Multiple nationality and refugees.

Author:Bauer, Jon
Position:Abstract into IV. Multiple Nationality Under the U.S. Refugee Act B. Administrative Interpretation, p. 905-938
 
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Abstract

Persons with more than one nationality ("multiple nationals") who flee persecution in their home country may have compelling reasons to seek asylum elsewhere rather than go to a second country of nationality where they have no ties or face serious hardships. The 1951 U.N. Convention Relating to the Status of Refugees, however, expressly makes them ineligible for refugee status unless they have a well-founded fear of being persecuted in all their countries of nationality. The U.S. Refugee Act omits this exclusionary language but nonetheless has been read by immigration agencies as if it incorporated the Convention's approach. This Article challenges the view that multiple nationals should not be considered refugees. It argues that asylum should be denied only when it would be reasonable, under all the circumstances, to expect the person to resettle in a second country of nationality after taking into account factors

such as family ties, social and cultural constraints, and any hardships the person would face.

The Refugee Act's text and historical context establish that Congress intended to allow multiple nationals to qualify as refugees if they face persecution in any one of their countries of nationality. Drawing on archival research as well as a close examination of legislative and administrative history, this Article shows that the Refugee Act's drafters meant to preserve a longstanding U.S. policy of accepting refugees with more than one nationality as long as they had not "firmly resettled" in another country of nationality before coming to the United States--a policy especially salient to the Act's proponents because it allowed for the continued admission of Soviet Jews as refugees even though Israel welcomed them as citizens.

This Article also argues that other refugee-receiving countries should reconsider their stance toward multiple national asylum-seekers. The Convention's approach to multiple nationality has become increasingly anomalous in light of the wide international acceptance of the principle that persons who could avoid persecution by going elsewhere--by relocating to a different part of their home country, or seeking asylum in some third country--should not be denied refugee status unless it is reasonable, under all the circumstances to expect them to do so. The Article concludes by discussing how the UNHCR and European Union are well-positioned to play a leading role in developing a new norm for the treatment of multiple nationals who seek refuge from persecution.

Table of Contents I. Introduction II. The Rise of Multiple Nationality and Its Implications For Refugees III. Multiple Nationality Under The Refugee Convention IV. Multiple Nationality Under the U.S. Refugee Act A. The Statutory Text B. Administrative Interpretations C. Legislative History 1. Congressional Awareness of Differences from the Convention 2. "Floodgate" and Fair Share Concerns 3. Continuity with the Approach of Prior U.S. Law to Refugees of Multiple Nationality 4. The Case of Soviet Jews D. The Standards for Exercising Discretion V. Reconsidering the Convention's Stance A. The Incongruity of the Multiple Nationality Clause's Approach B. Multiple Nationality and the Purposes of Refugee Protection C. Toward a More Inclusive Approach: UNHCR and the European Union. VI. Conclusion I. Introduction

Consider these situations:

  1. Fatemeh is 30-year old citizen of Iran. Upon learning that she is about to be arrested because of her on-line advocacy for democratic reforms, she flees the country. She travels to Los Angeles, where her aunt, uncle and cousins live, and applies for asylum in the United States. Fatemeh is a dual national; she inherited French citizenship from her mother, a French citizen who married an Iranian man and moved to Teheran before Fatemeh was born. She has never been to France. No family members currently live there, and she has no other ties to the country. She is fluent in English and Farsi but does not speak French.

  2. Maria is a citizen of Bosnia-Herzegovina, where she was born. She belongs to a Catholic family of Croatian descent that has lived in Bosnia for more than a century. During the Balkan war of the 1990s, when Maria was a child, her father secured Croatian passports and citizenship papers for all of his family in case they had to flee Bosnia. (Croatia's citizenship law allowed ethnic Croats living anywhere in the world to become citizens. (1)) The family remained in Bosnia throughout the war. Later, when Maria was in her twenties, she became involved in a relationship with a Muslim man who was psychologically and physically abusive. He would beat her and call her a "Catholic whore" while forcing her to perform sex acts, and he threatened to kill her if she left him. The authorities in Bosnia provided no protection to victims of domestic violence. Maria finally escaped her situation by coming to the United States to work as an au pair. Her abuser continued to threaten her by phone and email. Fearing for her safety if she returns home, she applies for asylum. Although her citizenship papers enable her to enter and live in Croatia, she cannot imagine living there. After having experienced the relative tolerance and pluralism of the United States, she is frightened and repulsed by the idea of returning to the region where she endured her traumatic experiences, and where the ethnic and religious hatreds that played out in her own persecution play a central role in politics and culture.

  3. A North Korean man fleeing political repression crosses the border to China. The Chinese authorities return him to North Korea, where he is detained and tortured. He escapes again, and this time an uncle procures a fake passport for him, which he uses to travel to Australia, where he applies for refugee protection. Under South Korea's Constitution, all of Korea is considered one country and citizens of the North are recognized as citizens of the South. (2) He does not want to go to South Korea, however, because of the social stigma and employment discrimination North Korean defectors have experienced there. In addition, he fears that his relatives in the North would be harmed; North Korea has a history of retaliating against the families of those who defect to the South.

Under the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol, on which most countries' refugee protection laws are based, (3) none of these applicants can qualify as a refugee. (4) Although they have a well-founded fear of being persecuted in the country of nationality that was their home, they are also nationals of another country. Their connections to that second country of nationality are minimal, and they have compelling reasons for seeking refuge elsewhere. The Convention's definition of refugee, however, expressly excludes persons with more than one nationality unless the individual can show that he or she would be exposed to a well-founded fear of persecution in all countries of nationality. (5) In the United States, despite a statutory refugee definition that differs in wording from the Convention's and is most naturally read to allow a person who has fled from any one country of his or her nationality due to persecution to qualify for asylum, (6) administrative agencies have followed the Convention's approach. (7)

The prevailing view that multiple nationals forced from their homes by persecution should be required to go to a second country of nationality--no matter how tenuous the individual's links to that country, what hardships they would face there, or how strong their ties to the place where they wish to seek asylum--rests on the idea that the sole purpose of refugee status is to ensure safety from persecution. In this view, international protection is unneeded if national protection is available. As a U.S. administrative appeals board put it in a recent decision denying a multiple national's asylum claim, the core purpose of asylum is "to protect [refugees] with nowhere else to turn," not provide "a broader choice of safe homelands." (8)

This Article challenges the view that refugee status should be unavailable to multiple nationals merely because they could avoid persecution in a second country of nationality. The international refugee regime serves as more than a last-resort surrogate for national protection. It is also meant to restore a measure of self-determination to the lives of those forced to flee their homes. Persons displaced by persecution have suffered a loss of membership in the political and social community in which they lived. When a refugee cannot safely return home (which, when feasible, is the best way to restore community membership), asylum provides a mechanism for integrating the individual into a new community. Allowing refugees some agency in choosing their destination, rather than forcing them to go to a country of nominal nationality where they lack genuine ties and would face significant barriers to successful integration, serves these autonomy-restoring and integration-promoting goals. (9)

With respect to U.S. asylum law, this Article contends that the governing statutory language, which differs significantly from the Convention's refugee definition (the U.S. definition omits the Convention's exclusionary clause about multiple nationals and states that a person outside any country of his or her nationality and unable or unwilling to return to that country because of persecution qualifies), is properly read to allow multiple nationals who suffered or reasonably fear persecution in any one country of their nationality to be granted asylum. (10) The text of the statute supports my proposed reading, but ascertaining why Congress would want to depart from the Convention's approach to multiple nationals' asylum claims is more complex. One key Congressional purpose in enacting the Refugee Act of 1980 was to bring U.S. law into compliance with the...

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