“Busting Myths about Forced Migrants” is a new blog series authored by student volunteers from IRAP’s law school chapters. Each month, a different IRAP chapter will dispel a common misconception related to refugee issues. We hope this series will provide readers with talking points for the dinner table when you hear a myth being perpetuated. Thank you to IRAP NYU for contributing the second installment in this series.
Myth: Many people try to game the asylum process.
The U.S. asylum system exists to protect those in our country or at our border who have faced or would face serious threats to their lives or freedom in their home countries. Our asylum system was developed to fulfill our duties under the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 protocol, which were adopted in the recent memory of the failures of many countries, including the United States, to protect those fleeing violent persecution before and after the Second World War.
The idea that the U.S. asylum protections might be gamed by people not truly deserving has been a recurring talking point used to justify policies that make asylum harder to access. Critics of our existing asylum protections tend to point to the low success rates of asylum claims as proof of its abuse, but for this to be demonstrative of widespread abuse one would have to make two assumptions. First, that applicants who are denied asylum do not legally qualify for asylum, and second, that applicants for asylum make invalid claims in bad faith.
In fact, applicants are often denied asylum even when their claim is valid, as they find themselves unable to navigate the complexities of the U.S. immigration system without proper assistance. Despite the serious and potentially deadly consequences of a negative decision, asylum applicants are not afforded a right to counsel unless they can afford to pay for it themselves. Asylum seekers with representation are five times more likely to obtain protection than their unrepresented counterparts. Legal representation is especially vital in asylum cases, as the burden of proof is placed on the applicant rather than on the government. To succeed in demonstrating eligibility for asylum, an individual must present extensive documentation, research, and testimony. Without an attorney to guide them through this intricate process, applicants are much less likely to succeed in collecting the necessary information for their claim, regardless of whether they have suffered past persecution or have a credible fear of future persecution in their home countries.
Even with legal representation, recognition of valid claims isn’t guaranteed. Immigration judges often lack the training or knowledge to understand the effects of trauma on memory. Small inconsistencies in an applicant’s testimony are often the sole reason for a negative credibility determination and a denial of asylum, despite such inconsistencies being a well known consequence of trauma. Differences in individual immigration judges’ opinions on credibility can mean the difference between a 1.8% grant rate, and a 96.7% grant rate. Additionally, lack of access to translation services can often present a barrier to obtaining asylum protections, especially when applicants speak less common languages.
It is also untrue that ineligible asylum applicants apply in bad faith. Legal definitions of asylum in the United States are narrow, complex, and constantly changing. In order to qualify for asylum, applicants must meet certain criteria which were never intended to be inclusive of all people fearing violence in their home countries. Only people persecuted on the basis of race, religion, nationality, political opinion, or membership in a particular social group are eligible, with membership in a particular social group having an especially unstable definition. The continued wisdom of the current criteria, especially given the looming threat of climate displacement, is up for debate, but not debatable is that many ineligible applicants still face serious persecution or harm in their home country. Many migrants, especially those without legal representation, incorrectly view the validity of their claims as driven primarily by the intensity of their past or future harm, rather than being based on the satisfaction of legal criteria that are unfamiliar to them. Many of these ineligible applicants attempt to obtain asylum protections under the honest belief that their claims are valid.
Another common tactic among asylum skeptics is the questioning of migrants’ decisions to seek asylum specifically in the United States. Critics and policymakers often focus on asylum seekers from Central America arriving at the southern border, despite only representing a small portion of total asylum claims. If they aren’t immigrating for primarily economic reasons, why not seek asylum in some other country along their route to the United States? In reality, plenty of migrants do seek asylum in other countries such as Mexico. From 2014 to 2018, asylum claims in Mexico skyrocketed from 2,137 to 29,693. However, increases in resources to meet this new demand have not always been adequate, causing some migrants to find the U.S. asylum system more navigable. Among other migrants, unique circumstances might prevent finding safety in Mexico. Central American migrants are often specifically targeted for violent crime at a higher rate than the local population. A major contributing factor has been the United States’ “Remain in Mexico” policy, which required certain migrants to wait in Mexico until their U.S. asylum claim is granted. Predictably, this created new temporary settlements which have been more vulnerable to exploitation or violence by bad actors than surrounding communities.
For many migrants, the United States is their only safe option to escape serious persecution in their home country. Our asylum system shouldn’t seek to punish individuals for supposed group sins, real or imagined. The overwhelming number of denials for asylum protections are not evidence for the abuse of those protections; they are the consequence of the failure of the processes and laws that should protect them. The notion of widespread asylum fraud is a false and dangerous excuse to deny migrants safety.
Bobbi Miller is a 2L at the New York University School of Law. She’s from Plano, TX and serves as Policy Team Chair for the IRAP chapter at NYU.
Daniela Czemerinski is a 1L at the New York University School of Law, where she is a Policy Team member for the IRAP chapter at NYU. She’s from New York, and hopes to practice immigration law and human rights law in the future.
Nathaniel Brodsky is a 1L at New York University School of Law, originally from Pittsburgh, PA. He has previously worked as a paralegal in business immigration and serves as a member of the Policy team for the IRAP chapter at NYU.