Terrorism and Asylum Seekers: Why the Real Id Act is a False Promise

Abstract

The Real ID Act, passed on May 11, 2005, is the first post-September 11 antiterrorism legislation specifically to target a group of vulnerable individuals to whom the United States has historically granted protection: asylum seekers. The passage of the Real ID Act led asylum advocates to wring their hands in despair and immigration restrictionists to clap their hands in glee. This Article argues that both sides of the debate may have been justified in their reactions, but not because of the immediate chilling impact on asylum that they seem to expect. With regard to requirements for establishing asylum eligibility, the Real ID Act, rather than imposing new, onerous restrictions on asylum, codifies case law upon which adjudicators, advocates, and government attorneys have been relying for decades. However, several areas of poor drafting, combined with legislative history mischaracterizing the asylum system as a haven for terrorists and suicide bombers, may result in the denial of bona fide asylum applications. This Article provides concrete guidance for adjudicators, advocates, and government attorneys applying the Real ID Act to asylum cases. It examines the case law upon which some of the provisions are based and offers interpretations for unclear provisions. Overall, this Article emphasizes that it is the duty of adjudicators, advocates, and government attorneys to protect victims of persecution.

Keywords: 1967 Protocol, asylum, immigrant/immigration, Illegal Immigration Reform and Immigrant Responsibility Act, Immigration and Nationality Act, national security, non-citizens, PATRIOT Act, persecution, Real ID Act, refugee, Refugee Act, Sept. 11, terrorism/terrorists, UNHCR Convention