Last week, the Department of Homeland Security proposed a rule that would prolong the time asylum seekers must wait to apply for work authorization and bar many asylum seekers from work authorization. It adds to the long list of blatantly cruel moves the Trump administration has made against asylum seekers. Like prolonged detention and separation of families, this rule would also lead to suffering and could force asylum seekers to abandon their claims.
Upholding the right of asylum seekers to work is an essential component of humanitarian protection. And this is a right that was fought over and ultimately won through debate and litigation in the 1970s and 1980s. Revisiting that history can help us see why the proposed rule would be so destructive. The arguments against this basic right, then and now — claiming that asylum seekers were frauds, that they were stealing jobs from Americans and that they needed to be deterred by any means — ring hollow.
In the mid-1970s, Haitians fleeing the Duvalier dictatorship started seeking asylum in the United States. When they were summarily denied, public interest lawyers helped them appeal to the federal courts. The lawyers also insisted that the Haitians be allowed to work while they appealed. Although immigration authorities refused to grant those work authorizations, two lawsuits — Marie Pierre et. al. v. United States of America and National Council of Churches v. Egan — challenged this policy and forced the Immigration and Nationalization Service (INS), the predecessor to the Department of Homeland Security, to change course.
The U.S. attorney representing the INS argued that granting Haitian asylum seekers work authorization would “toss salt in the wounds” of unemployed Americans. Lawyers for the Haitians responded with letters from local officials and the local AFL-CIO attesting that granting work authorization would not have an adverse effect on American labor and, indeed, that denying Haitians permission to work — thus creating a significant unauthorized workforce, because Haitians knew they must work to survive with or without permission — would lead to worse working conditions and lower wages for all workers.
The lawyers also reminded the courts of President Lyndon B. Johnson’s statement upon the ratification of the protocol to the United Nations convention on the status of refugees in 1968: “Through a number of other specific guarantees, refugees are to be accorded rights which — taken together — would enable them to cease being refugees, and instead become self-supporting members of free societies, living under conditions of dignity and self-respect.”
One of those guarantees is the right to work.
In both cases, advocates argued that depriving asylum seekers of the ability to work while their claims were pending was an indirect attempt to expel them, a violation of international law. After all, a person who cannot work cannot survive. The courts agreed and compelled the INS to provide work authorization to Haitians who arrived before 1980.
Congress also took action by passing the 1980 Refugee Act to bring the United States into compliance with the U.N. Refugee Convention. This led to a regulation giving the INS the authority to grant work authorization to asylum seekers.
Yet, throughout the 1980s, immigration authorities continued to violate this rule by devising various reasons to deny work authorization to asylum seekers. The courts once again stepped in. For example, in Diaz v. INS (1986), a California judge specifically enjoined the INS from considering manner of entry in deciding whether to grant work authorization, which is exactly what the Trump administration rule would do, by barring those who enter between ports of entry from work authorization. The judge also enjoined the INS from denying work authorization on the grounds that the asylum seeker was not responsible for the economic support of others. “Whether or not there exists a family to care for, the individual refugee still needs to eat,” the judge wrote.
The decision provoked a backlash. Within a month of the ruling, the INS published in the Federal Register a petition by the Federation for American Immigration Reform (FAIR), an anti-immigration organization, that asked for revocation of the 1980 regulation. The FAIR petition once again introduced the argument that authorizing work for asylum seekers would hurt American workers. Although the INS claimed neutrality, it let FAIR refocus the policy debate on threats it posed to American workers rather than the need to create a humane asylum system.
The following year, the INS circulated a memo instructing district directors to deny work authorizations to Salvadorans and Guatemalans on the grounds that their applications for asylum were “presumed frivolous.” Despite increasing denials of work authorization in response to these instructions, INS Commissioner Alan Nelson insisted that the significant increase in asylum claims in 1988 was evidence of “abuse” of the system by those seeking work authorization.
In December, further INS instructions required that work authorization be granted only to those who could prove immediately that they were eligible for asylum, giving people no time to gather evidence or consult legal counsel before being denied.
Once again, the courts smacked the INS down. In Ramos v. Thornburgh (1989), a Texas judge declared this illegal. He wrote that the INS offered no evidence that employment authorization for asylum seekers would result in “a flood of illegal aliens” that would “significantly harm the INS’ ability to control our borders.” The judge also rejected the INS’s assertion that withholding the right to work from an asylum seeker does not constitute irreparable injury, because the asylum seekers were poor and would endure hardship if denied work authorization. The judge wrote that “the threat of having to break the law to subsist or to return to a country where one may be subjected to persecution outweighs any harm that the issuance of an injunction would cause the INS.”
The ruling led the INS to try new policies to deter asylum seekers — increased apprehensions and use of detention, accelerated adjudication and fast-tracked deportation — and to ask Congress in 1990 for more authority to end “the widespread abuse of asylum as a means to enter and work in the United States.” Dan Stein, executive director of FAIR, supported the INS position and suggested further deterrent policies in 1990, such as that asylum claims be accepted only from people who had not passed through “any [other] country where a claim for consideration as a refugee could be filed.” That policy was implemented by the Trump administration this year.
Yet, despite these new deterrent policies, DHS is once again returning to this question of work to make it hard for asylum seekers to find employment legally, and therefore to survive and pursue their claims. In doing so, it is violating an international law that Congress supported and the courts have endorsed.
Nowhere in DHS’s notice about the proposed rule is there any acknowledgment of why work authorization is crucial to maintaining the right to seek asylum and the rights of all workers. If asylum seekers are denied the ability to work legally, some will surely be, as the judge in Ramos put it, “compel[ed] … to abandon [their] asylum applications and return to [their] native country.” Others would be forced into the underground economy, where exploitation is rife and whose existence undermines the ability of all workers to secure fair pay and decent working conditions. The unemployment rate is at an all-time low, so it is difficult to argue that asylum seekers with work authorization are stealing jobs from Americans. It makes more sense to think about this as an effort to push asylum seekers out and into the shadow economy, which hurts everyone and benefits no one.
The Trump administration sees the asylum system not as a lifesaving humanitarian relief, but as a loophole “incentiviz[ing] illegal immigration and the filing of non-meritorious asylum claims … because of the ease with which aliens could obtain employment authorization.” The public is invited to comment on the proposed rule before it is finalized. Advocates, Congress and the courts have long understood that work authorization is a component part of the right to seek asylum. And that is what the administration is targeting for destruction.