Written by Martin Ma

Since 1950s, there has been a surge in the immigration population to the United States despite some fluctuations.¹See Alicia Ward, U.S. Lawful Permanent Residents: 2023, Dep’t of Homeland Sec., Off. of Homeland Sec. Stat. (Sept. 2024) https://ohss.dhs.gov/sites/default/files/2024-09/2024_0906_plcy_lawful_permanent_residents_fy2023.pdf. Among this surging immigration population, there are large numbers of refugees coming from other parts of the world.²See id. at 6 (mentioning that 59,000 refugees became permanent residents in 2023). The U.S. accommodates refugees out of humanitarian concerns.³See id. at 3. However, refugees affect the U.S. from the perspective of ethnicity, tradition, social stability and integration, and competition in the employment market.⁴See Paolo Verme, Theory and evidence on the impact of refugees on host communities, World Bank Blogs (Mar. 28, 2023), https://blogs.worldbank.org/en/dev4peace/theory-and-evidence-impact-refugees-host-communities?utm_source=chatgpt.com (emphasizing an expected growth in GDP brought by refugees); see also Jyotika Saksena & Shannon McMorrow, At the intersection of gender and discrimination: Experiences of Congolese refugee women with social and cultural integration in the United States, Women’s Studies International Forum (2021), https://doi.org/10.1016/j.wsif.2021.102517 (mentioning the importance of social and culture integration of women refugees). This blog will focus on how the U.S. should balance its national security concerns and its pledge to provide humanitarian needs for asylum seekers through an analysis of the 1967 Protocol Relating to the Status of Refugees (the “Protocol”) and the 1980 Refugee Act (the “Act”).⁵See Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (broadening the scope of refugees defined by the Convention in 1951); Refugee Act of 1980, 8 U.S.C. §§ 1101, 1157-59, 1521-25.

The Protocol Relating to the Status of Refugees 

To cope with the problem of relocation and persecution during World War II, the Convention Relating to the Status of Refugees of 1951 was created (the “Convention”).⁶See Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 137 (defining concepts of refugees). However, the Convention was limited to those persons fleeing before January 1st, 1951, and had a restricted scope only in Europe.⁷See About UNHCR: The 1951 Refugee Convention, UNHCR USA, https://www.unhcr.org/us/about-unhcr/overview/1951-refugee-convention (last visited June 15, 2025). The Protocol expanded the scope of refugees by eliminating restrictions on time and location, which meant that the concept of the refugee became applicable to the entire world.⁸See Convention and Protocol Relating to the Status of Refugees, UNHCR (2010), https://www.unhcr.org/us/media/convention-and-protocol-relating-status-refugees.    

On November 1st, 1968, the U.S. signed the Protocol, pledging its commitment to refugee protection under the international law framework.⁹See The 1967 United Nations High Commissioner for Refugees Refugee Protocol, U.S. Citizenship and Immigration Services, https://www.uscis.gov/about-us/our-history/stories-from-the-archives/refugee-timeline#:~:text=The%201967%20United%20Nations%20High,1%2C%201968 (last visited June 15, 2025). To implement the Protocol, the U.S. later incorporated the Act into its Immigration and Nationality Act (“INA”) and created detailed legal procedures for refugees to follow.¹⁰See S. Rep. No. 96-256, at 1 (1980), https://www.congress.gov/bill/96th-congress/senate-bill/643/text.  

Backlogged Asylum System and Intensified Concerns over National Security 

According to U.S. Citizenship and Immigration Services, there were 1,446,908 cases pending by the end of 2024, which heavily backlogged the asylum petition system.¹¹Immigration and Citizenship Data, U.S. Citizenship and Immigration Services, https://www.uscis.gov/tools/reports-and-studies/immigration-and-citizenship-data?topic_id%5B%5D=33597&ddt_mon=&ddt_yr=&query=&items_per_page=10 (refer to “USCIS Data Library”; select “Asylum” from the first dropdown box; then click search to see all relevant data). However, new immigrants also bring problems, jeopardizing national security. In 2011, there were two Iraqi terrorists, Mohanad Shareef Hammadi and Waad Ramadan Alwan, who were arrested for attempting to send weapons and money to Al-Qaeda in Iraq to kill U.S. soldiers.¹² See 2 Iraqi Terrorists Living in Kentucky Sentenced to Lengthy Prison Terms for Terrorists Activities, U.S. Immigration and Customs Enforcement, https://www.ice.gov/news/releases/2-iraqi-terrorists-living-kentucky-sentenced-lengthy-prison-terms-terrorist (last visited June 15, 2025). According to reports, both suspects came to the U.S. through the refugee program and settled in Bowling Green, Kentucky.¹³See Terrorists Once Used Refugee Program to Settle in US, ABC News (Nov. 18, 2015, 12:33 PM), https://abcnews.go.com/International/terrorists-refugee-program-settle-us/story?id=35252500.  Based on the heavy backlog and potential national security risk, the U.S. should adopt a legal procedure that lowers the application bar of withholding but tightens the application bar of asylum. Doing so keeps the country’s pledge of providing humanitarian needs to populations in need and improves its national security. 

Withholding Versus Asylum 

To meet the eligibility for a withholding order, a petitioner must show they are more likely than not to be persecuted because of race, religion, nationality, membership in a particular social group, or political opinion upon removal to that country.¹⁴8 C.F.R. § 208.16(b) (2025). If the petitioner is withheld from being removed, that means that the petitioner could temporarily stay in the U.S.¹⁵See 8 C.F.R. § 274a.12(a)(10) (2025) (allowing people withheld from being deported or removed to work in the U.S., which implies permission of stay). According to Section 241(b)(3) of INA, the U.S. cannot send the petitioner to a country where they may face persecution based on their race, religion, nationality, political opinion, or affiliation with a particular social group.¹⁶The Immigration and Nationality Act of 1952 (INA), 8 U.S.C. § 1231(b)(3). Under the Code of Federal Regulations, an immigration judge has the final adjudicatory decision on the withholding petition.¹⁷8 C.F.R. § 208.16(a) (2025). However, a person under the withholding process cannot bring family members to the U.S. and cannot apply to become a legal permanent resident (“LPR”).¹⁸See 8 U.S.C. § 1231(b)(3) (mentioning no policy for treatment of family members and adjustment of status). But see 8 U.S.C. § 1158-59 (addressing family members and adjustment of status for people granted with asylum).  Additionally, the person under the withholding process can be removed to a third country by an immigration judge.¹⁹See 8 U.S.C. § 1231(a)-(b) (addressing removal of undocumented immigrants).

Unlike withholding, a petitioner may stay in the U.S. and may bring family members if their asylum petition is approved.²⁰8 U.S.C. § 1158-59. After being granted asylum, the petitioner is eligible to apply to become an LPR.²¹Id.  Unlike withholding from removal, which must be granted if the petitioner meets the eligibility, asylum is granted under the discretion of an immigration judge.²²See 8 U.S.C. § 1158(b)(1)(A) (emphasizing on the Secretary of Homeland Security or the Attorney General may grant asylum). But see 8 C.F.R. § 208.16(d)(1) (2025) (emphasizing on the withholding shall be granted if the eligibility is met). However, compared to the withholding process, an asylum petition has a lower bar of approval, which could explain the heavily backlogged asylum petitioning system.²³See 8 C.F.R. § 208.16(b) (2025) (establishing the standard to approve withholding as “more likely than not”). But see 8 U.S.C. § 1101(a)(42) (defining a refugee as someone establishing a well-founded fear). 

Suggestions of Improvement 

To reduce the backlog of asylum applications, the U.S. could lower the bar to the withholding process by authorizing immigration officers to adjudicate withholding petitions, leaving the petitioner an option to appeal to an immigration judge. Further, the most important criterion in adjudicating withholding is the well-founded fear of being persecuted if the petitioner is deported to the country of origin. However, after being approved, if the Department of Homeland Security (“DHS”) determines that the person under withholding poses a risk to national security, DHS can bring the petitioner to an expedited trial under an immigration judge, who makes the final decision of whether to remove the person under withholding to a third country. Furthermore, the person under withholding is only granted a temporary stay in the U.S. and must leave the U.S. once the person’s permission to stay expires. Otherwise, the U.S. has the authority to remove the person from the country and impose a reasonable sanction on their future travel into the U.S. 

The U.S. should raise the bar of asylum petitions. An asylum petitioner should not only show a well-founded fear of being persecuted in the country of origin but also should provide concrete and compelling evidence that there is or will be persecution upon the petitioner’s return. Further, there should be a higher scrutiny of national security on the petitioner to ensure the petitioner could be a positive addition to U.S. society. 

Compliance with the Protocol and a Promising National Security 

By expanding the eligibility for withholding and narrowing the eligibility of asylum, the U.S. can keep its promise of humanitarian aid but also improve its national security. First, despite not signing the Convention, the U.S. signed the Protocol, so it has ratified Article 1-34 of the Convention.²⁴See States Parties, Including Reservations and Declarations, to the 1951 Refugee Convention, UNHCR USA, https://www.unhcr.org/us/media/states-parties-including-reservations-and-declarations-1951-refugee-convention (last visited June 24, 2025). But see Protocol Relating to the Status of Refugees, Jan. 31, 1967, art. 1, 19 U.S.T. 6223, 606 U.N.T.S. 267 (ratifying first 34 Articles of the 1951 Convention). If the withholding process lowers its bar to “well-founded fear of being persecuted,” this process satisfies the definition of a refugee under Article 1 of the Convention, which keeps the U.S. complying with the Protocol.²⁵See Convention Relating to the Status of Refugees, art. 1, July 28, 1951, 189 U.N.T.S. 137 (explaining definition of refugees). The tightened bar on asylum petitions could effectively accept people who truly need and qualify for asylum by reducing the waiting time in the backlogged system. Under Article 2 of the Convention, every refugee must conform to the law and maintain the public order of the country the refugee is residing in.²⁶See Convention Relating to the Status of Refugees, art. 2 (specifying general obligations of a refugee). By filtering out people who might jeopardize the public order and national security of the country, the U.S. acts in compliance with the international law it once ratified. Hence, tightening the asylum bar does not jeopardize the U.S. with its compliance with international laws, but improves its capability in protecting its national security. 

Conclusion 

Due to the heavily backlogged asylum petition system, the U.S. cannot effectively provide humanitarian need for people seeking asylum in the U.S., which prevents its pledge in the Protocol to protect refugees. Due to the high bar of withholding petition and the low bar of the asylum petition, the U.S. could not effectively sort out people with genuine need for asylum and those who could potentially endangers national security. Therefore, to reduce the backlog and to improve national security, the U.S. should lower bar of withholding petition but tightening bar of asylum petition system. Further research on withholding and asylum could focus on the details of implementing specific policies in loosening the withholding process and tightening the asylum process. It is also noteworthy for further research to study the potential impact on U.S. society from those people who are granted withholding and asylum.