Friday, May 11, 2018
Immigration Article of the Day: Vanishing Protection: Access to Asylum at the Border by B. Shaw Drake and Elizabeth Gibson
B. Shaw Drake
Vanishing Protection: Access to Asylum at the Border by B. Shaw Drake and Elizabeth Gibson, 21 CUNY L. Rev. 91, 92 (2017). Available at Westlaw and HeinOnline.
This paper will examine the increased need to protect the right to seek protection in the United States, focusing on the rights of those presenting themselves to U.S. authorities at ports of entry and along the U.S. border. Through an examination of the barriers that asylum seekers face in reaching the U.S. border and seeking asylum there, the paper will provide a framework for legal practitioners to understand asylum seekers' rights when arriving at the border and seeking protection in the United States, as well as the limitations on restricting access to those rights.
Section I will summarize the history and intent behind the development of asylum protection, examining both domestic and international commitments of the United States. Section II will examine attempts to limit access to protection and undermine the rights of those seeking protection at the U.S.-Mexico border. This section will address: efforts to externalize the border and construct barriers to prevent access to the U.S. border; CBP's role in referring protection seekers to screening interviews and the due-process “black hole” that results from a lack of safeguards; the credible and reasonable fear interview standards; and the limited due process protections at this stage of the asylum system. Finally, the paper will examine efforts to summarily deny access to the United States' protection system, including analysis of the safe-third country concept, its limitations and due process requirements, and recent proposals to turn migrants back to Mexico pending adjudication of their cases before a U.S. immigration court. Throughout each section, the paper will discuss the role of attorneys in protecting the right to seek protection and the growing need for intervention at every stage of the process.