3 U.S. Refugee Laws Everyone Forgets

3 U.S. Refugee Laws Everyone Forgets

Because they really are suffering, we can’t ban Syrian Muslims, but we can give priority to refugee groups experiencing even worse suffering.
Lyman Stone
By

As debate over the Syrian refugee crisis heats up and features more prominently in the presidential race, commentators on both sides have sometimes failed to account for the actual laws regarding refugee resettlement. The result has been a serious misrepresentation of the policy question at hand, with predictable results.

For example, after committing to block Syrian refugees, Gov. Greg Abbott of Texas apparently realized afterwards his only mechanism for doing so was by threatening to block all funding for the religious groups that manage refugee resettlement in Texas. Surely stripping funding from Christian nonprofit organizations was not Abbott’s goal, yet this kind of one-size-fits-all policy response has characterized the debate thus far. As such, a few technical clarifications are in order.

1. Not All Refugees Are Refugees

Not all “refugees” are actually refugees, and that matters. A lot. When word got out that one of the apparently ISIS-associated terrorists in Paris snuck into Europe using a fake Syrian passport and  masquerading as a “refugee,” it immediately led to a firestorm of protest against allowing in “refugees.”

But there’s a big problem: that terrorist didn’t impersonate a refugee. He impersonated an asylum-seeker. There’s a huge legal difference between refugees and asylum-seekers that matters for national security. Asylum-seekers are like Cuban emigres arriving at Florida: they show up unbidden, unscreened, and uncontrolled, and there’s no good way to send them back where they came. They have internationally recognized humanitarian rights, but honestly are a real problem for receiving nations.

There’s a huge legal difference between refugees and asylum-seekers that matters for national security.

For example, the Tsarnaev brothers entered the United States under a family reunification visa associated with their parents’ claims for racial and religious asylum. Neither they nor their parents were formal refugees. That’s an example of how the asylum program fails: we don’t vet asylum-seekers before arrival.

In large groups, asylum-seekers can overwhelm border posts, create porous and unsafe borders, and provide ideal cover for malignant forces to enter a country. Europe is currently inundated with such asylum-seekers, not classically defined refugees.

Strictly speaking, refugees flee their country, and go to a refugee camp. These camps are mostly located in Lebanon, Turkey, and Jordan. A refugee then registers with the United Nations (UN), providing proof of identity, and in exchange gets access to food and other support programs, largely paid for by the United States and other western donors. Asylum-seekers are an uncontrolled, poorly vetted flow of crisis migrants, while refugees are controlled, consolidated, and identified.

Thus, asylum-seekers are more likely to pose security risks. President Obama has substantially lowered the burdens to claiming asylum in the United States, such that asylum status is easier to gain in the United States than almost anywhere else in the world. This 2009 policy change was already decried by many at the time for being an unprecedented expansion of executive power, but now also seems like a real security risk that conservatives should rightly bring up again.

In large groups, asylum-seekers can overwhelm border posts, create porous and unsafe borders, and provide ideal cover for malignant forces to enter a country.

Most of these asylum-seekers come from Latin America, but it is possible that Syrian asylum-seekers could arrive in growing numbers. We already know Syrians using stolen Greek passports have attempted to enter the United States through the south, so the fact that most asylum-seekers are from Latin America does not ease the security concerns much.

But refugee resettlements, on the other hand, are not particularly high right now. In fact, the United States accepted fewer refugees over the last ten years than we did during the 1990s or 1980s. This is a remarkable shift: we’ve started accepting more asylum-seekers, who receive fairly little screening, and fewer resettled refugees, who go through years of security screening.

This is a reversal of the American tradition of refugee humanitarianism, and exposes us to real risks. But those risks don’t come from formally resettled refugees: they come from more informally managed asylum-seekers applying under less stringent scrutiny. If we want to exercise our role as the leader of the free world while also prudently managing risks, we should implement stricter controls on asylum-seekers, while bringing in more official refugees.

2. We Can Treat Refugee Groups Differently

Yes, we can treat legally different refugee groups differently, if they experience different persecution. The United States is bound by humanitarian law not to discriminate against certain refugees purely because of their racial or religious status. That is, we’re not allowed to simply say, “All Muslims are banned,” nor should we. Whether persecuted Rohingya from Myanmar/Burma, Sufis from Syria, or Sunnis in Iran, there are many groups of Muslim refugees we may want to accept.

The refugee resettlement rules were pretty much written by Americans for American policy priorities.

Furthermore, blanket bans on whole religious groups reflect a gross willingness to destroy the foundations of global peace and security that generations of American war-fighters and statesmen worked hard to build. The refugee resettlement rules were pretty much written by Americans for American policy priorities. As such, calls to exclude all refugees of a certain religious group have serious problems.

That doesn’t mean we just have no way to bring in more Christian or Yazidi or Sufi refugees. It’s unfair to mock those who worry about the possibility of terrorists being mixed in with Syrian Sunni Arab refugees, because it is a real possibility, and the consequences of such an occurrence could include substantial American civilian casualties, and an even more politically compromised refugee program. Furthermore, it’s actually perfectly legal for the United States to exercise discretion and prioritization between migrant groups.

For example, it is widely known that ISIS regards Yazidis as kafir and, therefore, in ISIS’s version of radical Islamic terrorism, an acceptable target for murder, rape, and slavery, sexual or otherwise. This is a unique form of persecution, which means Yazidi refugees are refugees from a different kind of conflict than Syrian Sunni Arabs.

It’s unfair to mock those who worry about the possibility of terrorists being mixed in with Syrian Sunni Arab refugees, because it is a real possibility.

We should have admitted Jewish refugees in 1939 because they were persecuted; that doesn’t mean we should have accepted endless flows of Germans, anti-Nazi or otherwise. Nazi Germany wasn’t persecuting most non-Jewish Germans the way it was persecuting Jews. This asymmetry shows that it is reasonable to offer specially persecuted groups special treatment, even as compared to other refugees from the same country.

To be clear, the United States cannot legally declare that we will reject all Syrian Sunni Arab refugees. We are bound by international law to treat them in a non-discriminatory fashion. But refugee status can arise through two means: a person demonstrates he was persecuted for race, religion, nationality, political opinion, or membership in a group; or he shows he is “of special humanitarian concern to the United States.” Traditionally this has referred to groups made refugees as a result of U.S. policy decisions: informants in Iraq and Afghanistan, our allies in Southeast Asia after the Vietnam War, and others.

Not to put too fine a point on it, but given the recent history of Syria and Iraq, it’s reasonable that these regions could be seen as being “of special humanitarian concern,” especially if their persecution is uniquely violent. For Yazidis, Christians in ISIS-held territory, and many other minority groups, such a status could be offered, and the United States could therefore admit a comparatively small number of Syrian Sunni Arabs, and a much larger number of Yazidis, Druze, Christians, Jews, Sufis, and others.

The United States could admit a comparatively small number of Syrian Sunni Arabs, and a much larger number of Yazidis, Druze, Christians, Jews, Sufis, and others.

Administratively, this would work by the president rescinding the raised cap for refugee resettlement generally, then announcing a separate cap for a group of special humanitarian concern. If this process were used to admit groups that aren’t actually persecuted in a unique way (for example, if Sunni countries created such a cap to exclude Yazidi refugees), or if the United States shirks on bringing in appropriately screened Syrians under the normal program, we’d be violating international law.

But we don’t have to commit to bringing in 10,000 Syrian Sunni Arabs. We could commit to bringing in a few hundred or thousand more, then, say, 20,000 from other minority groups. And if the UN high commissioner can’t provide 20,000 Christian or Yazidi refugees, then fine—we’ll just find them ourselves.

Neither the UN nor any foreign country nor any refugee advocate is going to make a serious complaint if the United States acts in a non-discriminatory way within its normal refugee quota while also accepting additional refugees under a special humanitarian consideration. We already did this for our allies in Iraq, Afghanistan, and elsewhere; we can do it again in Syria.

3. Private Organizations Can Do a Lot

The United States’ refugee program is a great example of private religious organizations taking over functions the government is bad at performing. The U.S. government organizes refugee resettlement from the camps to the border. After that, private groups take over, and they’re mostly religious charities.

The United States’ refugee program is a great example of private religious organizations taking over functions the government is bad at performing.

Once they find refugees a place to live, refugee resettlement is managed at the state level. Some states have programs, which is the “traditional” way of doing it, where the government steps in as the sponsor for refugees, with services funded by the federal government. Other states, like Texas, pass money from the federal government to a state agency, which then distributes it to, again, mostly religious charities.

But in some states, called Wilson-Fish states after the law that established these programs, refugee resettlement is entirely managed by private nonprofit groups, with no state role at all (still federally funded).

The federal government is an incompetent community builder, and it knows this, so it leaves refugee management to the states and to charities. If the federal government managed refugee integration, this would go as poorly as it does in Europe, which accepts less than half as many resettled refugees as the United States.

Instead, refugee resettlement works well in the United States because in relies on actual church communities, town governments, and the states. In states that directly manage refugee resettlement, governors’ decisions to reject refugees could have substantial impacts, as refugees could lose vital support services if relocated there. If governors accept federal refugee funding, they will have to obey federal law in using it.

Refugee resettlement works well in the United States because in relies on actual church communities, town governments, and the states.

But if governors don’t want to fund Syrian refugees, they’ll have to cut services offered to all refugees. Abbott has already threatened to interdict all federal funding for Christian nonprofits if they sponsor any Syrian refugees. Think on that: a government official is stepping beyond the normal boundaries of his authority in order to specially deny Christian groups access to funds to carry out their faith-based and law-abiding mission. If the president undertook such an action, it would be decried as secularist meddling in a religious prerogative.

But crucially, in Wilson-Fish states like Kentucky or Alabama, where state governments let private charities and religious groups do what they’re good at and manage societal integration, governors can kick and scream but they can’t actually stop refugee resettlements. Refugee acceptance in the 12 Wilson-Fish states doesn’t depend on state government at all, as funds pass more or less directly from the federal government to nonprofit groups. In these cases, resettlement depends purely on the compassion of the American people, and mostly religious Americans. As long as American churches continue to take responsibility for refugee families, as long as towns, neighborhoods, businesses, and community groups continue to decide they want to support refugee resettlement charities, this process will continue.

In sum, there are real security concerns about crisis migrants from Syria. The most significant concerns relate to asylum-seekers, who have overwhelmed Europe’s capacity to manage them, and who serve as ideal cover for bad actors to enter a country.

Any policy that ends up excluding all Syrian Sunni Arab refugees from resettlement in the United States will probably violate U.S. law and international law.

No matter the level of scrutiny, any policy that ends up excluding all Syrian Sunni Arab refugees from resettlement in the United States will probably violate U.S. law and international law. It will also likely embarrass the United States in front of our allies and enemies as we appear weak, fearful, hesitant, and unwilling to lead at a time when courageous leadership is required.

At the same time, we do not have to accept huge volumes of Syrian Sunni Arabs while ignoring minorities, nor must we even accept a proportional number. Because minority groups like Christians and Yazidis have been subject to special persecution, the United States can establish a special humanitarian consideration for them, and admit whatever number we choose.

In other words, because they really are suffering, we can’t ban Syrian Sunni Arabs, but we can give priority to groups experiencing even worse suffering.

Finally, the U.S. refugee resettlement program isn’t just valuable because of its tight security screenings, but because it shows how states and private religious charities can step in to manage programs that the federal government can’t. Conservatives have long advocated for trusting the states and private charity to manage crucial social programs. The Wilson-Fish refugee resettlement programs are an example of that long-standing conservative idea, and also show how religious charities can stand up and advance their priorities even if misguided government officials do not agree.

Lyman Stone writes about migration issues on his blog "In a State of Migration." He is also an agricultural economist at USDA’s Foreign Agricultural Service. He has an MA in international trade policy from the George Washington University. Opinions expressed are solely his own, though his wife Ruth occasionally agrees with him.

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