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Immigration Reform in Refugee and Asylum Policy

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Immigration Reform in Refugee and Asylum Policy NOTE IMMIGRATION REFORM IN REFUGEE AND ASYLUM POLICY: DISENTANGLING IMMIGRATION FROM THE NATIONAL SECURITY DISCOURSE Rachel Chernov* ABSTRACT After September 11, 2001, a large-scale overhaul of existing US immigration infrastructure fused immigration with the country’s national security apparatus. Enhanced national security efforts became characterized by increased immigration enforcement and were purportedly justified by government officials’ rhetoric portraying newcomers as a threat to public safety. The Trump Administration employed inflammatory anti-immigrant rhetoric to shore up popular support for harmful immigration policies, precluding the United States from fulfilling obligations to refugees and asylum-seekers under international law. This Note argues that the United States shares virtually none of the geopolitical challenges preventing certain countries from compliance with treaty obligations; however, rhetoric conflating immigration and national security results in immigration policy damaging to refugees and asylees seeking protection in the United States. This Note argues that the United States must work towards compliance with its international commitments by dismantling needlessly punitive immigration enforcement policies and abolishing xenophobic rhetoric, and by providing fair and full protection for the growing number of individuals displaced around the globe. * J.D. Candidate, 2021, Fordham University School of Law; B.A., 2018, Lehigh University; Notes & Articles Editor, Fordham International Law Journal, Volume XLIV. I would like to extend my sincere gratitude to the editorial staff of Volume XLIV for their guidance as I worked through writing and editing this Note. I would also like to thank my family for their continued support—especially my parents and grandparents, who uprooted their lives to come to the US, ultimately giving me the opportunity to attend law school and see my written work through to publication. Their experience is one that I will never take for granted. 1030 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 44:4 ABSTRACT ........................................................................ 1029 I. INTRODUCTION ......................................................... 1031 II. OVERVIEW: EVOLVING IMMIGRATION INFRASTRUCTURE & LEGAL OBLIGATIONS TO REFUGEES AND ASYLEES .................................... 1034 A. US Obligations Under International and Domestic Law ..................................................................... 1034 B. Post 9/11 Changes to the United States’ Immigration Framework .................................. 1036 C. U.S Refugee and Asylum Policy & the Departure from a Legacy of Acceptance ........................... 1043 D. Modern-Day Humanitarian Migrant Demographics ................................................... 1052 III. THE EFFECTS OF NATIONAL SECURITY RHETORIC ON PUBLIC OPINION, IMMIGRATION POLICY, AND COMMITMENT TO TREATY OBLIGATIONS ....................................................... 1054 A. Prohibitive Refugee Policy and International Commitments: Japan & Poland’s Obligations Unfulfilled ......................................................... 1056 B. Benefits of Pro-Refugee Policy: Canada’s Commitment to Refugee Resettlement Under International Law .............................................. 1061 C. The United States ............................................... 1065 1. Effects of Rhetoric Conflating Immigration and National Security on Refugee and Asylum Policy ............................................................ 1065 2. United States v. Canada - Similar Security Guarantees, Different Rhetoric .................. 1072 IV. PROPOSALS FOR COMPREHENSIVE REFORM OF REFUGEE AND ASYLUM POLICY WITHOUT COMPROMISING US NATIONAL SECURITY .... 1075 A. Proposal I: Raise the Refugee Ceiling to Enable Resettlement of More Displaced Individuals .. 1077 B. Proposal II: Dismantle Unnecessarily Punitive Immigration Policies While Retaining Effective Vetting Procedures ........................................... 1080 C. Proposal III: Reframing the Immigration Narrative Through Private Sponsorship of Refugees 2021] IMMIGRATION REFORM 1031 Program and Additional Government-Backed Initiatives ........................................................... 1082 D. Establish an International Coalition Aimed at Capability-Building in Countries Hosting Large Numbers of Asylum-Seekers and Refugees...... 1083 V. CONCLUSION ............................................................. 1085 I. INTRODUCTION The tragic attacks of 9/11, 2001 left a lasting impact on the American people, compelling both government officials and the public to question the shortcomings of the United States’ national security infrastructure. Most are familiar with what followed almost immediately thereafter, beginning with former President George W. Bush’s announcement of the War on Terror military campaign.1 What many do not acknowledge, however, is the devastating blow dealt by 9/11 and its aftermath to the US immigration system.2 Pursuant to the Bush Administration’s belief in strict immigration enforcement as a counterterrorism tactic, Congress enacted the Homeland Security Act of 2002, creating the United States Department of Homeland Security (“DHS”) which enveloped twenty-two federal agencies, including those performing immigration-related functions, under its purview.3 With the creation of DHS came the dissolution of the Immigration and Naturalization Service (“INS”), the agency formerly tasked with matters pertaining to immigration and 1. Deepa Iyer & Jayesh Rathod, 9/11 and the Transformation of United States Immigration Law and Policy, AM. BAR ASS’N (Jan. 01, 2011), https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_ho me/human_rights_vol38_2011/human_rights_winter2011/9- 11_transformation_of_us_immigration_law_policy/ [https://perma.cc/6FB9-MVLH]; George W. Bush, Text: President Bush Addresses the Nation (Sept. 20, 2001) (transcript available at https://www.washingtonpost.com/wp- srv/nation/specials/attacked/transcripts/bushaddress_092001.html [https://perma.cc/XW8N-Z2BE]). 2. See generally MARC R. ROSENBLUM, MIGRATION POL’Y INST., US IMMIGRATION POLICY SINCE 9/11: UNDERSTANDING THE STALEMATE OVER COMPREHENSIVE IMMIGRATION REFORM (2011). 3. See id. at 4. 1032 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 44:4 naturalization.4 The overhaul of the former immigration infrastructure, along with other acts that followed, resulted in the virtual fusion of immigration into the national security apparatus, with enforcement becoming the primary concern. Problems associated with conflating immigration and national security are now more apparent than ever. The world currently faces the largest refugee crisis since World War II, and the United States struggles with the humanitarian crisis at its southern border, with record numbers of asylum-seekers continuing to arrive daily.5 Justifying its actions with rhetoric emphasizing the protection of national security interests, the Trump Administration responded to these crises by enacting a multitude of measures to restrict the influx of refugees and asylum-seekers, and to dismantle years of protective policy. In doing so, it violated US obligations under international agreements including the Convention Relating to the Status of Refugees (“1951 Convention”) and the 1967 Protocol Relating to the Status of Refugees (“1967 Protocol”).6 While the United States neglects its commitments under international law, other nations attempt to accommodate the growing influx of refugees and asylum-seekers fleeing from persecution in their countries of origin. Where the Trump Administration weakened refugee and asylee protections in the United States, Canada surpassed the United States in refugee resettlement efforts.7 Further, member states of the European Union pledged to create tens of thousands of refugee 4. See Iyer & Rathod, supra note 1. 5. Molly O’Toole & Defense One, Are Refugees Really a ‘National Security’ Threat to America?, A (Oct. 9, 2015), https://www.theatlantic.com/international/archive/2015/10/us-policy-syrian- refugees/409822/ [https://perma.cc/23YU-HUX9]; Robert Barnes, Supreme Court Says Trump Administration Can Begin Denying Asylum to Migrants While Legal Fight Continues, Ws. Ps (Sept. 11, 2019), https://www.washingtonpost.com/politics/courts_law/supreme-court-says-trump- administration-can-begin-denying-migrants-asylum-while-legal-fight- continues/2019/09/11/94b90da4-d017-11e9-8c1c-7c8ee785b855_story.html [https://perma.cc/3VM9-HBAN]. 6. See discussion infra notes 204-221. 7. Jynnah Radford & Phillip Connor, Canada Now Leads the World in Refugee Resettlement, Surpassing the US, P Rs. C. (June 19, 2019), https://www.pewresearch.org/fact-tank/2019/06/19/canada-now-leads-the-world-in- refugee-resettlement-surpassing-the-u-s/ [https://perma.cc/V9TB-UZA3]. 2021] IMMIGRATION REFORM 1033 resettlement spots to mitigate the burden on Greece and Italy, whose immigration systems have been overwhelmed by refugees.8 This Note analyzes the United States’ neglect of its guarantees to refugees and asylum-seekers under the 1951 Convention and its 1967 Protocol, explaining how anti-immigrant rhetoric has served as purported justification for the recent promulgation of increasingly harmful policies. Part II of this Note provides background on the evolution of United States immigration policies and rhetoric after 9/11, introducing United States obligations to refugees and asylum-seekers under international law and the impact of these changes
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