May 2, 2023
By Matt O’Brien
According to the Los Angeles Times, the union that represents U.S. Citizenship and Immigration Services employees is criticizing the Biden administration’s anemic attempts to stem the flow of asylum-seekers across America’s border with Mexico.
Under Biden’s plan, illegal aliens who failed to request protection from countries they passed through on the way to the U.S. would be ineligible to seek asylum here.
This isn’t a particularly radical move. Rather, it’s just Team Biden revisiting the long-established “first country of asylum,” “first safe country,” or “first country of refuge” concept, which has been a part of asylum law for decades. It’s based on the recognized reality that if migrants are in genuine need of protection, they’ll seek it in the closest place where they won’t be persecuted, not in the place where they can obtain the highest standard of living.
Nevertheless, the Times article quotes attorneys for the American Federation of Government Employees (AFGE) asserting that proposed new regulations would “‘violate asylum officers’ oath to carry out the immigration laws set out by Congress and ‘could make them complicit in violations of U.S. and international law.’” Asylum Officers made similar claims during the Trump administration and they are just as spurious now as they were back then.
Let’s take a look at U.S. law first: It is important to note that neither the Immigration and Nationality Act of 1965, nor any other domestic statute, requires the United States to grant asylum to anyone at all. In fact, even people who are clearly subject to persecution in their home countries may be denied asylum if they cannot establish that they merit a favorable exercise of the Immigration Court’s discretion to grant relief.
Ultimately, the decision whether or not to protect a particular asylum-seeker is one that the United States is entitled to make based entirely on its own public safety, national security and foreign affairs interests. And American courts have regularly affirmed this fact in opinions ranging from Matter of Salim in 1982 to Patpanathan v. Attorney General decided in 2014.
Moreover, Congress intentionally structured asylum as a discretionary form of relief in order to protect American sovereignty. As the Supreme Court stated in Chae Chan Ping v. United States, “That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens it would be to that extent subject to the control of another power.”
The mere fact that an alien claims to be subject to persecution at the hands of his own government does not abrogate American sovereignty and obligate the U.S. to confer any particular immigration status upon him/her.
Simply put, Asylum Officers’ hysterical claim that a safe third country policy will violate their oath and make them complicit in violations of U.S. law simply doesn’t stand up to scrutiny.
But what of international law? The proposition that Asylum Officers will be in violation of international law if they refuse to grant protection to aliens who have transited multiple countries on the way to the U.S. is beyond disingenuous; it is an outright lie.
To begin with, the term “international law” refers to the body of rules which govern relations between nation states. Thus, in the event that an international tribunal ever reviewed a case involving an American denial of asylum, the party subject to sanction would be the government of the United States, not any particular asylum officer. However, that isn’t likely to happen.
The 1951 United Nations Convention Relating to the Status of Refugees defines political asylum for international law purposes. The U.S. is a signatory to this treaty. And, as the International Justice Resource Center notes, “The 1951 Convention does not define how States parties are to determine whether an individual meets the definition of a refugee. Instead, the establishment of asylum proceedings and refugee status determinations are left to each State party to develop.”
In other words, pursuant to its treaty obligations, the U.S. must have a system in place for adjudicating asylum claims, but it is free to determine to whom it wishes to grant protection and under what circumstances it wishes to do so. Despite the anti-borders contingent’s claims to the contrary, America has a comprehensive and generous asylum system. As such, the Asylum Officers’ claims about international law don’t stand up to close examination either.
So, what are the AFGE and its asylum corps members really complaining about? Apparently, they’re under the mistaken impression that the primary function of an Asylum Officer is to secure access to the United States for foreign nationals. But that just isn’t the case. In reality, Asylum Officers have two primary jobs: 1) to vet asylum applicants and make sure they are not a threat to national security or public safety; and 2) to ensure that U.S. immigration law is applied correctly and fairly.
It’s high time that someone pointed out that they can’t do either if they have no idea what the law – domestic or international – really requires.
Matt O’Brien is the director investigations at the Immigration Reform Law Institute and the co-host of IRLI’s podcast “No Border, No Country.” Immediately prior to working for IRLI he served as an immigration judge. He has nearly 30 years of experience in immigration law and policy, having held numerous positions within the Department of Homeland Security.
Also published at American Thinker, May 2, 2023.
Sign up for our email newsletter to stay up to date with immigration reform in the United States.
Attorneys United for a Secure America (AUSA) is a non-partisan affiliation of talented attorneys dedicated to pursuing cases that serve the national interest when it comes to immigration law.
If you are interested in joining the network, visit the AUSA website.