Ray, Shalini Bhargava, Vanderbilt Journal of Transnational Law
The U.S. asylum system is noble but flawed. Scholars have long recognized that asylum is a "scarce" political resource, but U.S. law persists in distributing access to asylum based on an asylum seeker's ability to circumvent migration controls rather than the strength of the asylum seeker's claim for protection. To apply for asylum, an asylum seeker must either arrange to be smuggled into the United States or lie to the consulate while abroad to obtain a nonimmigrant visa. Nonimmigrant visa requirements effectively filter the pool of asylum applicants according to wealth, educational attainment, and intent not to remain in the United States indefinitely--criteria completely unrelated to or at odds with the purposes of refugee law. The system as currently designed, therefore, selects asylum seekers based entirely on their ability to satisfy irrelevant criteria and without regard to their relative need for protection from persecution. Such a system fails to maximize the humanitarian benefits of scarce U.S. asylum resources.
To better protect individuals facing serious persecution, this Article contends, Congress should consider reforming the immigration laws to provide for an "asylum visa" to be made available to certain foreign nationals. U.S. consulates abroad, under proper and limited circumstances, might issue this visa to foreign nationals who demonstrate a credible fear of persecution on a ground enumerated in the United Nations Convention Relating to the Status of Refugees (Refugee Convention). Applicants would then lawfully enter the United States and apply for asylum. Successful applicants would remain, and unsuccessful applicants would face removal. Drawing on the extant literature on "protected entry procedures" (PEPs) that once existed in Europe, this Article considers the costs and benefits of the practice of issuing asylum visas. This Article concludes that, despite serious and uncertain costs and the impracticability of issuing asylum visas in some countries, this practice would likely create substantial benefits. In particular, it would likely decrease asylum seekers' reliance on human smugglers, clear a path to protection for bona fide asylum seekers, and increase the accuracy of information possessed by both asylum seekers and the U.S. government. Thus, the asylum visa would assist asylum seekers in making better-informed decisions ex ante and help to achieve a better allocation of asylum resources ex post. For these reasons, the creation of an asylum visa and the potential details of such a proposal merit further study.
TABLE OF CONTENTS I. INTRODUCTION II. THE PROBLEM WITH ASYLUM IN THE UNITED STATES A. The Purposes of Asylum and Refugee Law B. Overview of the Paths to Protection 1. Resettlement 2. Asylum a. Illegal Entry Through Human Smugglers b. Entry on Nonimmigrant Visas Issued for Nonasylum Purposes i. Visa Adjudications ii. Types of Nonimmigrant Visas a) Students b) Tourists 3. Assessment of the Current System III. HISTORY OF THE REFUGEE PROTECTION FRAMEWORK. A. A State's Right to Grant Asylum B. An Individual's Right to Seek Asylum C. Refugee Convention 1. Nonrefoulement Generally 2. Nonrefoulement and "Impunity" for Illegal Entry 3. Nonrefoulement Applied to Visa Regimes 4. Emergence of PEPs IV. THE ASYLUM VISA A. Overview B. Benefits C. Costs of Asylum Visa D. Objections E. Toward an Ideal Asylum Visa Regime 1. Role of Asylum Visa in Context of Other Visas and Entry Without Inspection 2. Adjudicators of the Visa Must Be Trained in Refugee Law 3. Adjudications Must Be Expeditious to Benefit Asylum Seekers Facing Imminent Harm and Perform Only a Basic Review of the Claim for Protection 4. …