Applying the U.S. Constitution to Foreign Asylum-Seekers: Exposing a Curious, Inconsistent Practice in the Federal Courts

Abstract

Asylum law is based on an international treaty, but federal courts routinely invoke U.S. constitutional norms in adjudicating asylum claims. Specifically, they rely on constitutional norms when gauging whether an asylum applicant has suffered harm amounting to “persecution” and whether the harm was inflicted “on account of” a protected characteristic, such as political opinion or religion. In a close analysis of this unusual practice, this Article argues that federal courts have come to inconsistent, and often incompatible, conclusions regarding the use of constitutional norms in the analysis of asylum claims: principally, on whether constitutional norms establish sufficient, insufficient, necessary, or unnecessary conditions for qualifying for asylum. In addition to exposing these inconsistencies, this Article offers insights into improving the current practice of using constitutional norms in deciding asylum cases. Ultimately, this Article seeks to start a larger discussion of the diverse roles of constitutional law in asylum law and of the relationship between U.S. constitutional law and international human rights law — what it is and what it should be.

Keywords: asylum, refugee, constitutional norms