Asylum Roulette: How Bureaucracy and Bias Shape Refugee Futures

In the aftermath of World War II, policy surrounding refugees and displaced people was high on the international agenda.  During the 1951 Convention Relating to the Status of Refugees, 144 countries ratified a universal definition, specifying a refugee as a person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of [their] nationality and is unable or, owing to such fear, is unwilling to avail [themself] of the protection of that country." The definition has been amended only by the 1967 Protocol, which removed the geographical and time limits set by the 1951 Convention. Even so, this definition is strict. Designed under the auspices of the Cold War, the terms place emphasis on persecution based on political and social affiliation, rather than general suffering. When you picture a refugee, scratch the images of those fleeing natural disasters or abject poverty. Neither situation in isolation warrants asylum. 

Although the United States was a party to the Refugee Convention and Protocol, the internationally agreed-upon definition was not officially codified into US law until the passage of Carter’s Refugee Act of 1980. Despite the relatively neutral (albeit narrow) conditions for asylum, the United States has wielded it as a weapon of foreign policy. Interpretations of who qualifies as a refugee and who doesn’t tend to correlate to who is fleeing from US enemies, US allies, or the turmoil the US helped cause. The US overwhelmingly offered asylum to migrants fleeing communist and post communist-blocs (i.e, Cuba), while denying these same privileges to migrants trying to escape countries with US-backed dictators (think Guatemala). 

Obtaining asylum status is a Byzantine administrative process. In short, asylum seekers must fill out an I-589 form, write an affidavit recounting their past persecutions or fear thereof, complete a biometrics and medical exam, then undergo the daunting interview with an Asylum Officer. The Asylum Officer then determines if the migrant has demonstrated a “well-founded fear” of persecution (per the strict definition), thus meriting official refugee status. If the officer believes asylum is not justified, they defer the asylum seeker to immigration court. Referral to immigration court is essentially a euphemism for deportation. Immigration courts are extremely backlogged and tend to be adversarial, with a high likelihood of denial. 

It's not an asylum officer's job to determine if conditions in a country are dangerous. It's their job to determine if the asylum seeker is a direct target of the danger. Officers are also actively screening for asylum fraud, the act of knowingly misrepresenting information to obtain asylum status. This is done through rigorous questioning, asking applicants to recount the traumas they faced or the threats they received in graphic detail. Although there are no charges at stake, asylum interviews can often feel like a criminal trial, with the officer asking leading questions to prove your credibility. In the documentary “Well-Founded Fear", an exposé on the decision making processes of officers in the New York Asylum Office, an officer denied asylum to someone claiming persecution on the grounds of being Anglican, because she was unable to name the sacraments of the Anglican church.

The burden of granting someone refuge in the US vs potentially sending them back in harm's way is not a decision that Asylum officers take lightly. It's a Herculean task, having to play detective, judge, and administrative assistant all at once. Officers also must balance their empathy with duty. This high pressure and inextricably human system makes some degree of subjectivity and bias, intentional or not, virtually unavoidable. However, “just another day in the office” for an asylum officer can mean life or death for an asylum seeker.

A study by the University of Maine School of Law’s Refugee and Human Rights Clinic dove into some of these biases. The study focused on the Boston Asylum office, an office with notoriously low asylum grant-rates of around 15.5%. One finding concluded that an officer’s novelty impacted their willingness to grant asylum, with jaded officers experiencing high levels of burnout and even compassion fatigue. Greener employees were more likely to approve claims. During an interview for the documentary “Well-Founded Fear”, one officer admits to becoming desensitized and cynical, claiming “you learn to stop taking crap from people.”

Language differences are one of the most significant barriers to asylum approvals. In the Boston Asylum office case study, non-English speakers were referred to immigration courts 80% of the time, while English speakers were referred only 58% of the time. In a situation where accuracy and clarity are paramount, non-native or non-English speakers are at a clear disadvantage. Even with translators, details and key verbiage can be lost. Other biases may arise. As seen in "Well-Founded Fear”, one officer from the New York Asylum officer admitting that he's more likely to grant asylum to someone with a PhD, than someone who's “probably cooking in a kitchen somewhere.”

Getting asylum is tricky. Granting asylum is tricky. However, with livelihoods on the line, approval for asylum shouldn’t come down to which asylum officer you are assigned, or even if your asylum officer had their morning cup of coffee. With systems like this, we must not resign ourselves to the status quo and take their existence as finalized. It is critical to recognize its flaws and push for improvement.