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Is America ‘full?’ Recent claims highlight legalities of asylum

If the U.S. is “full,” as some commentators recently suggested, can it still accept additional immigrants who are seeking refugee status or asylum? A new ABA Legal Fact Check posted last week notes that under U.S. law and international accords, foreign nationals have certain legal rights for claiming refugee status and asylum, and the numerical limits for entry depend on the status they seek.

Article 33(1) of the 1951 Refugee Convention protects any “refugee” against refoulment (return) if his or her “life or freedom would be threatened because of race, religion, nationality, membership of a particular social group or political opinion.” The U.S. Senate ratified the 1967 Protocol to the convention in 1968.

The Refugee Act of 1980 and other changes amended the U.S. Immigration and Nationality Act by raising the annual ceiling for refugees from 17,400 to 50,000 and creating a process for “appropriate consultation” with Congress to meet emergencies, which has allowed presidents to adjust the ceilings.

The limit that was as high as 110,000 has been cut to the current limit of 30,000 for refugees, defined as a person who seeks protection before journeying to the U.S. There are no limits on asylum seekers who make it to a U.S. port of entry or inside the United States, and they have a legal right to make their case before an immigration judge.

Foreign nationals seeking asylum who are stopped short of the U.S. border, even by U.S. authorities, face a different story. A 1991 Justice Department memorandum concluded that Article 33 does not impose any domestic legal obligations on the U.S. for individuals interdicted outside its territory, even if they intend to claim asylum. The U.S. Supreme Court essentially upheld that position two years later.

So, is the U.S. “full?” The question has drawn a lot of commentary recently, but the answer has nothing to do with the legal claims of those seeking asylum at the border.

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