Return to Sender: The Rise and Fall of the Right to Claim Asylum in the United States

The passage of the 1980 Refugee Act, the preeminent piece of domestic refugee legislation, was crucial in terms of incorporating international asylum law into the national setting. The law provided those seeking asylum in the U.S. with the ability to challenge the long-practiced strategies of various Presidential administrations to deny them their right to make asylum claims. While this was a significant legal development that has changed the lives of the more than three million people who have been granted asylum in the U.S. since the Refugee Act became law, the law also provided successive Presidential administrations with opportunities to limit its implementation through the deployment of strategic legal thinking. My paper demonstrates that by creating legal categories (labels) extraneous to that of the refugee and by affixing them to those deemed to be “non-genuine” asylum seekers, different Presidential administrations have used the provisions of the law itself to undermine the protection framework for the globally displaced. To circumvent the provisions of the Refugee Act, they have sought different ways of placing asylum seekers beyond the realm of the law, rendering them unable to avail themselves of its protections, while isolating them from the domestic mechanisms for its enforcement. Through in-depth analyses of three case studies spanning four decades, the Mariel Boatlift (1980), the Haitian Refugee Crisis (1991-94), and the Trump administration’s Remain in Mexico Policy (2019-22), I argue that the gradual corrosion of the domestic asylum framework has culminated in the system’s near-total dismantling, and the emergence of a blighted national asylum framework in which the vast majority of those who seek refuge in this country are unable to access the law's necessary protections.