Refugees and Reality: Legal Disconnect between Refugees and Forced Migrants

Three professionals in international human rights spoke this evening on the legal disconnect between refugees and other forced migrants as part of International Law Week at Georgetown University Law Center. The panelists specifically addressed internally displaced persons, the indistinct line between economic migrants and forced migrants, and the immigration challenges faced by victims of human trafficking. Where do you draw the line for asylum eligibility in the post-9/11 era?

The panel included:

Joel Charny, Vice President for Policy, Refugees International
Lou DeBaca, Special Litigation Counsel U.S. Department of Justice, Civil Rights, Criminal Section
Prof. Andrew Schoenholtz, Deputy Director, Georgetown University Institute for the Study of International Migration (Moderator)
Note: William Frelick, Director for Refugee Policy, Human Rights Watch, was unable to attend due to unforeseen circumstances.

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Meeting Notes

Remarks by Joel Charny

What is a refugee? The current international definition of “refugee” comes from the United Nations Convention and Protocol relating to the Status of Refugees. For the qualifying criteria of “refugee,” see my previous blog on World Refugee Day. The status of refugee does not apply to internally displaced persons (IDPs).

Three new factors are shaping the landscape of international migration: 1) geographical shifts, 2) new domestic wars resulting in internal displacement, and 2) changes to the U.S. refugee resettlement program.

The first factor is the new geographical shifts shaping migration. From the 1970s to the 1990s, most refugees were from the former Soviet Union or Southeast Asia. Since the 1990s, displaced refugees are more likely to be from Africa. These vulnerable refugee populations have relied on the generosity of neighboring countries, which have provided safe haven and economic support. Since 2000, continued poverty in Africa and politicization in Asia has increased incentives to flee to Europe.

The second factor is the role of new domestic wars that result in internal displacement. Since the 1990s, the United Nations, when it does intervene to provide aid for domestic wars, focuses primarily on the IDPs in Africa.

U.S. Refugee Admissions in 2006
Region	Proposed Ceiling 2006
Africa	20,000
East Asia	15,000
Europe and Central Asia	15,000
Latin America/Caribbean	5,000
Near East/South Asia	5,000
Unallocated Reserve	10,000
TOTAL	70,000
Source: US Department of State Proposal to Congress 31 August 2005

The third factor is the change in the U.S. refugee resettlement program, which includes assistance for children and families. These changes reflect
new border security measures implemented after 9/11/01 and new legislation, such as the Patriot Act (Public Law 107-56). As a result, “foreigners” are evaluated under new and more stringent constraints. Any individual providing “material support” to terrorist organizations is barred from asylum. This criterion extends to those who bear arms in any form of rebellion, as well as to those who provided money, food, or support to terrorist organizations, even when that support is coerced or forced. Thus, under the new eligibility requirements, Burmese refugees who took up arms against their repressive government would not qualify for refugee status in the United States. In another example, H’mong refugees from Laos would not be resettled if they resisted with force. The U.S. Citizenship and Immigration Services website provides more information on the eligibility for asylum.

The United States is not alone in enforcing more stringent regulations and processes. Australia uses the “Pacific version.” People are intercepted at sea and detained on a remote island until their status determination is processed. This practice makes it harder for individuals to apply for asylum. Long-term solutions require economic development throughout developing countries. In the absence of economic opportunities within their native lands, refugees will continue to cross borders. In considering the distinction between refugees and migrants, where do you draw the line between economic motivations and political motivations?

Remarks by Lou DeBaca

Trafficking is not new in the United States. The practice dates back to the 1600s.

Ansou thought she would be a domestic servant in the United States. She owed a loan shark back in her home country. The trafficker leveraged that relationship. The judge in Ansou’s case applied the 13th Amendment’s promise of freedom and granted Ansou the right to stay in the United States. The case occurred in 1904.

The U.S. government approach to the United Nations Convention against Transnational Organized Crime, also known as the Palermo Crime Convention, is termed the “3-P” approach: prevention, protection, and prosecution.

The term “trafficking” is used to indicate an activity which forces someone to be under the control of another. The notion of trafficking victim to be “refugee-like” is driven by compassionate public policy. A trafficking victim can even be a domestic victim. The closest victim within “refugee” status to a trafficking victim is the torture victim. Should we apply the same services and agency support used for torture victims?

In the United States, there are two ways to normalize a person’s status. The first is upon arrival. The second way requires self-petitioning for the “T-visa“, which offers nonimmigrant categories for victims of trafficking. The T-visa allows for family reunification but within limitations.

Human rights are not self-enforcing. The model of “naming the offenses” is a good model but not the only model. Another model is to use the coercive power of the state. What is the point of having internationally recognized human rights if we aren’t going to hold states accountable and to use the power of the state to accomplish that goal?

Question and Answer

Question: Is the United Nations High Commissioner for Refugees (UNHCR) becoming an enforcement agency, and in doing so, are they creating a dangerous situation? Example of Sudanese refugees in Egypt who were returned forcibly to Sudan as IDPs. Are the problems happening because of the way States are using IDPs and refugees for their political ends? Is there currently an ignorance or lack of imagination by policy-makers of forced labor migration? Is a new analogy needed? How do we deal with the dual identity of a person?

Answer
Joel Chaney: Addressing the UNHCR question, a very small percentage of IDPs are assisted, both practically and legally. The lead role under the new “cluster approach” will be the UNHCR. It is the only agency with a basic understanding of the issues of displaced people. UNHCR is the first line of defense on this issue.

Lou DeBaca: The immigration system needs to be able to exercise some discretion, which it can exercise on behalf of the alien. To the second question, there is the old definition of trafficking victims as sexual victims. The exclusion of prostitutes dates back to 1880s. The new notion expands the definition to “forced” labor. In the United States, the government tracks sexual abuse as part of the case.

Question:
What is the status of the 2005 Trafficking Victim Protection Reauthorization Act?

Answer
Lou DeBaca: The notion that the definitions could be changed was defeated in the Reauthorization Act. Instead, the definitions from the Trafficking Victims Protection Act of 2000 were retained. Congress was concerned with changing the definitions so quickly since their implementation in 2000. Thus, the focus was placed on the trigger mechanism. One example was the victim who worked for Gap and filed a successful complaint in 1999 against the Gap for violations in the Commonwealth of the Northern Marianas (CNMI).

2005 Trafficking in Persons Report
For additional information, see the U.S. Department of State’s 2005 Trafficking in Persons Report on 150 countries. The report is the most comprehensive worldwide report on the efforts of governments to combat severe forms of trafficking in persons, forced labor, sexual exploitation, and modern-day slavery.

Resources

International Treaties and Declarations