing their jobs and just sending legit refugees to their deaths.
But I found this summary of our current refugee immigration law in the VQR article useful:
Modern refugee law was codified by the United Nations after World War II, when countries grappled with the fact that they had turned away Jews and other vulnerable people fleeing persecution and death. The law’s core principle is that of non-refoulement: the practice of not returning a refugee to a home country in which he has been harmed or has a well-founded fear of future harm. A refugee, according to the 1951 UN Convention relating to the Status of Refugees, is “an individual who is outside his or her country of nationality or habitual residence who is unable or unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group.” Technically, Isaac wouldn’t be a refugee if he had simply fled beatings, shootings, and death threats. He needed to prove that he had fled beatings, shootings, and death threats because he was Christian. To be granted asylum, one must demonstrate the existence of “nexus”—the point at which a person’s identity (as embodied in the five categories) and the reason for his terror meet.
“Yes, you were shot and killed and raped, but not because of your political opinion,” Spector told me with exasperation. “Horrible things happen and the judge’s biggest problem is nexus.”
Indeed, nexus eludes many contemporary immigrants seeking relief, such as those fleeing landscapes decimated by climate change or countries wracked with poverty, corruption, starvation, or widespread gender-based violence. Even those who have been targeted by Mexican and Central American cartels and gangs—a major influx, especially in recent years—often find themselves ineligible for legal forms of protection. Simply being born in a violent country—even facing real threats of harm—doesn’t qualify. Few Mexicans and Central Americans can demonstrate a claim of persecution that is due to race or nationality or religion. Few, too, can meet the burden of proving that their persecution is due to political opinion or membership in a particular social group, since such a group must be socially distinct and fundamental to a respondent’s identity. Being, say, a Honduran who is harmed because he refuses to join a gang is not enough. So most Mexicans and Central Americans coming to the US to escape gangs and drug cartels may be unlucky, even fatally so, but unless they’re being harmed on one of the five grounds, they have few avenues for relief.
Asylum offers an immigrant protection and significant benefits: asylum for spouses and children, permanent residency and eventual citizenship, social services, and travel documents. When applying for asylum, an immigrant also often applies simultaneously for two other types of fear-based relief—Withholding of Removal and protection under the Convention Against Torture—that involve more onerous burdens of proof, are hardly ever granted, and do not offer all of the advantages of asylum, though they do offer the potential for work authorization. Still, many people who will likely be harmed once deported do not qualify for any of these forms of relief, and a judge can—and sometimes must—deny them protection.