The Cold War anachronism is today being used by the American Left to pry open our borders.
Wednesday marks the 70th anniversary of the signing of the United Nations Convention Relating to the Status of Refugees, the treaty that laid the groundwork for the asylum and refugee system we have now. Its terms originally applied only to people displaced by Nazi and Soviet aggression in Europe, but in 1967 those provisions were extended to the whole world by a sequel called the Protocol Relating to the Status of Refugees.
Harry Truman did not sign the 1951 Convention because he felt it infringed on U.S. sovereignty, but in 1968, Lyndon Johnson reversed course and signed the Protocol, and the Senate ratified it, binding the U.S. to its terms. The treaty’s provisions were formally incorporated into U.S. law by the Refugee Act of 1980.
Truman was right. Although Joe Biden’s policies are the immediate cause of the current border crisis, the Refugee Convention lies at the root. It’s time to undo our mistake by withdrawing from the U.N. refugee treaty.
The key threat the Refugee Convention and Protocol pose to U.S. (or any nation’s) sovereignty comes in the form of asylum, rather than refugee resettlement itself. We use different words for these two concepts, but under the refugee treaties, they’re assessed under the same criteria — people are defined as refugees if they are outside their home country and don’t want to return because of a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”
The difference in U.S. law between refugees and asylum is determined by which actor is initiating the process; as Lenin would have said, “кто кого?” — who whom? In refugee resettlement, the U.S. government is the subject of the sentence, the one affirmatively choosing a person located abroad, often in a camp in a country neighboring his own, to bring to the United States. It is something we have complete control over, both in the number we resettle, whom we select, and how we bring them here. We may do this badly in any number of ways, but it’s our decision.
Asylum works the other way around. It is the asylum-seeker who instigates the process by getting himself here on his own power, without our consent, usually as an illegal alien who infiltrated the border or arrived on a raft, who then demands the right to stay based on the same criteria of persecution as a refugee. The number making such claims is unlimited, they don’t have to be the most in need of relocation (theoretically the basis for refugee resettlement), and, if successful, “asylees” (the awkward correlate to “refugees”) can settle anywhere they want, whether or not the community is able to handle the influx, in contrast to the legally required — if notional — requirement that receiving communities be consulted before resettlement of refugees.
Other countries use different terminology. Australia, for instance, refers to offshore resettlement (refugees) vs. onshore protection (asylum), but the problem is the same, as it is for all developed countries: While it is national governments that decide whom to resettle from abroad, foreign intruders are the ones deciding to make an asylum claim, a claim we are bound by treaty to consider and that is subject to litigation in our courts.
Asylum therefore represents a profound surrender of sovereignty, a limitation on the American people’s ability to decide which foreigners get to come here from abroad. President Johnson’s message accompanying the Protocol when he submitted it for Senate ratification perhaps unwittingly highlighted asylum’s threat to America’s sovereignty when he referred to the treaty as “a comprehensive Bill of Rights for refugees”. (He referred to “rights” eight more times in the 600-word message.) In other words, the Refugee Protocol confers “rights” on illegal aliens, subject to vindication in U.S. courts.
At the time, the asylum portion of the refugee process was trivial, with only 2,000 to 3,000 asylum cases a year in the 1970s. It was thus a fit subject for gauzy sentimentality, complete with quotations of Thomas Paine to the effect that America was “an asylum for all mankind.”
Then the Cold War ended. Combined with cheaper air travel and communications, and massive population growth and state dysfunction in the Third World, the result has been an unprecedented migration wave that has turned the Refugee Convention from an “international kiss” (to borrow the derisive nickname for the 1928 Kellogg-Briand Pact “outlawing” war) to a crowbar used by the post-national Left to pry open the borders of democratic societies contrary to the will of their citizens.
The handful of asylum cases that were submitted after the Refugee Protocol was ratified has ballooned, with more than 300,000 claims filed in 2019. Asylum is driving the current border crisis, with illegal aliens, coached by smugglers and U.S. immigration lawyers, turning themselves in and claiming a fear of return, thus initiating the asylum process.
The crush of illegal aliens using claims of asylum as a gambit for release into the U.S. and acquisition of a work permit has grown so large that the backlog in immigration court (for asylum as well as other cases) has reached more than three years, with 1.3 million people awaiting deportation rulings. And it’s only getting worse.
If the alien doesn’t like the immigration judge’s decision, he can appeal to the Board of Immigration Appeals, and from there to regular federal court. There’s a reason the immigration bar’s unofficial motto is, “It ain’t over til the alien wins.”
The key issue with respect to the refugee treaty is the definition of who qualifies for asylum. Even with the treaty in place, the restriction on our sovereignty might be manageable if the definition of a refugee were limited to four of the five possible grounds for persecution: race, religion, nationality, and political opinion. Though anti-borders crusaders and rogue judges would still try to work mischief with those categories, twisting and expanding them beyond recognition, their meaning is nonetheless relatively clear.
The problem for any signatory to the Refugee Convention and Protocol is the remaining potential ground of persecution: “membership in a particular social group.” Nobody really knows what the authors of the 1951 Convention really meant by this, and the “Travaux Preparatoires,” the legislative history, as it were, of the Convention isn’t much help (all it says is that the Swedish delegation recommended it and it was adopted unanimously). It seems to have been intended to cover kulaks and small businessmen and ousted aristocrats who were not involved in political activity and were not necessarily targeted by the Communists because of race, religion, or nationality.
But that afterthought has come to swallow the asylum issue. “Particular social group” has become a wedge to try to justify asylum for almost anyone. As then-circuit court judge (now justice) Samuel Alito wrote in 1993, “Read in its broadest literal sense, the phrase is almost completely open-ended. Virtually any set including more than one person could be described as a ‘particular social group.'”
That open-endedness means illegal aliens have been granted asylum — in effect, amnestied — due to membership in “particular social groups” premised on former gang membership, domestic violence, female genital mutilation, medical conditions, sexual orientation, and other grounds that are far removed from, say, Soviet defectors, which is what senators thought they were voting for when they ratified the Refugee Protocol in 1968.
Attorney General Sessions tried to put limits on the definition of a “particular social group” by instructing immigration judges (who are lawyers in the Justice Department, not Article III jurists) that victims of private criminal activity (read: gangs) and victims of domestic violence are generally not to be considered members of a “particular social group” for purposes of asylum.
Attorney General Garland reversed that order, in what appears to be the first step in the Biden administration’s plan to dramatically expand the number of illegal aliens granted asylum.
Withdrawing from the Refugee Protocol (which any country may do by giving one year’s notice) won’t fix everything immediately. The 1980 Refugee Act will still have to be changed by, at the very least, removing “particular social group” from the grounds for asylum. Better yet, we could scrap the entire judge-heavy process, snatching the crowbar away from the anti-borders crowd, and devise a new, streamlined asylum system that is premised on U.S. interests, not international “human rights” law.
The Refugee Protocol isn’t even the only treaty we need to back out of to regain control of our borders, however. The Convention Against Torture, ratified in 1990, is routinely, and successfully, used by illegal aliens as a pretext to avoid deportation. And anti-borders activists argue that the International Covenant on Civil and Political Rights, ratified by the Senate in 1992, also places limits on our ability to enforce immigration laws.
But the path to wresting control over our borders away from transnational progressives starts with withdrawal from the Refugee Protocol. Sovereignty or Submission is the title of John Fonte’s 2011 book on the struggle between democratic sovereignty and global governance. That’s also the choice we face regarding asylum.