Works in Progress Group 11: Refugee and Asylum Law

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Session Type: Works-in-Progress

Session Capacity: N/A

Hotel: N/A

Room: Union Square 22

Floor: 4th Floor

Group #11: Refugee and Asylum Law

Rethinking the Refugee: The Spatialization of an Illusory Universal Right
Roni Amit, University of Massachusetts School of Law

Across the globe, states frame migrant flows as a “migration crisis.” State responses to migration highlight the nature of refugee protection as a legal fiction. The current approach is characterized by capricious judicial outcomes, inequitable burden sharing, refugees forced into extra-legal spaces to eke out a bare existence, and humanitarian disasters that fall outside of the protection framework. This reality stems from the failure to view mobility through a human rights lens. Framing refugee determination as a legal question obscures the underlying sociopolitical context driving these decisions. Refugee protection continues to reflect elements of racism, colonialism, and international power dynamics. The existence of a privileged legal category meriting protection also gives rise to two additional concerns. Conceptually, it creates a dichotomy between “good” and “bad” migrants, setting up a field of winners and losers that excludes a range of human rights violations. Practically, it bolsters the autonomy of front-line actors (asylum officers, border officials) who have discretion to impose their own normatively driven interpretations of the law to realize their preferences—preferences that may either reinforce or subvert national policies and may be far removed from the formal legal framework. Moreover, carving out a special humanitarian category deserving of protection enables states to define virtually all migrants out of this exception while maintaining the fiction of a protection regime. Referencing the refugee protection framework in law and practice, this paper will advance a rights-based conception of migration. The argument challenges proponents of maintaining a limited, privileged refugee category.

A Change of Course on Asylum: Ending Exceptionality and Exclusion
Denise L. Gilman, University of Texas School of Law

This Article posits that the United States treats asylum as exceptional, meaning that asylum is presumptively unavailable and is offered only in rare cases. This exceptionality conceit, combined with an exclusionary apparatus, creates a problematic cycle. The claims of asylum seekers arriving as part of wide-scale refugee flows are discounted, and restrictive policies are adopted to block these claims. When the claims mount anyway, the United States asserts “crisis” and deploys new exclusionary measures. The problems created by the asylum system are not addressed but instead deepen. The Article commends a turn away from policies that have led down the same paths once and again.

The Article will first describe the development of the modern U.S. asylum system, highlighting data demonstrating that the system has exceptionality as a basic feature. The Article then establishes that the emphasis on exceptionality has led to an exclusionary asylum process, which mostly takes place in the context of deportation proceedings and layers on additional procedural barriers.

Next, the Article will document how the system places genuine refugees in danger while causing violence at the border. Further, embedded bias in the system, resulting from the focus on exceptional