Does the Fear of Terrorists Trump the Fear of Persecution in Asylum Outcomes in the Post–September 11 Era?

Abstract

Historically, U.S. asylum policy has reflected both an effort to provide safe haven for deserving asylum seekers and the intent to promote national security and domestic policy priorities. A growing body of empirical evidence suggests that asylum outcomes, at least in the aggregate, have been weighted more heavily by foreign policy considerations than humanitarian concerns. Since the mid 1990s, the United States government has reformed the asylum system in response to concerns of abuse by economic migrants, burgeoning caseloads, and national security threats. Although, as Davergne (2008) points out, “the most reviled of asylum seekers of the global era is the ‘economic refugee,’ under suspicion of fleeing poverty and poor prospects in search of a better life” rather than fleeing because of the fear of persecution (65), in the wake of terrorist attacks on the United States in 1993 and 2001, the fears of economic opportunists abusing the system have combined with the broader fear of potential terrorists gaining legal entry into the country through an overburdened asylum system. Since 1995, Congress has passed two major acts to reform the asylum process in reaction to these fears. Both the 1996 Illegal Immigration Reform and Immigrant Responsibility Act and the 2005 Real ID Act were passed to prevent economic migrants and individuals who may pose security risks from entering the country on false claims of asylum. Following September 11, the U.S. government has pursued prosecution for documents fraud among asylum applicants and aggressively enforced safe third country requirements. And, like our European counterparts, the United States has increasingly taken more deterrent and preventative actions to discourage asylum applicants from choosing it as a target for asylum and prevent potential applicants from reaching its ports of entry. Critics fear that the draconian measures adopted in response to these fears are overly broad and worry that worthy applicants have been turned away at the border or denied asylum with increasing frequency, thus leading them to face the real possibility of torture and other forms of persecution. In this article, we examine changes in U.S. asylum policy and whether the heightened security concerns after September 11 have significantly influenced the U.S. asylum process and outcomes in U.S. immigration courts.