The New York Times last week decided to help its readers understand the legal status of the flood of Syrian refugees pouring into Europe with an article, “Migrant or Refugee? There Is a Difference, With Legal Implications.” The short article, meant to straighten out misconceptions, perpetuates them. This would not be so bad if it were some barely-read fringe blogger writing from a remote [sunny, temperate] American corner somewhere, but this is the New York Times!
The article asks the question, who is a refugee? The writer’s answer begins with a definition of refugee:
The 1951 Refugee Convention, negotiated after World War II, defines a refugee as a person who, “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.”
Understandably, the writer addressing an international crisis taking place in Asia and Europe, provided a general, international definition of refugee as opposed to the American one, which is not much different. Our definition, found at INA § 101(a)(42), states:
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 in 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, … For purposes of determinations under this chapter, 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, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.
The last part, about forced sterilization, was added during the George H. W. Bush years, token of his desire, perhaps, to keep the cost of Chinese restaurant food low by guaranteeing a stream of cheap Chinese labor.
The two definitions amount to the same thing. In a nutshell, who is a refugee? A refugee is someone who is fleeing persecution on account of one or more of five grounds – his race, religion, nationality, social group, or political opinion. If you are fleeing persecution because of any other reason, you are not a refugee.
So, now New York Times writer, apply the definition to the facts. She asks, “Who is a refugee?” and answers, “Briefly, a refugee is person who has fled his or her country to escape war or persecution, and can prove it.” This answer does not match the definition she provided. “Merely” escaping war does not make one a refugee. Only escaping a country because of persecution on account of race, religion, nationality, social group, or political opinion makes one a refugee.
Further, as the U.S. Supreme Court has made clear in INS v. Elias-Zacarias, in 1992, the refugee has to prove the reason for the persecution and among the things he must prove is that he is being persecuted for one on the five grounds – race, religion, nationality, social group, or political opinion. Is fleeing war merely because one does not want to get hit by bombs or snipers bullets or chlorine gas or starvation fleeing on account of any of these five reasons? No, no, no, no, no.
Sitting on my desk right now is a government answer brief in a case where a client fled a civil war. The government’s position, made over and over in the brief is simple: “A fear of generalized violence and civil strife is insufficient to establish eligibility for asylum.” (Asylum, by the way is the status a person deemed a refugee accrues if determined to be a refugee while in the United States and otherwise eligible to be conferred that status). So why write that a person who escapes war is a refugee when it is not so? I’m asking. I don’t know why she wrote it, but I can guess.
My guess is that the writer has as common sense belief that civilized countries don’t send people back to other countries to face death and thus all that “race, religion, nationality, social group, or political opinion” rigamarole is just verbal baggage to cover a simple inquiry – will this person be killed if he is sent home. As nearly ways with immigration law, common sense gets you nowhere. The United States sends people back to countries where they face death if their deaths are not on account of race, religion, nationality, social group, or political opinion (unless they can prove they will be killed by the government or with the government’s acquiescence). The five grounds are the focus of a refugee determination, not a peripheral, ignorable matter. Whether you will be killed is not the dispositive issue.
Illustrative, in addition to Elias-Zacarias, is a 2013, Ninth Circuit case, Enriquez-Rivas v. Holder. The unspoken truth in that case is that Ms. Enriquez-Rivas, a woman who testified against a gang that killed her father in El Salvador, will be killed if she is returned to El Salvador. That, however, was not the concern of the case. In the 52 pages of opinions, concurrences, and dissents, not one sentence addresses her certain death. It is hardly relevant. The issue is whether she is being killed because of her race, religion, nationality, social group, or political opinion. In that case, the issue was social group.
In fact, in today’s New York Times, an article states:
In 2014, only about 45 percent of asylum applications made to European governments had a positive outcome — at least half were turned away for not being legal refugees but illegal migrants.
While not all these denied asylum seekers were necessarily fleeing war, I would venture to say that a great many were, but because “generalized violence and civil strife is insufficient to establish eligibility for asylum,” their claims were denied.
After starting off citing a definition and then ignoring it, the Times article then goes on about how refugees get protected and get to stay where they fled, while migrants, those who flee who are not refugees, can be sent back. The article then brings it on home to the U.S., stating:
The State Department vets a select number of people — lately, around 70,000 a year — and admits them as refugees. Others who arrive in the country without legal papers can apply for political asylum; in that case, a judge decides on the merits of their claims.
This statement is wrong two ways. First, while those who arrive in this country without legal papers and are caught usually make their cases before immigration judges, those who are not caught or whom the government fails to send to immigration court, make their claims before U.S. Citizenship and Immigration Services, not the immigration court. Second, asylum claims must be based on a fear of persecution on account of race, religion, nationality, social group, or political opinion, so why call it “political asylum” when it could be race asylum, religious asylum, nationality asylum, or social group asylum? Why does the writer call it political asylum and not “asylum?” I’m asking. I don’t know why she wrote it and I don’t know why the venerable Gray Lady published it. Posted September 6, 2015.