How the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 Has Undermined US Refugee Protection Obligations and Wasted Government Resources

Abstract

Seeking asylum is a human right, enshrined in the Universal Declaration of Human Rights. The 1951 Convention relating to the Status of Refugees (“Refugee Convention”) and its 1967 Protocol relating to the Status of Refugees (“1967 Protocol”) prohibit the United States from returning refugees to persecution, and the 1980 Refugee Act set up a formal process for applying for asylum in the United States. However, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) created a barrage of new barriers to asylum. These impediments have blocked many refugees from accessing asylum in the United States and inserted additional layers of technicalities, screening, and processing, undermining the effectiveness of the US asylum system. The barriers imposed by IIRIRA are significant. They include a filing deadline on asylum applications, which prevents genuine refugees from receiving asylum if they cannot prove they have filed the application within one year of arriving in the United States. IIRIRA also established summary deportation procedures, including “expedited removal” and “reinstatement of removal,” which block asylum seekers from even applying for asylum or accessing an immigration court removal hearing, unless they first pass through a screening process. Finally, IIRIRA imposed “mandatory detention” on certain immigrants, including asylum seekers who are placed in expedited removal proceedings upon their arrival at a US port of entry. Each of these provisions imposed new processes and procedures that have contributed to an increasingly ineffective immigration system. The current backlog in the immigration courts has reached a record high, surpassing half a million cases, while the backlog of affirmative asylum cases before the Asylum Division of US Citizenship and Immigration Services (USCIS) has increased by a factor of six in just three years. Backlogs, which lead to long delays in adjudication, undermine system integrity as bona fide asylum seekers wait for years in legal limbo — some with families waiting abroad in dangerous and life-threatening situations — and individuals without meritorious claims may be encouraged to file applications to receive a work permit during the lengthy waiting period. Twenty years later, as the world faces the largest global refugee crisis since World War II, the asylum barriers injected into the US system under IIRIRA have proven harmful to refugees, and detrimental to the US asylum system. This paper highlights recent research, litigation, and advocacy efforts that have further brought to light the rights violations and systemic inefficiencies generated by IIRIRA. It concludes with a series of recommendations, calling on the US government to eliminate these counterproductive barriers and to take steps to assure access to asylum.