Muslim Asylum Claims in U.S. Courts: A Legal Examination
Is the U.S. a force of good in the Muslim world? This very question would seem outlandish to Al Qaida and to many of today’s foreign policy commentators. However, the answer is not so obviously answered in the negative. If one looks at the history of Islam in American courts, one notices a number of federal judicial opinions over the last decade involving Muslims who fear being deported by United States because of what will happen to them at the hands of fellow Muslims in their home countries. The situation is not reversed. With the exception of individual Americans who have been indicted by grand juries here, there are no overseas American refugee populations. That fact alone should give comfort to those who get tired of hearing the U.S. criticized for what we are doing in the Middle East. We have plenty of Muslims here, and they have no interest in going home, even when home happens to be an Islamic country.
Muslim asylum claims are proliferating in our highest courts. They represent a large portion of American federal court decisions which mention Islam. Some asylum claimants are Muslims who hail from countries governed by Islamic law, in which case they fear the government. Some come from secular countries that cannot control Muslim who target neighbors they deem insufficiently Islamic. Either way, there are plenty of Muslims here who fear being sent to their predominately Muslim to such an extent that they throw themselves on the mercy of our courts to avoid this prospect.
The same cannot be said of the United States. We have far more people who want to be here than want to leave. There has been quite a bit written about our immigration problem. Whatever one says about how we treat immigrants here, asylum claimants are assured of being heard. Based on changes in our legal system, the U.S. offers individualized review their asylum claims by our most prestigious courts, the U.S. Courts of Appeal, a system of review that probably goes beyond our international obligations. Those who question whether the U.S. is a force of good in the world should keep that in mind.
This article examines the history of Muslims seeking asylum in the U.S., where these people come from, and what they claim, along with noticeable trends in how they seek to avoid being forcibly removed from the West.
The History of Asylum in the U.S. Courts
1980, the year 52 American were held hostage in Tehran in violation of international norms, was also the year that we started offering individualized review of asylum claims by our more prestigious courts. The Refugee Act of 1980 defined who was eligible for asylum in the U.S., and was designed to cease the Executive Branch practice of making asylum decisions on the basis of foreign policy considerations. Before the, asylum decisions were not independent of the claimant’s ideology or the politics or home country, despite the United States ratification in 1967 of the United Nation Protocol Relating to the Status of Refugees in 1967, which defined "refugee" in a ideologically-neutral way, as a person:
[O]wing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of the country; or who, not having a nationality and being outside the country of his fromer habitual residence as a result of such events, is unable to or, owing to such fear, is unwilling to return to it.
Prior to 1980, the Attorney General had authority to authorize the withholding of deportation for an alien who feared physical persecution in the home country, and there was little right to appeal adverse decision in court. The legal concept of asylum was based on a 1951 U.N. Convention, which led the U.S. to amend its immigration laws to protect refugees. Starting in 1965, the U.S. recognized refugees only from communist countries or countries "in the general area of the Middle East," and these claims were the subject of strict numerical limitations. The 1980 Refugee Act adopted the definition of a1967 U.N. Protocol, removed the ideological considerations and numerical limitations, and provided appeal of adverse decision to the U.S. Courts of Appeal. As a result, asylum was no longer an ad hoc immigration procedure subject to the whims of policy, and Executive Branch asylum discretion was overseen by the judiciary.
Under current U.S. immigration law, asylum claims are first considered by an immigration judge. If the claim is rejected the alien ordered to be deported, the alien may appeal to the Board of Immigration Appeals (BIA). If the BIA denies the claim, the alien may appeal directly to the federal circuit courts of appeal. In practice, this means that asylum claims generally took several years, during which the claimant could stay and work in the U.S.
In the mid-1990s, Congress became aware of the problem of delays and cases in which unscrupulous aliens – such as Sheik Omar Rahman – abused the asylum system. It addressed these concerns in the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IRRIRA), which imposed a number of provisions to curtail abuse of the system, such as a one-year deadline for filing asylum claims and penalties for fraudulent claims.
How did these changes in immigration law impact the cases that we heard by the U.S. courts? The following graph shows the number of asylum decisions issued by the U.S. Courts of Appeal between 1969 and 1980, when the Refugee Act was enacted. (These figures were obtained through a computer search I did of all federal opinions containing the keyword "asylum" within two words of "refugee").
This next graph shows the number of asylum opinions issued between 1981 and 2000:
This second of these graphs undoubtedly shows the impact of the Refugee Act – asylum claimants began to seek review of the BIA’s denial before the U.S. appellate courts. This does not mean that the number of asylum claims necessarily increased. Rather, it reflects that the circuit courts heard the claims, because the law provided for judicial review that did not exist before 1980. The growth of opinions issued in the late-1990s probably reflected additional resources that were given to the asylum process to address the backlog of cases
This third graphs shows something that is no so easily explainable – the stunning growth of asylum court rulings since 2001.
It is important to note how large of a jump there was between 2000 (71 judicial opinions) and 2001 (218), and the continuing exponential growth thereafter. To put this in perspective, the sum of the number of asylum decisions issued in 2005 (1965 opinions) and 2006 (2701) exceed the total number of asylum cases for all prior years in history combined. The following graph illustrates this. It depicts of the number of asylum decisions issued by the U.S. Courts of Appeal between 1969 and 2006, drawn to scale:
Clearly, something is going on here. Asylum has become a growth industry since 9/11. The Department of Justice component that handles this type of litigation can no longer handle the volume. As a result, in additional to bolstering the ranks of the Civil Division’s Office of Immigration Litigation, the Attorney General has been forced to spread asylum cases throughout the agency. (I know this personally. When I was Deputy Chief in the Counterterrorism Section, I handled some asylum appeals in additional to my other duties, as did every terrorism prosecutor in my office).
Cynics might say that this exponential growth in asylum claim since 9/11 is the result of the U.S. response to the attacks, when he invaded Afghanistan and Iraq. However, this claim overlooks that the graphs above show all asylum claims, not just by those aliens from the Middle East. This suggests that 9/11 may have done something Usama Bin Laden never intended – it solidified aliens’ connection to the U.S., and more likely to assert asylum to avoid being sent home. As noted, these aliens enjoy individualized review of their claims by our highest courts.
What about the subset of these claims, involving Muslim aliens who fear being sent home? That is what I sent out to examine.
History of Muslim Asylum Claimants in the U.S. Courts
I counted a total of 282 judicial opinions in which Muslims in the U.S. sought asylum status (as of October 1, 2007). These rulings are listed in chronological order in Appendix A. The distribution of these opinions each year is depicted in the following graph.
(I omitted 2007 from this above, because there are still three months left in the year.)
Note that this graph has approximately the same shape as the corresponding graph of all asylum cases, which would appear to mean that asylum opinions decided by the U.S. Courts of Appeal are increasing exponentially after 9/11, and that particular cases involving Muslim asylum claimants are part of this growth. However, the Muslim claimant graph does not show the same level of growth in recent years, and it contains a spike in the early 1990s that does not appear in the graph of all cases. In other words, Muslim asylum claims were impacted by factors that differ the universe of all claims.
The more interesting question is whether the Muslim asylum cases are growing as a percentage of all asylum appeals. To determine the answer, we need to chart that the percentage of all asylum appeals that involve Muslim claimants (i.e., for each year, the number of Muslim asylum claims divided by the total asylum claims), for these same years. The following chart depicts those figures:
(I included 2007 is this graph, because it involves percentage rather than raw numbers and do not depend on a measurement of the full year. The percentage of Muslim asylum decisions in 2007 (40 opinions) to all such decisions this year (1321) is included on this chart (.030).)
The three big years for Muslim asylum claims as a percentage of all claims are 1994 – the spikes you see in the 1990s – are 1994 (.218), 1997 (.25) , and 1999 (.173). During these years, approximately one out of every five asylum opinion involved a Muslim claimant. The percentage dropped in later years, as the raw number of claims increased.
What this means is that the proportion of Muslim asylum claims to all claims is not at an all-time high in the years since 9/11, even as the raw numbers are increasing. More people are seeking reviews of adverse asylum claims in the last few years, but that increase is not being driven by Muslim claimants. Since 9/11, on average three out of every 100 asylum court rulings involves a Muslim claimant, and this is far less that the heyday of Muslim asylum claims in the U.S. courts, between 1994 and 1999, when Muslim claimants reflected a higher percentage of all asylum claims being reviewed by the judiciary.
One explanation is that the spike of Muslim asylum opinions as a percentage of all asylum reviews reflected the genocide occurring in the Balkans in the 1990s, a unique geopolitical event that is no longer taking place. During those years, Muslims were being persecuted in the former Yugoslavia as an official policy. It is not surprising that a larger volume of all asylum litigation during these years involved Muslims.
There are a number of possible explanations. Since 1999, Muslim asylum claimants may be more successful at the immigration judge or BIA stage of the proceedings, in which case there would be no need to appeal. Alternatively, disappointed Muslim asylum claimants may have been discouraged from seeking appeals following adverse rulings because of the rate of success in the courts was low. Yet another explanation is that the tightening of the asylum claim process through IRIRRA in the 1990s had a direct impact on would-be Muslim claimants.
I then looked how courts have considered Muslim asylum claims when judicial review of adverse decisions have been sought. For this, I focused on the history since 1994, the first year in which there were Muslim asylum opinions in the double digits (12 opinions). Between 1994 and when I write this (October 1, 2007), there are 262 judicial opinions falling in this category.
Analysis of the Muslim Asylum Opinions
First, let’s look at geography – from where in the U.S. these 262 opinions, and the countries to which these Muslim aliens are trying to avoid being deported.
There are eleven circuit courts of appeals, corresponding to contiguous geographic regions. (The D.C. Circuit did not rule on any asylum cases) The 262 cases involving Muslim asylum claims since 1994, by circuit, look like this:
A pie chart showing how the Muslim asylum opinions cases break down of the 262cases between Muslim countries (136 opinions) and non-Muslim countries (126) is as follows:
For purposes of this graph, I considered a country a "Muslim country" if it was the subject of a special registration requirement for its nationals within the U.S., which seemed a fair proxy See Registration of Certain Nonimmigrant Aliens from Designated Countries, 67 Fed. Reg. 67,766 (Nov. 6, 2002) (Iran, Iraq, Libya, Sudan, and Syria); Registration of Certain Nonimmigrant Aliens from Designated Countries, 67 Fed. Reg. 77,642 (Dec. 12, 2002)(Afghanistan, Algeria, Bahrain, Eritea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, and Yemen); Registration of Certain Nonimmigrant Aliens from Designated Countries, 68 Fed Reg. 2362 (Jan. 16, 2003) (Bangladesh, Egypt, Indonesia, Jordan, Kuwait), Registration of Certain Nonimmigrant Aliens from Designated Countries, 67 Fed Reg. 70,526 ((Afghanistan, Algeria, Bahrain, Eritea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, and Yemen). Of course, I omitted North Korea.
Thus, more than half of the Muslim asylum claimants in modern U.S. history were involved in litigation to avoid being sent back to Muslim countries. I should note that there would have been a larger majority of Muslim country cases without the genocide occurring in the Balkans in the 1990s, a unique geopolitical event that was temporary in duration and longer taking place. Muslims from the Balkan countries accounted for 44 of the 262 opinions, the second largest component (just behind Pakistan, with 45 cases). Muslims from India were the next most common type of litigant (37 cases). Most of the countries with had multiple Muslim asylum claimants rulings were Muslim countries. The only non-Muslim countries in this category were India, Israel, and the Balkans.
How did these claimants fare? To determine this, I prepared four lists, which vary according to two categories: (1) Muslim vs. non-Muslim country of origin, and (2) success or failure in the asylum litigation that followed the BIA determination. These lists, and the number of case on each, are depicted on the following 2-by-2 chart:
Of the 262 cases, 54 were remanded (a victory for the asylum claimant). The rest – 206 cases, approximately eighty percent - were affirmances of the BIA’s denial of the asylum petition.
These figures suggest that Muslim asylum claimants are more successful when they are seeking to prevent their deportation to Muslim countries, when compared to Muslim claimants from non-Muslim countries, though not by much. Muslim nationals from Muslim countries have succeeded in getting American courts to overturn the BIA’s denial of asylum claims in 29.5 percent of the cases, as opposed to Muslim claimants who are nationals of non-Muslim countries (22.3 percent). Although this difference is probably not significantly different, the success rate of Muslim claims involving non-Muslim countries would probably be lower without the massacres in the Balkans.
What do we see when we look at the specifics of the claims in which Muslims successfully claim asylum from preventing their deportation to Muslim countries? Pakistan (9 cases) and Iran (5 cases) are the countries with the most cases in this category. What were the specifics of those claims?
Individual Pakistanis feared being sent home because they were members of minority Muslim sects, like Shi’ites or members or the Ahmadiyya or Mohajir Qaumi Movements, or members of the Pakistani Muslim League against the prevailing regime. Nasir v. I.N.S., 122 F.3d 484 (7th Cir. 1997); Ladha v. I.N.S., 215 F.3d 889, 2000 Daily Journal D.A.R. 5723, 2000 Daily Journal D.A.R. 7141 (9th Cir. 2000) Sahi v. Gonzales, 416 F.3d 587 (7th Cir. 2005). Zubair v. I.N.S., 191 F.3d 458, 1999 WL 569024, Unpublished Disposition (7th Cir. 1999) Khan v. Gonzales, 148 Fed.Appx. 303, 2005 WL 2175908, 2005 Fed.App. 0620N (6th Cir. 2005) From Iran, we had claimants who feared prosecution because they were Sunnis, a woman who inadvertently saw a man in bathing trunks, and someone who helped publish Salmon Rushdie’s Satanic Verses. Torabi v. Gonzales, 165 Fed. Appx. 326, 2006 WL 238315 (5th Cir. 2006). Fisher v. I.N.S., 61 F.3d 1366, 95 Cal. Daily Op. Serv. 5950, 95 Daily Journal D.A.R. 10,212 (9th Cir. 1994) Zahedi v. I.N.S., 222 F.3d 1157, 00 Cal. Daily Op. Serv. 7431, 2000 Daily Journal D.A.R. 9849 (9th Cir. 2000). For these people, the U.S. was a haven.
As noted, there is a growth in Muslim asylum cases, even if this growth is not as fast as asylum claims by non-Muslim aliens. How does the success rate of appellant asylum seekers Muslims from Muslim countries compare with the success rate of Muslims from non-Muslim countries since 1994? The graph answers that question.
Muslim asylum claimants from non-Muslim countries did not prevail at all in the courts of appeal between 1996 and 2002, whereas there were more prevailing Muslim asylum claimants from Muslim countries in 2000 than unsuccessful Muslim claimants. We may be seeing a trend in which the claimants from Muslim and non-Muslim claimants equalize at about the .20 mark.
The fact that the U.S. sees so many Muslim asylum claimants in our courts suggests that people should think twice before claiming that the U.S. is not a force of good in the Muslim world. For Muslims who fear being sent home, we are their best hope, the claims of Usama Bin Laden notwithstanding. Those Muslims would rather be here, so much so that they have increasingly taken advantage of our generous asylum laws and legal procedures that give them a fair shot at proving their well-founded fear of persecution. The surprising fact is that Muslim are just as likely to claim asylum when their home countries are Muslim countries than non-Muslim countries. This point if brought home when one considered that Pakistan – an Islamic state - is the most common home country of Muslim asylum claimants who seek judicial review of the immigration authority’s denial.