As the proportion of Soviet Jews dropping out in Vienna grew, a heated dispute arose between Israel and the American Jewish community over the treatment of Soviet Jews as refugees. The debate was particularly intense during the years from 1976-1981, just as the Refugee Act was making its way through Congress. (318) Israel was desperate to increase its Jewish population and wanted to be the only available destination for those who lacked family-based grounds for immigrating to the United States. It urged the U.S. government to stop admitting Soviet Jews as refugees and put pressure on the American-based Jewish organizations aiding the dropouts in Europe, the Hebrew Immigrant Aid Society (HIAS) and the Joint Distribution Committee (JDC), to curtail their activities. (319) Israel's bulldog on the issue, Arye Leon Dulzin of the Jewish Agency, took every opportunity to argue that Soviet Jews were not genuine refugees. (320) As he put it, "A refugee means someone who has nowhere to go. But today all Soviet Jewish emigrants have Israeli visas--and Israel is ready to absorb them and assist them." (321)
The American Jewish community overwhelmingly favored "freedom of choice" for Jews departing the Soviet Union and supported the U.S. policy of accepting all those who did not wish to resettle in Israel. They resisted Israeli demands that HIAS and the JDC stop helping the dropouts. (322) A commitment to liberal principles, the belief that Jews in the USSR were in danger and should be encouraged to leave, and revulsion at the prospect of turning away refugees as the United States had in the 1930s all played a role in their position. (323)
The positions of the two sides were framed in legal terms as well as on moral and policy grounds. Dulzin and his allies argued that Jews leaving with Israeli visas effectively already held Israeli nationality and were under Israel's protection, and therefore could not satisfy the UN's definition of a refugee. (324) They distributed copies of an internal UNHCR legal opinion supporting this view. (325) When the Refugee Act was enacted, Israeli officials publicly urged that it not be interpreted to confer refugee status on Soviet Jews holding Israeli visas. (326) HIAS argued in response that the mere possession of an Israeli visa did not make the dropouts Israeli nationals and thus they remained refugees within the meaning of the Convention; (327) as support, it brandished a legal opinion by former UNHCR legal director Paul Weis. (328) But at the same time, HIAS argued that U.S. law provided--and the new Refugee Act would maintain--a standard more generous than the Convention's. In a widely-distributed March 1980 letter to Dulzin, HIAS's Gaynor Jacobson wrote, "As a matter of U.S. law, ... a refugee continues to be a refugee as long as he does not acquire a new nationality and has [not] been firmly resettled in the country of his new nationality"; thus, the letter argued, all the dropouts, as well as yordim who spent less than a year in Israel and were not firmly resettled, would continue to be eligible. (329)
If Congress had adopted the Convention's approach to nationality, it would have been throwing the existing policy toward Soviet Jews into doubt. The dropouts' status under the Convention was murky. As a starting point, their nationality vis-a-vis the country they were leaving was unclear. Because they were forced to surrender their Soviet nationality, they could be classified as stateless. But Atle Grahl-Madsen, the leading refugee scholar of the time, took the view that when loss of nationality results from persecution or flight, a person should still be considered to have their former nationality for purposes of Article 1A(2). (330) The more crucial issue was whether they should be classified as Israeli nationals given that they traveled with Israeli immigrant visas that entitled them to citizenship upon arrival. If so, they could not qualify as refugees under the Convention, either because they were dual nationals who did not have a well-founded fear of persecution in both countries, or because they were no longer stateless but were now nationals of a country that would not persecute them. On the other side, arguments could be made that the dropouts did not acquire Israeli nationality unless and until they actually arrived in Israel, (331) or that the absence of other ways to leave the Soviet Union made their acquisition of Israeli nationality involuntary and therefore invalid. (332) The uncertainty of the situation is reflected in reports of conflicting views within UNHCR. A 1973 legal opinion prepared by UNHCR staff had taken the view that the Soviet Jews in Vienna were under Israeli national protection and were dual nationals ineligible for refugee status unless they could show a risk of persecution in both the Soviet Union and Israel. (333) But Paul Weis, the former director of the UNHCR's legal division, reported in an opinion he drafted in 1974 that UNHCR had made a number of eligibility determinations for Jews seeking resettlement, and found most of them to be eligible for refugee status. (334)
It was clear, however, that the yordim could not meet the Convention's refugee definition. They unquestionably had acquired Israeli nationality as soon as they arrived in Israel. (335) Under Article 1C(3), refugee status ceases when a person "has acquired a new nationality, and enjoys the protection of the country of his new nationality." Unlike the cessation clauses that follow and precede it, the word "voluntarily" is not used. (336) Accordingly, Article 1C(3) has been applied without regard to whether a new nationality was obtained with an individual's consent or by operation of law. (337) Refugee tribunals had regularly relied on it to hold that post-World War II refugees who had gone to Israel and benefited from its Law of Return lost their refugee status. (338)
At the time of the Refugee Act's passage, both Congress and the Executive were strongly committed to maintaining the U.S. policy of allowing all Soviet Jews who had not been firmly resettled to enter as refugees. They would not have favored an interpretation of the Act's refugee definition that would have cast doubt on Soviet Jews' eligibility. Reading the Refugee Act's textual differences from the Convention--its use of the phase "outside any country of such person's nationality" and omission of the Convention's dual national clause--as a meaningful difference intended to preserve the U.S.'s flexibility to admit refugees even if they held another country's citizenship would thus be highly consistent with what can reasonably be presumed to have been Congress's goal. (339)
The policy of welcoming all Soviet Jews as refugees had overwhelming support in Congress, and was not questioned even in the face of rapidly rising applications that created processing backlogs and strained resettlement funds. (340) Congress's desire to facilitate and regularize the admission of Soviet Jews, together with the Indochinese crisis, provided much of the impetus for the Refugee Act's passage. (341) During its first consultation with Congress under the new Act, the State Department made it clear that the open door policy would continue. In April 1980, Secretary of State Cyrus Vance told Congressional committees that it was and "will remain" U.S. policy "to offer a haven to any refugee from the Soviet Union who wishes to resettle in this country." (342) In 1981, the State Department publicly criticized Israeli plans to stop referring the dropouts to HIAS for U.S. resettlement and reaffirmed that "United States policy has always been and will continue to be that Soviet Jewish refugees arriving in Vienna should have freedom of choice with regard to where they wish to resettle." (343)
The practice of granting refugee status to Soviet Jews who had lived as citizens in Israel for a brief time was in place throughout the period the Refugee Act was being considered by Congress and had quiet (because of Israeli sensitivities) (344) but steady support from key Congressional players and State Department officials. As early as 1970, at a House Immigration Subcommittee hearing, then-Chair Michael Feighan (with Joshua Eilberg also present) sought assurance from the INS General Counsel that Jews who went to Israel from Iron Curtain countries and "almost automatically" became citizens would not be considered firmly resettled in Israel and ineligible for U.S. refugee admission. INS counsel responded that time spent in Israel as a "bystation or stopping place" before seeking entry to the United States would not necessarily result in a finding of firm resettlement, even if the stay lasted "a couple of years." (345) In 1973, Eilberg, now the subcommittee's chairman, praised the "fine statement" given by Gaynor Jacobson of HIAS when Jacobson, in response to a committee member's question, recounted a sympathetic story to illustrate why yordim should be allowed to come to the United States as refugees. (346) In 1976, a report on Soviet Jewish emigration issued by a Congressional study group chaired by Eilberg noted that yordim were being allowed in as refugees based on case-by-case determinations of whether they had firmly resettled in Israel. (347) A 1977 Comptroller General Report to Congress extensively described the INS case-by-case approach and the State Department's practice of treating all Soviet Jews who had lived in Israel for less than a year as refugees. (348) In August 1977, a group of Congressional and Executive Branch officials monitoring implementation of the Helsinki accords reported to Congress that the situation of about 300 yordim living in "pitiful conditions" in Italy after being denied refugee status on firm resettlement grounds could be exploited by the Soviets for propaganda purposes, and recommended that they be paroled into the United States. (349) Around the same time, the U.S. government quietly asked HIAS to resume...