WSJ’s Shocking Misunderstanding of Asylum Law

Which points to a better plan for extending refuge

By Andrew R. Arthur on January 31, 2023

On January 26, President Biden extended and expanded the deferred enforced departure (DED) he had previously granted to residents of Hong Kong who had been present here since August 5, 2021 (when the president issued his first DED order for residents of that “special administrative region” (SAR) in China). On January 27, the editorial board at the Wall Street Journal lauded that decision, while demonstrating a shocking misunderstanding of U.S. asylum law. That said, the whole situation points toward a better plan for extending humanitarian refuge in the United States.

The Hong Kong SAR. “Hong Kong” is a collective term used to describe more than 230 islands and portions of the mainland on the southern coast of China. The largest and most prominent of those islands is Hong Kong Island, which the Chinese government ceded to the United Kingdom in 1842 following the First Opium War, and Ngong Shuen (Stonecutters) Island, ceded to the U.K. with the southern part of the Kowloon Peninsula in 1860.

The area that makes up the rest of Hong Kong (called the "New Territories") had been leased by China to the U.K. in 1898 for 99 years — a period of great change in both countries, with China ascendant and Britain in decline as world powers.

In preparation for the end of that 99-year lease, the two countries signed “The Sino-British Joint Declaration on the Question of Hong Kong” in December 1984, which led to the transfer of sovereignty over the whole territory from the U.K. to China on July 1, 1997.

As the U.K. House of Commons explains:

The principle ‘One country, Two systems’ underpins the Declaration although the term is not explicitly used in the Declaration. The Hong Kong [SAR] will be directly under the authority of the People’s Republic of China but will enjoy a “high degree of autonomy” and its social and economic systems and lifestyle will remain unchanged for fifty years.


Chinese officials have, in recent years, challenged the status of the Joint Declaration.

The Foreign Affairs Committee noted comments by Chinese Foreign Ministry officials in 2017 suggesting the arrangements under the Joint Declaration are “now history” and described it as “ridiculous for the UK to pose itself as a supervisor… on Hong Kong affairs”.

In its latest (2021) Country Report on Human Rights Practices for China, the U.S. Department of State complained that the Chinese government has “continued to dismantle Hong Kong’s political freedoms and autonomy in violation of“ its international commitments.

Specifically, the State Department report noted, “Amendments to the Basic Law fundamentally changed Hong Kong’s electoral system to allow Beijing effectively to block participation of political groups not approved by Beijing”, while the Hong Kong government has “arrested or disqualified opposition pan-democratic politicians, blocking their participation in upcoming elections”.

Given all that, it’s not surprising that, according to the State Department: “Pro-Beijing candidates won 89 of the 90 seats in the December Legislative Council election, which was widely regarded as fundamentally flawed”.

Hong Kongers Decamping for Canada. Many Hong Kongers had read the writing on the wall even before the British handover of its then-colony in 1997, when some 335,000 of them moved to Canada.

Still, the rush from the SAR to our neighbor to the north wasn’t as large as many (including me) expected. Voice of America has explained, however: “One likely reason is that many Hong Kongers still living in the territory already have Canadian passports and can return to Canada at any time.”

The turmoil in the erstwhile British colony has, though, stirred an increase in immigration to Canada of late, and the 2021 Canadian census shows a 6.1 percent increase in the number of Hong Kongers living in Vancouver, B.C. (a popular destination for residents of the SAR), since 2017, “bringing the total population to more than 76,000”.

CBC reports that “Many more are on the way, using new migration pathways that Canada opened up to Hong Kongers last year”.

Ottawa announced one of those programs, a path to permanent residency “for Hong Kong university and college graduates who had completed at least 50 per cent of their program at a Canadian college or university”, in 2021. Thanks to that program, the number of Canadian study permits issued to Hong Kong residents has doubled over pre-pandemic levels in 2019.

Other recent Canadian employment-based programs tripled the number of temporary workers in the country from Hong Kong from their pre-pandemic, 2019 levels.

Note, however, how then-Immigration Minister Marco Mendicino described these schemes in 2021: “Our Hong Kong immigration pathway is a historic initiative, intended to attract talented applicants who will drive our economy forward. Skilled Hong Kongers will have a unique opportunity to both develop their careers and help accelerate our recovery.”

There’s a level of humanitarian concern in that statement, but a lot of “good for the Canadian economy”, too. Perhaps U.S. leaders could adopt a similar perspective.

The Biden Administration’s Response. Speaking of U.S. leaders, and returning to my initial point, on August 5, 2021, President Biden issued a memo granting DED to “certain Hong Kong residents present in the United States” on that date, except for criminals and national-security risks, and those who have gone back to Hong Kong or China.

That DED proclamation was good for 18 months, and consequently the White House announced an extension of DED for Hong Kong on January 26, for a 24-month period. In addition to extending that initial DED grant, the latest proclamation also covers Hong Kongers who have entered the United States since August 2021.

“An American Refuge for Hong Kongers”. Which brings me to the Journal’s January 26 editorial, headlined “An American Refuge for Hong Kongers: The Biden Administration helps thousands who would become political prisoners if they returned home”. The editorial board asserts:

Without an extension of the safe-haven order, Hong Kongers would have had to seek another form of immigration protection to remain in the U.S. But it would have been difficult for many former pro-democracy protesters to gather sufficient evidence to bolster an asylum claim.

Participants in the 2019 democracy protests often covered their faces to hide from the Communist Party’s facial-recognition technology, but that now makes it hard to establish their role in the demonstrations. After Beijing imposed the national-security law, many Hong Kongers deleted social-media posts and other evidence of pro-democracy activism.

I have no doubt, and will assume, that all the factual statements in that excerpt concerning the actions of participants both during and after those 2019 democracy protests are true and correct. If I were them, knowing the nature of the communist government in Beijing, I would have done the same thing.

What I won’t accept as true or correct, however, is that “it would have been difficult for many former pro-democracy protesters to gather sufficient evidence to bolster an asylum claim”. That’s not speculation on my part — it’s black-letter U.S. law.

Applicants for asylum bear the burden of proving either past persecution or a “well-founded fear” of future persecution on account of race, religion, nationality, or membership in a particular social group of political opinion. In section 208(b)(1)(B) of the Immigration and Nationality Act (INA), Congress explained how they can make that showing.

Critically, clause (ii) therein states:

The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant's burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence. [Emphasis added.]

In other words, applicants for asylum aren’t required to present pictures of themselves participating in political protests, nor do they have to provide screenshots of “social-media posts” or “other evidence of pro-democracy activism” — though they may have to explain the absence of certain forms of evidence.

In fact, as a former immigration judge who’s heard hundreds if not thousands of asylum claims, I would question the veracity of selfies purported protestors offered as evidence, and know how easy it is to gin up social media posts to support asylum claims.

As a congressional staffer, I drafted that clause in section 208 of the INA (it was added as an amendment in the REAL ID Act of 2005, and essentially codified prevailing case law), but the standards for proving an asylum claim are hardly a secret and, in fact, are fairly well known among immigration practitioners.

That raises the question of why the Journal — the number-one newspaper in the United States in terms of circulation and winner of 38 Pulitzer prizes — offered such a legally dubious argument.

Given that many in the media refer to all illegal migrants as “asylum seekers” (whether or not they have valid asylum claims or even come seeking protection at all), do most reporters truly believe that hundreds of thousands of foreign nationals are showing up at the Southwest border with pictures of themselves in the midst of protests or social media posts expressing political opinions?

If so, they should spend a few hours in immigration court, after which they will have a better appreciation for how low the evidentiary bar really is, and how yet few applicants even then are able to clear it.

A Better Plan. None of this is to pick on the Journal (its immigration reporting and analysis is generally better than most), but to underscore how little even many “experts” know about asylum, a critical and oft-abused exception to the carefully crafted limits Congress has set on immigration to the United States.

More importantly, however, it’s to offer a better option for Americans, who by and large (if not universally) want to extend humanitarian protection to those who have suffered grievous human rights abuses abroad.

In the case of Hong Kong, we know who they are. People like Jimmy Lai, the “pro-democracy Hong Kong publisher” who was convicted in October on fraud charges in the SAR in what the AP describes as “the latest in a series of prosecutions apparently aimed at punishing him for his past activism”.

According to the AP: “Lai was arrested during a crackdown on the pro-democracy movement following widespread protests in 2019 and under the city’s sweeping Beijing-imposed National Security Law. He is already serving a 20-month sentence for his role in unauthorized assemblies.”

Or how about 91-year-old Joseph Cardinal Zen, whom NPR describes as a “a retired bishop and a vocal democracy advocate” in Hong Kong? He was convicted in November for “failing to register a now-defunct fund that aimed to help people arrested in the widespread protests three years ago”.

Hong Kong graciously let the Catholic prelate have his passport back so that he could take a five-day trip to Vatican City for the funeral of Pope Emeritus Benedict XVI. He’s apparently voluntarily returned.

Then, there’s 75-year-old Koo Sze-yiu, a former Communist himself who had a change of heart after the 1989 Tiananmen Square massacre, and is now a veteran pro-democracy activist. He was sentenced to jail for nine months in July “under a colonial-era sedition law for planning to protest against the Beijing Winter Olympics”.

The Journal has recently chided U.K. Prime Minister Rishi Sunak for failing to stick up for Lai (a British citizen), while one of the paper’s columnists, William McGurn, has accused the Vatican of “abandoning” Cardinal Zen (though noting that Biden and then-House Speaker Nancy Pelosi (D-Calif.) have championed his release).

If the United States knows the names of these and others who have faced abuse for promoting democracy in Hong Kong, why is the administration not actively helping them and instead spending hundreds of millions of dollars supporting hundreds of thousands of illegal migrants who may or may not (and most don’t) have asylum claims?

It’s a reasonable question, given that in failing to enforce our border and immigration laws, the Biden administration is breaking our asylum system.

According to a report from the Transactional Records Access Clearinghouse (TRAC) at Syracuse University in late December, nearly 788,000 aliens have asylum applications pending before immigration judges (IJs), while there are another 778,000-plus affirmative asylum applications pending with USCIS asylum officers (AOs) — almost 1.6 million in total. That’s more than the population of Hawaii.

There are fewer than 580 IJs, while the 750 AOs at USCIS not only must adjudicate asylum applications, but also conduct credible fear interviews at the border. This isn’t Lucy on the line at the candy factory — it’s Sisyphus rolling a boulder up a steep and snowy hill wearing skates. They can’t keep up.

Rather than having potential asylum applicants self-select for protection by breaking our laws and entering illegally, why not have the United States go and select the truly needy and threatened instead? There is precedent, involving the most unlikely of individuals — Marie Joseph Paul Yves Roche Gilbert du Motier, better known as the Marquis de Lafayette, hero of the American Revolution.

In May 1796, Lafayette was a prisoner of the Austrian crown after his capture by Austrian and Prussian forces in 1792 in the Belgian town of Liege. Lafayette’s wife had already escaped her own imprisonment in France during the Terror, making her way to Hamburg, Germany, where the U.S. consul gave her a passport in the name of "Madame Motier, of Hartford, in Connecticut”.

That month, President Washington wrote to the Austrian emperor, asking (in a letter delivered by John Jay) that the marquis “be permitted to come to this country, on such conditions” as the emperor might “think it expedient to prescribe”. It was in vain (Napoleon Bonaparte later secured Lafayette’s release in 1798), but the United States then lacked the power it has now — and should use it.

Thanks to the Biden administration’s neglect of our immigration laws, the U.S. asylum system is being abused. It can take years for meritorious cases to be granted, and similar periods for bogus cases to be denied. That’s allowing hundreds of thousands of aliens with little or no claim to protection to live here illegally, enriching them and the smugglers who brought them. Perhaps we should rethink our humanitarian system, and grant aid to those we know are deserving instead of untold others who aren’t.