A CRITICAL ANALYSIS OF FEDERAL AND STATE ATTACKS ON THE UNITED STATES REFUGEE ADMISSIONS PROGRAM.

• Author: Derenge, Kristin N.

President Trump's executive orders and states' anti-immigration legislation run counter to international and federal law and threaten the United States Refugee Admissions Program ("USRAP"). The executive orders violate obligations under international law to provide humanitarian aid to refugees and the Refugee Act of 1980. The Refugee Act of 1980 requires the President to determine the number of refugee admissions based on humanitarian need, national security, and other national interests. Immigration critics claim national security and economic concerns justify reduced refugee admissions. However, reducing refugee admissions is likely to undermine national security and economic growth. Therefore, the executive order cuts to refugee admissions violate the Refugee Act of 1980. The United States should support its refugee resettlement program, USRAP, to comply with international and federal law, further national security and economic interests, and honor humanitarian values.

1. INTRODUCTION

On January 27, 2017, President Trump's executive order "Protecting the Nation From Foreign Terrorist Entry Into the United States" proclaimed that entry of immigrants from seven, primarily Muslim-majority countries, (1) would be "detrimental to the interests of the United States." (2) The executive order also suspended the United States Refugee Admissions Program ("USRAP") for 120 days. (3) The order stated refugee resettlement through the USRAP was a threat to national security, but it did not provide any specific evidence of how the USRAP threatened national interests. (4) Nevertheless, the executive order stated that the Secretary of Homeland Security, the Secretary of State, the Director of the FBI, and the Director of National Intelligence must review the USRAP to determine what additional procedures are necessary to ensure that the USRAP does not pose a national security threat. (5)

The executive order made another unsupported claim. (6) The order claimed that the entry of more than 50,000 refugees in 2017 would harm national interests. (7) President Trump ordered the 50,000 limit on annual refugee admissions "until such time as [he] determine[] that additional admissions would be in the national interest." (8) Additionally, the order barred all Syrian refugees from entering the United States until the President had "determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest." (9)

The first executive order was almost immediately enjoined for violating constitutional due process, (10) so President Trump issued a second executive order on March 6, 2017, to replace it. (11) The second order mimicked the first order by reinstating the ban on travelers from the countries in the first executive order, suspending the USRAP temporarily, and reinstating a 50,000 cap on refugee admissions. (12)

Unlike the first executive order, the second executive order provided some national security justifications for its mandates. (13) It stated that enhanced security screening of refugees and other travelers to the United States was necessary to detect terrorists who would seek entry into the United States. (14) The order cited several examples of immigrants who had been convicted of terrorist-related offenses since 2001 to support its assertion that immigration and foreign travelers are terrorist threats. (15) Unlike the first executive order, the second executive order provided a justification for reduced refugee admissions in order to comply with the Refugee Act of 1980. (16) The second executive order stated that suspension of the USRAP was necessary to protect national security interests. (17)

The Refugee Act of 1980 requires the President to set the number of refugee admissions based on national interest and humanitarian concerns "after appropriate consultation." (18) Appropriate consultation requires discussions with Cabinet members and the Senate and House Judiciary committees. (19) The Refugee Act of 1980 provides a list of factors that the President may weigh to consider the impact of refugees to national interests, including "the anticipated social, economic, and demographic impact of their admission to the United States ... [and a]n analysis of the impact of the participation of the United States in the resettlement of such refugees on the foreign policy interests of the United States." (20)

The USRAP incorporates the national security and humanitarian intent of the Refugee Act of 1980. (21) The United States Citizenship and Immigration Services ("USCIS"), the administrator of the USRAP, states that the USCIS "is deeply committed to safeguarding the American public from threats to public safety and national security, just as we are committed to providing refuge to some of the world's most vulnerable people." (22) The USCIS, like the drafters of the Refugee Act of 1980, "do[es] not believe [its national security and humanitarian] goals are mutually exclusive, or that either has to be pursued at the expense of the other." (23)

Nevertheless, the executive orders stated that the USRAP is a threat to national security. (24) Under Trump's presidency, the USCIS has adopted a new mission statement that reflects the Administration's concerns. (25) The mission statement no longer describes its role as protecting America's identity as a "nation of immigrants." (26) The USCIS's new mission statement affirms the agency's rolein "protecting Americans, securing the homeland, and honoring our values." (27)

This article explores the tension between the USRAP's long-standing mission to further humanitarian and national interests, and President Trump's 2017 executive orders and state anti-refugee policies that seek to dismantle, or at best, enervate the USRAP. This article will show that President Trump's executive orders violate international law and the Refugee Act of 1980. (28) These federal attempts to undermine the USRAP violate the Refugee Act of 1980, in part, be cause reducing refugee admissions actually undermines national security and national economic interests. (29)

In Part II, this article will review the scope of the refugee crisis and the origins of international and domestic refugee laws. (30) In Part III, it will describe the USRAP's administrative and resettlement procedures. (31) In Part IV, this article examines President Trump's 2017 executive orders that attempted to suspend the USRAP. (32) Part IV also examines South Dakota's and other states' attempts to restrict refugee resettlement. (33) Part V will show that opponents of refugee resettlement claim national security and economic concerns warrant cuts to the USRAP. (34) However, evidence shows that the USRAP supports rather than undermines national security and economic interests. (35) Part VI discusses the harmful effects of these federal and state efforts to undermine refugee resettlement. (36) Part VI also shows that anti-immigration sentiment has compromised administration of the USRAP and increased the barriers facing refugees who seek to settle in the United States. (37) Finally, in Part VII, this article will advocate for policymakers to return to evidence-based refugee resettlement policies that comply with the Refugee Act of 1980 and support national security and national economic interests. (38)

2. BACKGROUND

   1. REFUGEE DEFINITION

      The United Nations ("UN") Refugee Convention of 1951 created an inter national refugee definition that remains in effect today. (39) All persons legally resettled in the United States must meet this refugee definition under federal law. (40) A refugee is someone who has fled from his or her home country and cannot re turn because he or she has a well-founded fear of persecution based on religion, race, nationality, political opinion, or membership in a particular social group. (41)

      Refugees differ from economic migrants. (42) Economic migrants voluntarily leave their home country to resettle in another country. (43) In contrast, refugees seek temporary residency in another country after persecution forces them to leave their countries of origin. (44) Although refugees seek temporary refuge in another country, (45) a majority of refugees who are resettled in the United States decide to "naturalize" or become US citizens. (46) Countries that have ratified the 1951 UN Refugee Convention, including the United States, are responsible for accepting refugees into their countries for refugee resettlement. (47)

      Neither the Supreme Court nor Congress has defined persecution for refugee classification. (48) In 2011, the Seventh Circuit held that persecution includes physical abuse, significant nonphysical harm, such as the denial of a person's right to freely practice religion, or the threat of grave physical harm. (49) The circuit courts have held that the court may consider a refugee's cumulative experience when determining whether a refugee has endured persecution. (50) Multiple adverse incidents that do not constitute persecution in isolation may cumulatively amount to persecution. (51)

   2. THE REFUGEE CRISIS

      The USRAP is under attack in the midst of an international refugee crisis. The number of refugees is at an all-time high. (53) As of June 2018, there were over 25 million refugees worldwide. (54) In the Middle East and North Africa, there are approximately 16.8 million refugees to date. (55) By 2017, the crisis in Syria alone displaced over 5 million Syrian refugees (56) The number of refugees has increased steeply over the last ten years from approximately 15 million refugees in 2008 (57) to over 25 million refugees in 2018. There is no indication that the international refugee crisis will abate anytime soon. (59)

      The refugee crisis has created an enormous demand for humanitarian aid and resettlement. (60) The UN has declared that the global refugee crisis demands an international "response ... clearly dwarfing anything seen before." (61)...