Our previous post discussed how the Illegal Immigration Reform And Immigrant Responsibility Act of 1996 (IIRIRA) set out the most significant revisions to U.S. asylum law since the Refugee Act of 1980. This post describes three other statutes that shape U.S. asylum law: the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act); the Real ID Act of 2005; and the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA).
The USA PATRIOT Act
Congress enacted the USA PATRIOT Act six weeks after the terrorrist attacks on September 11, 2001. The Act added to the list of factors that would serve as bars to asylum and withholding of removal. Under the Act, any individual who “used [his or her] position of prominence within any country to endorse or espouse terrorist activity, or to persuade others to support terrorist activity” is barred if those actions undermine U.S. efforts against terrorist activities. Some scholars have described how that definition may negatively impact bona fide refugees. See Regina Germain, Rushing to Judgment: The Unintended Consequences of the USA PATRIOT Act for Bona Fide Refugees, 16 GEO. IMMIGR. L.J. 505, 509 (2002).
The USA PATRIOT ACT expanded the definition of terrorist activities to include the use of “[any] weapon or dangerous device,” if the weapon is used “other than for mere personal monetary gain” and “with the intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.” INA §212(a)(3)(B)(iii)(V)(b); 8 USC 1182(a)(3)(B)(iii)(V)(b).
Controversially, the Act also empowered the U.S. Attorney General to certify and detain noncitizens the AG deems to be a threat to national security. See INA §236A / 8 USC 1226a. The AG may detain those individuals regardless of any relief that might otherwise be available to them, including asylum.
The REAL ID Act
Burden of proof
The REAL ID Act of 2005 further overhauled the U.S. law on asylum. Importantly, the Act defined the asylum applicant’s burden of proof: The applicant must show (1) that he or she is a refugee within the statute’s definition, and (2) that a protected ground must be “at least one central reason” why he or she was persecuted or fears persecution. See INA §208(b)(1)(B)(i)–(iii); 8 USC 1158(b)(1)(B)(i)-(iii). Protected grounds include race, religion, nationality, membership in a particular social group, or political opinion. Id. The REAL ID Act in effect tightened the application requirements by specifying this burden of proof and placing that burden on the asylum applicant.
The Act also added other restrictions: Before the Act, the applicant’s testimony by itself could be enough to support the application; after the Act, an applicant’s testimony may be enough by itself only if the testimony “is credible, is persuasive, and refers to specific facts.” See INA §208(b)(1)(B)(ii); 8 USC 1158(b)(1)(B)(ii). To determine whether an applicant’s testimony is credible, the trier of fact (i.e., the immigration officer or the court) considers the following:
[D]emeanor, candor … responsiveness … the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements, … the internal consistency of each such statement, the consistency of such statements with other evidence of record, … and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.See INA §208(b)(1)(B)(iii); 8 USC 1158(b)(1)(B)(iii).
Building on the changes from the US PATRIOT Act concerning terrorist activities, the REAL ID Act expanded the definition of “engage in terrorist activity” to include: committing, preparing, or planning a terrorist activity; gathering information for terrorist activities, soliciting funds for terrorist activities or organizations; soliciting individuals to engage in such conduct, or to join a terrorist organization; and providing material support for terrorist activities, individuals, or organizations. See INA §212(a)(3)(B)(iv); 8 USC 1182(a)(3)(B)(iv). As a caveat to the “material support” provision, an applicant might not be barred from eligibility if he or she did not know or should not have reasonably known that his or her act would provide material support. See id.
Judicial review in U.S. Court of Appeals
The REAL ID Act also provided that the U.S. circuit courts of appeals may engage in judicial review of constitutional claims or questions of law raised in a petition before those courts. See INA §242(a)(2)(D); 8 USC 1252(a)(2)(D).
The Trafficking Victims Protection Reauthorization Act of 2008
The Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) added protections to children who seek asylum while unaccompanied. Those protections include screening unaccompanied children for international protection needs; allowing those children to seek asylum from USCIS directly, and not only through removal proceedings; eliminating the one-year deadline; providing pro bono counsel; and providing support through anti-trafficking advocates. Subsequent reauthorizations to the TVPRA allowed for alternative detention systems for unaccompanied children; expanded advocacy support; and enacted anti-trafficking incentives and requirements for other countries, including as connected to USAID.
Table of Authorities
- INA §208(b)(1)(B)(ii); 8 USC 1158(b)(1)(B)(ii)
- INA §212(a)(3)(B)(iii)(V)(b); 8 USC 1182(a)(3)(B)(iii)(V)(b).
- INA §236A / 8 USC 1226a
- Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457
- Regina Germain, Rushing to Judgment: The Unintended Consequences of the USA PATRIOT Act for Bona Fide Refugees, 16 GEO. IMMIGR. L.J. 505, 509 (2002)