A new standard for evaluating claims of economic persecution under the 1951 Convention Relating to the Status of Refugees.

• Author: Ramos, Lauren Michelle

ABSTRACT

The United Nations Convention and Protocol Relating to the Status of Refugees define the requirements for qualification as a "refugee" and the protection that should be afforded to qualifying persons. Satisfying the Convention definition of refugee usually qualifies a person for asylum; thus, interpretation of its requirements can determine whether an alien is able to escape alleged persecution in his or her country of origin. Currently, 147 countries are parties to the Convention, the Protocol, or both, including the United States. In order to qualify for refugee status, an asylum seeker must prove a well-founded fear of persecution. However, the Convention does not define what harm rises to the level of persecution, and there is no internationally accepted definition. While physical harm easily suffices, confusion and inconsistency exist regarding when non-physical economic disadvantage constitutes persecution and what standard should be applied to such claims. This Note examines the Convention, development of economic asylum claims in the United States, and trends in international approaches to this issue. It then proposes a uniform standard consistent with general international principles that the United States should adopt.

TABLE OF CONTENTS I. INTRODUCTION II. THE UNITED NATIONS CONVENTION RELATING TO THE STATUS OF REFUGEES III. UNITED STATES ASYLUM LAW A. The Immigration and Nationality Act and Its Regulations B. The Development of Economic Asylum Claims in U.S. Courts 1. Varying Standards in U.S. Courts 2. Clarification--The In re T-Z- Standard 3. Continued Confusion Among U.S. Courts IV. CLAIMS OF ECONOMIC PERSECUTION AROUND THE WORLD V. PROPOSING AN INTERNATIONAL STANDARD FOR CLAIMS OF ECONOMIC PERSECUTION A. A Discussion of the Proposed Standard B. Addressing Potential Criticisms VI. WHY THE UNITED STATES SHOULD ADOPT THE PROPOSED STANDARD VII. CONCLUSION I. INTRODUCTION

The world has changed; it has become smaller. Nowadays, most refugees are mainly on the run from war and regional conflicts. A part of the asylum seekers who come knocking on our doors are not refugees in the proper sense of the word, but people who are looking for a better life, without poverty and crime.

--State Secretary of Justice of the Netherlands, Nebahat Albayrak (1)

Asylum claims based on non-physical forms of persecution, specifically social and economic deprivation, have received increased attention in recent years. Scholars have analyzed and proposed various approaches to such claims both in the United States and internationally. (2) However, neither the international community nor domestic U.S. courts have come to a consensus in developing an approach, leading to confusion and inconsistent results.

Social and legal developments demand further examination and resolution of this issue. The number of people fleeing their native countries and seeking asylum is staggering. (3) As United Nations High Commissioner for Refugees (UNHCR) Antonio Guterres noted, "ongoing violence and instability in some parts of the world force increasing numbers of people to flee and seek protection in safe countries." (4) The UNHCR website estimates that there were 983,000 asylum seekers around the globe at the beginning of 2011. (5) Overall, the number of refugees stood at 10.3 million. (6) In the first half of 2009, industrialized nations saw a 10 percent increase in new asylum applications over the first half of 2008, (7) and the United States alone received over 20,000 applications during that period. (8) Consistent with the High Commissioner's assessment, countries suffering from conflict and instability are the largest producers of asylum seekers--Iraqis have constituted the highest percentage of asylum seekers for four consecutive years, with Afghans and Somalis close behind. (9)

Due to the volume of asylum applications across the globe, UNHCR urges governments to adopt "fair and efficient procedures to determine if an individual asylum-seeker is a refugee, recognizing how difficult it is in many cases to document persecution." (10) In many countries, including the United States, the asylum process ultimately burdens domestic courts with making the difficult refugee determination. As a result, courts struggle to fairly and consistently evaluate asylum applications based on claims of economic and other non-physical persecution. (11) Scholars and U.S. courts have demanded a resolution of the inconsistent standards applied in Board of Immigration Appeals (BIA) and U.S. courts of appeals decisions. (12) Finally, in 2007 the BIA articulated the correct standard for these asylum claims. (13) However, despite the BIA's clarification, applying the standard has caused renewed confusion among U.S. courts. (14)

U.S. courts should look to developments in international law to evaluate and further develop their approach to economic asylum claims. Congress explicitly amended the U.S. Immigration and Nationality Act to bring it into accordance with international law dealing with refugee status. (15) Part II discusses the primary UN convention on refugees, the Convention Relating to the Status of Refugees. Part III addresses U.S. law, beginning with the relevant statutory asylum law. It then discusses the development of economic persecution claims in U.S. courts, including the inconsistent standards that the courts have developed and applied. Part IV examines international trends regarding claims of economic persecution. Part V proposes an international standard for determining refugee status based on non-physical forms of persecution that is consistent with both the international documents and developing trends. Finally, Part VI reconciles the proposed international standard with U.S. law and explains why the United States should adopt the standard.

2. THE UNITED NATIONS CONVENTION RELATING TO THE STATUS OF REFUGEES

   The United Nations Convention Relating to the Status of Refugees (Refugee Convention) was created by a Conference of Plenipotentiaries from twenty-six countries under authority of the UN General Assembly. (16) The Conference adopted the Refugee Convention in 1951, and it entered into force in 1954. (17) As "the key instrument in international law for the protection of refugees," (18) the Refugee Convention defines the requirements for qualification as a "refugee" and sets out minimum standards of treatment for qualifying persons. (19) The United Nations enacted the Refugee Convention immediately following World War II, as a means of addressing the surge in refugees from European countries. (20) Consequently, the Convention originally applied only to persons who were refugees as a result of events that occurred prior to January 1, 1951. (21)

   The 1967 Protocol Relating to the Status of Refugees (Protocol) amended the Refugee Convention so that it applies to anyone who qualifies under the definition of a "refugee," regardless of the timing of the events that cause a person to flee his or her native country. (22) Currently, 147 countries are parties to the Refugee Convention, the Protocol, or both, including the United States. (23) The Convention's definition of "refugee" is the standard that asylum seekers must meet before they can obtain the benefits mandated by the Convention. The Convention defines a refugee as follows:

   A person, who.... owing to 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. (24) This definition breaks down into several necessary elements that an asylum seeker must establish. The potential refugee must establish harm that rises to the level of persecution. (25) This persecution must be suffered on account of one of the listed reasons, such as race or religion, and the asylum seeker must have a well-founded fear of suffering actual harm upon returning to his or her native country. (26)

   However, among the factors related to determining refugee status, "the element of a well-founded fear of persecution is clearly the most important." (27) There is some judicial consensus on the meaning of a "well-founded fear." In Immigration & Naturalization Service v. Cardoza-Fonseca, the United States Supreme Court determined that an applicant need not show that persecution is a probability, but only that it is a reasonable possibility. (28) The House of Lords in England adopted an equivalent approach, establishing that a "reasonable likelihood" of persecution is sufficient, (29) and the Federal Court of Appeal of Canada followed suit in establishing a test based on a reasonable chance of persecution. (30)

   The major problem, which has spawned confusion and debate, is that the Refugee Convention does not define "persecution." In fact, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (UNHCR Handbook) admits that "[t]here is no universally accepted definition of 'persecution' and various attempts to formulate such a definition have met with little success." (31) Scholars have theorized that the drafters of the Convention intentionally left out a definition of "persecution" so that future decision makers could respond to new situations that the drafters could not have conceived of in 1951, acknowledging that social issues evolve and require evolving law to address them. (32) "Practically speaking, the vagueness of the definition affords states that are party to the treaty greater manoeuvrability [sic] in refugee status determination. (33) The meaning of this crucial term is left to...