Date22 September 2015
AuthorLocascio, Kaitlin L.
  1. Introduction II. Origins of International Refugee Law and Theories for Reform A. Origins of International Refugee Law B. Theories for Reform of the Definition of a "Refugee" 1. Political Theory 2. Humanitarian Theory 3. Human Rights Theory III. U.S. Asylum Law: History, Motivations, and Current Problems A. History of U.S. Immigration Policies B. Gang Based Asylum Claims Within the U.S. Definition of a Refugee 1. Difficulties for Gang Based Asylum Claims a. Particular Social Group b. Political Opinion IV. Positive Reforms of U.S. Refugee Policy A. China's One-child Policy B. Reform After Chang V. Proposal A. Expanding the Political Opinion Ground to Include Gang Based Asylum Claims B. A New Definition of a Refugee Reflecting the Realities of the "Modern Refugee" VI. Conclusion I. INTRODUCTION

    Benito Zaldivar grew up in El Salvador with his grandparents. (1) After he was born, his parents moved to the United States in 1994 to work, but due to their temporary immigration status, they could not bring him with them. (2) Before Zaldivar was a teenager, he was approached by a local gang that tried to recruit him into joining their organization. (3) The gang was more forceful with him than with other kids, and Zaldivar believed it was because he didn't have a big family to protect him, only his grandmother. (4) When his grandmother died in 2003, Benito had no one left to protect him, so he fled to the United States and applied for asylum. (5) While his case was pending, Zaldivar lived with his parents, went to high school, and led an ostensibly normal life. During his asylum hearing, Zaldivar told the judge, "I feel safe for the first time in my life." (6) Unfortunately, the Board of Immigration Appeals denied his asylum claim and ordered him to be deported; Zaldivar was again separated from his parents and the first environment he ever felt safe in. (7) Eight weeks after being sent back to El Salvador, he was shot in the head at point-blank as he rode his bicycle through town. (8) His parents, afraid for their lives, were advised not to return to El Salvador for their son's funeral. (9)

    Just like in the case of Benito Zaldivar, the U.S. has denied asylum to many who deserve protection on human rights grounds because the nation's definition of a "refugee" is based on foreign policy considerations, rather than on human rights principles. Despite our nation's commitment to human rights, the United States has continued to exclude certain groups that do not perfectly fit our definition of refugee. Furthermore, the United States has been unwilling to expand its refugee definition despite the changing global climate.

    During the Cold War, the United States was ready and willing to grant certain people asylum during the Cold War in order to advance its anti-communist political objectives. But the Cold War has ended, and warfare of the 21st century is a far cry from its 20th century counterpart. The oppressors have changed and refugees are now fleeing more complex and ever-changing situations. The U.S. should update its refugee definition in accordance with these new realities of war as well as with modern principles of human rights. Although there is a current need to provide protection to victims of gang violence in Central America, this new definition could also apply to refugee groups that may need assistance in the future.

    This Comment will begin by discussing the origins of international refugee law and varying theories behind its inception and purpose. Second, this Comment will discuss the United States specifically, its history of discriminatory and politically motivated immigration policies, its adoption and interpretation of the 1951 Refugee convention, and how this interpretation has prevented people fleeing gang violence from gaining asylum. Third, this Comment will discuss positive strides the U.S. has made for asylum seekers and what has motivated those changes. Finally, this Comment will propose two solutions to address asylum seekers fleeing gang violence.


    Given the wide range of problems across the globe and increased amounts of people fleeing generalized violence, famine, poverty, and persecution, there is significant discussion about what initially motivated refugee law, what should motivate current refugee protection, and what the current refugee framework should look like in regards to those motivations. (10) Scholars currently advance three general theories that each offer different approaches to asylum law and its reform: political, humanitarian, and human rights. The political theory views asylum as a strong political tool, and political theory proponents argue that asylum should not evolve away from the original motivations of the nations who created the refugee definition in 1951. (11) The humanitarian theory proponents argue that the refugee convention of 1951 should be expanded to include anyone who needs protection and should not be limited only to people being persecuted. (12) Similarly, the human rights theory proponents argue for an expansion of the definition, however those theorists advocate for an expansion based on modern human rights law principles, not based on need. (13) A historical look at the evolution of the refugee definition illustrates how these theories came about.

    1. Origins of International Refugee Law

      There were approximately 1 million refugees in Europe following World War II. (14) The International Refugee Organization (IRO) was created to aid the peoples displaced by World War II; as such, it was only a temporary organization meant to deal with what most thought would only be a temporary problem. (15) The IRO defined a refugee as a person who was "a victim of state intolerance" or was a "genuinely motivated political dissident." (16) These definitions came from the specific circumstances at the time and were in response to the "particular types of horror" of WWII. (17)

      Because the IRO was a temporary organization, the U.N. Economic and Social Council ("ECOSOC") appointed a committee to provide for the protection of refugees when the IRO terminated. (18) The committee consisted of thirteen states and was tasked with defining the parameters of what constituted a refugee, with the ultimate goal being that the definition would "provide protection to the greatest number of persons while remaining politically acceptable to the majority of States." (19) Because the majority of these states were "Western Countries", many argue, including the humanitarian and human rights theorists, that their objectives reflect only Western values and concerns. (20) According to political theorists, these ideas transferred to the subsequent Convention in 1951, thus making a refugee determination based on political judgments of other states and not based on humanitarian or human rights principles. (21)

      The ECOSOC committee subsequently adopted the U.N. Convention Relating to the Status of Refugees in 1951, which was a comprehensive codification of the rights of refugees and the responsibilities of states. (22) The convention codified standards for the treatment of refugees, including access to the courts, education, right-to-travel documents, and also laid down the three most fundamental principles in refugee law: non discrimination, non-penalization for illegal entry, and non-refoulement. (23) Most importantly, this convention put into effect a global definition of refugee: someone outside of their country of nationality who has "a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion", and is unable or unwilling to "avail himself of the protection of that country". (24) Despite the comprehensive scope of this convention, it had a specific time limitation; the events that caused the person to become a refugee had to have occurred before January 1st 1951. (25) Because the convention was intended to aid those peoples who became refugees due to the events in World War II, it was not intended to be applicable to other world situations. (26) Interestingly, although the U.S. was involved in drafting the convention, it did not join the convention as a party. (27)

      In the post-WWII period, the refugees in Europe did not have the same difficulty in resettling as refugees in Europe do today. (28) Many of the post-war refugees, although from different countries, moved to close neighboring countries that had some ethnic similarities. (29) Furthermore, due to massive labor shortages, this new influx of labor was welcomed. (30) Although the 1951 convention may have been helpful in a post-WWII Europe, as the UNHCR became more involved in the decolonization of Africa and refugee numbers were continuing to grow, it became clear that the Convention was only a starting point for refugee protection and needed to be expanded to apply to other areas of the globe. (31)

      In 1967, the UN amended the Convention by enacting the Protocol Relating to the Status of Refugees, which retained most of the original convention but removed the time restriction of events occurring before 1951. (32) This was adopted to resolve the historical limitations of the 1951 Convention so that the term "refugee" could encompass the refugee situations that had arisen since the end of WWII. (33) Although the purpose of this new convention was to address new refugee situations, the protocol applied the same definition of refugee as the 1951 convention. (34)

      The Cold War was the dominant geopolitical issue in 1967, and countries were not interested in reworking the definition to expand it beyond victims of geopolitics. (35) The 1967 update to the definition of refugee "served the world well when refugee problems relating to the Cold War alignment of states arose." (36) While the U.S. did sign as a party to the amended protocol in 1967, it did not officially adopt the Protocol into U.S...

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