Criminal Justice & the Rule of Law

A Primer on Refugee Law

Paul Rosenzweig
Friday, November 27, 2015, 10:31 AM

Typically, this blog does not focus on immigration law. That seems to me appropriate. After all, most immigration questions are, while matters of profound importance to Americans, not really questions of national security. To be sure, the immigration function resides within DHS because Congress thought that security concerns needed to be paramount, but any fair assessment of the immigration law begins with the reality that the vast majority of immigration decisions are related to economics and politics and that by and large national security plays a background role in the discussion.

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Typically, this blog does not focus on immigration law. That seems to me appropriate. After all, most immigration questions are, while matters of profound importance to Americans, not really questions of national security. To be sure, the immigration function resides within DHS because Congress thought that security concerns needed to be paramount, but any fair assessment of the immigration law begins with the reality that the vast majority of immigration decisions are related to economics and politics and that by and large national security plays a background role in the discussion.

Not so, of course, today. The Paris attacks, married to the flood of Syrians into Europe, has brought the intersection of national security and immigration law to the forefront. Many today see the refugee program as a national security threat and want to modify or change its legal parameters.

With that in mind, I thought it might be useful to offer a primer on immigration law as it relates to refugees and is practiced today. I offer the following with the caveat that I am not an immigration lawyer. However, while at DHS I spent a goodly amount of time on refugee affairs and their intersection with counter-terrorism, so it is not without some basis in knowledge. I should also offer the caveat that immigration law is riddled with exceptions and exclusions, and even exceptions to the exceptions. I am therefore outlining what the law says in broad strokes and I acknowledge at the outset that some of the complexity is deliberately elided. Corrections from those more knowledgable are warmly welcome.

Refugees, Asylum Seekers, and Immigrants

To begin with, let’s distinguish between immigrants on the one hand and refugees or asylum seekers on the other. The former category includes everyone entering a country, whether legally or illegally, for purposes of remaining there. The latter group, a subset of the former, includes those migrants the cause of whose migration is a bona fide fear of persecution. They may be the losing side in a war; gay people subject to stoning; or a religious or cultural minority.

We should also distinguish asylum seekers and refugees. Often the two are confused – as I said, they both involve individuals fleeing their country of origin for some reason. The principal difference between the two categories lies not in WHY they left, but rather WHERE they are. Refugees are in camps somewhere near their country of origin – as such they are outside American jurisdiction and therefore cannot generally take advantage of American law. Whatever process that applies to them is a creature of our own construction (and an effort to fulfill our obligations under international law) but US law can define and control the process – often in ways that limit refugee flows and limit their rights of appeal in contesting determinations that are made.

By contrast, asylum seekers are here in the US. They have presented themselves at the border (or even entered illegally and found within our territory) and they have a cognizable claim of persecution so as not to be sent home. Because they are here in the US, they typically get many greater procedural protections against the exercise of Executive discretion and they have greater rights to challenge whatever action the US government proposes to take with respect to their application for asylum.

This distinction goes a long way to explaining why we see so many migrants flooding out of the Middle East trying to reach Europe. I don’t know much about the details of European immigration law, but I do know that a different set of rules applies to those who have succeeded in reaching European lands and are physically present in the EU. They get more process and have greater rights. Europe also has, as I understand it, a much looser definition of eligibility than we do in the US – those reaching Greece are highly likely to be able to stay when similarly situated arriving at US borders might be denied entry. In the end migrants arriving in the EU are far more likely than those left behind in refugee camps to be able to settle in Europe which, after all, is their goal.

This explains, as well, why most (though not all) of the issue with respect to America’s response to the tragedy in Syria focuses on refugee law, rather than asylum law. Given our distance from the Middle East and the intervening oceans on our borders the number of Syrians who will show up at the US-Canada border to claim asylum is going to be vanishingly small. For the US, new migrants from the Middle East who want to come to the US lawfully will come, if at all, from refugee camps in the region.

Processing Refugees

So then, how are refugees processed? A description of the system will give you some idea of how detailed, complex and difficult it is to navigate.

To start, section 101(a)(42) of the Immigration and Nationality Act (INA), defines a refugee as a person who is unable or unwilling to return to his or her home country because of a “well-founded fear of persecution” due to race, membership in a particular social group, political opinion, religion, or national origin. This definition is based on the United Nations 1951 Convention and 1967 Protocols.

[As an aside, the UN High Commissioner on Refugees (UNHCR) estimates that in 2014 there were 14.4 million refugees in the world. Top sources of refugees include: Afghanistan (2.6 million), Syria (2.5 million) Somalia (1.1 million), Sudan (650,000), the Democratic Republic of the Congo (499,600), and Myanmar (480,000). Note that this is the 2014 number for Syria. I have seen estimates as high as 4.2 million refugees as of 2015 from that country. The UNHCR estimates that in 2015, roughly 1 million of the refugees will need to be resettled (the rest choosing to remain in camps and try to return home) but the actual capacity around the globe for legal refugee resettlement is between 15 and 20 percent of that total.]

The story of resettlement starts in the temporary camps to which refugees flee. Today many of these are located near war-torn Syria and Iraq in, say, Jordan or Lebanon. Refugees who flee to these camps generally have a preference to return home rather than move onward. After all, wouldn’t that be what most of us would want – to return to our home town and friends and family as a first priority?

If, however, a migrant decides he wants to move onward away from the conflict, that’s the first step in a process that can last months, if not years, while their application is reviewed. Their story of persecution will be evaluated and checked. Their suitability for transfer as well.

The first filter is the UN High Commissioner on Refugees (UNHCR) who is generally responsible for working with the local government to provide water, food, shelter and clothing at the local camps. Here those wanting to resettle mix with those wanting to return home and they spend most of their time … just waiting. One function of the UNHCR is to register and identify each refugee (and their family) and assist in finding a place for them to resettle.

Each year the US tells the UNHCR how many refugees it will take in. The President sets that number “in consultation” with Congress, and before the recent crisis the annual allotment for the US was 70,000 in this year. For fiscal year 2016, President Obama has announced a goal of 85,000 refugee resettlements. The law, however, gives the President ample emergency authority to change the number agreed upon – an authority that President Obama invoked when he added 10,000 refugees to this year’s total. Given that there are 14+ million refugees in the world, the US contribution to resettlement is very small next to the whole number. On the other hand it is something around half of the world’s total accepted from the UNHCR.

[Two notes: First, the UNHCR does not have a monopoly on the management of displaced persons – some estimates say that as many as 60 million people are refugees today. Many are resettled through informal mechanisms, or not resettled at all. Second, by way of comparison, the next largest refugee program in the world is Australia’s which took in roughly 6,000 refugees last year – more than the US on a per capita basis, but a small number indeed next to the absolute need around the globe.]

As should be clear by now then, a refugee does not get to select which country he will be resettled to. You cannot, sitting in a camp in Jordan, tell the UNHCR that you want to go to America and only America. The UNHCR will allot refugees to new countries based on willingness of the country to accept them. If you already have a family legally present in the US that will increase your chances that you can be reunified with them – but even that is not a sure thing.

Indeed, the US tells the UNHCR that it has certain priorities in which refugees it wants referred to our country for resettlement. These include (in rank order):

  1. People suffering “compelling persecution” for whom no other durable solution exists (think of special cases like, say, an opposition party politician fleeing Russia);
  2. People from areas of “special concern.” At present, we prioritize certain groups of refugees from the former Soviet Union, Cuba, Democratic Republic of Congo, Iraq, Iran, Burma, and Bhutan. President Obama’s decision regarding Syrians is, effectively, an amendment of this priority category; and
  3. Relatives of refugees (parents, spouses, and unmarried children under 21) who are already settled in the United States.

To be eligible for resettlement in the US a refugee must therefore first be referred to the US government by the UNHCR. After referral he or she must then be adjudicated to determine whether he or she meets the various criteria (fear of persecution and fitting a priority category) before the resettlement is authorized.

The Refugee Admissions Program which does this evaluation is jointly administered by the Department of State, HHS, and U.S. Citizenship and Immigration Services (USCIS) a component of DHS. The most common means of proceeding with an evaluation is for USCIS to conduct individual refugee interviews and determine individual eligibility for refugee status. These interviews typically take place overseas in processing offices near refugee camps. I visited one of these offices in Jordan several years ago and to say that our USCIS officers operate in challenging conditions is to understate the reality by a fair bit.

In to being interviewed each applicant is also subject to a security clearance process. Most of the interview process focuses on eligibility. The law require that the individuals prove that they have a “well-founded fear.” As you may imagine, some people actually … well … lie about their fear. USCIS conducts multiple interviews over time and any discrepancies are identified and explored. Simply by way of example, back in the mid-2000s when several African countries were persecuting gay men we saw an upsurge in claims of persecution – many of which were well-founded but quite a number of which were, shall we say, inconsistent with demonstrable behavior of the applicant.

Applicants who pass the “well-founded fear” test may nonetheless be subject to exclusion. Grounds for exclusion here include serious health matters, moral or criminal matters, as well as security issues. One issue that has raised its head many times is that refugees may be excluded for having provided “material support” to terrorist organizations. One of the inevitably testing circumstances is that of refugees who provide such support under duress – if you live inside ISIL controlled territory and feed ISIL troops because refusal will mean death, is that a basis for exclusion or not? One can see both sides of that argument.

One fair point to make in this discussion is that, by and large, USCIS staff are trained better at eligibility determinations than security assessments. The security portion of the inquiry is mostly based on watch lists and intelligence data bases. Back in the mid-2000s, one gap was that USCIS adjudicators did not have access to all of the classified US government databases at the Terrorist Screening Center. I understand that this is no longer the case and our vetting against known terrorist watch lists is more robust today.

That does, however, beg the question of “clean skins” who are not on any known watch list. That problem is, however, endemic to all screening programs, not just the refugee program. Put another way, a clean skin is no more (or less) likely to get through the refugee application process than he is the visa application process. We are converging all the listing systems so the resulting determination of risk should be uniform across the government.

What all this means is that, from my perspective refugee screening is fairly robust. It is not foolproof – but no system is. Some refugees with criminal records and even terrorist connections may slip through. But as I said in an earlier post relating to the Paris attacks homeland security is about risk management; not risk elimination. The only way to eliminate risk from the refugee program is to eliminate the program; just as the only way to eliminate risk in the airline industry completely is to stop flying.

Here is my bottom line on the security risk from the refugee program: It is real but manageable. More to the point, if I were a terrorist intent on getting into the United States there are many better ways to come here. A refugee applicant for resettlement can’t even be sure he will be going to the US. Were that my intention, I would fly to Mexico and pay someone to walk me across the border. Much easier and with a much higher chance of success.

Paul Rosenzweig is the founder of Red Branch Consulting PLLC, a homeland security consulting company and a Senior Advisor to The Chertoff Group. Mr. Rosenzweig formerly served as Deputy Assistant Secretary for Policy in the Department of Homeland Security. He is a Professorial Lecturer in Law at George Washington University, a Senior Fellow in the Tech, Law & Security program at American University, and a Board Member of the Journal of National Security Law and Policy.

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