FLEEING THE LAND OF THE FREE

FLEEING THE LAND OF THE FREE

This Essay is the first scholarly intervention, from any discipline, to examine the number and nature of asylum claims made by U.S. citizens, and to explore the broader implications of this phenomenon. While the United States continues to be a preeminent destination for persons seeking humanitarian protection, U.S. citizens have fled the country in significant numbers, filing approximately 14,000 asylum claims since 2000. By formally seeking refuge elsewhere, these applicants have calculated that the risks of remaining in the United States outweigh the bundle of rights that accompany U.S. citizenship. Given the United States’ recent flirtation with authoritarianism, and the widening fissures in the nation’s social fabric, a closer study of asylum seeking is warranted—and indeed, prudent—should future political conditions generate a larger exodus of U.S. citizens.

This Essay opens with a quantitative overview of claims, drawing on data from the United Nations High Commissioner for Refugees and from countries that are the U.S. citizen asylum seekers’ destinations. Following that statistical summary, this Essay presents a typology of claims that U.S. citizens have lodged, extracting from public sources the applicants’ motivations for seeking asylum and how foreign government authorities have received those claims. Among the classes of U.S. citizens who have sought protection overseas are war resisters, political dissidents, whistleblowers, fugitives, members of minority groups, domestic violence survivors, and the U.S. citizen children of noncitizen parents. This Essay concludes by exploring the relevance of this trend to scholarly debates about asylum adjudication, international relations, forced migration, and citizenship.

The full text of this Essay can be found by clicking the PDF link to the left.

Introduction

In 1997, Chere Lyn Tomayko fled her country of origin, accompanied by her daughters, Chandler and Alexandria. 1 Gillian Gillers, Fugitive Rocks U.S.-Costa Rica Relations, Tico Times (Aug. 1, 2008), https://ticotimes.net/2008/08/01/fugitive-rocks-u-s-costa-rica-relations [https://perma.cc/BN6P-XVL5]. Tomayko sought to escape an abusive relationship with Alexandria’s father, Roger Cyprian, as tensions were continuing to escalate in the household. 2 Id. 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. 3 Id. 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. 4 LADB Staff, Univ. of N.M., Costa Rica Grants Asylum to U.S. Citizen Fleeing Persecution and Denial of Human Rights 1–2 (2008), https://digitalrepository.
unm.edu/cgi/viewcontent.cgi?article=10629&context=noticen [https://perma.cc/Z4EE-CU8F].

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. 5 Id. 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. 6 See infra section I.A. 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. 7 See Henley & Partners, The Henley Passport Index: Q3 2022 Global Ranking, https://cdn.henleyglobal.com/storage/app/media/HPI/HENLEY_PASSPORT_INDEX_2022_Q3_INFOGRAPHIC_GLOBAL_RANKING_220705_1.pdf [https://perma.cc/3U57-Y3XQ] (last visited Sept. 16, 2022) (noting that U.S. passports allow visa-free travel to 186 countries). 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. 8 See infra section II.B. 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. 9 See infra section II.E.

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. 10 Kira Monin, Jeanne Batalova & Tianjian Lai, Refugees and Asylees in the United States, Migration Pol’y Inst. (May 13, 2021), https://www.migrationpolicy.org/article/
refugees-and-asylees-united-states-2021 [https://perma.cc/DF4W-WKQ7].
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. 11 See Jo Craven McGinty, More Americans Are Renouncing Their Citizenship, Wall St. J. (Oct. 16, 2020), https://www.wsj.com/articles/more-americans-are-renouncing-their-citizenship-11602840602 (on file with the Columbia Law Review) (reporting that nearly 37,000 U.S. citizens expatriated from 2010 to 2020, typically for tax-related or other financial 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. 12 Indeed, various commentators have penned opinion pieces in recent years about their actual or contemplated departure from the United States, given the challenging social and political conditions. See, e.g., Tiffanie Drayton, Opinion, I’m a Black American. I Had to Get Out., N.Y. Times (June 12, 2020), https://www.nytimes.com/2020/06/12/opinion/
sunday/black-america-racism-refugee.html (on file with the Columbia Law Review); Wajahat Ali, Opinion, Is It Time for Me to Leave America?, Daily Beast (June 4, 2022), https://www.thedailybeast.com/is-it-time-for-me-to-leave-america [https://perma.cc/S5RW-U6BT] (last updated June 7, 2022) (advocating for “person[s] of color” to “have an exit plan” because of the “political and cultural landscape” in the United States). Several media outlets have also reported on this phenomenon. See Kim Hjelmgaard, ‘I’m Leaving, and I’m Just Not Coming Back’: Fed Up With Racism, Black Americans Head Overseas, USA Today (June 26, 2020), https://www.usatoday.com/story/news/world/2020/06/26/blaxit-black-americans-leave-us-escape-racism-build-lives-abroad/3234129001 [https://perma.cc/T5HL-Q4VT] (last updated July 1, 2020); Emily Wax-Thibodeaux, Weary From Political Strife and a Pandemic, Some Americans Are Fleeing the Country, Wash. Post (Nov. 2, 2020), https://www.
washingtonpost.com/national/weary-from-political-strife-and-a-pandemic-some-americans-are-fleeing-the-country/2020/11/02/ee66038c-f840-11ea-89e3-4b9efa36dc64_story.html (on file with the Columbia Law Review) (averring that Americans are leaving the United States in record numbers due to politics, racial strife, and the pandemic).

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.