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115 Introduction Certain recent trends in the refugee and asylum law of the United States have reminded me of an old Charlie Brown comic strip. The charmingly insecure character , Linus, stood with his security blanket tucked under his chin, staring wistfully into space. The caption, as I remember it, read: “I love mankind; it’s people I can’t stand.” In President George W. Bush’s administration, the “political” affected asylum adjudications in ways that were often subtle and sometimes pernicious. Appointments of immigration judges became improperly partisan, leading not just to legitimacy crises but to measurable disparities apparently based on ideology. The Board of Immigration Appeals (BIA) faced direct attacks on its objectivity clothed in the garb of efficiency. And bars to asylum were manipulated, behind the scenes, by discretionary executive decisions. Others have effectively critiqued the ungenerous and harmful aspects of these moves. Judges have harshly criticized agency decisions and scholars have tabulated adjudication disparities. Human Rights First has poignantly described some of those barred refugees and asylum seekers: “women who were raped and enslaved by armed militias in Liberia; victims of extortion forced to pay armed terrorists in Colombia to protect their lives and their children”; democracy activists from Burma who may have innocently given minor support to groups that had not even been formally designated as “terrorist” organizations; a Christian missionary worker arrested, beaten, and jailed by the Burmese military regime, and so on. My purpose in this chapter is not to replay these critiques, but to attempt to situate them as part of the history and deep ambivalence of asylum law. Dissonance between generous obligations to “mankind” or “humanity” and more restrictive concerns about certain types of people has always been present in debates over asylum seekers and refugees. In part this is because asylum law “compounds the 6 Loving Humanity while Accepting Real People A Critique and a Cautious Affirmation of the “Political” in U.S. Asylum and Refugee Law Daniel Kanstroom 116 Daniel Kanstroom sense of threat to immigration control.” Put another way, ambivalence derives from the tension between universalist laws and more particularist political practices by nation-states. The Preamble of the  United Nations Convention Relating to the Status of Refugees reflects this quite clearly, as it speaks of “the principle that human beings shall enjoy fundamental rights and freedoms without discrimination” while recognizing that refugee and asylum law is implemented by nation-states. The tension is also apparent in the so-called exclusion clauses of the Convention, which permit states to bar from refugee status a rather wide range of criminals and other bad actors. Questions abound: How much leeway do states have in defining these terms? To what extent do they or must they embody political ideas? How should states apply the general humanitarian aspirations of refugee and asylum law? Should refugee and asylum law be connected to immigration policy? Such issues have become especially acute in the United States in recent years as national security has dominated much political and legal discourse. The proud, universalist, humanitarian achievements of refugee and asylum law have faced severe pressure. Some have even advocated changes that would subsume refugee law within rather crudely defined protectionist categories at least as strict as those of “regular” immigration laws. Indeed, a representative of the Federation for American Immigration Reform (FAIR)—a U.S.-based organization that advocates for more restrictive immigration policies—recently suggested that, due to “concern over the continuing threat from jihadist Islamic radicals,” the nation’s refugee admission policy should be focused not only on “whether Islamic refugees have been identified as linked to radical jihadist movements, but whether they fit a profile of a population among whom jihadists have shown an ability to recruit.” FAIR views refugee policy as “an integral part of the nation’s overall immigration policy.” Much is at stake in this debate, and not only for the asylum seekers and refugees. Few politicolegal questions evoke greater passion. When a recent Canadian judicial decision concluded that the United States was not complying with its nonrefoulement obligations under the Refugee Convention, the U.S. ambassador to Canada responded immediately. “The United States,” he said, “welcomes more refugees than any other country in the world and remains a beacon of hope and liberty.” This idealistic view is widely shared. Human Rights First recites that “the principle of asylum is a deeply rooted American value, powerfully expressed since the founding of the Republic.” As they note, George Washington himself once said, “The...

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