Document Type

Working Paper

Publication Date

6-25-2014

SSRN Discipline

PSN Subject Matter eJournals; LSN Subject Matter eJournals; ERN Subject Matter eJournals; Public International Law eJournals; Management Research Network; Political Behavior eJournals; Economics Research Network; Legal Scholarship Network; PRN Subject Matter eJournals; Philosophy Research Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Administrative Law eJournals; International Law & Trade eJournals; Humanities Network; Labor eJournals; Political Science Network

Abstract

The US asylum system is noble but flawed Scholars have long recognized that asylum is a "scarce" political resource but US law persists in distributing access to asylum based on an asylum seeker's ability to circumvent migration controls rather than the strength of the asylum seeker's claim for protection To apply for asylum an asylum seeker must either arrange to be smuggled into the US or lie to the consulate while abroad to obtain a nonimmigrant visa Nonimmigrant visa requirements effectively filter the pool of asylum applicants according to wealth educational attainment and intent not to remain in the US indefinitely criteria completely unrelated to or at odds with the purposes of refugee law The system as currently designed therefore selects asylum seekers based entirely on their ability to satisfy irrelevant criteria and without regard to their relative need for protection from persecution Such a system fails to maximize the humanitarian benefits of our scarce asylum resources To better protect individuals facing serious persecution this Article contends Congress should consider reforming the immigration laws to provide for an asylum visa to be made available to foreign nationals US consulates abroad under proper circumstances would issue this visa to foreign nationals who demonstrate a credible fear of persecution on a ground enumerated in the United Nations Convention Relating to the Status of Refugees Applicants would then lawfully enter the US and apply for asylum Successful applicants would remain and unsuccessful applicants would face removal Drawing on the extant literature on socalled "protected entry procedures" that once existed in Europe this Article considers the costs and benefits of the practice of issuing asylum visas This Article concludes that despite serious and uncertain costs and the impracticability of issuing asylum visas in some countries this practice would likely create substantial benefits In particular it would likely decrease asylum seekers' reliance on human smugglers clear a path to protection for bona fide asylum seekers and increase the accuracy of information possessed by both asylum seekers and the US government Thus the asylum visa would assist asylum seekers in making betterinformed decisions ex ante and help to achieve a better allocation of asylum resources ex post For these reasons the creation of an asylum visa and the potential details of such a proposal merit further study

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