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The Archbishop of What?!. Jean Binkovitz, M.S.,J.D. Asylum Law and the International Community. Web Sites.

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The Archbishop of What?!

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The Archbishop of What?!

Jean Binkovitz, M.S.,J.D.

Asylum Law and the International Community

Web Sites




“Like a Bridge Over Troubled Water”Asylum Law: Bridging Domestic and International LawJean Binkovitz, M.S., J.D.

Who Gets Asylum?

  • Persons are eligible for asylum if they:

    • Meet the definition of refugee

    • Are eligible for the favorable exercise of discretion

    • Are not otherwise barred

Definition of Refugee

  • “Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or politicalopinion.”

    • INA S.101(a)(42)

Asylees/Refugees are:

  • Outside their country of residence

  • Unable or unwilling to get government protection

  • Due to persecution or well-founded fear

  • On account of:

    • Race

    • Religion

    • Nationality

    • Social Group

    • Political opinion

“They’re just deportees” (“Plane Crash at Los Gatos”)Eligibility:Who is left out?

  • Persons fleeing war or general disasters

  • Persons suffering because of economic, social, and cultural status

  • Barred: Persecutors

  • Picture: Karen refugee camp in Thailand (recent closing of some camps pending summit) from http://www.

  • umpheinmei.html

  • Treaty (UN)

    1951 Convention Relating to the Status of Refugees

    1967 Protocol Relating to the Status of Refugees

    Convention Against Torture*

    *Expanded coverage


    Evidenced by practice and opinio juris

    Right to seek refuge from conflict (evidenced by inclusion in Geneva Convention and ICJ Statutes)


    International Law Sources Include:

    And General Principles

    • Examine

      • Common elements of domestic legal systems

        • Res judicata

        • estoppel

      • Equity considerations

      • Structural assumptions about international law

        • States/sovereignty

        • Consent

        • Pacta sunt servanda

    • Jus Cogens (U.S. preserves discretion here)

      • Non-refoulement?

      • Pacta sunt servanda? ...

    DeclarationsThe Embodiment of Customs or Principles

    • Universal Declaration of Human Rights (1948)

    UDHR Article 2

    • “Everyone is

    • entitled to all the rights and freedoms set forth…without distinction…such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

    UDHR Articles on Asylum

    • Article 5

      No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment

       Article 14

      (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.

      (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the principles of the United Nations

    Domestic Law

    • Federal authority “inherent in sovereignty”

    • Refugee Act of 1980

      • Refugees

      • Asylees

      • (Withholding)

    • Created Asylum Procedure

    “I hear you knockin’, but you can’t come in”Little Richard, “Keep a Knockin’”Other U.S. Requirements

    • Eligible for discretionary relief

      • One year limit generally

  • Not otherwise inadmissible

    • Persecution of others

      • Slavery Practices

    • Convictions of serious crimes

    • Firm resettlement

    • National security

    • Terrorist activity

    • Safe third country, previous denial

  • “The Times They are A-Changin’” - DylanRecent Changes

    • One year limit

    • Detention of asylum seekers from designated countries

    • Limited opportunities for decision review

    Deciding Cases

    • Documentation Issues

      • Availability

      • Fraudulent

  • Translation Problems

    • Accuracy

    • Timing

    • Advice and commentary

  • Torture Impact

    • Reluctance

    • Physical surroundings

    • Physical exam

  • POV Program and Website: Well-Founded Fear

  • More problems:

    • Country Report Problems

      • See in video clips

      • DOS bias

      • Inaccuracy

  • Demeanor Issues

    • Cultural variance

    • Anxiety

  • Date Inconsistencies

  • “Bringing It All Back Home”-Bob Dylan

    • Asylum law bridges international and domestic law

    • Asylum protects people only in very limited situations

    • Asylum law reflects a broader principle of non-refoulement

    • International law influences domestic law

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