Among many other things, the last four years has been one, long, sustained attack on the role of the United States in refugee protection – and on the rule of law in the immigration system more broadly. Experts have been carefully tracking (for example, here and here) the outgoing administration’s attempt at death by a thousand cuts and also plotting visions for comprehensive reform, both by the executive branch alone and through legislation (see proposals here and here). President-elect Joe Biden has pledged to deliver an immigration reform proposal to Congress immediately; a comprehensive bill is expected to be transmitted to Congress within hours of the oath of office. Among many competing priorities, we argue below that the new administration should prioritize closing what we term the “discretion gap” in U.S. refugee law and make asylum mandatory for all those who merit it.

Notwithstanding four years of damage to the U.S. role as a leader in refugee protection, one core aspect of U.S. law has failed – for decades – to comply with our international refugee law commitments: Our statutes improperly give U.S. government officials broad discretion to deny asylum even to those who are determined by the government to face persecution in their home countries. This has largely gone under the radar. Recent administrative rulemaking deemed by immigration pundits the “monster regulation” or the “death to asylum” rule threatens to drastically expand this compliance gap. Even if this and every other one of the Trump-era assaults on immigrants were unraveled by the Biden-Harris Administration on or after January 20, 2021, the discretion gap in U.S. refugee statutes (and between those statutes and international law) could again be exploited by any future racist, xenophobic president. The need to unravel Trump-era attacks on asylum – including the monster regulation – therefore creates an opportunity to close the discretion gap, prevent further harm to refugees and, in doing so, bring the United States into greater compliance with international refugee law.

U.S. Obligations Under International Refugee Law

The 1951 Convention was drafted in the wake of World War II and establishes the permanent architecture for international refugee protection by States around the world. While the United States played a significant role in its drafting (the United States also was a major supporter of the predecessor to the United Nations High Commissioner for Refugees, the International Refugee Organization), it did not ratify the 1951 Convention. The United States did, however, sign on to the 1967 Protocol Relating to the Status of Refugees, binding the United States to the substance of the 1951 Convention (the 1967 Protocol expanded the geographic and temporal scope of protection beyond Europe and World War II, required the United States to respect Articles 2-34 of the 1951 Convention and affirmed the supervisory role of the High Commissioner), following the Senate’s provision of advice and consent in 1968 (subject only to reserving the right to tax non-resident refugees as well as with regard to potential conflicts with the application of the Social Security Act to refugees in limited instances).

While all substantive provisions of this treaty law are important in their own right and impose dozens of substantive duties on the United States, Article 33 of the 1951 Convention is commonly viewed as central to the legal regime. Article 33 provides that no State “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where [their] life or freedom would be threatened on account of [their] race, religion, nationality, membership of a particular social group or political opinion.” Refugees are defined in the treaty’s Article 1 as those having a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and so are unable to return to their home country.

The treaty allows a limited exception to the non-refoulement norm for refugees whose conviction for committing a “particularly serious crime” makes them a danger to the community; elsewhere the Convention deprives of refugee protection altogether precious few other migrants, for example, war criminals. While recent global responses to the COVID-19 pandemic have raised questions about the strength of compliance with the norm (see commentary here and in Just Security here), it has widely been viewed as all but absolute.

In addition to being set out in the refugee treaties, the obligation of non-refoulement is viewed by international authorities as a norm of customary international law, meaning that governments must comply regardless of whether they have signed on to the 1951 Convention or its 1967 Protocol. The duty of non-refoulement likewise has a complementary articulation in human rights law that is in some ways even broader, derived from international treaties (including two treaties the United States has signed and ratified – the International Covenant on Civil and Political Rights and the Convention Against Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment) as well as in customary international human rights law. While there may be quibbles about the status of U.S. treaty law obligations in U.S. court proceedings, there is no question that the United States has an international law obligation to comply with the duty of non-refoulement.

At its core, non-refoulement requires that contracting states not turn their backs on refugees because doing so “would be tantamount to delivering [them] into the hands of [their] persecutors.” Thus, Article 33 was meant to protect from refoulement of any kind, including expulsion to territories other than the individual’s country of origin – if the refugee’s life or freedom would be threatened there (or if it would trigger a chain of expulsions leading to harm). The treaty was unquestionably intended to protect all refugees from non-refoulement – one commentator noted (in an authoritative edition of the 1951 Convention’s Travaux Preparatoires or drafting history), that the operative phrase in Article 33 – preventing expulsion or return to “the frontiers of territories where [their] life or freedom would be threatened” – was intended to “have the same meaning as . . . ‘well-founded fear of persecution’ in Article 1 [] of the Convention” and sweep everyone deserving of protection as refugees into Article 33’s ambit. The use of the term “refugee” within the text of Article 33 likewise necessarily invites State parties to the treaty to refer back to the definition within Article 1, which deems refugees to be all who face a well-founded-fear of persecution based on a protected ground. In short, those who are covered by the treaty’s definition of refugee were intended by the drafters to benefit from the myriad duties States have under the more than 30 operative articles, including but not only protection against return to harm.

Practice Within the United States: Withholding, The Refugee Act of 1980, Stevic, Pula

Article 33 has played a profound role in shaping two forms of legal protections available in U.S. domestic law – asylum and withholding of removal – as well as the discretion gap between them. Technically, however, U.S. law has actually never been consistent with Article 33. Instead, domestic law has long distinguished between a form of protection from removal or deportation that is mandatory, withholding of removal, and one that is only discretionary, asylum. The former is thin, essentially a Damocletian sword – a removal ordered but held in abeyance – while the latter is thick, providing a path to citizenship.

Congress tacitly acknowledged in passing the Refugee Act of 1980 (co-sponsored by then-Senator Joe Biden) that the United States had essentially been in violation of Article 33 since U.S. accession to the 1967 Protocol because during that period no mandatory form of relief existed for bona fide refugees. The legislation itself stated outright that the Refugee Act would “finally bring United States law into conformity with the internationally-accepted definition of the term ‘refugee’ set forth in the 1951 United Nations Refugee Convention and Protocol . . . .”

During that intervening period, the United States had instead maintained many of the same practices it had prior to agreeing to the Protocol. Among these was the application of Section 243(h) of the Immigration and Nationality Act (“INA”) of 1952, which merely “authorized” the attorney general to “withhold deportation” of an alien in which “in [the attorney general’s] opinion” the alien would be subject to persecution. The Board of Immigration Appeals (“BIA”) had likewise ruled that it required a very high showing – a “clear probability” of harm – to merit such protection and had also ruled that international refugee law did not constrain the attorney general’s exercise of discretion.

In 1980, Congress made this withholding of removal relief mandatory and, in parallel, created a new form of relief, asylum status, mirroring nearly verbatim the definition of refugee contained in the 1951 Convention. As one authoritative account of the legislative history notes, one major goal of Congress was to create mandatory relief for refugees that would not reserve protection only to those deemed to be of “special concern” – and avoid any “politically motivated selection criteria.” The goal, in sum, was to bring the United States into compliance with international law and the conference bill resulted in language (including the mandatory withholding provision) expressly pledged to “be construed consistent with the Protocol.”

Under the current version of the withholding of removal statute, Section 241 of the INA, the attorney general “may not remove an alien” to a country in which they would face persecution. On the other hand, current Section 208 of the INA merely authorizes the use of discretion in relation to asylum, providing that “Secretary of Homeland Security or the Attorney General may grant asylum” to refugees.

The first time the Refugee Act of 1980 and U.S. duties under the 1967 Protocol were presented to the U.S. Supreme Court was in Stevic v. INS, in 1984. After coming to Chicago from the former Yugoslavia to visit his sister, Predrag Stevic stayed, married, and became active in an anti-communist organization. He then sought protection from return based on a fear of persecution – and lost. During the pendency of his appeal, Congress passed the Refugee Act of 1980, making withholding of removal mandatory and creating asylum; by the time the case went up to the Supreme Court, the Immigration and Naturalization Service had granted just 3,946 asylum applications and faced a backlog of 171,000 requests.

On the way to the Supreme Court, the Federal Court of Appeals for the Second Circuit ruled both (a) that the uniform test of “refugee” must be applied to all immigrants, “whether seeking admission under the newly enacted [asylum provision], or seeking to avoid deportation under [the] amended [withholding provision]” and (b) that the “well-founded fear” test in the law’s definition of refugee “embodies a more generous standard than the [BIA’s] ‘clear probability’ test” – because “Article 33 of the Convention imposes an absolute obligation on the United States.” The Second Circuit thus proposed a reading of the statutes consistent with international refugee law: that everyone who is a refugee merits protection from return to harm.

The Supreme Court unanimously, yet erroneously, disagreed. The Court declined to apply the “well-founded fear” standard (which just three years later in INS v. Cardoza-Fonseca, the Court would suggest was satisfied with a one-in-ten chance of future persecution) to withholding of removal relief, reasoning that there was no support in the INA or the legislative history for mandating that every applicant qualifying as a refugee under treaty law be entitled to protection against return. Yet, as the U.N. High Commissioner for Refugees argued in an amicus brief, given that Congress’s express purpose was to bring the United States into full compliance with the 1967 Protocol and for withholding of removal to be “based directly upon the language of [Article 33 of] the 1967 Protocol” and “construed consistent with the Protocol,” the United States was required to adopt a well-founded fear test.

The Court – getting it, we think, exactly backwards – rejected this argument and the Second Circuit’s ruling as based on a “mistaken premise” that every immigrant who qualifies as a refugee “is also entitled to a withholding of deportation.” The Court concluded that withholding of removal (still) required demonstrating a “clear probability of persecution” – essentially, a greater than fifty percent chance of harm. In siding with the executive branch, the Court’s decision (in conjunction with its later decision in Cardoza-Fonseca) effectively bifurcated the standards for withholding of removal and asylum (and deemed this acceptable under international law, suggesting that asylum merely satisfied the U.S. obligation under Article 34 to facilitate naturalization of refugees). While we are not the first to point out this resulting gap (see especially here and here), it seems clear that the Supreme Court neither saw nor addressed the discretion gap they reified in U.S. law.

The upshot: withholding of removal remains a mandatory form of relief under statute and asylum discretionary. In addition to facially violating international law and amounting to a formal rejection of the idea that those who are refugees are required by U.S. law to receive protection from return (along with the full range of rights guaranteed by U.S. treaty obligations), this is problematic for two reasons. First, and most obviously, under current domestic law there exists a class of refugees who may be deemed to have less than a fifty percent chance of persecution if returned and yet who are not guaranteed relief under law. Furthermore, withholding of removal affords substantially fewer protections to refugees than does asylum. For example, a refugee granted withholding, but not asylum, is not provided relief for eligible family members in the United States and is not provided a pathway to establishing permanent residence and citizenship.

There is no data on how many refugees have been discretionarily denied asylum – because neither the Department of Homeland Security (DHS) nor immigration courts consistently track that data. Before the Trump administration actions discussed below, the discretion gap was seen by some as having had few if any adverse effects on the rights of refugees (in contrast to other U.S. policy failures) and had thus “seldom been used to deny asylum to a refugee.” (There are circumstances in which withholding is an important tool of refugee protection in the United States – due to Congress and administrative agencies having established other bars to asylum which are prohibited by international law, a complex topic for another post).

In large part, that this could largely fly under the radar for almost 40 years was due to the decision of the BIA in Matter of Pula, which held that a strong likelihood of future persecution “should generally outweigh all but the most egregious adverse factors” in the context of discretionary asylum. Essentially, this directed immigration judges to favorably exercise their discretion, allowing the U.S. violation of international law to be, essentially, cured in the government’s treatment of individual cases. The Trump administration, however, attempted to drastically expand the discretion gap.

New Trump-Era Rules: The Monster Regulation

The Trump administration’s administrative rulemaking has revealed how the discretion gap can be used against refugees to disastrous effect. On Dec. 11, a joint DHS-Justice Department (“DOJ”) regulation, “Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review,” was finalized. The regulation would gut many aspects of the U.S. asylum system, making it substantially more difficult for bona fide refugees to receive the humanitarian protection to which they are legally entitled. Significantly, the rule would drastically expand the use of discretion to deny asylum to refugees by codifying in law specific adverse factors for the first time, effectively mandating denial of relief. The final rule was scheduled to become effective on Monday, Jan. 11, until it was stayed by a federal judge on Jan. 8.

The new rule would make it mandatory for adjudicators to consider three specific factors during each asylum adjudication: (1) a noncitizen’s unlawful entry or unlawful attempted entry; (2) a noncitizen’s failure to seek asylum or refugee protection in at least one country through which the noncitizen transited before entering the United States; and (3) a noncitizen’s use of fraudulent documents to enter the United States. Though none of these exceptions are permitted by international refugee law (which recognizes that a refugee might procure a fraudulent passport, not wait for a visa and then pass through a third country on their way to their final sanctuary), a finding that any one of these three factors applied would become sufficient grounds for denying an applicant’s asylum claim as a matter of discretion. The regulation also codifies nine additional adverse factors that adjudicators are permitted to consider when making discretionary determinations on asylum requests. While an adjudicator might still grant discretionary asylum in “extraordinary circumstances” under the new rule, guidelines note that the applicability of any one of the nine adverse factors to an applicant’s case should “ordinarily result in the denial of asylum as a matter of discretion.”

The robust proposed catalog of adverse factors would impose major new obstacles to securing a grant of asylum, thus diminishing the likelihood that bona fide refugees obtain the relief to which they are entitled under international law. By codifying nearly a dozen adverse factors, none which mandate a positive exercise of discretion, the rule all but requires denying protection to a broad range of cases. According to the rule, the applicant can only overcome this presumption by demonstrating through clear and convincing evidence that a denial of asylum would result in “exceptional and extremely unusual hardship.” It is unclear what constitutes “extremely unusual hardship” (if not a denial of recognition as a refugee), but it reads as a narrow exception, and likely would not be read to refer to persecution.

The new regulation thus violates the international principle of non-refoulement by establishing a de facto presumption against granting asylum as a matter of discretion, even when the applicant qualifies as a refugee. 

Pending Court Challenges

On Dec. 21, various groups filed separate lawsuits against DHS and DOJ for publishing the monster regulation. In the District of Columbia, Human Rights First filed a lawsuit against DHS and DOJ, requesting the court to issue emergency relief enjoining enforcement of the rule, or alternatively, a stay of implementation of the rule. In its complaint, Human Rights First argued that the joint DHS-DOJ rule will render many asylum-seekers ineligible for asylum and tilt the process in favor of denials of asylum claims in violation of domestic and international law. On Jan. 7, the court requested the parties to meet and issue a joint status report regarding whether DHS would agree to stay the implementation of the rule in light of “recent and fast changing events nationally and at [DHS].” However, on Jan. 8, DHS stated in the joint status report that it would not.

In the Northern District of California, Pangea Legal Services and a number of other groups filed a lawsuit requesting the court to issue a nationwide temporary restraining order preventing DHS from implementing the monster regulation. Pangea Legal Services and the other plaintiffs argued that DHS’ hasty effort to publish the rule and failure to address concerns raised in comments to the rule violated numerous provisions of the Administrative Procedure Act. The groups also contended that Chad Wolf lacked authority to issue the rule because his assumption of the role of acting secretary of DHS violated the Appointments Clause of the Constitution and the Federal Vacancies Reform Act. In a related action in the Northern District of California, Immigration Equality sued DHS and DOJ, asserting that a nationwide emergency order should be issued because the monster regulation will irreparably harm asylum-seekers by creating a high risk that bona-fide refugees will be denied asylum and be deported to countries where they will face persecution or torture. On Jan. 8, the Northern District of California granted a preliminary injunction in these two related actions, requiring DHS and DOJ officials to halt efforts to implement and enforce the final rule pending further proceedings. 

Avenues for Unravelling the New Final Rule

Since the Northern District of California stopped DHS and DOJ from enforcing the final rule, the rule did not go into effect as scheduled on Jan. 11, and will likely not go into effect before President-elect Biden’s inauguration on Jan. 20. While immigration advocates have been successful in federal court at blocking the implementation of the final rule so far, the Biden administration should still take immediate steps to unravel it once in office and do so in a manner which ensures that future administrations cannot revive it down the road.

At the outset, the Biden administration should implement the 100-day moratorium the president-elect has already pledged and ensure that the rule is not applied, including by making use of the ongoing litigation. The Biden administration should also immediately begin tracking and publicly reporting the frequency with which asylum claims are – or have been – denied on a discretionary basis, and for what reason(s).

The Biden administration should also take steps to support Congress formally disapproving and overturning the final rule so that it does not take effect via the procedures in the Congressional Review Act (“CRA”), which permit both houses of Congress to pass and the president to sign a resolution of disapproval unraveling agency action in limited circumstances. The outcome of the Georgia special election makes it likely that the Biden administration would have the votes to pursue this path. But the regulation will be just one of many so-called “midnight regulations” competing for such action in Congress.

Alternatively, should, for example, one of the courts permanently enjoin the monster regulation from going into effect (or even if the Courts let it come into effect), the Biden administration could begin a new rulemaking process and issue new regulations overturning the monster regulation. A new rule could expressly limit the adverse discretionary factors that could be considered during asylum adjudications or even establish a formal, regulatory presumption against discretionary denials of asylum. This option would require the Biden administration to go through the onerous notice and comment procedure under the Administrative Procedure Act. Thus, it could take months or even years to implement.

In the coming weeks, new DHS Secretary Alejandro Mayorkas (assuming confirmation by the Senate) and new Attorney General Merrick Garland (assuming confirmation) could decline to appeal any court injunctions staying the rule and also offer to settle pending litigation concerning the monster regulation in a manner that helps close the discretion gap, based among other things on a determination that they violate U.S. international law obligations (and also that they were improperly issued by a DHS secretary without legal authority to do so, given the appointments issue). Specifically, the new DHS secretary and AG could agree to withdraw the rule. In the context of any settlement, the Biden administration could also agree to substantive limitations on discretionary denials as well as to public reporting about past or future denials. This option would make it unnecessary to seek the approval of both Houses of Congress to overturn the rule (since it technically would not have gone into effect) and could save the Biden administration the time and effort of issuing new regulations.

Finally, given the president-elect’s recent pledge to immediately introduce an immigration bill, as well as the outcome of the Georgia special election, the administration could pursue a final statutory fix to the discretion gap, making asylum mandatory or calibrating the standard for withholding of removal to include all refugees. This option would open up the fundamental mismatch between asylum and withholding of removal and U.S. international refugee law obligations to the legislative process. Closing the discretion gap by statute as part of other actions by Congress and the new administration to protect refugees would be a fitting way to mark this, the 70th anniversary year of the adoption in the 1951 Convention on the Status of Refugees and, however belatedly, the 40th anniversary year of the United States’ Refugee Act of 1980.

Whichever method the Biden administration uses to undo the final rule, one thing is clear: The monster regulation creates an opportunity for the Biden administration to tackle head-on the harmful discretion gap in the United States’ refugee protection system.

Image: A Honduran family walks back to Piedras Negras, Coahuila state, Mexico at the international bridge, after being rejected by US authorities in their attempt to enter Eagle Pass, Texas on February 6, 2019. Photo by JULIO CESAR AGUILAR/AFP via Getty Images