Last year, the intelligence reform bill was stalled by debate over several anti-refugee clauses tacked onto the bill. The provisions were eventually removed, but now they're back—as the REAL ID Act. Arguing that the U.S. asylum process provides loopholes for terrorists, Rep. James Sensenbrenner's solution is to drastically restrict asylum. But the plan would turn away those fleeing torture and persecution, and there's no evidence it would improve security, says attorney Cory Smith. So much for the lamp beside the golden door. See also America The Insular .
Cory W. Smith serves as legislative counsel for Human Rights First , the new name for the Lawyers Committee for Human Rights.
This year marks the 25th anniversary of the 1980 Refugee Act. This important legislation brought our domestic law into conformity with international obligations: to protect refugees in dire need of a safe haven. After the Holocaust, nations painfully acknowledged that too many had closed their borders to refugees fleeing certain death. The United States committed to ensuring that this would not happen again—that America would keep its doors open to those fleeing religious persecution and ethnic cleansing. But that time-honored commitment is now in serious jeopardy as several leading House Republicans advance—under the guise of national security—a misguided piece of legislation known as the REAL ID Act.
Last year, these congressmen took advantage of the intelligence reform bill and tacked on several extraneous anti-asylum provisions that had nothing to do with the important recommendations from the 9/11 Commission’s report. Fortunately, these provisions—which would have caused serious harm to refugees—were eliminated from the final law due to the strong opposition by a broad coalition of human rights groups, religious and faith-based organizations, civil liberties groups and a bipartisan group of Congressional leaders.
In late January, House Judiciary Committee Chairman James Sensenbrenner, R-Wis., introduced with great fanfare some of these provisions as part of his REAL ID Act. Rep. Sensenbrenner characterizes the anti-asylum language in his bill as border security that will tighten the asylum system that has been allegedly abused by terrorists. These assertions are incorrect.
The horrific tragedy of 9/11 forced Americans to think of security first. We must make sure that we do not take security risks even as we uphold our national tradition of serving as a safe haven to people fleeing persecution abroad. The United States government, after a comprehensive examination of an individual’s case, grants asylum to refugees who prove that they have suffered persecution in the past or have a well-founded fear of future persecution—but not before conducting multiple and rigorous security checks on each and every applicant. U.S. law "categorically disqualifies" for asylum persons who have committed certain crimes in the United States or any of a wide range of serious non-political crimes abroad. And it bars persons who are deemed security risks—or suspected terrorists. The asylum system is not rife with security gaps and does not act as a sieve for terrorists to remain in this country.
That's right, each and every applicant undergoes extensive security checks—including several with biometric indicators—conducted by the Department of Homeland Security, the CIA, the FBI and the Department of State.
Furthermore, beginning in the early 1990s, the asylum process was overhauled to enhance security by reducing incentives for frivolous filings and for those trying to stay in this country by taking advantage of a backlog. The administrative reform eliminated automatic work authorization for asylum applicants, required the timely processing of applications and mandated personal interviews by trained officers. Then, in 1996, Congress enacted expedited removal, which required that aliens arriving at U.S. ports of entry without proper documentation be mandatory detained and demonstrate a credible fear of persecution before bringing an asylum claim before an immigration judge. The Department of Homeland Security, the agency charged with assessing asylum claims and enforcing our immigration laws, is currently authorized to detain the asylum seeker throughout the application process—a practice that is increasingly frequent since 9/11.
Rep. Sensenbrenner and other proponents of the anti-asylum provisions have frequently cited examples like Ramzi Yousef from the first World Trade Center bombing, and Hesham Mohamed Hedayet, the Egyptian nationalist who opened fire on the El Al airlines counter at Los Angeles airport. They assert that these documented terrorism cases justify the legislation. But of the small handful of cases cited, the vast majority of the individuals applied prior to asylum reform and none received asylum.
Indeed, with the exhaustive scrutiny that asylum seekers are subjected to, one wonders: Why would terrorists purposefully subject themselves to all this scrutiny? Terrorists and others who intend to do harm to this country will choose the path of least resistance—which most certainly is not coming in contact with the rigorous array of security and background checks, biometric indicators, absolute bars to asylum, mandatory detention and expedited removal built into a process that last year granted asylum to only 29 percent of those who applied.
If Rep. Sensenbrenner sincerely wants to keep America safe, the best way to do that is not to change the burdens of proof—or change standards and definitions that will harm legitimate refugees seeking asylum in this country and send them back to their persecutors to face torture or death. Rather, members of Congress should improve interior enforcement, strengthen security measures and address immigration fraud.
The REAL ID Act will do little to ensure America’s security. Instead, it will hurt the most vulnerable—those fleeing repressive regimes—while doing little to make our nation safer. The irony is that many of these refugees are America’s friends, fighting abroad for democratic reform, risking their lives to further religious liberty and combating political extremism. Recently, when speaking about immigration and our borders, President Bush admonished the American public to remember that "family values do not stop at the Rio Grande River." Family values do not stop there, nor do they stop in Boston, Atlanta, Miami, Seattle, Los Angeles, or, most importantly, in Washington, D.C. When these individuals and their families face torture or death, when their claims are credible, when they have cleared exhaustive security checks, America should be opening her doors—not closing them.