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Jeffrey S. Chase, Dec. 21, 2019
"I authored a letter that was published in the New York Times on January 15, 1993, under the heading “A Vital Distinction.” My letter pointed to “a public failure to differentiate between immigrants and refugees.” Immigrants, who come by choice, may be subjected to whatever limitations and restrictions our government chooses to set. However, I noted that “unlike immigrants, refugees have no country to return to.” For that reason, I wrote that the U.S. “is not free to exclude or deport refugees arbitrarily. As a signatory to the 1967 Protocol Relating to the Status of Refugees, the United States is bound by international law to afford protections to this most vulnerable group, including the right to apply for asylum.” My concluding sentence was that “United States lawmakers must keep immigration and refugee policies distinct, and abide by our legal and moral obligations in excluding refugees from any restrictionist debate.”
Nearly 27 years (and two impeachments) later, the policies of the Trump Administration are precisely designed to blur this important distinction. The implication that refugees should either stay or return “home” ignores the impossibility of such request, as refugees by definition lack a home or country.
On December 18, the Department of Justice published a proposed regulation that would render ineligible for asylum refugees convicted of seven categories of criminal offenses. Included are convictions under 8 U.S.C. § 1324 for encouraging a noncitizen to enter or reside in the U.S., knowing that such entry or residence would be in violation of law. It also includes convictions under 8 U.S.C. § 1326 for entering or attempting to reenter the U.S. after having previously been denied entry or deported. Of course, in the case of refugees, both of these crimes might be necessitated by the need to save their own lives or those of their loved ones.
The list of prohibited crimes also includes misdemeanors involving false identification (i.e. documents refugees might use to flee harm; think of the movie Casablanca) or unlawfully receiving public benefits.
I am going to agree with my 32-year-old self that these proposed rules violate our obligations under international law. In support of such argument, I look to the UNHCR Handbook on Procedures and Criteria For Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. The Handbook is the leading reference tool for interpreting the international treaties forming the basis for U.S. asylum law.1
The Handbook notes three categories of ineligibility under the 1951 Convention for those otherwise meeting the definition of refugee: those not in need of international protection (because the have already obtained protection from another state); those not deserving of protection (such as those guilty of war crimes or crimes against humanity), and lastly, those convicted of less egregious offenses that nevertheless constitute “serious non-political crimes” that would make the individual a danger to the accepting community.
Para. 155 of the Handbook clarifies the type of crime necessary to exclude an individual from refugee protection under the Convention, noting that “ a ‘serious’ crime must be a capital crime or a very grave punishable act. Minor offences punishable by moderate sentences are not grounds for exclusion...even if technically referred to as ‘crimes’ in the penal law of the country concerned.”
Para. 156 of the Handbook adds an additional consideration: the severity of the harm feared by the asylum-seeker if deported. The Handbook affirms that the Convention requires a sliding scale under which a person fearing a threat to life or freedom must be convicted of a “very grave” crime in order to be denied refugee protection.
The above-mentioned offenses covered by the new regulations fall far short of the type of serious crimes denoted by the Convention. One who has established a well-founded fear of persecution may never be legally excluded under the Convention because they reentered the U.S. after previously being denied entry, or because they used a false social security card to work.
But even as to more serious offenses, the new regulations lack the required balancing of crime vs. feared harm to determine, as the Handbook aptly puts it, “whether [the asylum-seeker’s] criminal character does not outweigh his character as a bona fide refugee.”
While I’m certain such arguments will fall on deaf ears in the present administration, perhaps the inevitable implementation of the rule will be blocked through litigation or legislation. And as a difficult year draws to an end, let us hope that the need to acknowledge and honor our international law obligations towards refugees will not need repeating 27 years from now.
1. See Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018) (holding that the legislative history of the Refugee Act of 1980 “does make clear that Congress intended ‘to bring United States refugee law into conformance with the [Protocol], 19 U.S.T. 6223, T.I.A.S. No. 6577, to which the United States acceded in 1968.’ Cardoza-Fonseca, 480 U.S. at 436-37” and that “[i]n interpreting the Refugee Act in accordance with the meaning intended by the Protocol, the language in the Act should be read consistently with the United Nations’ interpretation of the refugee standards.”
Copyright 2019 Jeffrey S. Chase. All rights reserved."