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  • Article: The Definition of 'Refugee' as Applied to Those Fleeing the War in Syria. By Harry DeMell

    The Definition of 'Refugee' as Applied to Those Fleeing the War in Syria

    by


    The question is: Are those people fleeing the war in Syria 'refugees' as defined by American and international law? There has been much political posturing on both sides of this issue but no one seems to have looked at the legal definition. We need to examine this.

    The term refugee is defined under American law in the Immigration and Nationality Act (INA) in 8 USC 101(a)(42):

    (42) The term "refugee" means (A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country which such person last habitually resided, and who is unable or unwilling to return to and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion….. (Italics added)[i]

    I would conclude that most of the persons fleeing the war in Syria do not come under this definition. Lets examine this further.

    The term refugee is a legal one and US law has adopted that term from the United Nation definition as outlined in the UNHCR Handbook. The definition would be the same under international law as it is under United States law.

    The standards require an individual assessment of each person’s motives in claiming refugee status. In order to qualify each individual must come under the definition as stated in the INA.

    It is not enough to say that there is a war and that people are in danger. We are not required to, nor can we, accept a whole nation. If we made the decision to do so it would require a decision by both the executive and legislative braches of government working together. This has only occurred concerning native peoples living within the United States. [ii]

    Even in times of civil war, harsh conditions and anarchy we have not recognized the right to refugee status as valid. Ahmed v Holder, 611 H.3d 90. “”Political instability, cultural divisions, and sporadic violence…detached from the particulars of an alien’s individualized situation is not enough to compel relief…”

    To do more at this time would require an act of congress.

    Let’s take each standard as outlined in 101(a)(42):

    Race: Race is not an issue in the fighting in Syria.

    Religion: Since there is fighting in several directions I would argue that most of the Muslims fleeing the civil war are able to avail themselves of the protection of one or more of the groups fighting. Christians and other minority groups do seem to have a claim to refugee status under this provision. Although President Obama has stated that we have no religious test for refugee status he is incorrect here. By the words of the statute, non-Muslim minorities in the Syrian conflict seem to have a strong claim to refugee status.

    Nationality: Everyone in the Syrian conflict are Syrians so this clause doesn’t come into operation at this time.

    Membership in a particular social group: This provision has been liberally used. There are too many cases, too many twists and turns to go over here and books have been written on this but it has been held that physical harm or detention alone do not amount to persecution under the act. Morgan v Holder, 684 F3d 53. If a social group were defined, lets say, as ‘persons fleeing war’ it would render the provision meaningless. I would argue that in order to preserve the integrity of the law we should look in areas beyond the purview of this article.

    In the context of this national debate we must keep in mind the need to give meaning to the law and not to circumvent it any time we see a need. Our constitutional process is important.

    Political opinion: Few of those fleeing the current situation in Syria are fleeing because of political opinion. To say one is fleeing because of political opinion would require an individualized determination. This is not what the administration is proposing. There might be those who would qualify under this provision. Most would not.

    Refugee agencies are manned by people who are inclined to call all those fleeing conflict as refugees. Many of these agencies would stretch the facts to fit as many people into these categories as possible. Most would not be eligible to apply. This would not be wise.

    The United States government needs to make individualized determinations based upon the facts of each case. If we cannot do that we can rip out the pages out of our law books and use those pages to wrap fish.



    [i] It should be noted here that the president after consultation with congress can allow certain designated people to enter the United States as refugees of special humanitarian concern or if otherwise in the national interest. This is not likely to happen in the current national political climate.

    [ii] 1924

    Reprinted with permission.


    About The Author

    Harry DeMell

    Harry DeMell has been practicing law in the areas of visa, immigration and nationality since 1977. He is a graduate of New York Law School.
    Mr. DeMell is an active member of the American Immigration Lawyers Association (AILA). He has been a member of the AILA's annual planning committee, participated in their lobbying efforts, and is a mentor to other members.
    Mr. DeMell has also chaired committees for the Nassau County Bar Association and the Brooklyn Bar Association. He is a frequent speaker and a writer on important visa and immigration issues.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    Comments 1 Comment
    1. Retired INS's Avatar
      Retired INS -
      Thank you - it is about time someone explained this correctly. I worked for the INS for 30 years and for USCIS for 9 years (after the INS was abolished). I was a manager for 29 years and among other things, sometimes supervised the granting of asylum claims. We rarely granted cases from El Salvador or Haiti for the very reasons you stated. However, we frequently granted cases of religious discrimination for Christians and Bahai fleeing Iran and Iraq. Political claims were rarely granted; only when the person came from a prominent family whose opposition to the government was well known. Membership is a group is hard to decide, but gay Mexicans qualify because Mexican police are known to mistreat these people. The issue with a group is: Do we know the group is routinely discriminated against, and how does one prove membership in the group.

      About 25 years ago the INS established a special unit to process asylum claims. In part, this was done because a very high percentage of cases were denied. The administration thought INS officers were prejudiced against asylum seekers. After the asylum units were up and running, the percentage of denials remained almost the same as before.
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