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Last week, the House Judiciary Committee passed a bill that would grant asylum to families of homeschoolers who are persecuted by their governments. The bill, sponsored by Congressman Jason Chaffetz, would also make it more difficult for others fleeing violence to obtain asylum in the U.S. by (among other things) raising the bar for credible fear interviews and blocking all government funding for child refugees who need lawyers. Congressman Louis Gutiérrez criticized the bill's restrictions: "Shouldn't children who are fleeing child abuse and violence be afforded the same protection as a child who is denied homeschooling?"
While I personally find this bill distasteful, it seems to me that it falls within the grand tradition of asylum. One of the unique characteristics of asylum is that, by granting asylum to an individual, we implicitly condemn the actions of his home country. You can’t have asylum without a bad guy—a persecutor. When, for example, we grant asylum to a member of a religious minority from China, we send a message that the Chinese government persecutes its own people based on religion. Thus, asylum is inherently political: We make a political statement about another country, and at the same time, we demonstrate our own values.
Gutierrez to Chaffetz: "You're like a homeschooler on a school day - No class."
Historically, the political nature of asylum has played an important role in the development of our law. For example, the 1951 Convention on the Status of Refugees (which we helped create and upon which our current law is based) limited asylum to the five protected categories: Race, religion, nationality, political opinion, and membership in a particular social group. This definition had the effect (probably intended) of helping people fleeing from persecution in the Soviet Union (because they generally faced a type of persecution that fit within a protected category) without offering much to people fleeing from persecution in the West (because such people generally faced "persecution" in the form of economic harm or crime, which does not qualify them for refugee status).
What's more, we've never been particularly subtle about the political nature of asylum. During the Cold War, we gave asylum to “trophy refugees,” high-profile people who defected from the Soviet Block to the West. Such refugees helped demonstrate Western moral superiority over the Communists, and so we were happy to take them.
More recently—in the mid-1990s—Congress amended the definition of refugee to include victims of forced family planning. This amendment was a direct refutation of China’s one-child policy. And it was an expression of our country's (or at least Congress's) opposition to abortion.
Except for the forced-family-planning amendment, Congress has never modified the definition of refugee. But courts—prompted by creative lawyers—have expanded the definition to include gays and lesbians, victims of female genital mutilation, and people facing domestic violence, among others. While these changes have helped many people, they were not driven by a desire to make a political statement about other countries. And certainly they are not based on our collective desire—as expressed by Congress—to send a message condemning behavior that offends us. Rather, they are based on the idea that people fleeing persecution should be treated equally.
Most lawyers—including yours truly—are big fans of equality. If the state offers a benefit to Joe (be it a tax break, the right to marry, a lenient criminal sentence, or asylum), it should offer the same benefit to Mary. My belief in equal treatment for asylum seekers leads me to oppose special preferences for certain groups, like victims of forced family planning and people fleeing Cuba. In my opinion, such people do not need special laws to protect them. They can request asylum like everyone else. In short, I believe that asylum should not be about sending a political message; it should be about protecting people from harm. If a person demonstrates that she faces harm, she should receive asylum.
The problem is that democracy and equality don’t always go together. The Equal Protection clause protects Americans from the tyranny of the majority, but equal protection does not apply in the context of asylum. Congress could, for example, offer asylum only to people from certain regions or to people of certain religions.
Perhaps we can call it the Realpolitik theory of asylum versus the Equality theory. The Homeschoolers' asylum bill falls on the Realpolitik side, in that it is designed to further our country's political agenda by offering a humanitarian benefit to a group that we deem worthy of protection.
Should it become law, the bill would also represent a democratic development of asylum law, something we have not seen in almost 20 years. Wouldn't it have been nice if some of the other developments in the law--protecting gays and lesbians, for example--had been accomplished democratically instead of by lawyers pushing the boundaries of asylum in court?
To be sure, I don't like this bill. I don't like how it restricts most asylum seekers (especially children) while offering special benefits to people who I think should apply for asylum like everyone else. But my opinion is clearly not the point. The Homeschoolers' bill falls within the democratic, Realpolitik tradition of asylum. It helps a group of individuals who "We the People" view as deserving of protection and it places restrictions on another group that is deemed less deserving. It also sends a message about American values, for better and for worse.
Originally posted on the Asylumist: www.Asylumist.com.