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Mr. Charles Kuck
September 21, 2004
Before the Senate Judiciary Committee
As I mentioned previously, I am an Adjunct Professor Law at the University of Georgia School of Law, where I teach an advanced course on both employment-based immigration law, and a course on refugees and asylum law. As an attorney and a graduate of Brigham Young University and Arizona State School of Law, I have practiced in the area of immigration law for more than fifteen years, and have written and spoken extensively on the issues of immigration law and particularly on refugees and asylees. Over the years, I have represented thousands of businesses, immigrants, and citizens seeking to navigate the difficult maze of US immigration law, and I have personally represented more than 400 individual asylum seekers before the U.S. Citizenship and Immigration Services (USCIS) Asylum Office and Immigration Courts.
I am honored to be appearing before you this afternoon to discuss the issue of the history and future of the U.S Refugee Program. This hearing is both important and timely as it addresses an essential topic: the global concern of refugees. This hearing can help us focus on an issue of international concern for which we are, and must remain, the world's beacon. We must address this issue successfully if we are to enhance both our status as an example to the world of a country that fulfills its moral and international obligations and our national security -- because the two are intertwined.
Hopefully, today we can clarify the major issues at stake, judge where we have succeeded and failed, and question any false assumptions we may hold. For instance, we need to be clear about what we mean when we talk about "refugees," particularly in the historical context. In these times of unprecedented challenges, we need to work together within this country and with our global partners to begin to address how to create an effective refugee program that can help the world confront the existence of over 13 million refugees and propose solutions that meet our moral, ethical, political, and humanitarian obligations. Finally, we should also remember that America saw the best use of our refugee program, helping both U.S. national interests and legitimate refugees from around the world, during the Reagan and first Bush presidencies. There are valuable lessons we can learn from these years, as we begin to analyze and attempt to recapture the ideas and strategies of those years, in the changed world in which we live today.
? First, the United States historically has used the refugee process for reasons of both political change and heartfelt concern for the persecutions suffered by those unable to protect themselves. The same considerations exist today, if not more so. The United States is by far the largest of the 10 "traditional" resettlement countries, in that it has historically accepted more refugees for resettlement than all other countries combined. Processing categories are reviewed every year in order to respond to changes in the world refugee situation. In addition, each year we as a country assess what type of refugee resettlement would also best serve our national interest, while at the same time reserving enough refugee slots to meet the needs of the ever changing types of refugees that come into existence. As a result, the major countries of origin of those refugees resettled in the US are subject to change. As an example, and reflecting world events of the time, the top 10 countries of origin in FY 1993 were, in order, the former USSR (48,627), Vietnam (42,775), Laos (6,967), Iraq (4,605), Cuba (2,814), Ethiopia (2,765), Somalia (2,753), Bosnia (1,887), Haiti (1,307), and Afghanistan (1,233). By FY 2003, the top 10 countries of origin had shifted to the former USSR (8,744), Liberia (2,957), Iran (2,471), Sudan (2,140), Somalia (1,993), the former Yugoslavia (1,816; primarily Serbians), Ethiopia (1,704), Vietnam (1,472), Afghanistan (1,453), and Sierra Leone (1,378).
The U.S. Refugee Program has an important role to play in the post-September 11 world. A well-run refugee program is an important component in our security arsenal because it helps to ameliorate situations that are ripe for exploitation by our nation's foes. At the same time, a well-run program also will help to fulfill our moral and international obligations, thereby enhancing our nation's reputation in the international community.
? Second, we need to meet our treaty obligations when revising and enacting our refugee policy, as well as our moral obligation to protect those least able to protect themselves. While there are no international standards for the number of refugees a country must accept pursuant to treaty, we have historically viewed our role as that of a world leader. Since World Ward II, throughout the Cold War, and in the world since the end of the Cold War, we have worked with the United Nations High Commissioner on Refugees ("UNHCR") to resettle tens of thousands of refugees and displaced persons. By doing so we have satisfied and in many ways exceeded what some would say are our moral obligations to protect the helpless.
However, over the last three years opportunities for refugees to seek safe haven in the United States have dwindled because the number of refugees this nation annually accepted significantly and startlingly decreased. Starting in FY 2002 and continuing through FY 2004, there has been a dramatic reduction in the number of refugees this county annually accepts. Unfortunately, there is little indication that the U.S is on the path to resume its rightful place as the beacon of light and example to our allies around the world of the necessity to ameliorate the plight of refugees. We must immediately begin to resume our rightful place as a world leader in this area.
? Third, we need to pair initiatives that over the past three years have enhanced the security of our refugee admissions program with an increase in the number of refugees we admit to this country. We must begin to make a small but noticeable dent in providing safe haven to refugees fleeing political, ethnic, social group, and religious persecution by actually admitting the allotted 70,000 refugees. Our current immigration system, including our current system of identifying refugees eligible for resettlement to the United States is an obstacle to enhancing our security because it is dysfunctional. National security, if that is the primary goal of our immigration system, is most effectively enhanced by improving the mechanisms for identifying actual terrorists, not by implementing harsher or unattainable standards or blindly treating all foreigners as potential terrorists.
Policies and practices that fail to properly distinguish between terrorists and legitimate refugees are ineffective security tools that waste limited resources, alienate those groups whose cooperation the U.S. government needs to prevent terrorism, and foster a false sense of security by promoting the illusion that we are reducing the threat of terrorism. While we must do all we can to enhance our security, the measures enacted since September 11 fail to take into account that refugees are already one of the most heavily screened groups of prospective immigrants to the U.S.
OVERVIEW OF THE HISTORY OF U.S. REFUGEE LAW
In order to understand and reshape our refugee policy to serve the needs of 21st Century America, we must first understand the history of the refugee program.
While the concept of non-refoulement (or non-return against one's will as asylum and refugee law is formally known), dates to antiquity, in modern times the first international agreement on asylum dates to December 1948. The United States was one of the original signatories of the Universal Declaration of Human Rights. Eleanor Roosevelt, wife of the late President Franklin D. Roosevelt, was both a representative to and then the chair of the United Nations (UN) committee charged with its drafting. The Preamble of the Universal Declaration states that "[D]isregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind,..." And, as a result, Article 14 of the Universal Declaration identifies the right of individuals "to seek and to enjoy in other countries asylum from persecution."
Three years later, in July 1951, the United Nations Convention relating to the Status of Refugees provided the world with a definition of refugee based on a fear of persecution and set forth certain responsibilities and expectations for signatory states to live up to in the treatment and processing of refugees, including asylum-seekers.
The basic domestic immigration legislation in force in the United States is the "Immigration and Nationality Act" (INA) passed in 1952. The original version of the INA did not expressly contain provisions to handle the resettlement of refugees or displaced persons. In order to fulfill its international obligations in this arena, the United States developed ad hoc legislation for the immigration of refugees (e.g., Displaced Persons Act of 6/25/48; Refugee Relief Act of 8/7/53; Fair Share Refugee Act of 7/14/60).
Beginning in 1956, the United States began large-scale use of the Attorney General's parole authority under Section 212(d)(5) of the INA to bring refugees to the United States. In order to allow the refugees paroled into the U.S. to adjust to lawful permanent resident status, Congress passed separate special legislation (e.g., Hungarian Refugee Act of 7/25/58; Cuban Refugee Act of 11/2/66; Indochinese Refugee Act of 10/28/77; Refugee Parolee Act of 10/5/78).
In 1968, the United States acceded to the 1967 United Nations Protocol Relating to the Status of Refugees, which incorporates the 1951 United Nations Convention relating to the Status of Refugees (Refugee Convention). Article 33 of the Convention prohibits a signatory to the Convention from expelling or returning a refugee to a country where his or her life or freedom would be threatened on account of a protected characteristic in the refugee definition. A "refugee" is defined as any 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 or, owing to such fear, unwilling to avail himself of the protection of that country..." (1951 United Nations Convention relating to the Status of Refugees, Art. I.A(2), United Nations Treaty Series No. 2545, Vol. 189, p. 137; 1967 United Nations Protocol Relating to the Status of Refugees, Art. I.2, United Nations Treaty Series No. 8791, Vol. 606, p. 267).
In 1980, Congress enacted legislation to bring U.S. law into compliance with obligations it assumed when it signed the Protocol on November 1, 1968. Prior to implementation of the 1980 Refugee Act, refugees under U.S. law were defined in political and geographical terms; unless there was a special act of Congress, refugees had to come from either communist countries or countries in the Middle East. The Congressional intent of the 1980 Refugee Act was to establish a politically and geographically neutral adjudication standard for both asylum status and refugee status, a standard to be applied equally to all applicants regardless of country of origin.
The statutory definition of refugee was derived from the Refugee Convention definition. Following the principle of non-refoulement, the Act made mandatory the withholding of deportation to a country where an individual's life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion.
In contrast to the international definition, U.S. law expanded the definition of "refugee" to include someone who has been persecuted in the past, as well as someone who has a well-founded fear of future persecution.
The term 'refugee' does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.
The term "persecution" was not, and still is not defined by treaty, statute, or regulation. There is no universally accepted definition of persecution, only guidelines from various sources, including the UNHCR Handbook, precedent decisions, and international human rights law.
On September 30, 1996, President Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Some of the provisions of the Act were immediately effective, while others become effective after that date. (The changes to section 208 of the INA are applicable only to applications filed on or after April 1, 1997.) The IIRIRA nullified certain provisions in the Anti-Effective Death Penalty Act of 1996 (AEDPA) and expanded section 208 of the INA to codify a number of provisions that previously were regulatory and to incorporate new provisions. The most significant change was to expand the definition of political opinion to include resistance to a coercive population control program, while limiting the number of individuals who could be admitted as refugees or granted asylum under this provision to 1,000 per fiscal year.
On October 21, 1998, President Clinton signed legislation that required the Department of Justice to promulgate regulations to implement the United States' obligations under Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (27 June 1987), subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution to ratify the Convention. (Section 2242(b) of the Foreign Affairs Reform and Restructuring Act of 1998 (Pub. L. 105-277)).
Article 3 of the Convention against Torture prohibits the return of any individual to a country where there are substantial grounds for believing that the person would be in danger of being subject to torture. This is similar to Article 33 of the Refugee Convention, which prohibits removal of a person to a country where the person's life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion.
On October 26, 2001, President Bush signed into law the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act of 2001) in response to the September 11, 2001 terrorist attacks in the United States. The act amended sections 212(a)(3)(B) and 237(a)(4)(B) of the INA by expanding grounds of inadmissibility based on terrorism, broadening the definition of "terrorist activity," adding two new definitions of "terrorist organization," and adding a separate ground of inadmissibility for those who have associated with a terrorist organization. The amendments are fully retroactive and apply regardless of when an alien filed his or her refugee or asylum application.
Historically, the number of refugees admitted to the United States regularly exceeded 100,000 each fiscal year. Our refugee admissions for the mid to late 1980's and early part of the 1990s were as follows:
Then, beginning in 1995 and continuing to the most recent fiscal year, the refugee admissions have rapidly declined each fiscal year. In FY 1995, we admitted 99,490 refugees, while in fiscal year FY 2002, we admitted only 27,029, and in FY 2003, we admitted only 28,422, with perhaps 50,000 to 52,000 admitted in FY 2004. This is so, even though the Executive Branch was authorized to admit 70,000 refugees each of the last two fiscal years. There appear to be several reasons for this decrease in admitted refugees. First, and the most likely reason for the recent decline, is the impact of the events of September 11, 2001 on the Department of State and USCIS's ability to effectively run the refugee program, in light of new security protocols. Second, because the U.S. was using the refugee program in the decade of the 1980s and early 1990s to attempt to internationally embarrass the Soviet Union and subsequently the countries of the former Soviet Union ("FSU") to force political change, when those political changes occurred, the necessity of granting asylum to citizens of those countries simply evaporated, thus, at least in the eyes of many, reducing the demand for refugee placement. Finally, there was a lapse on the part of the U.S. in recognizing the changing nature of refugees since the fall of the Soviet Union. Rather than a world of communists versus anti-communists, the world very quickly became one of religious and ethnic conflict; conflict that had been kept in check by the Superpowers during the Cold War, but conflict that now was unleashed without the checks and balances of a "parent" state.
STRUCTURE OF THE REFUGEE PROGRAM
Our refugee admission program is divided into five categories, creatively defined as Priority One, Priority Two, Priority Three, Priority Four, and Priority Five. It is important to understand the nature of these categories as you review our current refugee policies, as these categories ultimately define who we allow into the country as refugees.
Priority One (P-1) refugee status is reserved for compelling protection cases or refugees for whom no other durable solution exists, and who are referred for U.S. resettlement by the UNHCR or a U.S. embassy. Historically, these have included persons facing compelling security concerns in countries of first asylum, persons in need of legal protection because of the danger of refoulement, those in danger due to threats of armed attack in areas where they are located; persons who have experienced persecution because of their political, religious, or human rights activities, women-at-risk, victims of torture or violence, physically or mentally disabled persons, persons in urgent need of medical attention not available in the first-asylum country; and persons for whom other durable solutions are not feasible and whose status in the place of asylum does not present a satisfactory long-term solution. P-1 referrals must still establish a credible fear of persecution or history of persecution in the country from which they fled. In addition, groups of individuals who share a common background and can be identified by name can also be referred on a P-1 list based on UNHCR registration information.
Priority Two (P-2) refugee status is reserved for groups of special humanitarian concern and includes specific groups (within certain nationalities, clans, or ethnic groups) identified by the U.S. State Department in consultation with the Department of Homeland Security/Citizenship and Immigration Services (DHS/USCIS), NGOs, UNHCR, and other experts. Some P-2 groups are processed in their country of origin. The following are the current source countries for the P-2 category:
Africa: Persons belonging to U.S. State Department-identified refugee groups (within specific nationalities) in consultation with NGOs, UNHCR, the DHS/USCIS, and other area experts. Groups are selected based on their individual circumstances. In FY 2004, a P-2 designation is being implemented for about 12,000 Somali Bantu in Kenya.
Cuba: In-country, emphasis given to former political prisoners, members of persecuted religious minorities, human rights activists, forced-labor conscripts, persons deprived of their professional credentials or subjected to other disproportionately harsh or discriminatory treatment resulting from their perceived or actual political or religious beliefs or activities, and others who appear to have a credible claim that they face persecution.
Iran: Members of Iranian religious minorities, primarily those now in Austria.
Former Soviet Union: In-country, Jews, Evangelical Christians, and certain members of the Ukrainian Catholic or Orthodox Churches. Preference among these groups is accorded to those with close family in the United States. In addition, a P-2 designation is being implemented for a group of Armenians from Baku, Azerbaijan, living in Russia.
Vietnam: In country, residual cases resulting from established programs: former reeducation camp detainees who spent more than three years in detention camps subsequent to April 1975 because of pre-1975 association with the U.S. government or the former South Vietnamese government; certain former U.S. government employees and other specified individuals or groups of concern; and persons who returned from first-asylum camps on or after October 1, 1995 who qualify for consideration under the Resettlement Opportunities for Vietnamese Returnees (ROVR) criteria. In addition, residual Orderly Departure Program (ODP) cases registered and previously determined eligible for consideration may be processed. The designation also includes Amerasian immigrants, whose admissions are counted in the regional ceiling.
Priority Three (P-3) refugee status is reserved for spouses, unmarried children under 21, and parents of persons admitted to the United States as refugees or granted asylum, or persons who are lawful permanent residents or U.S. citizens who were initially admitted as refugees or granted asylum. Eligibility will be established on the basis of an Affidavit of Relationship (AOR) filed by the relative in the United States and processed through DHS/USCIS. All applicants must be located outside of their countries of nationality or habitual residence. The nationalities eligible for this "family unification" category in FY 2004 are Burmese, Burundians, Colombians, Congolese (from both Congo-Brazzaville and the Democratic Republic of the Congo), Iranians, Liberians, Somalis, and Sudanese.
Priority Four (P-4) refugee status is reserved for grandparents, grandchildren, married sons and daughters, and siblings of U.S. citizens and persons lawfully admitted to the United States as permanent resident aliens, refugees, asylees, conditional residents, and certain parolees. (This category is not available for any nationality in FY 2004.)
Priority Five (P-5) refugee status is reserved for uncles, aunts, nieces, nephews, and first cousins of U.S. citizens and persons lawfully admitted to the United States as permanent resident aliens, refugees, asylees, conditional residents, and certain parolees. (This category is not available for any nationality in FY 2004.)
As noted above, we are bound by international treaty to accept refugees who arrive in America. Those individuals are then subject to our laws pertaining to asylum, as defined by Congress in INA 208. While we are not here today to speak about our asylum process, which itself is desperately in need of proper reform, we must focus on the essential need to "get it right." Unlike a visa application which is wrongfully denied and can result in negative consequences such as the loss of a job or inability to reunite with a family member, mishandling a refugee determination or misplacing the priorities about whom our refugee process should protect literally can mean the loss of that person's life. By treaty, we are not necessarily obligated to resettle any specific individual nor is the U.S. required to resettle a certain number of refugees in any given year. The U.S. does work directly with the UNHCR in an attempt to ameliorate the plight of refugees worldwide. The UNHCR has been designated by United Nations member states, including the U.S., to be the first source identifier for refugees worldwide.
Because we have no specific treaty obligations to accept refugees for permanent resettlement, and because we do meet most of our treaty obligations as they pertain to individuals seeking asylum in the United States, our refugee program is carried out precisely because of what the United States gains from the program, including helping to achieve our political goals, benefiting from the kinds of refugees who are admitted to our country, satisfying the basic and noble American instinct to protect those who cannot protect themselves, and enhancing our security.
WE MUST RESTORE TIMELY REFUGEE PROCESSING, AND SUBSEQUENT SOCIETAL INTEGRATION, TOGETHER WITH ENHANCED SECURITY MEASURES TO PROMOTE OUR OWN NATIONAL INTERESTS
Having an effective, secure refugee program, one in which all available refugees numbers are allocated and processed can only serve to make America the example in the world in how to treat the oppressed, the helpless and the betrayed. We cannot ask others to do what we are not willing to do ourselves. We have shown this in our leadership in Iraq, and must also show it in the processing of refugees.
I recommend the following goals for the coming year for the international refugee program:
1. Congress and the Administration need to resist the bad advice of those who would close this nation's doors and heart to those most in need of protection. We must repudiate the policies of those who, in the name of security, urge us to eliminate or dramatically reduce the refugee (and asylum) programs. Such a closure would be a false solution and would endanger the lives of those who seek, and merit, our protection. There are large numbers of desperate individuals fleeing repressive regimes in Burma, North Korea, and other such countries, as well as many fleeing political, religious and ethnic violence in Sudan, Burundi, and Colombia. Contrary to the allegations of some, we do not seek to resettle all, or most, of the world's refugees, but we need to do a better job of resettling the limited number whom we agree each year to resettle. We must keep faith with our obligations and actually admit the agreed upon refugee levels. Whatever the number, we must admit and resettle that number.
3. The U.S. must increase access to the U.S. Refugee program by use of more inclusive processing priorities. This would include greater use of group designations, and speeding up processing for individual refugees, especially those who have suffered or are at risk of suffering human rights abuse in their country of asylum.
4. The U.S. should review and expand the categories used as processing priorities. The current approach was designed during the cold war to specifically target dissidents and defectors from communist regimes. Our current procedures are not suited to a world of brutal dictators, religious violence and civil wars that cause the long-term refugees we see today. For example, persecution of Christians in China is only now coming to the attention of the mainstream media, but has been known to religious organizations active in China for many years. Yet, no program exists for these individuals to seek refugee status based on their religious beliefs
5. Congress must vote to increase the cap on coercive family planning cases, currently limited to 1,000 per annum. Given the number of individuals faced with this affront to their most basic of human activities, the preservation of life, and as a country which cherishes that right, the United States should allocate more refugees numbers to this type of persecution, without taking numbers away from other areas.
6. Congress must enhance and clarify the ability of the USCIS and the Department of State to grant Public Interest Parole to individuals whose family members have been granted refugee status.
7. Because a well-run refugee program is in the U.S. national interest, it is important that we get it right: that the program is sufficiently funded, all unallocated slots are used, and administrative actions are taken that support the voluntary agencies that are so essential to the refugee resettlement process.
8. Most important of all, we must remember that the U.S. refugee program actually saves lives. It does not just give people a chance to live the "American Dream." It actually ensures that people can live and have hope for tomorrow, rather than face certain death. Our refugee program has been, and needs to continue to be, an example for the rest of the world. We need to make it the best example possible.