The Creation of Refugee Law


Immigration 101 tracks my immigration law course at Hofstra Law School. This is the third in a series about refugee law and political asylum.

The failure of the democracies to protect refugees after the Spanish Civil War and during the rise of Hitler’s empire led to a push for an international accord on refugees. In 1951 the Geneva Convention on Refugees was adopted which provided for the protection of people who fled their homelands due to a fear of persecution. In 1967, the United Nations developed an international agreement, called a “protocol”, which prohibited countries from deporting refugees. People found to have fled their homelands because of a well-founded fear of persecution were not to be returned to their persecutors.

The 1967 UN Protocol Relating to the Status of Refugees was ratified by the United States a year later, and then was largely ignored. The U.S. had for two-decades, accorded refugee protections to people fleeing communist countries like Cuba and Russia, but even after we adopted the UN Protocol, we refused to accept refugees from most non-communist nations. Refugee law was used by the United States as much as an instrument of foreign policy as of humanitarian protections. Admitting refugees from communist countries embarrassed those governments. But recognizing refugees from countries like Haiti and El Salvador, two U.S. allies, would embarrass us. And so, for a decade after the UN Protocol was adopted, it was not enforced by the U.S.

American non-observance of the 1967 UN Protocol became so notorious internationally that finally in 1980 Congress passed the Refugee Act. The Refugee Act said that anyone who had suffered persecution in the past or who had a well-founded fear of being persecuted in the future because of his or her race, religion, nationality, political opinion, or social group could qualify for refugee status, so long as the person was not a security threat and had a clean criminal record.

This seemed straightforward enough, but the legislation de-politicizing the refugee process was followed by the election of Ronald Reagan as President. His administration would use the asylum process to protect friends and humiliate its enemies.

In the next installment of Immigration 101, I’ll look at how lawyers, religious leaders, and refugees themselves helped to force the Federal government follow its own laws.

Immigration 101 is a comprehensive series on American immigration law for the layperson. This series tracks my course on immigration law at Hofstra Law School and answers many of your questions about immigration policy.