The New Asylum Rule: Improved but Still Unfair

Abstract

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). This article discusses how two specific provisions of the IIRIRA - the one-year deadline on asylum applications and the expedited removal provisions - unnecessarily cause hardship and injustice to asylum-seekers. It also assesses the response of the Immigration and Naturalization Service (INS) and suggests needed regulatory and statutory reform. Recognizing that even regulatory reforms will not eliminate many of the injustices caused by the IIRIRA, the article recommends enactment of the Refugee Protection Act, currently pending in Congress. First, the article discussed the one year filing deadline and some of the changes that have been made to it since its introduction in the IIRIRA in 1996. The one-year deadline for asylum seekers requires asylum seekers to apply for asylum within one year from their time of entry into the United States. The authors recommend that if the deadline is not repealed, the existing exceptions for and circumstances should be augmented to include delayed awareness of changed country conditions, threats to an applicant's family living abroad, and genuine belated discovery of the law. They also recommend changes in the regulatory definition of the exception for ineffective assistance of counsel. Second, the article discusses the IIRIRA's grant of authority to the INS to engage in expedited removal. Under the expedited removal provisions, an individual who is detained at the United States border because he or she does not have the proper documentation to enter, may be immediately deported at the discretion of the INS inspector back to his or her home country without an administrative or judicial hearing. The article preliminary states that expedited removal should be limited to extraordinary migrantion situations. It then discusses specifically what can be done at each stage of interrogation of the asylum-seeker by INS inspectors to make the system fairer for asylum-seekers. For example, the authors recommend numerous changes to the secondary-inspection stage of the removal process, where airport-based inspectors determine if a refugee is afraid of returning home. The authors also point out the need for numerous improvements to be made at the stage of the process during which INS determines whether aliens have a credible fear of persecution, permitting them to apply for asylum before an Immigration Judge. The article concludes with strong support for the pending Refugee Protection Act.