With Great Security comes Great Responsibility
On November 25, 2002, the Department of Homeland Security (DHS) emerged as the foremost guardian of America‟s borders from terrorist attacks. Their vision statement reads, “Preserving our freedoms, protecting America … we secure our homeland”. After 9/11, security became the most important policy debate of the electorate. Securing the homeland involves securing borders from external and internal threats. One of the many threats hypothesizes are refugees who seek asylum whom may pose a security risk. On March 1, 2003, the governmental agency responsible for immigration and asylum was transferred from the Department of Justice (DOJ) to the Department of Homeland Security (DHS). The agency‟s focus changed from that of justice to security, and the figure of the refugee changed from victim to security risk. Moreover, this heightened sense of insecurity allowed the passage of questionable legislation that inadvertently heightened the bars (increased difficulty?) to asylum in the United States. Foreign policy shifted as the war on terror began in Afghanistan, and now continues with the
U.S. occupation in Iraq.
The destruction of Iraq‟s infrastructure and other military and maneuvers created a mass movement of Iraqi‟s to surrounding countries, In addition to, the internally displaced persons (IDP) seeking safety in other regions within the nation state itself. The United Nations estimates more then 4.7 million Iraqi‟s have fled their homes. The aim of this paper is to examine asylum and refugee policies of the U.S. and its application to Iraqi. I will do this by first, giving a general overview of the principles of asylum especially concerning national security. Next, I will examine the U.S. governmental architecture of asylum and the implementation strategies supplied by the agencies in both domestic and international circumstances and how they specifically affect the Iraqi people. Then, I will scrutinize the new legislation enacted to protect America‟s borders and their affect on Iraqi asylum seekers, as well as the new paradigm this may give to other countries in their asylum practices. Finally, I will focus on the issues of responsibility the American government may have towards the Iraqi asylum seekers. My goal is not to denounce American policy, but to provide a critical look into the current environment of U.S. asylum practices towards Iraqi‟s.
Principles of Asylum
In response to the widespread displacement of Europeans following the Second World War, a United Nations conference approved the United Nations Convention Relating to the Status of Refugees, on July 28, 1951. This convention enumerated the definition of a refugee and their legally binding rights and protections. The U.S. did not become a ratified member until the1967 protocol. The protocol lifted the geographical and time limits of the earlier convention, widening the scope of protections and standards to encompass the entire global community. The protocol was codified in U.S. law in the 1980 Refuge Act and the Immigration and Nationality Act (INA). This convention and protocol supplied fundamental protections, rights and definitions to international law that were absent before. Article 1 of the convention states:
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 or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The definition of a refugee has come under close scrutiny in grants of asylum. Responsibility falls on the applicant to provide evidence to support the claim of persecution. Outside of asylum practices, once an individual has been admitted as a refugee there are other significant principles that pertain to the discussion at hand. For example, Article 3 of the convention reads, “The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin”. This is critical to the circumstances of Iraqi refugees. Not only are Iraqi‟s primarily Muslim, but they are also fleeing a country from which the U.S. is in armed combat with. This may pose as an area of contention between American public opinion and international law. The convention provides several socioeconomic rights to refugees in their nations of refuge. These include, but are not limited to – elementary education, access to courts, employment, welfare, and social security benefits. Host nations can and do place restrictions on these rights as per their discretion. However, in general, host nations do attempt to provide for refugees in fundamental subsistence ways.
More pertinent to the issue at hand are the convention Article‟s providing protections from expulsion. Article 32 section 1 states, “[T]he Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order”. This allows the host nation to expel the refugee if indeed he or she poses a threat to national security. The second section of the convention further awards the refugee protection under due process of law. Therefore, a refugee in America cannot be expelled unless they pose an explicit danger. And, if that‟s the case then the refugee has the right to due process under the host nation‟s law. Article 33 section one states, “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. Moreover, section 2 of same Article states, “The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country…” Both of these articles play an important factor in America‟s security focused asylum process. How Article‟s 32 and 33 interact with the PATRIOT Act and national security policies will be examined next.
The Penumbras of the PATRIOT Act
The U.S. PATRIOT Act was signed into law on October 26, 2001. The design of the Patriot Act increased the security infrastructure of the government to deter future terrorist attacks on America. Title IV of the act, aptly named Protecting the Border, deals specifically with immigration reform to increase the difficulty of a terrorist entering the country through the immigration process. Regina Germain, in her article Rushing to Judgement: The Unintended Consequences of the USA PATRIOT Act for Bona Fide Refugees, examines the heightened bars to grants of asylum created by the act. She believes the broad powers granted by the PATRIOT Act will deny bona fide refugees asylum in America. She first looks at the expanded definition of “terrorist activities” and “engaging” in terrorist activities. “A terrorist activity now includes the use of „any weapon or dangerous device‟…the only limitation is that the use of the weapon must not be for „mere personal monetary gain‟…” (5). This broad definition, she argues, would conceivably encompass a protestor who may have thrown a stone at a political demonstration. Moreover, The designation of “engaging in terrorist activity” was also broadened with the PATRIOT Act, specifically the classification of “material support. The definition of “material support” now includes, “providing safe houses, transportation, and funds, but also „transferring of funds, or other material financial benefit‟” (5). Bona fide Asylum claimants who have donated to charities which are suspected supporters of a terrorist organization may be denied asylum due to this financial support of terrorist activity. Moreover, the PATRIOT Act requires the Attorney General or Deputy Attorney General to detain a non-citizen if they are a “suspected terrorist”. She argues, “an individual may be „certified‟ and detained if she is merely a member of a foreign terrorist organization, whether designated or not, or if she is the spouse or child of an individual who falls within any of the…categories” (7). With this new categorization the executive branch is given broad powers to detain any individual if they are suspected in any circumstances to be a member of a terrorist organization listed or not. All of these provisions can be used retroactively to expel any asylee suspected of terrorist ties. Germain believes these broad definitions were unintended by the electorate due to the deliberate speed of passing this piece of legislation through the Congress. Therefore, amendments would have to replace certain provisions of the PATRIOT Act if indeed these were unintentional consequences.
Some would argue the PATRIOT Act, while supplying broad powers to the government, has the sole purpose to protect the homeland from any future terrorist attacks. The framers of this piece of legislation knew particularly well the effects Title IV would have on the immigration process. The broad definitions do indeed create a high bar for asylum applicants, but it is in the name of national security. The Convention Relating to the Status of Refugees holds national security as the exception for expelling refugees and asylees, and the PATRIOT Act falls within these exceptions. Therefore, U.S. policy is within the legal right to implement the strategies found in the PATRIOT Act.
Those following this line of thought believe desperate times call for desperate measures and the PATRIOT Act fulfills its purpose perfectly. It is my belief that this line of reasoning is flawed. The spirit of the convention was for the protection of refugees and to support their fundamental human rights. Germain, in my opinion, has the correct notion that the PATRIOT Act can only weaken America‟s asylum practices and perhaps create a blanket policy of detention, rejection, and expulsion all in the name of National Security. Consequently, barring those bona fide refugees who truly have a well founded fear of persecution. My fear is that these policies will be modeled and then exported to nations who are developing their own asylum and immigration laws.
Bemma Donkoh also shares my concern. In her article, A Half-Century of International Refugee Protection: Who‟s Responsible, What‟s Ahead?, she argues that “restrictive asylum policies are easy to export and have a tendency to spread” (6). The United States security conscious asylum practices do provide a construct for strict and effective policies, but as noted earlier, these practices can deny the bona fide refugee the asylum they deserve. The PATRIOT Act may have gone too far with its arbitrary detention, broad definitions of terrorist activity, material support and so on. Donkoh believes, “such practices are being replicated in regions where laws and structures regarding refugees are only now being put into place [and this] is extremely troublesome for the future of international refugee protection” (7). The main principle of asylum is to provide refuge for those who flee persecution. If more countries adopt the narrow measures the United States has put into law, then asylum seekers may be faced with even more difficult challenges in seeking refuge.
However, the principle of sovereignty remains crucial to all international agreements. A country has a right to create its own laws, in its best interests. Nation States should be allowed to enforce whatever law it deems necessary to protect their homeland from terrorist attacks, especially in volatile regions. The reach of international conventions and agreements halt in questions of a sovereign state‟s policies of national security. The fact a terrorist attack has not occurred on U.S. soil can be seen as a byproduct of the PATRIOT Act. Therefore, it’s effectiveness as a policy for national security cannot be questioned. Nevertheless, the means by which the PATRIOT Act is carried out leads me to believe it doesn‟t adhere to the spirit of the refugee convention.
If a majority of countries in the world model their refugee policies after the U.S. in this regard, the result could be the creation of an impenetrable wall. If taken to the extreme, this wall could indeed keep out refugees on account of their race, religion, or origin. In addition to discrimination, a refugee may be expelled due to some suspected terrorist ties even back to the country from which they fled persecution in the first place. The international community must reiterate the importance of granting refuge to those who flee persecution. The principles of the refugee convention must be followed; otherwise, the convention may indeed fall to pieces as the majority become increasingly concerned with national security and not human rights.
U.S. Refugee Organizations and the Response to Iraq
Immigration and refugee law has always been the prerogative and responsibility of the Executive branch. The Department of Homeland Security (DHS) is the current umbrella agency which includes the U.S. Citizenship and Immigration Services (USCIS). The USCIS is responsible for immigration and naturalization adjudication and establishing policies, services, and priorities relating to immigration. Currently, 15,000 federal employees work for his department in approximately 250 headquarters and field offices around the world. The Refugee, Asylum, and International Operations (RAIO), is the specialized agency within the USCIS that oversees the planning and implementation of asylum policy issues and overseas immigration services. There are approximately 824 employees with 41 offices around the globe. Three divisions within the RAIO have a specific function within the directorate relating to domestic and foreign policies and services. They are -The Refugee Affairs Division, The Asylum Division, and The International Operations Division. President Bush‟s 2008 Fiscal year budget request for the USCIS is 2.6 billion dollars (2.7 billion in FY 2009). Ninety-nine percent of this budget is through fee related services. The agency processes between six and eight million applications and petitions, roughly 90,000 asylum applicants, and interviews about 70,000 refugee applicants, while naturalizing another half million new citizens each year (uscis.gov). USCIS is the largest agency of its kind in the world and provides a valuable service to those seeking refuge within the U.S. The USCIS is not the only agency that has its hand in immigration and refugee policy.
The Department of State‟s Bureau of Population, Refugees, and Migration (PRM) is given the primary responsibility for formulating policies on population, refugees, and migration, and for administering U.S. refugee assistance and admissions programs. With a current budget for fiscal year 2008 of 1.2 Billion, the PRM plays a significant role in support of refugees. A large portion of the budget goes to International and nongovernmental aid organizations (state.gov). Both of these organizations share the responsibility of refugee and immigration policies. The USCIS is devoted more distinctly on security, while the PRM is more focused on the disbursement of aid.
Beginning in May 2007, the DHS and DOS have worked together to administer the overseas component of the U.S. refugee admissions program (USRAP). The PRM has the management responsibility of this program while the USCIS is held with the responsibility for interviewing refugee applicants and adjudicating applications for refugee status. The PRM receive asylum referrals from The United Nation High Commission for Refugees (UNHCR), and U.S. Embassies in Iraq‟s surrounding countries. An Iraqi who has worked for the U.S or an NGO, or if an eligible family member applies for them (in the U.S.), an Iraqi does not need to go through the UNHCR referral process. However, the vast majority of applicants are referred from the UNHCR, and these referrals are the most vulnerable portion of Iraqi‟s as noted by the UNHCR (dhs.gov).
Once these referrals are received the applicants are interviewed in Iraq, Jordan, Syria, Turkey, Egypt, or Lebanon. The USCIS, PRM and the DOS are all taking expanded measures to increase the sites where Iraqi‟s can be interviewed. Due to security constraints, the sites within Iraq are only at the U.S. embassies. During the interview process, the USCIS determines if the applicant is fleeing persecution or if he or she has a well founded fear of persecution. If the applicant passes this legal test, a rigorous security screening process comes next (dhs.gov).
The number of Iraqi‟s who have received asylum in the U.S. is much lower then what would be deemed acceptable by international standards. Since the inception of the war in 2003 to late 2007, less then 300 Iraqi‟s received asylum in America (Human Rights First). However, this number has changed dramatically after a significant push occurred in late October of 2007. That month, America had granted asylum to 450 Iraqi refugees followed by a decrease in November to 362 (state.gov). The most recent release of Iraqi refugee information was June 3rd, 2008. The State Department makes special mention that since October of 2007, the U.S. provided $208 million of humanitarian aid to Iraq making it the largest contributor of the world. On the other side of the coin, the Senate committee on the Budget released its fiscal year report for 2008 for the war in Iraq, Afghanistan, and elsewhere in February of this year. The requested budget is $188 billion, and if funded in full would bring the cumulative total to $752 billion since 2001 (cbo.gov). There exists an obvious disparity not only between humanitarian assistance and the war in Iraq, but also between the number of asylum applicants and those granted asylum.
The goal of the United States is to have granted asylum to 12,000 Iraqi‟s by September 30th, 2008. From May of 2007 with the inception of USRAP to February of 2008, a total of 20,412 Iraqi‟s have been referred for resettlement. Of this, 11,192 were interviewed by the USCIS and only 3,559 were granted asylum. That translates to only 17% of referred Iraqi‟s were granted asylum. The total resettlement number jumped to 4,742 on May 31st 2008 (dhs.gov). To reach the 12,000 by September seems almost impossible, but James Foley the Senior Coordinator for Iraqi Refugee Issues Ambassador says, “if you do the math, as I‟m sure you will, we are going to have to average a little over 1,800 refugee arrivals in the final four months of this fiscal year in order to reach that 12,000 goal. This is a tall order. It‟s a tough hurdle. But we are determined to succeed and increasingly confident that we can succeed” (stave.gov).
The estimated number of Iraqi refugees is currently in the 4.7 million mark. The U.S. is having difficulty resettling 12,000 of that 4.7 million. The12,000 goal is .0002 percent of the total Iraqi refugee population. It seems there are some discrepancies in American refugee policies. Louis Henkin notes in his article Introduction: Refugees and their Human Rights that, “Everyone has the right to seek and to enjoy asylum from persecution. But everyone‟s right is only a right to seek asylum…there is no right to be granted asylum; there is no obligation on any state to grant it” (2). This is an important concept. All refugees don‟t have the right to take haven unless so granted by the host nation.
It is my belief that America is mostly responsible for the Iraqi refugee crisis. The U.S. therefore, should provide greater acceptance to Iraqi asylum claims. With only a 17% acceptance rate, it is possible that the U.S. could easily admit large amounts of applicants. Perhaps America should accept all claims for asylum based on the premise of responsibility. The socioeconomic condition of Iraq continues to degenerate, but the U.S. is adamant in its policy of keeping Iraqi‟s at arms. Securing the homeland is important, but at what point does the condition of suffering become too much to ignore?
Nevertheless, if the U.S. were impelled to accept all refugees the sovereignty of the nation would be compromised. The notion of sovereignty is an important concept in deliberating refugee and asylum law. If all refugees were accepted, then the floodgates would open and the number of Iraqi asylum cases would increase a hundred fold. This may cause an undue burden within the economic infrastructure, but more importantly, homeland security would be compromised. Terrorists and their supporters would breech the high walls of America and wreak havoc upon the innocent civilians. Therefore, America has the final say on what should or should not be acceptable in Iraqi asylum practices.
The principles of the convention are nebulous and entirely discretionary. In the case of U.S. asylum and refugee practices, organizations and nation states can denounce its practices, but ultimately cannot enforce any type of policy change. The principle of sovereignty supersedes any international agreement or convention. That is why the PATRIOT Act can empower such broad definitions and policies. To protect the homeland, especially its borders, is an acceptable (but oftentimes deplorable) action of a nation state. The problem with such legislation is that it creates such high bars for bona fide refugees. Any connection whatsoever to a known or unknown terrorist group can be grounds for expulsion, detention, and other discretionary actions. This is contrary to the spirit of the convention, to protect and provide refuge to those who were persecuted or have a well founded fear of persecution. The security focused asylum model is not only detrimental to U.S. asylum law, but also to other countries who will embrace this structure as their own. Nation states have to ask themselves if this is the future of asylum law and if that‟s what they want. Refugees could find themselves disregarded as the security network spreads and the difficulty, if not impossibility of refuge comes to fruition.
The U.S. government applauds itself for its significant actions in supporting Iraqi refugees, but the statistics tell another story. Of the millions of Iraqi refugees, America has granted asylum to only .0002%. The PRM and USCIS are the most advanced refugee agencies in the world, yet what comes from their work seems entirely inadequate. Comparing the war budget with the two agencies; the monetary deficiency is obvious. With such disparate policies and goals it will be impossible to clean up the mess which is made. As Henkin notes, “The victim of repression, then, has only half a right – a right to leave, not a right to be received, to enjoy a haven or to resettle” (2). The present situation in Iraq is far worse then any staunch supporter could have imagined.
Donkoh, Bemma. “A Half-Century of International Refugee Protection: Who‟s Responsible, What‟s Ahead?” Berkeley Journal of International Law vol 18 2000. p. 260-267 (1-10 Lexis Nexus).
Germain, Regina. “Rushing to Judgment: The Unintended Consequences of the USA Patriot Act for Bona Fide Refugees.” Georgetown Immigration Law Journal vol 16 2002. p. 505-530 (1-9 Lexis Nexus).
Henkin, Louis. “Introduction: Refugees and Their Human Rights.” Fordham University School of Law Fordham International Law Journal vol 18 1995. p. 1079-1081 (1-3 Lexis Nexus).
United States of America. U.S. State Department. Bureau of Population, Refugees, and Migration. 06/05/2008 <http://www.state.gov/g/prm>.
United States of America. U.S. Citizenship and Immigration Services. 06/05/2008 <http://www.uscis.gov>.
United States of America. Department of Homeland Security. 06/05/2008 <http://www.dhs.gov>. United States of America. Committee on the Budget. 06/06/08 <http://www.cob.gov>