Asylum Under Attack: Is It Time for A Constitutional Right?
26 Buffalo Human Rights Law Review 147 (2019-20)
41 Pages Posted: 14 Dec 2020
Date Written: December 1, 2020
The Trump Administration is in the midst of an unprecedented assault on the ability to apply for asylum in the United States. It has placed severe restrictions on when, where and how individuals fleeing persecution may apply for asylum. These restrictions reflect the Administration’s view that asylum is a loophole that allows otherwise ineligible non-citizens to gain entry into the United States, rather than a right based on domestic and international law.
This article argues that, given this political and social context, it is time to establish the right to seek asylum as a substantive due process right within the U.S. Constitution. Such a right is not without precedent. Indeed, three Circuits (the Second, Fifth, and D.C.) have explicitly recognized it. On the other hand, the First and Fourth Circuits have rejected it. Others have either not ruled on the issue or have taken a middle ground. This circuit split (which has existed for decades) should be resolved by the U.S. Supreme Court, which has to this point dodged the issue.
This article focuses on four Trump Administrative proposals that are the subject of federal court litigation: The “Zero Tolerance” policy that resulted in the separation of children and their parents at the southern border of the U.S.; the “Turnback” policy that was a composite of numerous efforts to limit the entry of asylum-seekers, including the requirement that they apply for asylum at designated ports of entry; the “Remain in Mexico” (or “Migrant Protection Protocols”) policy that requires certain asylum-seekers to wait in Mexico while their applications are being processed; and the Third Country policy, which requires asylum-seekers to apply for asylum in any country through which they traveled en route to the United States. The article considers how a constitutional right to asylum would have affected the legal strategy and outcome to date of these ongoing legal challenges. In doing so, it argues that such a right would have a much stronger impact on asylum-seekers than the statutory-based opportunity to apply for asylum under the Immigration and Nationality Act.
This article makes an important contribution to the scholarly literature on the constitutionalization of asylum law in particular and human rights law in general. Countries around the world have been including human rights provisions – including the right to asylum – in their national constitutions with increasing frequency. However, in most cases, these provisions are mere words on paper, with little practical application. This article suggests that, if adopted by the Supreme Court, a constitutionalized right to asylum in the United States would likely be the most effective such provision in the world. This conclusion would add to the growing literature, to which the author has contributed, on the circumstances under which constitutionalized human rights law improves outcomes for refugees and asylum-seekers.
Keywords: Asylum, refugees, human rights, constitutional law
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