Within Sight of Congress: Protecting Asylum Seekers in Migrant Interdiction and Expedited Removal

Abstract

The 1951 Convention Relating to the Status of Refugees created a legal concept known as non-refoulement. Non-refoulement states that no individual who is outside their country due to a well-founded fear of being persecuted due to his or her race, nationality, religion, membership in a social group, or political opinion, may be sent back to their country to face persecution. In 1968, the U.S. acceded to the 1967 Protocol Relating to the Status of Refugees, binding itself to the principle of non-refoulement, among other laws. Indeed, the U.S. has taken many steps to enshrine in national laws protections for asylum seekers (the U.S. term for someone who applies for asylum in the U.S., instead of from abroad). However, policies have also been created to undermine the ability of the U.S. to uphold its moral and legal obligation to protect asylum seekers. Two of the most drastic examples are migrant interdiction and expedited removal. In migrant interdiction, the U.S. Coast Guard is ordered to search ships for people without authorization to enter the U.S. If these people are found, and they are not able to express a fear of returning to their homeland, they are immediately repatriated. This is an immoral policy that goes against both U.S. and international law, particularly given the very few protections for those asylum seekers built into migrant interdiction. In expedited removal, those who are found at a U.S. border (or within the U.S., given certain geographical and temporal restrictions), without authorization to enter the U.S., are placed in a shortened removal process with fewer protections. Though there are nominal protections for asylum seekers, they are inadequate. Both migrant interdiction and expedited removal send those with legitimate asylum claims back to their persecutors, often in the name of protecting the U.S.’s borders. The most appropriate way to understand how to change the current policies is by undertaking a study of the history of the policies, specifically the factors and interests that led to the policies creation. Paired with a study of the current political landscape, I create a compromise between those who are primarily motivated by security concerns and those primarily motivated by upholding moral obligations. This compromise maintains the two systems to ensure that security remains high, includes more chances for review or appeal, provides more resources to the immigration officers adjudicating claims, and provides more resources to asylum seekers to ensure they can present their case in the optimal fashion.