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Lory D. Rosenberg on Appeal Matters

Syrians Fleeing the War in Syria Are “Refugees” As Defined by United States Law: Set

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Syrians Fleeing the War in Syria Are “Refugees” As Defined by United States Law: Setting the Record Straight Regarding the Refugee Definition

In today’s climate, there is a danger of throwing the baby out with the bath water. Heightened security concerns and a sense of urgency regarding the protection of Syrian refugees have given rise to critics, writing in this publication and others, who posit that the majority of Syrians fleeing the war in Syria are not refugees (and presumptively not deserving of U.S. protection).

Responding to the imminent arrival of 10,000 Syrian refugees, as ordered by President Obama, may tempt critics of this policy to resort to unfounded assumptions, indifference to existing procedures, and even disregard for governing law. Nevertheless, the inadequate analysis and inaccurate conclusions flowing from such assessments serve no one. We, as attorneys, have an obligation to provide accurate information to clients, to the courts, in the classroom, in publications, and in the media.

The assertion that Syrians fleeing the war in Syria (whom this country will welcome and resettle) fall outside of the refugee definition is incorrect. This blog explains why that is the case, and clarifies the importance of accuracy and consistency in discussing the underlying law.

The question whether Syrians fleeing the war in Syria are “really” refugees, as
defined by U.S. law, requires us to assess their status according to established
principles in asylum/refugee law, rather than to rely on unfounded presumptions.

As I illustrate below, the failure to properly analyze the statutory definition of “refugee” in the context of our refugee laws today frustrates an accurate assessment of Syrians’ potential refugee status.

To be sure, the statutory codification of the definition of “refugee” is settled and binding. It originates with the 1951 United Nations Convention on the Status of Refugees and the 1967 Protocol (incorporating the Convention by reference) (Refugee Convention), international treaties to which we are signatory. Nevertheless, adherence to the statutory definition of “refugee” does not require a rigid, static interpretation of the qualifying statutory grounds of “race, religion, nationality, membership in a particular social group or political opinion” as they may have been understood and applied in the post- WWII era in which the Convention and Protocol were adopted.

Indeed, when the drafters of the Refugee Convention included “membership in a particular social group,” in the text, they did so with the express awareness that the category would develop over the coming years. Similarly, as reflected consistently in the decisions of agency adjudicators and immigration judges and in controlling case law, discussed below, the concepts contained in the refugee definition have evolved over the 50 years since the adoption of the Convention and Protocol. Failure to acknowledge current interpretations is misleading.

Two essential principles point the way towards a proper examination of the question whether Syrians fleeing the war in their country are refugees as defined in U.S. law.

I. The first principle: An Individual Factual Adjudication Is Required

Whether an individual is a refugee requires a factual determination that must be made on a case by case basis. See INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987). See also Matter of Mogharrabi, 19 I&N Dec. 439, 441 (BIA 1987). In Mogharrabi, the Board of Immigration Appeals observed that the Supreme Court ruled that a more concrete definition of the term “well-founded fear of persecution” would be left to the process of case-by-case adjudication. Id.at 448.

Ordinarily, an individual applicant is expected to establish that s/he is likely to be singled out for persecution. The regulations, however, create an exception – one that may be pertinent in Syrian cases based on religion, political opinion, or a cognizable social group. They allow for classification of similarly-situated individuals as refugees where there is a pattern or practice of persecution on account of any of the protected grounds against a group or category of persons similarly situated to the applicant. See 8 C.F.R. § 208.13(b)(2)(iii)(A). The applicant must belong to or identify with the persecuted group, so that a reasonable person in the applicant’s position would fear persecution. See 8C.F.R. § 208.13(b)(2)(iii)(B). Moreover, in the course of its ongoing adjudications, the U.S. government has identified certain factors, which are applicable to all cases, and satisfy the standards for proving individual persecution as a refugee.

A. Critics Should Avoid Jumping to (Adverse) Conclusions

Sweeping predictions about the ineligibility of large groups of persons of the same ethnicity or religion should be considered suspect. As German Chancellor Angela Merkel recently urged in response to conservative criticism over opening Germany to an estimated one million refugees, “it is not human masses that are coming to us, but individual human beings.” See http://www.nytimes.com/2015/12/15/wo...olicy.html?r=0.

Reciting the statutory language that defines the term “refugee” while insisting on the need for an individual assessment and emphasizing that the government needs to make individualized determinations based upon the facts of each case, is not productive. Furthermore, offering guesstimates as the basis for determining that the mass of Syrians in question do not fit within any of the qualifying statutory grounds, as some critics have done, does not satisfy the need for individualized determinations. Without the benefit of individual factual inquiries, such an analysis is doomed to result in unfounded conclusions.

B. Critics Should Respect Proven Refugee Processing Protocols

It is important to understand that there are well-established overseas refugee processing procedures in place that involve United Nations screening individuals who are overseas and referring them to U.S. government agencies. These referrals are followed by close review of individual applications, scrutiny of supporting evidence, and intensive factual questioning. See http://www.usnews.com/news/articles/...yrian-refugees. In fact, DHS-USCIS is directly responsible for overseas refugee processing, in which “[h]ighly trained USCIS officers conduct extensive interviews with each refugee applicant to learn more about the applicant's claim for refugee status and admissibility.[1]

In addition to their extensive training on refugee law, “[o]fficers conducting interviews of Syrian applicants undergo an expanded 1-week training focusing on Syria-specific topics, including a classified intelligence briefing. During the interview, the officer develops lines of questioning to obtain information on whether the applicant has been involved in terrorist activity, criminal activity, or the persecution/torture of others. The officer will also conduct a credibility assessment on each applicant.” See http://www.uscis.gov/refugeescreening.

C. Critics Should Not Disparage Refugee Resettlement Agencies

Ignorance of the fact that DHS-USCIS is responsible for conducting the Syrian refugee interviews abroad, which is stated clearly on the USCIS website, does not excuse critics from disparaging non-governmental refugee agencies. Critics have made unsupported contentions that the staff of these resettlement agencies are inclined to consider anyone fleeing conflict a refugee, and would stretch the facts to include unqualified individuals in the refugee classifications. To the contrary, non-governmental agencies do not make refugee determinations, but provide sustenance and humanitarian assistance to those in flight and during resettlement in the U.S.

Critics may think it unwise to accept Muslim Syrians as refugees, but they are not entitled to presume that non-governmental refugee agencies would violate the law or otherwise attempt to find eligibility where none exists. Refugee agencies are integral parts of our refugee assistance and resettlement program and they are presumed to act honestly and with integrity.

II. The second principle: Governing Law Must Be Observed and Followed

A meaningful analysis of the question whether certain individuals are refugees requires not only consideration of the plain terms of the statute, and the regulations, but an accurate understanding of current administrative and judicial case law interpreting the statutory language. Making judgments about the extension of protection to Syrian refugees based on U.S. standards requires substantial knowledge of the case law and the procedures used to administer refugee programs.

The claims made by critics -- that Syrians fleeing war in Syria are not really refugees because the harm they face they cannot be classified as being motivated by race, religion, nationality membership in a particular social group or political opinion -- are erroneous and contrary to law.

First, persecution is frequently defined as “the infliction of suffering or harm upon those who differ in a way regarded as offensive.” See Matter of S-A-, 22 I&N Dec. 1328, 1332 (BIA 2000); Matter of Mogharrabi, supra. Furthermore, the Board of Immigration Appeals has ruled that aggregated incidents of discrimination, physical harm, threats, and harassment may support a finding of suffering or harm that rises to the level of persecution. See Matter of OZ and IZ, 22 I & N Dec. 23 (BIA 1998).

Second, persecution that triggers the need for refugee protection is not antithetical to an ongoing war, as illustrated by refugee protection having been extended to individuals from El Salvador, Afghanistan, Iraq, Liberia, Sri Lanka and other countries. The grounds for refugee protection during a war are not limited to war-related persecution nor is war-related persecution excluded as a basis for refugee protection. As clarified above, refugee status is properly based on individual facts that establish the likelihood that a persecutor can become aware that a person has a status or characteristic that the persecutor finds offensive and wants to quash, and the persecutor’s inclination and ability to impose harm on the individual because of that status or characteristic. Matter of Mogharrabi, supra.

A. Religious Persecution Constitutes a Strong Ground for Protection

With respect to religion as a ground for persecution, both Christian and Muslin adherents appear to easily qualify as refugees. There is no basis to clam, as some have, that the involvement in the war of multiple factions, some of them Muslim sects, affords protection or obliges Syrian Muslim refugees to seek in-country protection. Any argument in favor of excluding Syrian Muslims’ from eligibility for refugee status on this basis while extending protection to Syrian Christians is not authorized in the refugee statute. Instead, our law provides that qualifying individuals who face persecutors that the government cannot or will not control are refugees.

Plainly, in the case of Syria, the Assad government cannot or will not control the fighting, threats, danger, and commission of atrocities including murder, rape, torture, kidnappings, deprivation of food, and forced disappearances that are a daily occurrence in Syria. The conflict, which originated in a 2011 pro-democracy uprising that gave way to sectarian fighting between the Shi’a Alawite and Sunni majority factions within the Muslim community, now includes Jihadist groups such as Hezbollah, Al-Qaeda and Daesh (IS) and has devolved into a full-blown civil war and humanitarian crisis. See http://www.bbc.com/news/world-middle-east-26116868 (BBC report). Nothing in the refugee statute requires persons experiencing or facing persecution under these circumstances to seek refuge in the country of persecution merely because they might have an affinity with one or more of the groups involved in the fighting.

We must not distort the actual rule of internal relocation, which obligates an applicant to relocate to “another part of the applicant’s country of nationality . . . to avoid persecution, ifunder all the circumstances it would be reasonable to expect the applicant to do so.” 8 C.F.R. § 208.13 (b)(2)(ii) (emphasis added). See also Matter of Acosta, 19 I&N Dec. 211 (BIA 1985); Matter of C-A-L-, 21 I&N Dec. 754 (BIA 1997). Any suggestion that Syrian Muslims should look to Muslim fighters in Syria for protection, as some critics have suggested, is unfounded.

What is more, controlling BIA precedent specifically endorses classification as a refugee on the basis of religion where the victim and the persecutor are of the same religion but at opposite ends of the religious spectrum. Matter of S-A-, supra. at 1336 (holding that a woman with liberal Muslim beliefs suffered past persecution and has a well-founded fear of future persecution by her father on account of her religious beliefs, which differ from her father’s orthodox Muslim views). This important BIA precedent addresses the viability of Syrian Muslim claims as fitting comfortably within the refugee definition. Thus, a Muslim could qualify as a refugee on the basis of religious persecution by another Muslim that the government cannot or will not control.

B. Membership in a Particular Social Group Can Warrant Protection

Any suggestion that membership in a particular social group cannot be a viable ground on which to grant some Syrians refugee status because a proposed group could be defined as “persons fleeing war” is spurious. There is no evidence to suggest that such a group definition has been or would be posited. In addition to religion, refugee jurisprudence presently recognizes family groups, gender–based groups, ethnic groups, and groups of LGBT persons as cognizable for refugee purposes. See e.g., http://www.pinknews.co.uk/2015/12/03...yria-mp-warns/.

Furthermore, any argument that the Syrians fleeing the war in Syria have not experienced and do not face a sufficient level of persecution to qualify as refugees is unsustainable. Cf. Matter of OZ and IZ, supra. The degree of harm that Syrians are suffering or likely to suffer is not in issue.

C. Political opinion Is a Well-founded Reason for Persecution

Perceived or actual political allegiances, just like religious affiliations, provide a certain basis for persecution in Syria. In a vast majority of cases of persecution and torture in the present Syrian conflict, politics and religion overlap and are indistinguishable. As stated above, the popular uprising in 2011 began in opposition to the corrupt and tyrannical regime of Bashar al-Assad and some of its early leaders were Alawites, Christians, and Druze in addition to Sunnis.[2] Soon enough, the uprising was polarized and has devolved into a sectarian Shi’a Alawite versus Sunni Ba’athist religious war that was promptly engaged by the Jihadist opportunists in the region, including Hezbollah, Al-Qaeda and Daesh (IS).

Nevertheless, some critics insist that few of those fleeing the current situation in Syria are fleeing because of political opinion. Some have objected to the classification of Syrian refugees in this category on the basis that a claim that one is fleeing because of political opinion would require an individualized determination. These naysayers opine that while there might be those who would qualify under this provision, many would not. Such unsupported contentions appear to be premised on the erroneous belief that there will be no individualized refugee determination for Syrian refugees.

Those who deny the possibility of Syrian refugees qualifying under the refugee definition on the basis of political opinion do so because they apparently believe that such an evaluation differs from what the Obama Administration is proposing. As clarified above, however, that is precisely how the classification of Syrians fleeing the war in Syria as refugees will take place – each individual will be interviewed and considered by USCIS before a determination of refugee status is made.

Furthermore, with regard to the speculative assumption that most Syrians will not qualify should there be an individualized determination, such a claim completely ignores the close relationship between religion and politics in Syria (and the Arab world in general). It also fails to recognize that an individual may qualify as a refugee based on imputed political opinion, which could easily result from religious affiliations or associations.

III. Conclusion: Those Admitted as Syrian Refugees Are Refugees

Those who are challenging the designation and admission of Syrians as refugees caution that our Constitution and laws must be observed and not circumvented each time an urgent situation arises. However, there is no evidence that this has occurred.

There is no room for baseless claims and obfuscation. We deserve accurate and authoritative blogs and articles that provide straightforward information about Syrian refugees and the United States’ refugee process. Just as Chancellor Merkel lauded German civic efforts to welcome Syrian refugees as “the best and most convincing answer to all those who try . . . to whip up sentiment against strangers,” our response to distortion and fear-mongering about Syrian refugees must be adherence to the rule of law – as written and applied through adjudication and jurisprudence. http://www.nytimes.com/2015/12/15/wo...olicy.html?r=0.



[1] These officers have undergone specialized and extensive training on: Refugee law, Grounds of inadmissibility, Fraud detection and prevention, Security protocols, Interviewing techniques,
Credibility analysis, and Country conditions research. http://www.uscis.gov/refugeescreening.

[2] See generally, http://religion.blogs.cnn.com/2013/0...at-aint-good/; http://blogs.reuters.com/great-debat...ght-in-syria/; http://www.theatlantic.com/internati...-assad/281989/. http://endgenocide.org/conflict-area...-backgrounder/.


Copyright (c) 2015 Lory D. Rosenberg

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Updated 12-21-2015 at 09:58 PM by Lrosenberg

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Comments

  1. Harry DeMell's Avatar
    Lory:

    I would recommend that you add the actual statute as stated in title 8 USC 1101(a)(42) to your article.

    I have argued in this publication that most of the Syrians fleeing the conflict in their country are not refugees according to the black and white page of the law. By stretching the definition to cover everyone we demean the very term 'refugee'.

    We cannot take in each and very person who has any claim to danger. The whole country would qualify. Some such as Christians, Yazidis and political opponents of the regime have a strong claim under the statute. Decades of well meaning arguments on behalf of individual aliens by their attorneys (including me) have stretched the definition of refugee to the limit.

    Anyone claiming refugee or asylee status in the United States has the burden by the preponderance of the evidence to make a prima face case as a refugee as defined under the law. That is not the same thing as a showing of general danger.

    It always astonished me that at immigration law conferences the distinction between refugees and those in fear of general danger is rarely made.

    Claiming that these people are "really" refugees is not a substitute for complying with the statute.

    Harry DeMell
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