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Balancing National Security Concerns with the Right to Seek Asylum

Christy Carnegie Fujio, JD, MA, and Sari Long on August 12, 2011

A June 16 decision filed by the US Court of Appeals for the Third Circuit (comprised of DE, NJ, and PA) offered a ray of hope to asylum seekers facing the daunting and ambiguous “national security bar.” The decision prevented the deportation of two Uzbek men and likely saved their lives. On a larger scale, the decision is a step forward for all those seeking asylum from torture who would otherwise be barred because of tenuous national security concerns.

The “national security bar” was established so the government could deport a noncitizen on the basis of a belief that he or she may be “a danger to the security of the United States,” even if there is a high likelihood of that individual being tortured upon deportation to their home country. The Third Circuit, in unambiguous language, said “If we were to allow the [Board of Immigration Appeals] decisions to stand, it would run counter to this country’s strong tradition of granting protection to individuals sought by authoritarian regimes based on politically motivated charges.”

In the past, the national security bar prevented many legitimate asylum seekers from finding safe haven in the US. Up until 2008, even Nobel Peace Prize Winner Nelson Mandela was barred entry to the US because the African National Council, of which he was the leader, was considered by the US to be a “terrorist organization.” Overly-broad definitions of what constitutes threats to national security and terrorism have barred desperate and vulnerable noncitizens from seeking asylum in the US.  

For example, under the “material support to terrorism” bar, the US can deny asylum and other immigration protections to those who have assisted terrorist organizations. Health professionals who provided medical care to members of terrorist organizations or armed groups are prevented from gaining asylum in the US, despite being threatened with torture or death in their home countries. Individuals forced to perform domestic duties for designated terrorist groups are also barred from seeking asylum despite the threat of being harmed upon return home. These are exactly the kind of populations US asylum law was designed to protect.

This decision in the Third Circuit may seem like a small victory for asylum rights advocates, and it is. Circuit court decisions are binding law only within the Circuit, and the value of this decision as “persuasive law” for other parts of the country remains unclear. But for two people who would undoubtedly suffer physical harm and fear upon return to Uzbekistan, the decision was overwhelmingly a relief.

There is still a long way to go to ensuring that those who most need protection from torture and violence in their home countries can find it here in the US, however. Redefining what must be shown by the government to prove an asylum seeker is a threat to national security is a step in the right direction.

Places: United States