Abstract

Excerpted From: Jayesh Rathod, Fleeing the Land of the Free , 123 Columbia Law Review 183 (January, 2023) (375 Footnotes) (Full Document)

In 1997, Chere Lyn Tomayko fled her country of origin, accompanied by her daughters, Chandler and Alexandria. Tomayko sought to escape an abusive relationship with Alexandria's father, Roger Cyprian, as tensions were continuing to escalate in the household. Fearing that somebody might lose their life if she remained within Cyprian's reach, Tomayko traveled to Costa Rica, where, like myriad other domestic violence survivors around the globe, she sought protection in another country in the form of refugee status. After a protracted and complex legal process, the government of Costa Rica approved Tomayko's refugee claim in 2008, citing the human rights concerns implicated in the case.

On the surface, the case resembles many requests for refugee protection from recent times but for one distinguishing feature: Tomayko is a citizen of the United States of America. In seeking asylum overseas as a U.S. citizen, Tomayko was part of a sizeable group, as data from the United Nations High Commissioner for Refugees (UNHCR) reveal that U.S. citizens have lodged approximately 14,000 asylum claims since 2000. This Essay is the first scholarly intervention to distill the number and nature of refugee claims made by U.S. citizens and to explore the broader implications of this phenomenon.

Tomayko's case encapsulates many of the complicated dynamics that surround protection claims made by U.S. citizens, including the nature of the bilateral relationship between the United States and the destination country, along with social and political forces in the destination country that might buoy the asylum claim or foretell its defeat. These cases also reflect the strategic choices made by asylum seekers who, by virtue of their citizenship and access to a U.S. passport, have relatively unfettered access to many parts of the world. For some of these claimants, the asylum process and its promise of lasting protection serve as a shield against criminal or other legal proceedings in the United States. Notwithstanding the instrumental motives underlying some cases, many applicants genuinely believe that the United States is simply not a safe place for their families to live and have made the choice to flee the proverbial land of the free.

The stories of these U.S. citizen asylum seekers also invite deeper reflection about how U.S. citizenship is valued in the current political moment. To be sure, the United States continues to be a preeminent destination for persons seeking humanitarian protection, receiving tens of thousands of asylum claims annually. Nevertheless, a significant number of U.S. citizens have decided that the perceived risks of remaining in the country outweigh the bundle of rights and protections that accompanies their citizenship. Abandonment of U.S. citizenship is not a new phenomenon, of course, as thousands renounce their U.S. citizenship each year, typically for tax-related reasons. Yet the country's recent flirtation with authoritarianism, widening fissures in its social fabric, and growing environmental risks suggest that a closer study of asylum seeking is warranted--and indeed, prudent--should conditions generate even greater outflows of U.S. citizens.

The Essay opens in Part I with a quantitative overview of claims, drawing from data provided by the UNHCR and destination countries. Following that statistical summary, Part II of the Essay presents a typology of claims that U.S. citizens have lodged, extracting from publicly available sources the applicants' motivations for seeking asylum and assessing how foreign government authorities have received those claims. Part III of this Essay explores the broader implications of this phenomenon. As a preliminary scholarly intervention into the topic, this Essay does not endeavor to answer the complicated array of legal questions embedded in U.S. citizen asylum claims, nor does it exhaustively tackle the range of theoretical questions--across multiple disciplines--that underlie this phenomenon. Rather, by offering a set of initial observations and theories, the Essay invites additional scholarly treatment of the matter and provides a baseline for empirical inquiry.

*187 I. U.S. Citizen Asylum Seekers: A Statistical Overview

Granular data on refugee and asylum claims is difficult to obtain, given the confidentiality protocols that typically apply under international or domestic law. For example, statistics regarding the nature of the asylum claims made, or the likelihood of success of particular types of U.S. citizen asylum claims, simply do not exist in aggregate form. Nevertheless, data from UNHCR and from national governments shed light on the number of claims, the countries where they are lodged, and their overall success rate. Of these sources, the UNHCR, with its publicly accessible database of international asylum statistics, is more comprehensive. To verify the UNHCR data and to provide the most accurate numbers, the author obtained available information about U.S. citizen asylum seekers from countries of asylum and adjusted the numbers reported by UNHCR to match the information provided by individual countries.

UNHCR maintains specific data on asylum seekers (including claims made and recognized) from 2000 to the present. The agency also maintains data from 1951 to the present on persons in “refugee” status in given countries, along with their country of origin. In many legal regimes, “asylum-seeker” and “refugee” have nearly identical substantive definitions but simply refer to different stages in the adjudicative process. Accordingly, one would assume that the UNCHR data on “refugees” would bear some correlation to the data set on asylum claims. But owing to idiosyncrasies of reporting by the country-specific offices of UNCHR, the numbers reported under the category of “refugee” can include persons granted other forms of “complementary” protection, such as protection under the United Nations Convention Against Torture.

The UNHCR data have additional limitations. First, although the agency has attempted to standardize data collection across nearly 200 countries, some variations remain in how countries report data. For example, although most countries share data that reflects the total number of individual claimants, some countries--most notably, Australia and the United States--report data by “cases,” which may include family units comprised of multiple individuals. Moreover, since 2020, UNHCR has, for confidentiality reasons, begun rounding certain data on asylum seekers and asylum decisions to the nearest five. This means that the numbers reported in publicly available UNHCR data often provide only an approximation of the total number of claims. For purposes of this research study, however, UNHCR provided the author with a partially unredacted dataset, containing more precise information about the numbers of asylum applications lodged by U.S. citizens from 2000 to the present.

The section that follows presents data regarding asylum claims filed by U.S. citizens over the last twenty-one years, noting the number of claims, the most popular destination countries, and trends in asylum seeking over the years. The following section examines the recognition rate for asylum claims for U.S. citizens, outlining factors that might shape decisionmaking and identifying a disparity in UNHCR data between asylum recognition rates and refugee numbers. As explained below, this disparity might suggest that U.S. citizens are receiving other types of status in some countries of destination, short of full-fledged refugee protection.

[. . .]

E. Members of Minority Groups

At its core, refugee law aims to protect individuals, typically members of minority groups, who face the threat of persecution in their country of nationality because of an immutable identity characteristic or group membership. Although the United States is often described in popular discourse as having enough legal and societal safeguards to protect its minority populations, the lived experience of many U.S. citizens, since the very founding of the nation, reveals significant gaps in protection. Whether this failure of protection is pervasive enough to warrant a grant of asylum is debatable. Objectively speaking, however, it should be no surprise that the concept of asylum would appeal to U.S. citizens who have experienced identity-based harms. Indeed, the historical record confirms that racial, religious, and sexual minorities in the United States have fled the land of the free in search of less oppressive environments.

1. Claims Filed by Racial Minorities.--Racial subjugation and the assertion of white supremacy have been defining threads in U.S. history. There is, therefore, a correspondingly long history of racial minorities fleeing the United States to seek refuge elsewhere. In the decades preceding the Civil War, Canada was popularized in the imagination of enslaved Americans as a type of promised land, free from the oppressive conditions of the United States. An estimated 30,000 fugitive enslaved persons fled northward via the Underground Railroad, which included several Canadian stations. The largest settlement was in Ontario, but other destinations included New Brunswick, Montreal, and Vancouver Island.

Nearly a century later, conditions in the United States led Ollie Harrington, a prominent African American cartoonist, to seek asylum in East Germany. Harrington was a cartoonist for People's Voice, one of two leading African American newspapers in New York City in the 1940s. Harrington's work tackled the African American experience, World War II, Nazism, and other topics, with incisive and acerbic wit. As the United States sunk deeper into the Cold War, Harrington moved to Paris in 1951, where he formed part of a community of expatriate Black artists and activists, which included author Richard Wright. Wright died in Paris in November 1960 at the age of fifty-two, and Harrington believed that the U.S. government was responsible for his murder given Wright's leftist allegiances. The following year, Harrington successfully obtained political asylum in the German Democratic Republic and lived in Berlin for four decades, until his death. It is fitting that Harrington once quipped, “Black people are all refugees, unless they are African people living in Africa.”

In the same year that Harrington received asylum in East Germany, prominent African American radicals began seeking refuge in Cuba. Mabel and Robert Williams, who had organized a Black gun club to defend against white supremacist violence, and who subsequently faced federal criminal charges, made their way to Cuba, where they received both a warm welcome from Prime Minister Fidel Castro and asylum. Along these lines, Eldridge Cleaver, Minister of Information for the Black Panther Party, sought refuge in Cuba in 1968 while facing criminal charges that would likely have resulted in a return to prison. Among the most prominent U.S. exiles still living in Cuba is Assata Shakur, a former Black Panther and member of the Black Liberation Army, who escaped from criminal confinement in New Jersey in 1979. Shakur surfaced in Havana several years later, having received political asylum.

More recently, in the midst of growing public attention and scrutiny of police killings of African American men, a new subtype of asylum claim has emerged. Kyle Canty, an African American U.S. citizen, applied for asylum in Canada based on the harassment and targeting he experienced as a Black man in various U.S. states. In the evidence submitted to Canada's IRB, Canty included multiple video recordings of his interactions with the police. Canty had been charged in the United States with crimes including jaywalking and disorderly conduct--a criminal history which, according to Canty, was premised on false arrests and which exemplifies how police in the United States disproportionately target people of color. The IRB ultimately denied Canty's claim, finding that he had not established a well-founded fear of persecution, nor had he demonstrated that he was personally at risk of suffering cruel and unusual treatment or punishment. While the IRB acknowledged that Black Americans are subject to disproportionate police stops, they noted that harassment does not equate with persecution and that Canty himself had not had interactions with the police that “resulted in assault, excessive detention or lack of due process.”

Just prior to Canty's decision to apply for asylum, lawyer and law professor Raha Jorjani penned an opinion editorial in the Washington Post, suggesting that Black people in the United States might qualify as refugees. Jorjani emphasized that the types of mistreatment that Black Americans have experienced at the hands of police--including “unjust imprisonment, rape, assault, beatings and confinement”--have been found by courts to constitute “persecution” under refugee law. Jorjani argued that the voluminous evidence of mistreatment based on race--including both intentional acts and structural racism--strengthen the case for a refugee claim.

Although Canty's case received significant media attention, he is not alone in seeking asylum based on his experience as a person of color in the contemporary United States. In an interview posted to YouTube, an African American man named Sean describes himself as the first African American to seek refugee status in the Dominican Republic. Sean, a veteran of the U.S. Navy, describes an encounter with the Metropolitan Police Department in Washington, D.C. that left him bloodied. He explains that he filed for refugee status in the Dominican Republic, citing police violence in the United States, and was given permission to stay for eighteen months. When invited to give advice to viewers, Sean offered the following:

We don't have to take it .... The way my country is set up, we've begun to accept so many things as the status quo, as the norm, the new norm. And it's not required. Here, I don't have to raise my son or my daughter to fear police violence. I don't have to have that talk that every Black man, every Black family in America has to have with their child about how not to die from the police, from the people who are supposed to serve you and protect me. I've grown tired of contributing my tax dollars and contributing my efforts to a cause that is trying to kill me.

For Sean, therefore, the daily indignities of life as an African American man had simply become too much to bear and outweighed the benefits of his membership in U.S. society.

[. . .]

For some, stories of U.S. citizens seeking asylum are a source of amusement--a curious news event, likely involving someone looking to evade responsibility or garner media attention. Casual dismissal of these claims, however, precludes our understanding of a phenomenon that could possibly grow in the coming years. As this preliminary exploration reveals, U.S. citizens are applying for asylum in significant numbers and are driven from the country by a complex set of forces, often mediated by their own strategic decisionmaking. The reception of these claims in countries of destination is similarly nuanced and implicates questions of foreign relations along with many other variables. U.S. citizenship is perhaps the most coveted status in the world, but its limitations and fragility--as evidenced by flight from the land of the free--merit careful and ongoing attention.

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Professor of Law, American University Washington College of Law.