US Refugee Protection System

Protection of those fleeing or at risk of persecution, torture, or extreme danger represents a centerpiece of international and US immigration law. It also constitutes one of the most pressing and unattended challenges in the US immigration field. The US refugee protection system, broadly understood to encompass refugees, asylum-seekers and non-citizens in need of short-term protection, has ambitious goals and diverse responsibilities. It seeks to screen, admit and promote the integration of refugees; to adjudicate political asylum cases; and to offer temporary protection to persons from designated countries. It also seeks to detect and prevent the admission of persons that raise national security, public safety, and fraud concerns.


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To address the need for concentrated academic and policy attention to this pillar of the US immigration system and the international system of refugee protection, the Center for Migration Studies of New York (CMS) published a series of papers on the US refugee protection system that offer recommendations to strengthen and reform the system.

The full collection is now available for free at http://bit.ly/JMHSrefugeecollection.

The individual series articles are available in CMS’s public policy journal, the Journal on Migration and Human Security (JMHS):

The US Refugee Protection System on the 35th Anniversary of the Refugee Act of 1980
Donald Kerwin

In 2013, the Center for Migration Studies of New York (CMS) initiated a project to bring concentrated academic and policy attention to the US refugee protection system, broadly understood to encompass refugees, asylum seekers and refugee-like populations in need of protection. The initiative gave rise to a series of papers published in 2014 and 2015, which CMS is releasing as a special collection in itsJournal on Migration and Human Security on the 35th anniversary of the Refugee Act of 1980. This introductory essay situates the papers in the collection within a broader discussion of state compliance with international law, impediments to protection, US protection programs, vulnerable populations, and due process concerns. The essay sets forth extensive policy recommendations to strengthen the system drawn from the papers, legislative proposals, and other sources.

Temporary Protected Status after 25 Years: Addressing the Challenge of Long-Term “Temporary” Residents and Strengthening a Centerpiece of US Humanitarian Protection
Claire Bergeron

This paper examines the legal parameters of Temporary Protected Status (TPS) in the United States and traces the program’s legislative history, exploring the congressional intent behind its creation. It argues that TPS has mostly been used as a tool to provide long-term protection, which runs contrary to congressional intent in establishing the program and has placed TPS recipients in a “legal limbo” in which they are unable to fully integrate into the United States. The paper discusses administrative and legislative remedies that would attempt to realign the TPS program with the goal of providing temporary protection to individuals fleeing crisis situations, as well as uphold the US tradition of integrating long-term immigrants.

Unfulfilled Promises, Future Possibilities: The Refugee Resettlement System in the United States
Anastasia Brown and Todd Scribner

Since World War II, the US domestic resettlement system has evolved from one that responded to crises in an ad hoc manner to one characterized by an expansive and dynamic partnership between the federal government, states and voluntary resettlement agencies. However, more than three decades after the passage of the Refugee Act of 1980, the program suffers from a lack of adequate financial support for transitional assistance and integration services, gaps in coordination and information sharing among participating agencies, and a backlash against the program in certain receiving communities. This paper highlights specific improvements that would address these issues and strengthen the US resettlement system moving forward.

Problems Faced by Mexican Asylum Seekers in the United States
J. Anna Cabot

This paper examines the reasons for low US asylum approval rates for Mexicans despite high levels of violence in and flight from Mexico from 2008 to 2013. It details the obstacles faced by Mexican asylum seekers along the US-Mexico border from the time they encounter immigration officials until a determination is made on their claim, including placement in removal proceedings, detention, evidentiary issues, narrow legal standards, and (effectively) judicial notice of country conditions in Mexico. The paper recommends that asylum seekers at the border be placed in affirmative proceedings (before immigration officials) and be eligible for bond. It also proposes increased oversight of immigration judges.

Humanitarian Protection for Children Fleeing Gang-Based Violence in the Americas 
Elizabeth Carlson, Anna Marie Gallagher

Violence perpetrated by gangs and other criminal organizations has contributed to the large numbers of Unaccompanied Alien Children (UAC) migrating to the United States from Central America and Mexico since 2011. This article describes the US government’s obligations to protect UAC upon arrival and good practices of other governments in providing humanitarian aid to migrant and refugee children. It also discusses Special Immigrant Juvenile Status and asylum claims based on gang-related violence. It concludes with recommendations designed to bring the United States into compliance with domestic and international law.

Children’s Migration to the United States from Mexico and Central America: Evidence from the Mexican and Latin American Migration Projects
Katharine M. Donato and Blake Sisk

This article examines child migration from Mexico and Central America using detailed information on the social and demographic characteristics of children and their parents from the Mexican and Latin American Migration Projects. It investigates the extent to which children: (1) enter the United States without legal authorization to do so; (2) are more likely to cross the border now than in the past; and (3) have parents who have migrated to the United States. The analysis shows a strong link between parental migration and the likelihood that a minor child will migrate to the United States. Moreover, children’s lifetime chances of making a first unauthorized trip shift across different periods of entry. The findings support the idea that children are incorporated into the migration process through their ties to family members, and suggest that children need protection in the form of family reunification and permanent legal status.

The Intersection of Statelessness and Refugee Protection in US Asylum Policy
Maryellen Fullerton

Stateless persons face gaps in protection and in many cases experience persecution that falls within the refugee paradigm. However, US asylum policy does not adequately address the myriad legal problems that confront the stateless, who have been largely invisible in the jurisprudence and academic literature. This article analyzes two federal appellate court opinions that shed new light on the intersection of statelessness and refugee law in the United States. It makes recommendations for developing legislative, regulatory and other policy guidance concerning statelessness claims.

Creating a More Responsive and Seamless Refugee Protection System: The Scope, Promise and Limitations of US Temporary Protection Programs
Donald Kerwin

Temporary protection programs can provide haven to endangered persons while states and non-governmental organizations work to create durable solutions in sending, host and third countries. This paper outlines international standards for the design and operation of temporary protection programs, and identifies gaps in protection for de facto refugees and other at-risk populations that seek protection in the United States. Among other policy proposals, it recommends that Congress create a non-immigrant “protection” visa for non-citizens who are at substantial risk of persecution, danger, or harm in their home or host countries.

An Overview of Pending Asylum and Refugee Legislation in the US Congress
Melanie Nezer

There has been no significant legislation related to the asylum process enacted in Congress in nearly a decade. During the past several sessions of Congress, bills have been introduced that would make significant changes to the country’s asylum laws and refugee admissions program. This paper provides an overview of the pending legislation and the changes proposed. These bills demonstrate the continued interest of members of Congress in these issues and the need for reform, and they provide an important tool for advocates for education and outreach to Congress and the public.

Reconfiguring the Law of Non-Refoulement: Procedural and Substantive Barriers for Those Seeking to Access Surrogate International Human Rights Protection
Mark R. von Sternberg

This article discusses two major areas of concern which affect access to surrogate international human rights protection. First, it examines the procedural bars to seeking asylum and other forms of refugee protection, including interdiction on the high seas, safe third country agreements, and ancillary restrictions like detention and filing requirements. Second, it reviews the substantive legal standards governing eligibility for protection and the conformity of those standards (or the lack thereof) to the international norm of non-refoulement. It argues that the United States should look to advances made in the legislation and jurisprudence of other states as a model for its adoption of standards—both procedural and substantive—that could help restore its historical commitment to human rights and humanitarian concerns.

On the Margins: Noncitizens Caught in Countries Experiencing Violence, Conflict and Disaster
Sanjula Weerasinghe, Abbie Taylor, Sarah Drury, Pitchaya Indravudh, Aaron Gregg, John Flanagan

Recent history has witnessed numerous humanitarian crises in which noncitizens have been among those most seriously affected. This paper seeks to shed light on the protection implications for noncitizens caught in countries experiencing violence, conflict and disaster by examining five prominent crises across three continents between 2011 and 2012: the Libyan uprising; the Tohoku earthquake, tsunami and the Fukushima nuclear accident in Japan; flooding in Thailand; Hurricane Sandy in the United States; and the conflict in Syria. It identifies factors that influence the vulnerabilities of noncitizens and presents promising practices that limit exposure to harm through targeted measures addressing their particular needs.

A PDF download of the full edition is available at http://bit.ly/JMHSrefugeecollection. To order a print edition:

  • Purchase online; or
  • Send a completed order form by email to jmhs@cmsny.org or by mail to Center for Migration Studies, 307 East 60th Street, 4th Floor, New York, NY 10022.

The refugee series will also be featured in CMS’s forthcoming symposium on October 28, 2015. Details on the symposium will be available at www.cmsny.org.


2014 Symposium

As part of its 50th anniversary celebration in 2014, CMS hosted an all-day symposium featuring panel discussions with the refugee series authors and other experts on challenges and recommendations related to territorial access, refugee resettlement, political asylum, temporary protection, the stateless, migrants in “crisis,” unaccompanied minors and other populations at particular risk. The discussion also attempted to put the US system in a broader international context.  The agenda, presentations, and multimedia froare now available.

Center for Migration Studies Symposium:
Creating a Robust and Secure US Refugee Protection System

Tuesday, June 3, 2014
10am to 5:30pm

Center for Migration Studies
307 East 60th Street, 6th Floor
New York, NY 10022

AGENDA

Session One: Placing US Protection Issues in a Global Context and the Challenge of Migrants in Crisis 

Session Two: Access to Protection and Unaccompanied Minors
  • Megan McKenna, Communications and Advocacy Director, Kids in Need of Defense (Moderator)
  • Margaret Stock, Attorney, Cascadia Cross Border Law Group LLC (Territorial Access)
  • Anna Cabot, Clinical Fellow, Asylum and Human Rights Clinic, University of Connecticut (Protection on the US-Mexico Border)
  • Anna Gallagher, Attorney, Maggio + Kattar (Unaccompanied Minors)

Session Three: Protection of Refugees and Persons in Need of Temporary Protection
  • Linda Hartke, President and CEO, Lutheran Immigration and Refugee Service (Moderator)
  • Anastasia Brown, Director of Resettlement Services, Migration and Refugee Services of the United States Conference of Catholic Bishops (MRS/USCCB) (The US Refugee Resettlement System)
  • Todd Scribner, Education Outreach Coordinator, MRS/USCCB (The US Refugee Resettlement System)
  • Claire Bergeron, Associate Policy Analyst, Migration Policy Institute (Temporary Protected Status)
  • Donald Kerwin, Executive Director, Center for Migration Studies (Temporary Protection as Part of a Seamless Web of Protection)

Session Four: Political Asylum and Permanent Protection in the United States

Session Five: Legislative and Policy Solutions
  • Eleanor Acer, Director of Refugee Protection, Human Rights First (Moderator)
  • Melanie Nezer, Vice President of Policy and Advocacy, HIAS
  • Tara Magner, speaking in personal capacity

 


The US Refugee Protection Project is made possible through the support of the Carnegie Corporation of New York.