Law of Asylum in the United States

For 40 years, Deborah Anker has been practising and synthesizing American asylum law. The first edition of the Law of Asylum in the United States – a law school paper written by Anker – was first published in 1984 and surveyed ‘every relevant administrative and federal court decision’ (p xi). Today, the treatise spans well over 1,000 pages, with almost endless citations to a great many more administrative and federal court decisions. It is now updated yearly, and available in print and on Westlaw. And, for the 2024 edition, Anker has brought a co-author onboard: Jeffrey S Chase, a respected expert in asylum law in his own right and a former immigration judge.

Ultimately, few works have catalogued, systematized, and, in so doing, defined the field of asylum law in the United States as much as the Law of Asylum. That is no mean feat because, as Chase and Anker point out, the field has developed in a ‘patchy and ad hoc manner’ (p 3). The Refugee Act of 1980 incorporated key international law provisions, including the 1951 Convention’s refugee definition, into domestic law. The United States became a full party to the United Nations Convention against Torture (CAT) in 1994. There are also several other statutory and discretionary forms of relief from removal that include similar, although distinct, fear- or harm-based considerations.

Yet, the authority to promulgate regulations interpreting those sources of law – and for running the asylum adjudication system overall – is split between two Cabinet-level, executive branch agencies. Parts of the Department of Homeland Security oversee ‘credible fear’ screenings at the border and affirmative asylum applications, as well as immigration enforcement and the initiating and prosecuting of ‘removal hearings’. The Department of Justice (DOJ) runs the administrative courts in which those removal hearings occur, where DOJ attorneys, labelled ‘immigration judges’, also review asylum claims and CAT claims, among other legal issues, raised as a defence to removal. An asylum claimant can appeal a denial to an administrative appellate body, the Board of Immigration Appeals, also controlled by the Attorney General, and only then to one of 12 regional federal courts of appeals, each of which might adopt its own circuit precedent applying only within that court’s borders. To the extent this institutional set-up breeds a lack of uniformity, Chase and Anker note it is ‘in part a result of the failure of decision-makers to adopt a cohesive framework, the lack of leadership from the Board, and the hesitancy of the federal judiciary to fully embrace its responsibility to review decisions of administrative bodies with respect to this area of law’ (p 3).

The Law of Asylum documents these systems and their complexities. It begins, in chapter 1, by briefly describing relevant statutes and regulatory provisions, and the history of asylum law in the United States. Chapter 2 then turns to the standards of proof for asylum and withholding of removal. Chapter 3 addresses evidentiary questions, including the applicant’s burden of proof, corroboration requirements, and credibility considerations. Chapter 4 details what constitutes persecution. Chapter 5 covers nexus and the 1951 Convention grounds. Chapter 6 then turns to ineligibility for asylum and withholding of removal, including bars to relief. Chapter 7 addresses CAT relief. The treatise then concludes with a long appendix, which provides an overview of the procedures for claiming asylum, both affirmatively through the asylum office and defensively in immigration court. Throughout, the authors rely on a dizzying array of sources and citations, primarily to domestic case law but bringing in international law and other secondary sources as well. The treatise attempts thus to be comprehensive; it remains a vital resource for academics, government officials, and practitioners.

While the treatise documents asylum law’s development over time, the 2024 updates also provide three important hints at the field’s future. First, the 2024 edition highlights various attempts by the Trump and Biden administrations to restrict access for asylum claimants to the territorial United States. These attempts include 2018’s Migrant Protection Protocols, as well as efforts to expel migrants under public health statutes during the COVID-19 pandemic (pp 968–70). More recently, the Biden administration has similarly forced asylum applicants to wait in Mexico, sign up for an appointment on a mobile app, and then enter at a designated border crossing (pp 13–14). Failing to follow so-called steps would then serve as a bar to asylum. As the treatise notes, these programmes have been controversial and subject to litigation (pp 14, 806–07). Their legality is far from settled, but we can expect them to continue and expand as a second Trump administration returns to the White House.

Secondly, the treatise addresses a great deal of churn in the substantive law, both in asylum and the CAT. During the Trump administration, various Attorneys General used their certification power – the power to certify any pending case in the immigration court system to themselves and to issue a decision interpreting the relevant statutory authorities – to rewrite longstanding substantive definitions and procedural regulations. This included what qualifies as a ‘particular social group’ (pp 527–28), and what constitutes State action for asylum (pp 309–11), or acquiescence for the CAT (pp 919–20). The Biden administration largely reversed these changes, also through certification. But again, we might expect that the new Trump administration will pick up where the first one left off in 2020, and it remains to be seen how much the federal courts will seek to enforce the rights of migrants or instead defer to political control of the immigration law system.

Finally, this update incorporates new research on the intersections between climate change and asylum law, including a report written by Chase, Anker, and students at Harvard and Yale Law Schools and a separate 2021 report from the Biden administration addressing climate change and the asylum system (p 48). Anker and Chase note that climate change-related issues may impact nexus considerations, especially where asylum seekers are ‘differentially vulnerable or harmed by climate-related impacts relative to the general population’ and the differential is related to a Convention ground. At the same time, climate change might make it impossible to internally relocate (p 51), or contribute to a finding of ‘other serious harm’ on return that renders an asylum claim cognizable under governing regulations (p 52). As the treatise notes, climate change-related migration will pose new challenges to the refugee system throughout the world; the United States is no exception.

Looking ahead to the 2025 update, of course, Anker and Chase will have to wrestle with the impacts of a renewed Trump administration. The second Trump administration threatens the continued viability of any meaningful asylum system in the United States, and its agencies will be staffed with nativists who believe that asylum is not a necessary safeguard within national or international legal systems, with non-refoulement seen not as a human right, but rather as a loophole exploited by those seeking to remain in the United States by any means.

We thus might wonder what will be left of the asylum system in four years, much less another 40. We can only hope that the Law of Asylum will remain a vital resource, and not merely a thorough artefact of how the system, complexities and all, once was.