Document Type

Working Paper

Publication Date

4-3-2016

SSRN Discipline

PSN Subject Matter eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Public International Law eJournals; Political Behavior eJournals; Legal Scholarship Network; PRN Subject Matter eJournals; Philosophy Research Network; Political Economy - International eJournals; Law School Research Papers - Legal Studies; Law & Society eJournals; CSN Subject Matter eJournals; International Law & Trade eJournals; AARN Subject Matter eJournals; Cognitive Science Network; Humanities Network; Political Science Network; Anthropology & Archaeology Research Network

Abstract

Asylum law is based on an international treaty but federal courts routinely invoke US constitutional norms in adjudicating asylum claims Specifically they rely on constitutional norms when gauging whether an asylum applicant has suffered harm amounting to "persecution" and whether the harm was inflicted "on account of" a protected characteristic such as political opinion or religion In a close analysis of this unusual practice this Article argues that federal courts have come to inconsistent and often incompatible conclusions regarding the use of constitutional norms in the analysis of asylum claims principally on whether constitutional norms establish sufficient insufficient necessary or unnecessary conditions for qualifying for asylum In addition to exposing these inconsistencies this Article offers insights into improving the current practice of using constitutional norms in deciding asylum cases Ultimately this Article seeks to start a larger discussion of the diverse roles of constitutional law in asylum law and of the relationship between US constitutional law and international human rights law "” what it is and what it should be

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