This Article critiques the United States’ bar on employment for asylum seekers on a number of fronts. Beginning with a historical perspective, I explore the more humane regime that existed in the United States until 1995. Under this prior system, asylum seekers with bona fide claims were permitted to work while their claims proceeded. This Article examine the underlying fears and policy goals that led Congress to dramatically curtail protection and the right to work for asylum seekers. By situating the prohibition on work for asylum seekers within the larger context of overall punitive immigration reforms and the increasing criminalization of immigration law, this Article argues that the ban on employment for asylum seekers is unnecessary as a means to deter fraud. It also argues that it is inconsistent with other humanitarian immigration relief that exists in United States immigration law. Turning to the Refugee Convention itself, it is argued that denying refugees seeking asylum the right to work violates the spirit of the Refugee Convention and the very right to seek asylum. This Article further argues that denying a means of support and attempting to make life so difficult that asylum seekers choose to return home to persecution rather than seek protection amounts to constructive nonrefoulement in violation of the Refugee Convention. Finally, from a policy perspective, this Article argues that allowing asylum seekers to work while their claims proceed would restore dignity to refugees and realign U.S. immigration policy with important international law norms. It would also be consistent with domestic immigration policy for other classes of similarly situated vulnerable immigrants. Additionally, in light of the heightened enforcement efforts and more restrictive immigration regime which now exists in the United States, it is unlikely that the number of fraudulent asylum applications filed would significantly increase.
Lori A. Nessel,
Deliberate Destitution as Deterrent: Withholding the Right to Work and Undermining Asylum Protection,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol52/iss2/3