Wednesday, July 24, 2019

The Troubling Resemblance of Asylum Eligibility to the Tort System

by Michael C. Dorf

In my latest Verdict column, I criticize what I dub the Trump administration's new "Apply in Guatemala or Mexico" rule barring migrants who arrive at the US-Mexico border from seeking asylum here if they did not previously seek asylum in a country they traversed en route. As I explain, absent a safe-third-country agreement of the sort that Guatemalan President Jimmy Morales did not enter with the US earlier this month, the policy is plainly illegal. I also argue that if such an agreement were entered, it too would be illegal, albeit not subject to judicial challenge. In this accompanying essay, I want to say a few words about asylum eligibility more broadly. As indicated by the title, I'll then suggest a troubling similarity to the tort system.

The federal asylum statute was enacted to implement in domestic law the international obligations of the US under the Convention Relating to the Status of Refugees. Both domestic and international law contain an obligation to provide asylum to refugees who have fled their home countries due to persecution based on "race, religion, nationality, membership in a particular social group, or political opinion."

Substantial case law in the US and elsewhere construes each of those terms, especially what counts as  "persecution" based on membership in a "particular social group." For example, in the column, I note that a court has enjoined the Trump administration's narrowing of a prior policy allowing people fleeing gang violence or domestic violence to qualify. According to the Trump policy (promulgated by then-AG Jeff Sessions in a particular case and an accompanying policy memo), persons fleeing gang or domestic violence should be denied asylum absent particularized proof that their home government either condoned or demonstrated complete helplessness to prevent the private violence. Although the court ruling enjoining this policy is based partly on procedural grounds, it also explained why the policy is substantively problematic: the Trump administration set an unreasonably high standard for showing that a government is unwilling or unable to prevent persecution by private actors.

Yet while the Trump administration has adopted an unduly stingy approach to the granting of asylum (or preliminary relief based on a "credible fear"), the domestic and international legal standard itself is stingy in one very important regard: it requires admission of refugees fleeing persecution but not other sorts of desperate circumstances.

Is that distinction justified? One might think so. A very many people would like to leave their home countries to move to other countries where they will find greater economic opportunity. Immigrant-receiving countries accept various numbers of such economic migrants based on a variety of factors. As I say in the column, I believe that the US currently accepts too few ordinary economically-motivated immigrants, but it is easy to conclude that, at least in certain circumstances and in certain places, rich countries could reasonably limit the number of economic immigrants they admit to fewer than those who wish to enter. When that occurs, the sensible response is for the world community to focus efforts on increasing the capacity of the sending countries to provide economic opportunities for their people.

That solution is unavailable for people fleeing persecution (except in one circumstance I'll elaborate momentarily). If the government of some country persecutes a group of people based on their membership in that group, then no amount of economic development in that country will make it safe for the group. International and domestic law protections for asylum seekers recognize that they do not have the option of doing better in their home countries. (The exception is where the persecution arises from government's inability to control private violence; in such circumstances, capacity building in the government could render the home country safe.)

Accordingly, we can understand the distinction that asylum law draws between people fleeing persecution and people seeking better lives as responding to the potential efficacy of other responses. Would-be economic migrants will benefit from economic development in their home countries in a way that asylum seekers would not.

So far so good, but refugees could be fleeing desperate circumstances that do not amount to persecution and that economic development would not mitigate. Consider what will likely be an increasingly urgent problem of climate refugees. Take a country that is losing its arable land to desertification or losing all or much of its territory to rising sea levels. If no cost-effective local mitigation efforts exist, the people living in such places will need to flee. Yet they are not covered by asylum, and the international effort to change that has not yet yielded any sort of binding obligations or reciprocal rights.

Thus, for now, domestic and international law resemble tort law. In tort, the victim of an injury for which some individual is responsible (whether because that individual acted intentionally, negligently or in some other manner that gives rise to responsibility), you have a right to compensation, but if your injury results from bad luck for which no one bears responsibility, you must bear it yourself. Likewise, if you must flee your home country because your government or certain others are persecuting you based on your group membership, you are entitled to asylum. But if you must flee your home country due to a natural disaster (or a human-caused disaster like climate change), you may have nowhere to go.

Both legal regimes are problematic, but at least the tort system has a coherent logic to it. Tortfeasors have a duty of repair to their victims. By contrast, people who fall prey to simple bad luck are not owed anything by any individuals. Nonetheless, decent societies attempt to mitigate the impacts of bad luck through social insurance. The US is stingy relative to other advanced economies, but even here we have Social Security Disability payments for people whose misfortunes may not be compensable through the tort system.

The limitations of the asylum system appear to be built on a parallel but faulty logic. It is parallel in that it treats victims of human bad acts -- here persecution rather than mere torts -- as more deserving of relief -- here asylum -- than victims of mere bad fortune that cannot be traced to the bad acts of particular individuals. But the limitation makes little sense in the asylum context. By contrast with a tortfeasor who must pay damages, a country that grants asylum to persecution victims is not responsible for the persecution. Asylum is thus a kind of global social insurance against the misfortune of persecution. But once we are willing to provide for that brand of global social insurance (as we rightly are), we should also be willing to provide for global social insurance against comparable harms, at least where remedies in the refugees' home countries are practically unavailable.