A Nepalese nurse who was kidnapped at gun point and forced to treat injured Maoist rebels, only to be subsequently accused by his own government of complicity with the rebels and detained and tortured on that basis.

A gay man from Mexico who was kicked out of school, shunned by his family, beaten by a mob in his hometown and sexually assaulted by the police who should have protected him.

Each of these people is an actual asylum seeker in the US who overcame great odds and dangers to seek safety from persecution in the United States.

The 30th anniversary this year of the passage of the Refugee Act of 1980 is an appropriate time to pause and reflect on who asylum seekers are and why we should care about them, as Patrick Giantonio, Executive Director of Vermont Immigration and Asylum Advocates, said in his testimony at the Senate Judiciary Committee’s hearing on the Refugee Protection Act on May 19.  It is also the time to re-examine what more must be done to ensure the protection and healing of survivors of torture and abuse who seek safe haven in the US.

The Refugee Protection Act is a bill that would make a number of needed reforms to the laws governing granting of asylum and resettlement of asylees and refugees. Among its important provisions discussed at the May 19 hearing are elimination of an arbitrary filing deadline for asylum claims of one year after entry into the US and changes that would mitigate the overbroad interpretation of the law that excludes from the country persons who allegedly have provided “support” to terrorists. (For more detailed information about the Refugee Protection Act of 2010, see PHR’s statement from the May 19 hearing.)

Since it was enacted in 1996 as a misguided solution to fraud in the US asylum system, the one year filing deadline has led to denial of the asylum claims of hundreds, if not thousands, of legitimate asylum seekers for reasons that pale in comparison to the degree of danger the individuals would confront if returned to their home countries. People miss the one-year deadline for a plethora of reasons, including ignorance of the law, lack of counsel (indigent asylum-seekers are not provided with free counsel) and post-traumatic stress due to torture suffered in the country of persecution. A technicality of which very many survivors of persecution are not aware should not prevent consideration of the merits of their claims. Many other effective practices are in place to root out and prevent fraudulent claims, including DHS’s forensic testing of documents and security investigations on asylum seekers. Instead of an important tool to combat fraud, the deadline serves to bar deserving survivors of severe human rights violations, and  it burdens the Immigration Court system by requiring additional adjudication of complex issues, including whether an individual qualifies for an exemption to the deadline.

Who are the victims of the one year filing deadline?  They include a Burmese student who fled to the US after being jailed for several years for his pro-democracy activism.  When he arrived in the United States, the student did not know anyone here. He did not speak English, and did not know about the availability of asylum, which he only learned of several years later when he met other Burmese refugees who explained the process. Even though the Immigration Judge who heard his case found that he faced probable future persecution in Burma, this student was denied asylum because he had not met the filing deadline. Another casualty was a Senegalese woman who fled forced marriage and female genital mutilation (FGM) planned by her parents. Four years after arrival in the US, the woman attempted to change her parents’ minds so that she could safely return home, to no avail. She applied for asylum after four years in the US, when she learned that her younger sister had been forced to undergo FGM. Again, even though a judge who heard her case found it compelling, she was denied protection solely for having failed to file for asylum within one year of coming to the US.

Unreasonably broad interpretation of the ban on admission of people who have provided so-called “support” to terrorists likewise has prevented large numbers of deserving asylum seekers from winning protection in the US. As currently implemented by DHS, “supporters of terrorism” include a multitude of individuals who no rational person would deem a security threat, such as health professionals, who treat anti-government rebels brought in to their clinics and hospitals, and villagers, who are threatened with death unless they give food, water, shelter, or money to guerillas. The US government’s definition of a “terrorist organization” is also overbroad and encompasses any group of people engaged in any kind of armed resistance, even those whose cause our country clearly supports, such as organizations fighting genocide in Darfur. The authority granted by Congress to immigration officials three years ago to exempt sympathetic cases from the terrorism support bar has been implemented far too slowly, as nearly 7,000 people currently remain in limbo awaiting further consideration of their cases.

There is a better way to identify and exclude terrorist sympathizers while ensuring that victims of persecution are not mislabeled as threats. Immigration authorities can use existing policies that deny immigration relief to serious criminals and people who have persecuted others, while appropriately limiting application of the “terrorism supporter” label to those who voluntarily undertake intimidating or coercive measures on behalf of known, designated terrorist organizations. Until immigration authorities implement this change, the US  will see more and more people come into harm’s way because of policy on material support to terrorism.  Among those who have already fallen victim are a Bangladeshi man denied a green card, because he took part in his country’s 1971 struggle for independence, and a Congolese girl kidnapped by rebels at age 12, who eventually became an advocate against use of child soldiers, but was nonetheless flagged as a “material support” case because of her unwilling involvement with anti-government fighters.

The urgency of this problem is illustrated by recent cases of health professionals who have been forced to seek US protection due to torture or fear of persecution in their home countries have been denied by immigration authorities or or remain in limbo due to the “material support” bar:

• a Sudanese doctor who, in his role as a humanitarian NGO physician, provided medical assistance to injured members of the Sudan Liberation Army (SLA)
• a Nepalese health worker who is seeking asylum after having been kidnapped by a Maoist group that required him to attend to a wounded rebel
• a Colombian nurse who was kidnapped by the Revolutionary Armed Forces of Colombia (FARC) and forced at gunpoint to provide medical care to its members

The PHR letter emphasized that the current US position conflicts with its obligations under the Geneva Conventions to protect health workers in conflict and with a longstanding US history of condemning violations of medical neutrality. PHR and all of the letter signers urged DHS to restore the US commitment to medical neutrality by excluding the provision of medical care from the definition of “material support.”