Balancing National Security Concerns with the Right to Seek Asylum

A June 16 decisionfiled by the US Court of Appeals for the Third Circuit (comprised ofDE, NJ, and PA) offered a ray of hope to asylum seekers facing the daunting andambiguous “national security bar.” The decision prevented the deportation oftwo Uzbek men and likely saved their lives. On a larger scale, the decision isa step forward for all those seeking asylum from torture who would otherwise bebarred because of tenuous national security concerns.

The “national security bar” was established so thegovernment could deport a noncitizen on the basis of a belief that he or shemay be “a danger to the security of the United States,” even if there is a highlikelihood of that individual being tortured upon deportation to their homecountry. The Third Circuit, in unambiguous language, said “If we were to allowthe [Board of Immigration Appeals] decisions to stand, it would run counter tothis country’s strong tradition of granting protection to individuals sought byauthoritarian regimes based on politically motivated charges.”

In the past, the national security bar prevented manylegitimate asylum seekers from finding safe haven in the US. Up until 2008,even Nobel Peace Prize Winner Nelson Mandela was barred entry to the US becausethe African National Council, of which he was the leader, was considered by theUS to be a “terrorist organization.”Overly-broad definitions of what constitutes threats to national security andterrorism have barred desperate and vulnerable noncitizens from seeking asylumin the US.  

For example, under the “material support to terrorism” bar, the US can deny asylum and other immigration protections to those who haveassisted terrorist organizations. Health professionals who provided medicalcare to members of terrorist organizations or armed groups are prevented fromgaining asylum in the US, despite being threatened with torture or death intheir home countries. Individuals forced to perform domestic duties fordesignated terrorist groups are also barred from seeking asylum despite thethreat of being harmed upon return home. These are exactly the kind of populationsUS asylum law was designed to protect.

This decision in the Third Circuit may seem like a smallvictory for asylum rights advocates, and it is. Circuit court decisions arebinding law only within the Circuit, and the value of this decision as“persuasive law” for other parts of the country remains unclear. But for two people who would undoubtedly sufferphysical harm and fear upon return to Uzbekistan, the decision was overwhelminglya relief.

There is still a long way to go to ensuring that those whomost need protection from torture and violence in their home countries can findit here in the US, however. Redefining what must be shown by the government toprove an asylum seeker is a threat to national security is a step in the rightdirection.

Get Updates from PHR