A U.S. Tradition of Violating International Refugee Law: The “Muslim” Travel Ban and Dilution of the UN Refugee Convention

The views and opinions expressed in this article are those of the authors only.

Maya Jacob

Vol. 40 Managing Editor, Online

Introduction The world is currently facing the highest levels of human displacement ever recorded.[1] Those fleeing armed conflict, natural disaster, and persecution are estimated to number in the millions, many of whom are children.[2] In the face of this heightened need, President Trump signed an executive order in January 2017 barring U.S. entry by citizens from seven Muslim-majority countries.[3] Additional countries with minimal Muslim populations have since been banned.[4] Since the executive order went into effect, it has been the source of constant litigation in federal courts.[5] In a 7-2 vote in December 2017, the U.S. Supreme Court said it would permit the travel ban to stay in place, at least until it hears oral argument on the issue in April.[6] While the “Muslim Ban” and the DREAMers’ uncertain future have gotten the most immigration-related media attention, President Trump has also begun to dismantle the U.S.’s refugee policy. The U.S. has a long history of protecting persecuted individuals by providing asylum, but during the 2018 State of the Union, Trump announced plans to lower the cap on refugee admissions to 45,000—the lowest number since the executive office began setting this number in 1980.[7] At the end of 2017, the administration also slashed the budgets of most U.S. refugee resettlement agencies.[8] In addition to these existing measures, it is possible that Trump will further misuse his executive power to extend the Muslim Ban to exclude additional refugees.[9] This will not only lower the U.S.’s esteem in the eyes of the international community but also further entrench the dilution of U.S. refugee law. While Trump’s proposed changes to U.S. immigration and refugee policy are the most dramatic in decades, our preexisting laws have already caused us to fall far short of treaty commitments to resettle refugees. In 1967 the U.S. signed the UN Protocol relating to the Status of Refugees, indicating our promise to help refugees reach safety.[10] As one of the largest and wealthiest signatories, it was anticipated that the U.S. would accept many refugees during global times of need. Despite this, the U.S. has consistently used domestic immigration laws to circumvent these commitments. The Muslim Ban is the most recent and blatant example. The Muslim Ban was enacted against a backdrop of a long U.S. tradition of contravening much of the UN’s Refugee Convention. Our evaluative methods hold applicants to stricter standards than required by international law and stricter than those suggested by the UN. For instance, the Refugee Convention states that an individual who demonstrates well-founded fear due to membership in a particular social group may be recognized as a refugee.[11] However, under U.S. law, applicants must show fear of persecution due to an “immutable characteristic.”[12] The U.S. also mandates that applicants show their persecuted group is “socially visible and particularly defined.”[13] While the U.S. maintains our immutability “plus” approach is derived from a UN directive, the agency actually suggests that refugee determinations are valid when the social group is unchangeable or recognized by society.[14] The U.S.’s methods of evaluating refugee claims, therefore, seem geared towards finding reasons to deny refugee applicants as opposed to recognizing legitimate protection needs. Though the Refugee Convention provides little guidance for undertaking social group evaluations, it is likely that the words “immutable” and “innate” do not appear because the drafters knew that persecutors choose their victims for many reasons. Despite this, U.S. immigration officials have interpreted the Convention to only recognize innate characteristics (and social group persecution) when they result in a homogenous social group.[15] This means that while some immutable characteristics may delineate a group – they are not understood as “social groups” for refugee determinations in the U.S. The U.S.’s mistaken interpretation of the “social group” definition ground creates special challenges for certain refugee applicants. For example, a leading U.S. argument against recognizing gender-based claims is that while sex may be an integral part of identity, there are no other characteristics that unify women as a group.[16] However, as demonstrated by the other Convention grounds, such as persecution based on religion, neither an established group identity nor homogeneity within the group is necessary for refugee recognition.[17] It is well accepted that a “Convention reason” only needs to be a central reason the applicant fears persecution.[18] Despite this, the U.S. stands by its restrictive evaluative methods. Even considering the many flaws in the U.S.’s immutability test, it is arguable that many individuals fleeing violence in the banned countries are largely persecuted due to ethnicity, religion, or political belief. Many of them could likely make non-frivolous refugee claims under the social group category. However, with the ban in place this is impossible. As one of the wealthiest and best-resourced nations in the world, the U.S. has a greater responsibility than most countries to assist refugees and other immigrants. Though Trump posits his new immigration policies as another means of “making America great again,” unfortunately it is more likely that these xenophobic actions will lower our esteem in the view of the international community.

[1] Where the World’s Displaced People are Being Hosted, U. N. High Commissioner for Refugees (June 19, 2017), http://www.unhcr.org/en-us/figures-at-a-glance.html. [2] Id. [3]Trump’s Executive Order on Immigration, Annotated, National Public Radio (Jan. 31, 2017, 10:46 AM), https://www.npr.org/2017/01/31/512439121/trumps-executive-order-on-immigration-annotated. [4] Id. [5] Ilya Somin, Federal court rules against Travel Ban 3.0 because it discriminates against Muslims, The Washington Post (Oct. 18, 2017), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/18/federal-court-rules-against-travel-ban-3-0-because-it-discriminates-against-muslims/?utm_term=.bba8dc0eb90d; Steve Almasy & Darran Simon, A Timeline of President Trump’s Travel Bans, CNN (Mar. 30, 2017, 4:01 AM), https://www.cnn.com/2017/02/10/us/trump-travel-ban-timeline/index.html; Adam Liptak, Supreme Court Allows Trump Travel Ban to Take Effect, N.Y. Times (Dec. 4, 2017), https://www.nytimes.com/2017/12/04/us/politics/trump-travel-ban-supreme-court.html. [6] Ariane de Vogue, Supreme Court to Hear Travel Ban 3.0 Challenge in April, CNN (Jan. 19, 2018, 2:23 PM), https://www.cnn.com/2018/01/19/politics/travel-ban-3-0-supreme-court/index.html. [7]Trump Administration to Drop Refugee Cap to 45,000, Lowest in Years, National Public Radio (Sep. 27, 2017, 5:00 PM), https://www.npr.org/2017/09/27/554046980/trump-administration-to-drop-refugee-cap-to-45-000-lowest-in-years. [8] Press Release, Administration Urged to Resume Processing Refugees as 90-Day Ban Expires, Human Rights First (Jan. 23, 2018) (available at https://www.humanrightsfirst.org/press-release/administration-urged-resume-processing-refugees-90-day-ban-expires). [9] Jeff Mason & Phil Stewart, Trump Slaps Travel Restrictions on N. Korea, Venezuela in Sweeping New Ban, REUTERS (Sep. 25, 2017, 7:38AM), https://www.reuters.com/article/legal-us-usa-immigration-trump/trump-slaps-travel-restrictions-on-n-korea-venezuela-in-sweeping-new-ban-idUSKCN1C01FZ. [10]The Protocol was an amendment to the United Nations 1951 Convention Relating to the Status of Refugees, the most encompassing international commitment to refugee rights and protections. Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267, http://www.refworld.org/docid/3ae6b3ae4.html (accessed Feb. 18, 2018). [11] The Refugee Convention’s article I(A)(2) lists the grounds for receiving refugee status as “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” Convention Relating to the Status of Refugees art. I(A)(2), adopted July 28, 1951, 189 U.N.T.S. 137 (entered into force Apr. 22, 1954), http://www.refworld.org/docid/3be01b964.html (accessed 7 December 2017). [12] Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985). [13] Heartland Alliance for Human Needs & Human Rights National Immigrant Justice Center, Particular Social Group Practice Advisory: Applying for Asylum After Matter of M-E-V-G– and Matter of W-G-R 2, https://www.immigrantjustice.org/sites/default/files/PSG%2520Practice%2520Advisory%2520and%2520Appendices-Final-1.22.16.pdf (accessed 7 December 2017). [14] Id. See, Brief of the U. N. High Commissioner for Refugees as Amicus Curiae in Support of the Petitioner at 13, Valdiviezo Galdamez v. Attorney Gen. of U.S., 663 F.3d 582, 587 (3d Cir. 2011). [15]Status of Refugees and Stateless Persons: Memorandum by the Secretary-General, UN Ad Hoc Committee on Statelessness and Related Problems, UN Doc. E/AC.32/2 (Jan. 3, 1950) at 15. [16] T. Alexander Aleinikoff, Protected Characteristics and Social Perceptions: An Analysis of the Meaning of ‘Membership of a Particular Social Group,’ in Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Erika Feller et al. eds., 2003), at 277. [17] U.N. High Commission for Refugees, Guidelines on International Protection: “Membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, ¶ 15, U.N. Doc. HCR/GIP/02/02 (May 7, 2002)( “It is widely accepted . . . that an applicant need not show that the members of a particular group know each other or associate with each other as a group.”); Islam (A.P.) v. Secretary of State for the Home Department; R v. Immigration Appeal Tribunal and Another, Ex Parte Shah (A.P.), Session 1998-1999, United Kingdom: House of Lords (Judicial Committee), 25 March 1999, http://www.refworld.org/cases,GBR_HL,3dec8abe4.html [accessed 20 November 2017], p. 809. [18] Oliva v. Lynch, 807 F.3d 53, 59 (4th Cir. 2015).