REFUGEES

REFUGEES. The idea of a refugee as a person who, for various possible reasons, can no longer live safely in a particular country and is therefore due special care has ancient religious roots. The humanitarian concept of special care owed to refugees has evolved substantially, however, to the point where it has anchored a fundamental shift in accepted notions of human rights under international law.

The problem of refugees is one of the most important public policy issues in the world today. It is estimated that more than 12 million refugees meet the currently accepted legal definition. However, tens of millions more are "internally displaced" refugees within their own countries. Millions more may be displaced for reasons that are not strictly within the current legal definition. Thus, to speak of refugees is to speak of an evolving set of extremely compelling moral and legal problems.

Refugees and World War II

The modern legal concept of a refugee may be most specifically traced back to 1921, when the League of Nations created a high commissioner for Russian refugees, which led to the development of a specific travel document. This sort of provision, however, proved woefully inadequate to deal with the massive persecutions and displacements of World War II. Part of the reason for this was a lack of public consciousness of and support for the plight of refugees. During the 1930s, the United States government resisted the strenuous efforts of various groups to permit Jewish refugees to flee Nazi persecution in Europe and seek safety in the United States. Although the reasons for this failure were complex, one legal aspect of the debate at the time involved the lack of a specific provision in U.S. immigration law to exempt refugees from generally applicable immigration quotas. During the war years, however, from 1941 to 1945, a series of ad hoc measures permitted more than 200,000 refugees to enter the United States.

After the war, it became clear that the problem of millions of "displaced persons" across Europe was a humanitarian crisis. At the Yalta conference, measures were agreed upon by the Allies that, by the end of 1948, resulted in the repatriation of millions to their native countries. Large numbers of people from Eastern Europe, however, opposed repatriation to their countries of origin because they feared persecution by new governments. Populations in displaced persons' camps grew at an unsustainable pace. At the same time, millions of ethnic Germans were forcibly transferred from various countries to Germany. It became clear that the newly developing West Germany could not and would not accommodate nearly a million displaced persons of various nationalities and ethnic groups. Thus, in 1947, the United Nations established the International Refugee Organization to facilitate the resettlement of the displaced persons in the United States, Canada, Australia, and Western Europe.

The U.S. government began to take the refugee problem more seriously as a matter of law and policy at this time. In 1948, the Displaced Persons Act was enacted, which authorized some 200,000 persons to enter the United States over a two-year period. The law, however, was limited to those who had registered as displaced persons on 22 December 1945, which excluded tens of thousands of people, primarily Jews, who had registered in 1946 and 1947. By 1950, a new law permitted 400,000 more refugees to enter, as it moved the cutoff date to 1 January 1949.

The Refugee Convention

Important developments also took place in international law in the early 1950s. In 1950, the United Nations formally established the Office of the United Nations High Commissioner for Refugees (UNHCR). The mandate of the UNHCR included "providing international protection" for refugees. In addition, permanent solutions were sought in a nonpolitical and humanitarian manner. In 1951, the United Nations adopted the 1951 Convention Relating to the Status of Refugees (the Refugee Convention). Article 1 of the Refugee Convention specifically defined the term "refugee" to include any person who, "as a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion, is outside of the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country." The definition also included those who had been considered refugees under certain prior laws and protected certain persons who had no nationality or had multiple nationalities.

The convention included provisions for civil rights for refugees in contracting states and protections against the expulsion of refugees lawfully in their territory "save on grounds of national security or public order." Article 33 specifically prohibited the expulsion or return ("refoulement") of a refugee "in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened" on account of one of the grounds listed above. Article 34 provided that the contracting states "shall as far as possible facilitate the assimilation and naturalization of refugees." Protections under the convention, however, were denied to persons who had committed various types of crimes, especially war crimes, or who had been "guilty of acts contrary to the purposes and principles of the United Nations." Over time, strong sentiment developed to eliminate the 1951 dateline of the convention. Therefore, in 1967, a protocol entered into force that extended the provisions of the 1951 convention without the 1951 dateline.

U.S. Law

The United States did not become a party to the convention until 1968, when it acceded to the 1967 protocol as well. Thus, through the 1950s and 1960s, U.S. actions for refugees were largely ad hoc. Similarly, in the 1970s, though it had ratified the protocol, the United States had no specific statutory mechanism to implement its obligations under the Refugee Convention and Protocol. In 1965, amendments to the 1952 Immigration and Nationality Act had allocated 10,200 visas each year to refugees. However, the definition of refugee was limited to those who had fled "from any Communist or Communist dominated country or area," from "any country within the general area of the Middle East," or those who were "uprooted by catastrophic natural calamity." As a result, throughout the 1970s, refugee admissions to the United States were highly ideologically biased in favor of those fleeing the Soviet Union and other communist regimes. Special laws continued to be passed for certain groups, such as Hungarians and Cubans. Indeed, to date, more than 500,000 Cubans have become lawful permanent residents as a result of the Cuban Adjustment Act of 1966.

The ostensible goal of the Refugee Act of 1980 was to bring U.S. law into compliance with the requirements of international law. For example, it removed the ideological requirement of flight from a communist country. The Refugee Act sought to prohibit the use of so-called "parole" power to admit groups of refugees as it prescribed a formula and procedures for refugee admissions that involve both the president and the Congress. The act contains a definition of the term "refugee" that is derived from that of the 1951 convention. It excludes those who have "ordered, incited, assisted or otherwise participated in [such] persecution." Since the passage of the act, some 70,000 to 100,000 refugees have been authorized for admission each year. Since its passage, more than a million refugees have obtained permanent resident status.

Such status can be obtained in two basic ways. In addition to overseas application, the law of the United States now permits individuals within the territory and at the border to apply for "asylum" or "restriction on removal" (formerly known as "with holding of deportation"). Both refugees and those granted asylum may apply for lawful permanent residence status after they have been physically present in the United States for at least one year. Asylum seekers must, among other statutory and discretionary requirements, qualify under the statutory refugee definition. Applicants for restriction on removal, a form of relief derived from Article 33 of the Refugee Convention ("non-refoulement"), must prove a threat to life or freedom.

In the decades since its passage, the Refugee Act has been subject to elaborate regulatory explication and extensive judicial interpretation. Among the most important issues in the 1980s were the relationship between the "well-founded fear" standard of proof in the refugee definition and the standard of former section 243(h) of the Immigration and Nationality Act that a person's life or freedom "would be threatened." In INS v. Stevic (1984) the Supreme Court held that a noncitizen seeking "with holding of deportation" under the latter standard had to prove a threat was "a clear probability," meaning "more likely than not." As applied to asylum-seekers this holding seemed to contradict accepted understandings about the burden of proof for a refugee claiming a "well-founded fear." The issue was resolved by the Supreme Court in INS v. Cardoza-Fonseca (1987). The Court made clear that a well-founded fear meant something less than "more likely than not." As the Court put it, "One can certainly have a well-founded fear of an event happening when there is less than a 50 percent chance of the occurrence taking place."

Since the passage of the Refugee Act the United States and other Western nations have confronted serious theoretical and practical problems in the development of refuge and asylum law. Throughout the 1980s, for example, according to many refugee rights advocates, considerable ideological bias remained in the supposedly objective refugee and asylum process of the United States. On the other hand, increasingly large numbers of asylum applicants caused political backlash, which was often accompanied by charges that the refugee/asylum system was being abused. One of the first major governmental responses to this allegation was an "interdiction" program, started during the Reagan administration, that authorized U.S. officials to board Haitian vessels on the high seas and forcibly return the vessel to Haiti. Although the United States agreed that it would not return any refugee to Haiti, human rights organizations and others criticized the program as a violation of basic principles of human rights. The Supreme Court, however, ultimately upheld the interdiction program in Sale v. Haitian Centers Council (1993), holding that neither section 243(h) of the Immigration and Nationality Act nor Article 33 of the U.N. protocol apply to actions taken by the Coast Guard on the high seas. The program, however, was eventually discontinued by the Clinton administration.

In the mid-1990s, continuing criticism of asylum practices in the United States spawned further special measures such as increased authority to border personnel, known in the United States as "expedited removal," and time limits on filing claims. Such measures were designed to distinguish legitimate from fraudulent or frivolous claims and to discourage the latter. Another such measure, applied in Europe but not the United States as of 2002, is the development of lists of "safe" countries from which asylum claimants may be presumed ineligible. A variant on this theme is an agreement whereby states may agree on which country will adjudicate a claim made by a person who has traveled through signatory states en route to the place where asylum is finally claimed. The United States has authorized such agreements by statute but to date has concluded no such bilateral arrangement with another country.

Certain substantive issues have also generated great controversy. In 1996, for example, after years of debate and litigation over asylum claims arising out of China's so-called "one-couple, one-child" policy, the U.S. Congress amended the statutory definition of a refugee. The new definition includes "a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program." The question whether neutrality can constitute a political opinion spawned years of complex litigation, though the Supreme Court's decision in INS v. Elias-Zacarias (1992) established some guidelines. In the 1990s powerful arguments were also made, with considerable success, to expand the protections of refugee and asylum law to women who face harsh or inhuman treatment due to their gender, women who suffer more specific physical and mental abuse by men in societies where legal protection may be unavailable, women who flee the practice of female genital mutilation, and people who fear persecution on account of their sexual orientation.

Among the more interesting recent legislative trends in the United States has been the ratification of the Convention Against Torture (CAT), which protects the removal or extradition of any person to a state "where there are substantial grounds for believing that he would be in danger of being subjected to torture." The United States passed implementing legislation in 1998 and CAT claims in the United States are now an important source of protection. Finally, special temporary protection laws, such as so-called "Temporary Protected Status" in the United States, have aided many persons fleeing natural disasters and others with compelling claims that do not fit within the refugee law parameters.

BIBLIOGRAPHY

Aleinkoff, T. Alexander, David A. Martin, and Hiroshi Motomura. Immigration and Citizenship Process and Policy. 4th ed. St. Paul, Minn.: West Group, 1998.

Goodwin-Gill, Guy S. The Refugee in International Law. 2d ed. Oxford: Clarendon Press, 1996.

Legomsky, Stephen H. Immigration and Refugee Law and Policy. 3d ed. New York: Foundation Press, 2002.

Musalo, Karen, Jennifer Moore, and Richard Boswell. Refugee Law and Policy. Durham, N.C.: Carolina Academic Press, 1997.

DanielKanstroom

See alsoUnited Nations ; andvol. 9:Excerpt from Maya in Exile: Guatemalans in Florida .