Standing with the Persecuted: Adjudicating Religious Asylum Claims after the Enactment of the International Religious Freedom Act of 1998

By Mousin, Craig B. | Brigham Young University Law Review, January 1, 2003 | Go to article overview

Standing with the Persecuted: Adjudicating Religious Asylum Claims after the Enactment of the International Religious Freedom Act of 1998


Mousin, Craig B., Brigham Young University Law Review


I. INTRODUCTION

Fostering liberty and standing with the persecuted, Congress enacted the International Religious Freedom Act of 1998(1) ("IRFA") to counteract renewed and increased assaults on freedom of religion throughout the globe.2 IRFA called upon the United States to challenge countries engaging in religious persecution to live up to international protections of religion, belief, and conscience.3 As an integral part of that policy, Congress also reformed domestic asylum law regarding adjudication of asylum claims in the United States based on foreign persecution on account of religion.4 Interestingly, although IRFA admires the domestic protection of freedom of religion that "undergirds the very origin and existence of the United States," it fails to cite the First Amendment as a source of protection.5 Instead, Congress specifically recognized religious freedom as a fundamental and universal right, listing international instruments that protect freedom of belief, religion, and conscience.6 With reference to those international protections, Congress mandated reform of the U.S. asylum laws and directed the Attorney General in conjunction with the Secretary of State to train asylum officers, immigration judges, and other immigration officials in not only these international instruments, but also in the diverse manifestations of religion and persecution by both governments and non-governmental parties.7

Critics have accused the United States of attempting to impose its understanding of religious liberty upon nations with different cultures, histories, and jurisprudence by regulating the relationship between government and religion.8 However, Congress did not intend to impose United States values upon other nations, but rather intended to hold countries to the international religious liberty treaties and covenants that they have signed.9

Less has been written, however, on the impact of interpreting international agreements pursuant to domestic asylum adjudication.10 IRFA requires reevaluation of asylum adjudication on both legal and factual grounds. Most significantly, it reveals congressional frustration with previous asylum and refugee adjudications. To address the problem, it points not to domestic United States law but to international declarations and covenants as critical guidelines for analyzing violations of religious freedom in the asylum context.11 Further, it emphasizes not just additional training but also stresses specific training "on the internationally recognized right to freedom of religion, the nature, activities, and beliefs of different religions, and the various aspects and manifestations of violations of religious freedom."12

This paper proposes that IRFA calls for adjudicating asylum claims on account of religion through the lens of international agreements, with greater sensitivity to the scope of religious persecution in the world. Moreover, this paper maintains that to rectify the neglect or bias in earlier administrative screenings and adjudications, Congress enacted IRFA to employ international protections and guidelines to expand protection against persecution for persons of faith or belief. Therefore, attorneys and advocates for refugees should raise new legal arguments pursuant to IRFA's engagement of international instruments for determining religious persecution claims in asylum cases. Part II describes the parameters of domestic asylum law prior to IRFA. Part III raises both the legal and cultural issues that make adjudication of religious asylum claims difficult and contribute to the bias or to the lack of information cited by Congress. Part IV discusses how IRFA's introduction of international law into asylum adjudications and its definitions of violations of religious liberty necessitates reevaluating adjudication of asylum claims on account of religious persecution. Although government training has been commenced on IRFA's impact, no asylum decisions have yet cited IRFA. …

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