Blurred Lines: Migrant vs. Refugee

Views From The Bench

June 10, 2016

There is a difference with legal significance.

The world and this nation do not have a refugee crisis. Instead, we have a mass migration crisis. This mass migration crisis has serious consequences. Under current executive immigration policies, practices and procedures all migrants who are victims of any civil war or civil strife could be added to those eligible for refugee status at the President’s sole and unfettered discretion.

The President and his Administration have been very successful in confusing Congress and the public about who qualifies as a refugee entitled to resettlement benefits and who does not. The process begins by blurring the distinction between refugees and other migrants. This unquestionably has been done and is being done by this Administration. The President’s statements made when presenting his plan to admit 10,000 new Syrian refugees denounced requiring a religious test for “…persons fleeing a war torn country as shameful.” The President is quoted in his World Refugee Day Speech on June 20, 2013, as saying:

“On World Refugee Day, the United Nations stands with more than 45 million people around the world who have been forced to flee their homes due to conflict and political violence. This year I want to especially thank countries and communities working to meet the needs of those who have fled the ongoing violence in Syria…”

However, United States refugee law “does not cover those fleeing from natural or economic disaster, civil strife, or war.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 235 (B.I.A. 2014). Similarly, United States refugee law “do[es] not protect people from general conditions of strife, such as crime and other societal afflictions.” Id. Indeed, statutory thresholds require that refugees be persecuted or have a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group or political opinion to be admitted to the United States.

Even some members of Congress are under the mistaken belief that Syrians fleeing civil war are entitled to be resettled under our refugee program. In a letter dated September 11, 2015, to the President, seventy-two members of Congress pleaded with the President to resettle a minimum of 20,000 refugees by the end of 2016, including 10,000 Syrian Refugees. They make several references to the fact that the enormity of the displacement and migration of Syrians is because they are fleeing violence, chaos, and turmoil in the Middle East. Again, this does not comport with United States law.

In virtually every article we read on the so-called Syrian “refugees,” the authors attribute flight from civil war rather than persecution as the reason for displacement. They characterize all migrants as “refugees,” use the terms “migrant” and “refugee” interchangeably, or imply that all migrants are victims entitled to the protections of refugee programs. It is no wonder that the general public is confused about refugee law and the protections it provides. Refugee law is complicated. When the public debate on refugee law misinforms rather than educates, confusion is inevitable. We are less forgiving when it comes to the leaders, implementers, and administrators of the resettlement program who should be knowledgeable about the intent and purpose of the refugee law as enacted and should be compliant in enforcing it. We are also less forgiving of a compliant press which perpetuates and amplifies the misinformation instead of correcting it. The unwarranted executive over-reach, expansion and misapplication of the law as seen in this program is actually more serious than the abuse of executive authority in the deferred action litigation. In this instance, unauthorized individuals are provided permanent residency, government subsidized living expenses, and a path to citizenship when they cannot even meet the threshold requirements of refugee status. Once a refugee is admitted, his immediate family is allowed to follow and join the refugee in the United States. They too will become lawful permanent residents.

This President has a history of using executive authority when statutory constraints restrict his desired agenda and when legislative efforts fail to allow him to achieve his ideological and political objectives. However, he is not authorized to grant refugee status and resettlement to all those who want to migrate to the United States. Mark Twain once said, “To a man with a hammer, everything looks like a nail.” To this President with a refugee resettlement program, every migrant is a refugee.

The President compounded the problem when he chastised his critics of his refugee policies in the Middle East. In criticism of Sen. Ted Cruz, President Obama stated:

“When I hear political leaders suggesting that there would be a religious test for which a person who’s fleeing from a war-torn country is admitted … that’s shameful. That’s not American. That’s not who we are. We don’t have religious tests to our compassion.”

The President should have consulted with his advisors from the Department of Homeland Security prior to his statement. Under federal law, the executive branch is required to consider persecution on account of religion as one of the grounds which must be established for eligibility for asylum under our laws. And to be sure, there is no doubt that the Islamic State is persecuting Christians. News reports and horrific videos show beheadings and torture of Christians who refuse to convert to Islam. Yet between 2010 and 2015, the United States admitted a total of 53 Syrian Christian refugees, one Yazidi and less than ten Druze, Baha’is and Zoroastrians. As noted in the National Review online, the Syrian Christian population has been decimated since 2011 in what Pope Francis described as religious genocide. See Nina Shea, The State Department Turns Its Back on Syrian Christians and Other Non-Muslim Refugees, National Review (Nov. 2, 2015). What is the barrier to these groups in seeking refuge protection due to their religious persecution?

The President openly decries the use of a so-called “religious litmus test” in the refugee program. However, the facts indicate that such a test is already being used to the detriment of religious minorities, especially Christians. In the month of May, the Obama Administration admitted some 499 refugees with only two Christian refugees in that number. How can there be so few Syrian Christians who qualified for refugee status out of 500 admissions (especially considering the Secretary of State acknowledges that Christian groups are being subjected to genocide by the Islamic State in Syria? See Matthew Rosenberg, Citing Atrocities, John Kerry Calls ISIS Actions Genocide, The New York Times (Mar. 17, 2016). So far in FY 2016, refugee admissions for Syrians included less than one half of one percent of Syrian Christians. Yet prior to the inception of the current conflict, Christians comprised about 10% of the Syrian population of approximately 23 million people.

One explanation for why the number of Christian refugees is so out of proportion to total population is that this Administration erroneously relies on the Office of the United Nations High Commissioner for Refugees (UNHCR) in making initial evaluations for refugee selection. The UNHCR is limited to collecting the applications for refugee status and making resettlement referrals from its own camps and centers. Many of the refugees fleeing religious persecution in Syria lived in urban areas. The UNHCR facilitates are located far from these areas. Moreover many non-Muslim refugees reportedly avoid these camps. According to reports from Great Britain, one terrorist defector stated that ISIS infiltrated UN camps to assassinate Christians. Indeed, the German police have recommended separation of Muslim and Christian migrant groups in their shelters.

In conclusion, as adjudicators who have experience in asylum law for a combined period of over 40 years, we are familiar with the requirements of the law to qualify for refugee or asylum status. Our experience leads us to believe that these legal requirements are not being applied appropriately in the screening process for Syrian refugees. In light of the acknowledgement by political and religious leaders of the current genocide directed against Christians and other religious minorities in Syria, the dearth of refugees admitted raises serious questions about the process.

The President and his Administration have used executive over-reach and ignored constitutional and statutory limitations to expand the scope and parameters of the refugee and resettlement program without congressional action. They have ignored statutory thresholds requiring that refugees be persecuted or have a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group or political opinion. They have ignored these thresholds in order to achieve their own aims by expanding the definition of refugee beyond statutory limits.

They have also replaced existing law with executive policies and procedures which dramatically increase the number and types of persons who benefit from the refugee resettlement program. These policies and procedures do not properly address basic eligibility for refugee status, do not properly consider statutory bars to granting refugee status, such as the persecution of others, resettlement in third countries and criminal history or terrorism, do not properly consider grounds of inadmissibility, as well as potential risks to the safety and security of the United States, and ignore highly important discretionary factors in the adjudication process. Bottom line, these policies and procedures threaten the national security of the United States and have resulted in the grant of refugee status, resettlement, and admission to the United States and lawful permanent residence to persons who are not statutorily eligible for the protections and benefits of our asylum and refugee laws.

The legal requirements, issues, and adjudicatory standards must be addressed and followed in screening and vetting applicants for the US refugee resettlement program. The mission of the resettlement program is to ensure that refugee settlement opportunities go only to those who are eligible for such protection and who do not pose a risk to the safety and security of our country. There must be a pause in the refugee resettlement program until policies and procedures are in place to ensure that the program is administered in compliance with the immigration laws, as well as addressing the safety and security of the nation.

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