A Helsinki Watch report documented ways in which the U.S. Immigration and Naturalization Service’s treatment of asylum seekers violated laws and international conventions.
Wars, dictatorial regimes, and natural disasters generated large numbers of refugees during the 1970’s and 1980’s. Many of the refugees sought residence in the United States. Some groups of newcomers stood an excellent chance of receiving political asylum and resettlement assistance, whereas others, particularly those fleeing Haiti, Guatemala, and El Salvador, faced detention, deportation, and an uncertain future in their homelands. Concerned individuals responded by forming groups dedicated to the protection of human rights, such as Helsinki Watch.
Helsinki Watch was founded in 1979, in the context of increased world concern for the status of refugees. New legal instruments and standards had been drafted. These included the Final Act of the Conference on Security and Cooperation in Europe,
Human rights increasingly came to be viewed as a global concern. The focus of rights activists was no longer solely how their governments treated their own citizens. It was extended to any government’s policies that threatened the human dignity of any country’s nationals. In the United States, the Helsinki Watch Committee and Americas Watch
Helsinki Watch was founded in 1979 by a group of publishers, lawyers, and other activists to promote domestic and international compliance with the human rights provisions of the 1975 Helsinki Accords. The Watch Committees enlisted one of the leading civil liberties attorneys in the United States, Aryeh Neier, as Human Rights Watch executive director. Random House publisher Robert L. Bernstein served as Helsinki Watch chair. Human Rights Watch compiled reports on human rights conditions on every continent. In particular, it advocated “continuation of a generous and humane asylum and refugee policy . . . toward all nationalities.”
An exemplary report published by Helsinki Watch was Detained, Denied, Deported: Asylum Seekers in the United States, dated June, 1989. The report explores concepts that are well defined in international law. The U.N. Convention Relating to the Status of Refugees (1951)
Asylum is a protected status that may allow refugees into a foreign country. In the United States, refugees may apply for permanent residency after one year. Legislation in the United States provides that refugees may (not must) be granted asylum. As interpreted by U.S. immigration officials, it also provides that if there is a clear probability of persecution, an individual is not (with few exceptions) to be deported to his or her homeland. In 1987, the U.S. Supreme Court held in the case of Immigration and Naturalization Service v. Cardoza-Fonseca
Detained, Denied, Deported was the work of lawyer and Human Rights Watch intern Karin König, among others. It drew on the work of leading experts on asylum law, including Arthur C. Helton of the Lawyers Committee for Human Rights. König’s introduction to the work notes that poor countries, such as Malawi and Pakistan, have assumed the biggest burden in providing asylum to refugees from neighboring countries. In contrast, such wealthy countries as the United States assert that most of those seeking asylum are not refugees entitled to protection, but “economic migrants” subject to deportation.
International standards are succinctly and accurately described in the report. The principle of nonrefoulement prohibits return of refugees to situations in which they would be imperiled because of their race, religion, nationality, social group, or political opinion. It applies only to refugees already present in a country; it does not create a right of entry. Article 14 of the U.N’s Universal Declaration of Human Rights (1948) provides the right to seek and enjoy asylum, but no country is obligated to extend asylum. (An earlier draft included a right to seek and be granted asylum.) A 1977 conference held by the Office of the United Nations High Commissioner for Refugees (UNHCR) sought a treaty containing an individual right to asylum. The conference was adjourned indefinitely for fear that protections would be reduced rather than enhanced.
Detained, Denied, Deported includes a history of U.S. asylum policies that identifies a new group of “spontaneous” asylum seekers from Central America and the Caribbean. Their treatment has been less generous than that accorded refugees from southeast Asia. The Refugee Act of 1980 is associated with improvements, including withholding of deportation where refugees would face a well-founded fear of persecution.
The report gradually shifts from dispassionate description of refugee policies to ardent advocacy of reform. It notes discrimination in treatment of refugees from different regions. For example, applicants for asylum from U.S. allies such as Guatemala and El Salvador had to provide more extensive evidence and establish a higher level of persecution. The U.S. Department of State claimed that Salvadorans and Guatemalans sought asylum in the United States for economic (and therefore illegitimate) reasons rather than because of persecution. The Watch Committee report includes case studies of government insensitivity to human feelings drawn from information provided by immigration lawyers and nongovernmental organizations. The report castigates the State Department for the way it analyzes asylum applicants’ petitions, asserting that the process is often superficial and tailored to foreign policy objectives.
The report offers five recommendations for the executive branch of the U.S. government. First is an end to policies that deter asylum seekers from appealing negative decisions or from applying in the first place. Specific mention is made of the Haitian Interdiction Program and of practices whereby individuals who present no threat to society are detained. The next two recommendations address the role and training of immigration agents and judges: Immigration and Naturalization Service (INS) agents should receive special training so that they can properly follow national and international law, and, to eliminate political bias, INS agents and judges should give greater weight to independent organizations’ human rights reports than to State Department analyses.
Further, the report suggests that an agency independent from the U.S. Departments of State and Justice should be involved in asylum adjudication. Although asylum seekers present in the United States receive the most extensive publicity, many more apply through the Overseas Admission Program
The report prods the U.S. Congress as well, urging it to take appropriate action and to enact legislation to control the attorney general’s discretion to ensure consistent and impartial application of the laws. When immigration authorities are expected to enforce and adjudicate immigration laws, the former task overshadows and distorts the latter. The report also includes a specific plea for the United States to grant extended voluntary departure status (or “safe haven”) to Salvadorans and Guatemalans.
Detained, Denied, Deported was part of an ongoing research program. Helsinki Watch continues to pay close attention to U.S. refugee issues, and Americas Watch monitors repression in El Salvador and Haiti. Human Rights Watch played a key role in another 1989 report, Forced Out: The Agony of the Refugee in Our Time, which sought to “awaken, alarm, shock, and horrify” in order to counter “compassion fatigue” in addressing global dimensions of the refugee issue.
Efforts such as that by Helsinki Watch have encountered opposition. Well-funded lobbies have sought to limit immigration to the United States and would make exceptions for very few of those who fear persecution in their home countries.
The Helsinki Watch report did not produce immediate change in U.S. policies and received minimal press coverage. By acting in combination with other advocates for refugees, however, the Watch Committee helped encourage steps to make American policy more humane.
A diverse movement advocating refugee concerns hoped to ensure humane treatment through three channels. First are reforms instituted by the executive branch and Congress. The Immigration Act of 1990 contained important new provisions. Cognizance of the plight of Salvadoran refugees was reflected in “safe haven” provisions (refugees were eligible for an eighteen-month period of safe haven if they could prove their nationality and show that they had arrived in the United States prior to September 19, 1990). The justification is that during a civil war protection is justified, but not asylum. Safe haven is to be temporary—applicants are expected to return to El Salvador eventually. Immigration rights activists welcomed this step, but they criticized stiff fees for applicants, higher than those for applicants under similar programs for Libyan, Liberian, and Kuwaiti refugees. They also noted other measures such as the “investor visas” that provided special access for rich would-be immigrants.
The second channel for ensuring humane treatment for refugees consists of court decisions and settlements. In Orantes-Hernandez v. Meese (1988),
The growth of the lobby that promotes the rights of refugees constitutes the third channel toward more humane treatment. Activists are drawing connections between the human rights of a country’s own citizens and the rights of refugees. The American Civil Liberties Union
Refugee advocates have achieved significant victories, but progress has not been smooth. Important decisions have been made by circuit court judges, but dissents in some cases argue that judges should extend deference to immigration authorities. Resentment of refugees has also fueled congressional attempts to limit judicial review of administrative decisions in immigration eases.
Even when courts order protection for refugees, the slow pace of implementation remains a source of anxiety. Despite judicial concern for due process protections, immigration officials have proceeded with plans to build facilities away from the areas where most potential applicants live, thus discouraging asylum applicants and hampering their advocates. Further, the greatest success thus far has been achieved on behalf of refugees already present in the United States. Potential applicants from overseas still face a difficult struggle, as they are often unaware of asylum procedures and of organizations that might assist them.
Many people around the world view the United States as a land with an open door to the oppressed, but that door might more aptly be described as guarded. Nongovernmental organizations such as Helsinki Watch will continue to play a major role in opening the United States to the persecuted. A major instrument in this effort will be the issuance of reports such as Detained, Denied, Deported, reports that describe U.S. obligations under national and international law and identify policies that advance human dignity.
The debate about how refugee and asylum law is applied in the United States continues to be inextricably tied to the larger questions of legal and illegal immigration. At least one motive for keeping the refugee definition clear and limited is to make sure that those few with a real fear of persecution are distinguished from the many whose motives are based more in the understandable, but not legally protected and guaranteed, desire to improve economic well-being. Where this line should be drawn has proved to be an enduring question in U.S. practice, because refugee status automatically invokes a range of international legal rights, access to fairly generous domestic social welfare benefits, and a fast track to citizenship—all these being benefits not automatically extended to those who immigrate, whether legally or illegally.
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Frelick, Bill. Refugees at Our Border: The U.S. Response to Asylum Seekers. Washington, D.C.: U.S. Committee for Refugees, 1989. Brief report on a fact-finding trip raises many of the same issues as the Helsinki Watch study. Urges the improvement of access to attorneys and nonprofit agencies for asylum seekers. -
Human Rights Watch. Human Rights Watch Annual Report. New York: Author, 1987-1989. Reports on a variety of studies that have identified and analyzed human rights violations. Also presents information on each U.S. presidential administration’s compliance with human rights standards. -
König, Karin. Detained, Denied, Deported: Asylum Seekers in the United States. New York: U.S. Helsinki Watch Committee, 1989. Presents a well-organized, readable description of asylum law, with application to U.S. practices. Includes footnotes and a list of sources as well as a useful statistical appendix. -
Lawyers Committee for Human Rights and Helsinki Watch. Mother of Exiles: Refugees Imprisoned in America. New York: Lawyers Committee for Human Rights, 1986. Readable description of the plights of eleven detainees was published to coincide with the centenary celebrations for the Statue of Liberty. Arthur Helton’s essay identifies violations of U.S. and international law. Includes footnotes. -
Loescher, Gil, and John A. Scanlan. Calculated Kindness: Refugees and America’s Half-Open Door, 1945 to the Present. New York: Free Press, 1986. Presents an excellent review of the history and politics of U.S. refugee policies. Explains patterns of discrimination and the “unprecedented harshness” of the Reagan administration. Draws on extensive interviews and archival research. Includes index and bibliography. -
MacEoin, Gary, and Nivita Riley. No Promised Land: American Refugee Policies and the Rule of Law. New York: Oxfam America, 1982. Thoughtful analysis conducted for a nongovernmental organization emphasizes refugees from Haiti, El Salvador, and Guatemala. Provides illuminating description of INS procedures and concludes that the INS violates U.S. and international law. Includes bibliographic notes. -
Neier, Aryeh. Taking Liberties: Four Decades in the Struggle for Rights. New York: PublicAffairs, 2003. Author’s memoir of his work as an ACLU lawyer, human rights activist, and executive director of Human Rights Watch. Includes bibliographic references and index. -
Silk, James. Despite a Generous Spirit: Denying Asylum in the United States. Washington, D.C.: U.S. Committee for Refugees, 1986. Pamphlet provides a description of the asylum process and analysis of the growing restrictiveness of U.S. policies. Recommends that Congress play a greater role in ending programs designed to deter people from seeking asylum in the United States. Includes statistical table and photographs. -
Yarnold, Barbara M. Refugees Without Refuge: Formation and Failed Implementation of U.S. Political Asylum Policy in the 1980’s. Lanham, Md.: University Press of America, 1990. Scholarly analysis of U.S. policies finds bias and a failure to implement the Refugee Act. Examines nongovernmental groups that have represented refugees and concludes that these groups have enjoyed success in widening the availability of asylum. Includes bibliography as well as informative tables and appendixes.
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