This is the sixth of a series of articles on refugee and asylum law to appear in Immigration 101. Immigration 101 tracks my course in immigration law at Hofstra University and it is designed to provide a broad overview of the policies behind our laws.
My previous blogs on refugee and asylum law have traced the at-times corrupted history of American protection for refugees. When I began practicing immigration law a quarter of a century ago, torture victims fleeing allies of the United States were rounded up by INS and deported without a meaningful hearing. Women who were gang-raped by soldiers trying to exact revenge on renegade villages were told by judges that the rape was “personal” and had nothing to do with politics. Homosexuals seeking safety in the U.S. from violent mob action found out that being gay precluded a person from even entering this country. All of that has changed. While we have much distance left to travel before we have a fully fair asylum system, we have to recognize just how far we have come.
In this blog, I will begin the discussion of where we are now in the protection of the world’s most vulnerable by defining terms like “asylum” and “refugee”.
A refugee is someone seeking protection because that person has already been persecuted or has a well-founded fear of being persecuted in his or her homeland. The persecution must be for one of five reasons, race, nationality, religion, political opinion, or social group. If this seems clear, then you don’t understand the problem of defining who a refugee is. The courts have taken more than 25 years to come up with the modern definition of a refugee, and important new cases on the subject come down every month.
In the beginning, during the first seven years after the passage of the 1980 Refugee Act, the predominant question was what it meant to have a well-founded fear of persecution. The Reagan administration said that a person had to show a greater than 50% likelihood that he would be persecuted in order to meet this standard. Now think about what this means. If Country A has a policy of killing 45 out of every 100 people deported from the United States, then each deportee has a less than 50% chance of being killed, and hence, under the Reagan formula, no deportee would be able to demonstrate a well-founded fear of being persecuted.
When I was a 27 year old lawyer I challenged this interpretation in the United States Court of Appeals for the Second Circuit. I argued that Congress, in drafting the Refugee Act, had not intended that a refugee had to meet a mathematical standard to be eligible for protection. Rather, I said, it intended that if there was evidence that would give rise to a fear of persecution in a reasonable person, then that person would be eligible for asylum. The Second Circuit accepted my argument and the Supreme Court later cited my case when it did the same.
So now that we knew what the “well-founded fear”” part of the “well-founded fear of persecution” definition, we still had to determine what exactly “persecution” meant. Initially the government said that persecution was things like “murder”. Since few murdered refugees ever appear at our borders, we refugee advocates argued that Congress must have anticipated protecting more than corpses with the Refugee Act. Over time, torture, rape, slavery, repeated beatings, and targeted terrorization came to be accepted as forms of persecution. While a unitary definition of persecution could never illuminate all the possible dark actions discoverable within the human heart, persecution has come to be seen as actions which severely compromise the integral nature of the victim.
Persecution need not threaten a person’s life or result in loss of physical functioning. Think of rape, for example. Armies often carry out rapes as a way of punishing communities. The rape victim is purposely left alive because her very existence serves as a reminder of the military’s power and control. So while the immediate physical pain of the rape may be temporary, the psychological damage done may be severe. The woman’s integrity has been violated and her rape may constitute persecution if it was carried out for one of five reasons.
In the next installment of Immigration 101, I’ll look at what those reasons are and try to define what race, religion, nationality, political opinion, and social group mean in the asylum context.
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.