Heather L. Scavone∞
If you could visualize a decision tree that would diagram all of the different ways for an individual to receive lawful immigration status in the United States, you would notice that there are a few avenues that constitute decidedly unpleasant routes for embarking on the proverbial “pathway to citizenship.” Among these are the statuses afforded to human trafficking victims, refugees and asylees, who share as a common denominator the experience of serious past harm, or at minimum, the considerable risk of future harm in their countries of origin. A foreign national’s admittance into the U.S. with any of the former statuses guarantees that she arrives to face the challenges of acculturation and integration with substantial baggage. (She may arrive without a suitcase, but you can be assured that she arrives with baggage.) As torture survivors, and victims of sexual and ethnic violence, one would hope that abundant resources would greet these individuals in their country of sanctuary in order to ease the pressures of assimilation and to promote long term success in their new home country. Lindsay Harris’s timely and insightful article sheds light on many of the ways that social and federal immigration benefits available to asylees in the U.S. fall short of ensuring that they will be set up for success in the land of the free. Beyond identifying these shortcomings, she offers a number of programmatic and policy recommendations that would improve human outcomes in the domestic asylum services model.
Harris’s prescriptions for reform can be divided broadly into two different types of recommendations: (1) those that would reform policies and programs to the mutual benefit of refugees and asylees; and (2) those that would close the existing legal and social benefits gap between refugees and asylees—effectively leveling the playing field between these two similar yet distinct populations. In responding to Harris’s piece, I will briefly explore both categories of prescriptions for reform. I will express emphatic support for those recommendations that mutually benefit refugees and asylees, and I will identify some of the possible reasons for the legal and social benefits gap that separates refugees from asylees. Finally, I will propose a one-word modification to INA § 209(b) that would alleviate a number of disparities between the two groups.
I am particularly enthusiastic about Harris’s recommendations that pertain to laws and policies that govern benefits availability for refugees and asylees alike. Although her article only specifically contemplates improvements to the asylee integration model, a majority of her recommendations would be of equal benefit to both populations. In my view, these mutually beneficial recommendations are doubly attractive.
In particular, Harris’s recommendation to revise the Refugee Act and regulations to deemphasize the focus on rapid employment would be extremely favorable for both refugees and asylees. The current push to land refugees and asylees in “survival jobs,” as Harris calls them, is detrimental to both populations. During the more than seven years that I worked for a refugee resettlement agency, I can recall many refugees who were tragically mismatched with employment opportunities. One who comes to mind was an individual who was a physician in Cuba prior to being resettled in the U.S. He was quickly pushed into a job in a poultry plant, gutting chickens in a refrigerated warehouse. For a man who had previously wielded a scalpel in a professional capacity, this was a new and depressing professional application of his anatomical and biological aptitude.
Other prescriptions that would benefit both populations if implemented include: (1) revising the Refugee Act to facilitate re-credentialing; (2) better facilitating English language acquisition; (3) improving mental health resources; and (4) improving the system for refugee-asylee family reunification, which is arguably in an even more deplorable state for refugees than for asylees. In regards to the probability of policy reform achieving any of these proposed recommendations, a possible arrow in Harris’s quiver is that the national Voluntary Agencies (Volags) could easily be persuaded to support these recommendations, which would benefit refugees resettled through their programs as well as asylees that they serve. It is less evident that the Volags could be moved to lobby for implementation of Harris’s recommendations that singularly benefit asylees.
Although Harris is quick to point out that services and benefits available to refugees resettled in the U.S. are probably also in need of improvement, she contends that one of the root causes of poor human outcomes for asylees is the benefits gap that exists between asylees and refugees. While I agree that this gap should be closed by bringing asylee benefits on par with refugee benefits, I cannot resist indulging in a brief exploration of why this disparity may exist in the first place. Because disparity exists between refugee-asylee social services benefits as well as federal immigration benefits under the INA, I will separately address why these “gaps” might exist.
While, at law, refugees and asylees meet the same statutory definition, there are notable circumstantial differences between these populations that may account for the disparate allocation of social services benefits that Harris considers. Perhaps most notably, the fact of protracted displacement and “warehousing” in refugee camps is a circumstantial distinction between the two populations that applies to the vast majority of refugees and to a virtually imperceptible segment of the asylee population. The reason that this is significant is that it is well documented that the adverse effects of protracted displacement on refugees include the refugee’s inability “to break free from enforced reliance on external assistance.” Effectively, as a result of being confined to a camp for years with no possibility of employment or self-reliance, refugees suffer from a debilitating loss of autonomy that follows them to their country of resettlement, arguably necessitating the availability of social benefits in excess of what the average asylee would require to achieve integration. Refugees resettled to the U.S. through the U.S. Refugee Admissions Program generally come from the world’s most notorious warehousing localities, whereas asylees generally do not. With most of the world’s refugees suffering from protracted displacement, and the average displacement period totaling 26 years, perhaps the availability of Reception & Placement (R&P) funds to refugees—to the exclusion of asylees—was designed as a way to address a plight unique to refugees. Having worked with thousands of refugees and hundreds of asylees, I would venture that, generally speaking, refugees are more vulnerable than asylees. Protracted displacement, limited or nonexistent access to formal education, and rural rather than urban backgrounds are characteristics that many refugees share—whereas, generally speaking, asylees are more likely to be educated, urban, and have high skilled employability credentials. Indeed, perhaps R&P funding exists to “level the playing field” for refugees.
Despite this insight into possible legislative intent concerning the availability of R&P monies to refugees, I will immediately desist in playing devil’s advocate as I believe that Harris is correct in recommending that PRM extend R&P funding to asylees. Because R&P funds are available to each refugee resettled in the U.S. without regard to whether he suffered protracted displacement, even my brilliant hypothesis does not withstand reasoned scrutiny as to why one population should benefit from this social benefit whereas the other should be deprived of it. There is no doubt that the modest assistance that R&P funding provides should be extended to asylees, as Harris suggests.
In fact, I think it highly unlikely that policy makers considered the above when they resolved to limit the availability of R&P funds to refugees. It seems far more likely, based on available information concerning congressional motive, that the many disparities in treatment of asylees and refugees stem from legislators’ notions that asylees—who had the wherewithal and resources to arrive in the United States—have violated our laws to get to the U.S.. Perhaps the best evidence of this lies not in the distinctions between asylee-refugee social benefits, but in their disparate treatment under the Immigration and Nationality Act and corresponding federal regulations with regard to certain federal immigration legal benefits.
For two populations that share exactly the same definition under the INA, there are confounding differences between the federal immigration benefits afforded to refugees and those afforded to asylees under the Act—all of which seem to be unfavorable to asylees. While there is scant, if any, documentation that would shed light on congressional intent with respect to unequal treatment of asylees under the INA is, it is widely accepted by the immigration bar and immigration academics that asylees are being punished due to a perception that they have violated our laws to get here and seek asylum. Refugees on the other hand, by virtue of having applied for status overseas and “waiting in line,” did things ‘the right way.’
In order to approach federal immigration benefits parity under the INA for asylees, Harris recommends that the Department of Homeland Security waive the application fee for lawful permanent resident status for asylees just as the fee is waived for refugees. Admittedly, this would help asylees by decreasing the likelihood that they would put off applying for adjustment of status indefinitely due to lack of finances. Arguably, however, asylees already benefit in practice from this proposed change since they are entitled to a waiver of the filing fee if they can demonstrate insufficient financial means to pay. Furthermore, it occurs to me that there is another way to narrow the gap that would resolve benefits disparities beyond the filing fee. By making a relatively subtle tweak to INA § 209, a number of statutory inequities can be resolved.
The statute that governs refugee and asylee adjustment of status currently contains dissimilar eligibility requirements for refugees and asylees of an apparently arbitrary nature. Namely, refugees must have been admitted to the U.S. as a refugee and accrue a year of subsequent physical presence, whereas asylees must continue to meet the definition of a refugee after receiving a grant of asylum and subsequently accruing one year of physical presence. The slight difference in verbiage effectively means that a refugee—as long as she met the definition of a refugee on the date that she arrived in the United States—can apply for permanent residence after living in the U.S. for a year and meeting other eligibility requirements, regardless of whether she continues to meet the statutory definition of a refugee at the time of applying for permanent residence. By contrast, an asylee must still meet the definition of a refugee (or the spouse or child of a refugee) on the date of applying for permanent residence, in addition to other eligibility requirements. The distinction is not insignificant and the impact on an asylee and her family members is often disastrous. All of the following scenarios necessarily result in an asylee becoming ineligible for permanent residence under INA § 209 due to this slight difference in statutory language:
- A derivative child of an asylee when the principal asylee parent dies.
- A derivative child of an asylee when the principal asylee parent naturalizes.
- A derivative child of an asylee when the child marries.
- A derivative step-child of an asylee when the principal asylee parent divorces the natural parent of the child.
- A derivative spouse of an asylee when the principal asylee spouse dies.
- A derivative spouse of an asylee when the principal asylee spouse divorces the derivative spouse.
- A derivative spouse of an asylee when the principal asylee spouse naturalizes.
An asylee’s loss of eligibility to adjust status due to one of the above situations creates a domino effect of tidal wave proportions on other immigration and social service benefits eligibilities. The ineligible derivative asylee must now apply for a principal grant of asylum, nunc pro tunc, which once granted, will reinstate the individual’s eligibility to adjust status. The current case backlog for adjudication of a nunc pro tunc asylum case varies from two to five years, depending on jurisdiction. This delay in obtaining permanent residence will inevitably have a detrimental impact on the asylee’s ability to obtain citizenship, since it will further delay his eligibility to naturalize. The delay in obtaining citizenship often portends a loss of Supplemental Security Income, which may be the asylee’s only form of income in the U.S. if he is elderly or disabled. The net detriment on the asylee’s prospects for integration resulting from this chain reaction is tremendous.
All asylees—and their attorneys for that matter—can be spared from the necessity of the complicated mechanics of nunc pro tunc by changing a single word in the statute. I would therefore add to Harris’s recommendations that INA § 209(b) should be amended to exclude the provision in (b)(3) that requires an asylee to “continue” to meet the definition of a refugee. Asylees, like refugees, should be eligible for permanent residence if they met the definition of a refugee on the date of their grant of status. Their subsequent ability to meet the definition of a refugee should not be material to eligibility.
Harris’s prescriptions for reform present a thoughtful, attainable framework for improving the asylee integration model in the U.S. As is the case with many proposals for programmatic and policy reform, the question of how to turn sound recommendations into reality is one of identifying and motivating stakeholders. Accordingly, it would be advantageous to frame Harris’s prescriptions in such a way as to engage as many partners as possible. Specifically, it would be beneficial to enlist the full participation of the refugee lobby, since this would put considerable muscle behind any proposals for legislative reform. I believe that strategic posturing can be achieved that would entice the participation of the refugee lobby without making changes to the substance of Harris’s recommendations. Furthermore, this posturing would not be disingenuous because, as previously mentioned, a majority of Harris’s prescriptions would mutually benefit refugees and asylees. Greater appeal to refugee lobby stakeholders might be achieved by relabeling the existing three categories of prescriptions for reform into two categories: 1) Improve Refugee and Asylee Benefits; and 2) Create Benefits Parity for Refugees and Asylees. There is no doubt that, if implemented, Harris’s recommendations would vastly improve the landscape of social services and legal benefits for asylees as well as refugees, bringing the American dream within their reach.
∞ Heather Scavone is Assistant Prof. of Law at Elon University School of Law and Director of its Humanitarian Immigration Law Clinic, which serves refugees, asylees, asylum seekers, certified victims of trafficking, and Iraqi/Afghani Special Immigrants. Since the clinic’s creation in 2010, it has served more than 1,700 refugees and asylum seekers under Scavone’s leadership, making it one of North Carolina’s most prolific nonprofit immigration legal services providers. Scavone is an expert on immigration legal issues affecting family reunification benefits for asylees and refugees and has been asked to present at multiple nationwide forums on this subject. In 2015 Scavone received the University’s Periclean Award for Civic Engagement and Social Responsibility.
1. The definition of “refugee” is found at Immigration and Nationality Act (INA) § 101(a)(42)(A). 8 U.S.C. § 1101(a)(42)(A) (2012). INA § 208(b) states that an alien may be granted asylum, “if such alien is a refugee within the meaning of section 101(a)(42)(A).” 8 U.S.C. § 1158(b) (2012). As such, both refugees and asylees must meet the statutory definition of “refugee” at INA § 101(a)(42)(A), which requires “[past] persecution or a well‑founded fear of [future] persecution….” 8 U.S.C. § 1101(a)(42)(A) (2012). Victims of trafficking, as defined in the Trafficking Victims Protection Act (TVPA) of 2000, have suffered severe forms of trafficking in persons, including sex trafficking, involuntary servitude, peonage, debt bondage, or slavery, accompanied by force, fraud or coercion. 22 U.S.C. § 7102(14) (2012).
2. Refugees arriving in the U.S. often arrive with nothing but a white plastic bag from the International Organization on Migration (IOM) containing biographic information. “Before arriving in the U.S., every refugee case receives a white plastic bag from the International Organization for Migration (I.O.M.), in which they should keep their important identification and other official documents.” See I.O.M. Bags, World Relief Durham, http://worldreliefdurham.org/iom‑bags (last visited Sept. 24, 2016).
3. Lindsay Harris, From Surviving to Thriving? An Investigation of Asylee Integration in the United States, 40, N.Y.U. Rev. L. Soc. Change 29 (2016).
4. Id. at 82-118.
5. Prescriptions offered by Harris in sections V(A)(1), V(A)(3‑4), and V(A)(9‑10) of her article would benefit both populations—refugees and asylees—whereas prescriptions in sections V(A)(5‑8) would serve to make available to asylees benefits that are already available to refugees. Harris, supra note 3, at 82‑91, 94‑101, 106‑108, 101‑106. It is not entirely clear if prescription in section V(A)(2) would benefit both populations, or one or the other. If it contemplates additional United States Refugee Admissions Program (USRAP) Social Services money through Office of Refugee Resettlement (ORR), it would benefit both populations. Harris, supra note 3, at 31.
6. Harris, supra note 3, at 82‑91.
7. Harris, supra note 3, at 56‑59. Harris describes “survival jobs” as “jobs that pay the rent, regardless of whether this is a good match for their skills or expertise.”
8. The author worked for Lutheran Family Services in the Carolinas—an affiliate of the national Voluntary Agency (Volag) Lutheran Immigration and Refugee Service (LIRS)—from 2003 to 2010.
9. Specifically, removing the restriction on refugee cash assistance for “full‑time students in institutions of higher education.” Harris, supra note 3, at 96‑101; 8 U.S.C. § 1522(e)(2)(B) (2012).
10. See Andrew Haile, The Scandal of Refugee Family Reunification, 56 B.C.L. Rev. 273 (2015). Also, per the author’s experience with representing hundreds of refugees and asylees with family reunification, refugee petitions are pending on average roughly three times the length of time as asylee relative petitions. See also attached excel spreadsheet which represents redacted case outcomes at the Humanitarian Immigration Law Clinic from 01/01/2011 to 05/19/2016, https://drive.
11. There are nine Volags authorized to resettle refugees through USRAP. See Voluntary Agencies, Off. of Refugee Resettlement, U.S. Dep’t of Health and Hum. Serv., http://www.acf.
hhs.gov/programs/orr/resource/voluntary‑agencies (last visited Sept. 24, 2016). Because Volags are primarily occupied with refugee resettlement—and to a far lesser degree occupied with services that benefit asylees—there is a strong likelihood that they would support policy reform efforts that favor refugees. As such, Harris’s prescriptions that benefit refugees and asylees, mutually, would be more attractive to the Volags than those that only benefit asylees.
12. See Philip G. Schrag, A Well‑Founded Fear: The Congressional Battle to Save Political Asylum in America, 249‑250 (Routledge, 2000), suggesting that the Volags constitute a “huge infrastructure,” and that during the lobbying that took place in 1995 to preserve the overseas refugee program and to oppose asylum restrictions, “when critical moments for compromise arrived, the asylum advocates’ proposals were left out of the package.” Prescriptions that benefit refugees and asylees alike would have greater appeal to Volags and could potentially enlist their muscle behind lobbying efforts.
13. Harris, supra note 3, at 44‑49.
14. See supra note 1.
15. For instance, the principle difference between the populations—the fact that refugees received their status subsequent to applying for protection from overseas, whereas asylees necessarily sought protection from within the safety of the United States—is one that portends certain circumstantial factors that will likely apply to refugees and not asylees, such as the fact of living in a refugee camp. See 8 U.S.C. § 1158(a)(1) (2012) (providing that for an alien to be eligible to apply for asylum, she must be physically present in the United States).
16. One of the most notable differences in social services benefits is the fact that asylees do not receive Reception & Placement (R&P) funds. See Harris, supra note 3, at 45‑46.
17. The U.N. has defined “protracted Refugee situation” as one where 25,000 or more refugees from the same country of origin have been in exile for five or more years in developing countries. U.N. High Comm’r for Refugees, Standing Comm., Protracted Refugee Situations, ¶¶ 3, 5, U.N. Doc. EC/54/SC/CRP.14 (June 10, 2004), http://www.unhcr.org/40c982172.html. The U.N. goes on to note the extremely detrimental impact that long term displacement has on refugee populations: “For the purposes of this review, a protracted refugee situation is one in which refugees find themselves in a long‑lasting and intractable state of limbo. Their lives may not be at risk, but their basic rights and essential economic, social and psychological needs remain unfulfilled after years in exile. A refugee in this situation is often unable to break free from enforced reliance on external assistance.” Id. at 1.
18. “Warehousing is the practice of keeping refugees in protracted situations of restricted mobility, enforced idleness, and dependency—their lives on indefinite hold—in violation of their basic rights under the 1951 UN Refugee Convention.” Merrill Smith, Warehousing Refugees: A Denial of Rights, a Waste of Humanity, in 2 Human Rights and Refugee Law, 304, (James C. Hathaway, ed., 2013).
19. See Protracted Refugee Situations, Bureau of Population, Refugees and Migration, U.S. Dep’t of State, http://www.state.gov/j/prm/policyissues/issues/protracted/#3 (last visited Sept. 24, 2016). This State Department publication explains that the USRAP focuses on populations coming from protracted refugee situations; see also Nadwa Mossaad, Off. of Immigration Statistics, Annual Flow Report: Refugees and Asylees: 2014 (Apr. 2016) [hereinafter Annual Flow Report 2014] at 1 (illustrating how a majority of refugees resettled in the US come from countries experiencing protracted refugee situations, whereas asylees are mostly from countries of origin not experiencing protracted refugee situations).
20. See U.N. High Comm’r for Refugees, supra note 16, at ¶ 3.
21. The U.N. and the U.S. State Department estimate that the average length of time that a refugee waits in a camp is seventeen years. See U.S. Dep’t of State, supra note 18 (stating that the average refugee spends nearly a generation in a protracted displacement situation).
22. This can be deduced from reviewing the Annual Flow Report 2014, supra note 18. It is important to point out that most estimates that discuss protracted refugee situations refer to the “global” refugee population as opposed to the population of refugees resettled to the United States through USRAP. Despite this technical difference however, the statistic is still reliable because a majority of refugees resettled through USRAP—as evidenced in the Annual Flow Report 2014—come from Burma, Somalia, Bhutan, Democratic Republic of Congo, Iran and Afghanistan. (For FY 2014, 40,171 out of 69,975 come from these six countries.) The majority of asylees come from China, Egypt, and (a distant third) Syria.
23. Supra note 18.
24. I served as the director of Lutheran Family Services Immigration Legal Services program in Greensboro, NC, from 2003 to 2010, during which time that program served 900+ refugees and asylees per year. As the director of the Humanitarian Immigration Law Clinic (HILC) at Elon University School of Law, my current program has served, on average, 400 refugees and asylees a year since 2011. Whereas the “average” refugee might be described as Burmese, Montagnard or Liberian, often illiterate and usually with zero secondary education or higher, typical asylee cases handled by my agency include: 1) a Zimbabwean entrepreneur and international wheelchair racing coach who advocated on behalf of the physically disabled; 2) a Sudanese human rights attorney who represented ethnic Darfuris; and 3) an international soccer coach who opposed the practice of female genital cutting in her West African country of origin. I often think of asylees as “heroes” and refugees as “victims, for this reason.” Admittedly, these observations generalize the two populations and it cannot be said that all asylees are educated and highly skilled, or that all refugees have experienced protracted displacement. The metrics of education, rural vs. urban background, and whether or not an individual suffered protracted displacement have informed my assertion.
25. Harris, supra note 3, at 101‑03.
26. An episode of the CBS television program 60 Minutes that aired in 1993 portrayed asylum seekers as individuals perpetrating fraud by whatever means necessary in order to gain status in the U.S.. See Research Handbook on Immigration Law and Migration, 156 (Vincent Chetail & Céline Bauloz eds., 2014). See also David Crosland, Don’t Fence in America, Wash. Post, Aug. 8, 1993, at C7.
27. Such as R&P benefits and others mentioned by Harris, including the start date for eligibility for Medicaid and Food Stamps. See Harris, supra note 3, at 44‑49.
28. Among other things, asylees must pay a hefty filing fee for adjustment of status in excess of $900.00, and there are different eligibility requirements for refugee and asylee adjustment of status. 8 U.S.C. § 1159 (2012); Harris, supra note 3, at 49, 71.
29. See Schrag, supra note 11, at 249, suggesting that even in the community of refugee/asylum advocates, asylum seekers are often viewed as “line‑jumpers” when compared to refugees because asylum seekers do not have to wait in a virtual line abroad to receive their status. Evidently, it is not true that all or even a significant percent of asylum seekers have violated the law to get here. Although some asylum seekers enter the U.S. without permission or perpetrate visa fraud to enter the U.S., many asylum seekers enter with valid visas or request asylum at a port of entry.
30. See John Dillin, Illegals Are on Capital Fast Track, Christian Sci. Monitor, June 14, 1993, at 6, asserting that asylum seekers have paid $15,000 ‑ $35,000 to human traffickers to get to the U.S. illegally.
31. Harris, supra note 3, at 49. Asylees have to pay $1,070 per person 14 years and older and $985 per child under 14. Harris, supra note 3, at 71, n.160; 38 C.F.R. § 103.7 (2016).
32. See 8 C.F.R. § 103.7 (2016), which includes a list of immigration benefits forms with waivable fees.
33. Compare 8 U.S.C. § 1159 (2012) with 8 C.F.R. 209.1 (2016) and 8 C.F.R. 209.2 (2016).
34. The distinction between the eligibility requirements for refugee and asylee adjustment are codified at INA § 209(a)(1) and § 209(b)(3). See 8 U.S.C. § 1159 (2012).
35. See 8 C.F.R. § 208.21(a) (2016), explaining that the spouse or child of an individual who received a principal grant of asylum may ‘derive’ asylum benefits from the principal.
36. Once principal asylum status is granted under INA § 208, the former derivative once again meets the definition of “a refugee or the spouse or child of a refugee” under INA § 101(a)(42)(A) and becomes eligible for adjustment of status under INA § 209. See 8 U.S.C. § 1101(a)(42)(A) (2012); 8 U.S.C. § 1158 (2012); 8 U.S.C. § 1159 (2012).
37. See Affirmative Asylum Scheduling Bulletin, U.S. Citizinship & Immigr. Serv., https://www.uscis.gov/humanitarian/refugees‑asylum/asylum/affirmative‑asylum‑scheduling‑bulletin (last updated Sept. 7, 2016) (providing wait‑time for adjudication in each of the nine different asylum office jurisdictions).
38. Because pursuant to INA § 310, he must adjust status and then wait an additional three years nine months before becoming eligible for citizenship. 8 U.S.C. § 1421 (2012).
39. Under the Welfare Reform Act of 1996, refugees and asylees are eligible for SSI for nine years after receiving a grant of refugee or asylee status. The Act provides that SSI is terminated if the individual doesn’t become a citizen within nine years. As such, for an asylee who must apply nunc pro tunc prior to adjusting status, the additional two to five years of waiting both detract from the individual’s eligibility timeline for citizenship and increases the probability that he will lose SSI.
40. By “refugee lobby,” I intend the ten national Volags as well as advocacy groups such as Refugee Council USA.
41. Harris, supra note 3, at 82‑107.
42. This subheading would include Harris’s prescriptions currently identified in sections V(A)(1)‑(4), V(A)(9)‑(10) and V(C)(1)‑(2). Harris, supra note 3, at 82‑101, 106‑08, 114‑18.
43. This subheading would include Harris’s prescriptions currently identified in sections V(A)(5)‑(8) and V(B)(1)‑(2). Harris, supra note 3, at 101‑06, 110‑14.