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The US Refugee Protection System on The JUNE 2015 The US Refugee Protection System on the 35th Anniversary of the Refugee Act of 1980: A Comprehensive Assessment of the System’s Strengths, Limitations, and Need for Reform S1 Introduction: The US Refugee Protection System S154 The Intersection of Statelessness and Refugee on the 35th Anniversary of the Refugee Act of 1980 Protection in US Asylum Policy DONALD KERWIN MARYELLEN FULLERTON S51 Reconfiguring the Law of Non-Refoulement: S175 On the Margins: Noncitizens Caught in Countries Procedural and Substantive Barriers for Those Experiencing Violence, Conflict, and Disaster Seeking to Access Surrogate International SANJULA WEERASINGHE AND ABBIE TAYLOR Human Rights Protection MARK R. VON STERNBERG S207 Problems Faced by Mexican Asylum Seekers in the United States S83 Unfulfilled Promises, Future Possibilities: The J. ANNA CABOT Refugee Resettlement System in the United States ANASTASIA BROWN AND TODD SCRIBNER S224 Humanitarian Protection for Children Fleeing Gang-Based Violence in the Americas S103 Temporary Protected Status after 25 Years: ELIZABETH CARLSON AND ANNA MARIE GALLAGHER Addressing the Challenge of Long-Term “Temporary” Residents and Strengthening S254 Children’s Migration to the United States from a Centerpiece of US Humanitarian Protection Mexico and Central America: Evidence from the CLAIRE BERGERON Mexican and Latin American Migration Projects KATHARINE M. DONATO AND BLAKE SISK S125 Creating a More Responsive and Seamless Refugee Protection System: The Scope, Promise, and S276 An Overview of Pending Asylum and Refugee Limitations of US Temporary Protection Programs Legislation in the US Congress DONALD KERWIN MELANIE NEZER A publication of the Executive Editor: Charles Wheeler Donald Kerwin Catholic Legal Immigration Network, Inc. Executive Director, Center for Migration Studies Tom K. Wong Managing Editor: University of California, San Diego Breana George Research Coordinator, Center for Migration Studies Steve Yale-Loehr Cornell University Law School Editorial Board: Edward Alden Council on Foreign Relations Information for subscribers: The Journal on Migration and Human Security publishes J. Kevin Appleby open access papers online monthly and compiles a print United States Conference of Catholic Bishops volume annually. Sign up to receive electronic articles and updates at: http://jmhs.cmsny.org/index.php/jmhs/ Leonir Chiarello pages/view/subscribe Scalabrini International Migration Network Submissions: Elizabeth Ferris The Journal on Migration and Human Security seeks Brookings Institution to publish rigorous and well-argued papers that can significantly inform and contribute to the US and Elizabeth Fussell international policy debates on migration. It particularly Brown University welcomes papers that: address timely migration-related “human security” issues, broadly defined; cover issues Anna Marie Gallagher and research that receive insufficient attention in public Maggio + Kattar policy circles; provide new information, ideas, non- traditional perspectives, comparative scholarship, or Susan Ginsburg multi-disciplinary analysis; and articulate areas of US Civil Security LLC agreement and disagreement on particular issues, as well as gaps in knowledge. Emilio T. Gonzalez NPI Advisors, Inc. Guidelines for submissions are available at: http://jmhs.cmsny.org/index.php/jmhs/about/submissions Douglas Gurak Cornell University The Journal on Migration and Human Security is a publication of the Center for Migration Studies of New Jacqueline Hagan York, 307 E 60th Street, 4th Floor, New York, NY 10022; University of North Carolina at Chapel Hill Telephone: 212-337-3080; Email: [email protected]. Natasha Iskander ISSN 2331-5024 (Print) New York University ISSN 2330-2488 (Online) Donald Kerwin © 2015 by the Center for Migration Studies of New York. Center for Migration Studies Ex Officio Photo credit: UN Photo/Eskinder Debebe Rey Koslowski University at Albany, State University of New York CMS wishes to express its gratitude to the Carnegie Ellen Percy Kraly Corporation of New York for its support for this special Colgate University volume of the Journal on Migration and Human Security on the US refugee protection system. CMS also wishes to Helen Morris thank the members of the working group that guided this United Nations High Commissioner for Refugees project for lending their substantial expertise. Todd Scribner The articles in this collection were originally published United States Conference of Catholic Bishops by the Journal on Migration and Human Security in 2014 and 2015. They are reproduced in this volume under new Margaret Stock pagination with the original citation appearing in the Cascadia Cross Border Law Group LLC footer of each article. The US Refugee Protection System on the 35th Anniversary of the Refugee Act of 1980 Donald Kerwin Center for Migration Studies Executive Summary In 2013, the Center for Migration Studies of New York (CMS) initiated a project to bring concentrated academic and policy attention to the US refugee protection system, broadly understood to encompass refugees, asylum seekers, and refugee- like populations in need of protection. The initiative gave rise to a series of papers published in 2014 and 2015, which CMS is releasing as a special collection in its Journal on Migration and Human Security on the 35th anniversary of the Refugee Act of 1980. This introductory essay situates the papers in the collection within a broader discussion of state compliance with international law, impediments to protection, US protection programs, vulnerable populations, and due process concerns. The essay sets forth extensive policy recommendations to strengthen the system drawn from the papers, legislative proposals, and other sources. Introduction The Refugee Act of 1980 represented a high water mark in US refugee law and policy, and in the United States’ history as a haven for the persecuted and dispossessed.1 The Act sought to harmonize US law with the 1951 United Nations (UN) Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.2 It sought to “revise and regularize”3 US refugee admission procedures, gave birth to the US refugee resettlement program, and directed that a “procedure” be established for noncitizens “physically present in the United States or at a land border or port of entry, irrespective of such alien’s status, to apply for asylum.”4 Over the last 35 years, the United States has resettled nearly three million refugees, provided political asylum to more than 400,000 persons, and extended different forms of temporary protection to hundreds of thousands of persons at any one time (DHS 2014b, 39-43; INS 2002, 96; Bergeron 2014, S107-10). Over the same period, however, the United States created a massive immigration enforcement and homeland security infrastructure, which 1 Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980). 2 Convention relating to the Status of Refugees, July 28, 1951, 189 UNTS 150 (entered into force April 22, 1954) [the Refugee Convention]; Protocol relating to the Status of Refugees, January 31, 1967, 606 UNTS 267 (entered into force October 4, 1967) [the Refugee Protocol]. 3 INS v. Stevic, 467 US 407, 425 (1984). 4 Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980), § 201 (b). © 2015 by the Center for Migration Studies of New York. All rights reserved. JMHS Volume 3 Number 2 (2015) Journal on Migration and Human Security has had a deleterious effect on the protection of refugees, asylum seekers, and refugee-like populations. In 1980, the budget of the Immigration and Naturalization Service (INS) was $349.1 million (roughly $1 billion in 2015 dollars) (DOJ 2002, 106). By 2014, funding for Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) of the Department of Homeland Security (DHS) equaled a combined $18 billion (DHS 2014a, 49-50, 64), a figure which does not include the cost of providing immigration benefits (as INS did) and which excludes the substantial immigration enforcement spending by other federal agencies. Restrictive legislation, jurisprudence, and enforcement practices have also eroded US refugee protections. Among other challenges: • US interdiction and interception policies, post-9/11 immigration-related security measures, and the expedited removal process have denied access to protection to massive numbers of refugees and others fleeing desperate situations, have returned many to perilous situations, and have delayed the protection of others; • Due process deficiencies, evidentiary barriers, and the widespread use of immigrant detention have prevented a substantial percentage of bona fide asylum seekers from pursuing and prevailing in their claims; and • US temporary protection programs, particularly for desperate non-refugees seeking admission, have proven to be limited, inflexible, and inadequate. In 2013, the Center for Migration Studies of New York (CMS) initiated a project to bring concentrated academic and policy attention to the US refugee protection system, with the goal of strengthening and revitalizing this traditional pillar of US foreign policy, humanitarian programs, and the global refugee protection system. To that end, CMS established and convened a working group consisting of experts from the academic, research, public policy, governmental, and nongovernmental communities. In June 2014, it hosted a symposium on the US refugee protection system. The event and working group meetings gave rise to a series of papers, published
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