(Dis)placing the Law: Lessons from South Africa on Advancing U.S. Asylum Rights

Abstract

As the administration vastly erodes asylum rights in its efforts to reshape the immigration landscape, advocates are taking the battle to the courts. But their legal victories may have little impact on the lived realities of asylum seekers. Asylum seekers face continuing obstacles in accessing legal guarantees because, outside of the formal legal space, the law operates within a sociopolitical context that mediates access to rights. Frontline bureaucratic actors who interact directly with asylum seekers have considerable autonomy to implement their own more localized understandings of rights and justice, understandings that may, in turn, reinforce centralized policy preferences. While these frontline actors generally mediate interactions between the citizen and the state, asylum seekers stand outside of the political community defined by citizenship. The fact that the rights holder is external to the political community upon which they are making claims creates more space for frontline actors to displace formal legal rights and may limit the reach of judicial decisions. This paper focuses on the actions of frontline, or street level, actors and the efforts of an intransigent executive, characterized by hostility to the legal framework, to show how centralized (executive) and decentralized (street level) processes work in concert to circumvent legal guarantees. An intransigent executive whose policy interests diverge from the legal framework may create more opportunities for autonomous bureaucratic actors on the frontlines to implement their own legal understandings. The argument contextualizes emerging developments in the US by looking to South Africa. Despite highly progressive refugee legislation, street level actors implementing more localized understandings of rights and justice have prevented asylum seekers in South Africa from accessing their legislated rights, a process that converges with and is reinforced by national level policy preferences. Similar dynamics are now at work in the US as the Trump administration significantly alters the asylum system. Understanding these dynamics can lead to more effective judicial remedies. The argument reveals that these processes can affect the implementation of legislated and judicially recognized rights not just in emerging democracies, but also in established democracies where there rule of law is highly institutionalized. It also informs global discussions around refugee protection as countries around the world adopt similar strategies to limit asylum rights.