Multiple nationality and refugees.
Persons with more than one nationality ("multiple nationals") who flee persecution in their home country may have compelling reasons to seek asylum elsewhere rather than go to a second country of nationality where they have no ties or face serious hardships. The 1951 U.N. Convention Relating to the Status of Refugees, however, expressly makes them ineligible for refugee status unless they have a well-founded fear of being persecuted in all their countries of nationality. The U.S. Refugee Act omits this exclusionary language but nonetheless has been read by immigration agencies as if it incorporated the Convention's approach. This Article challenges the view that multiple nationals should not be considered refugees. It argues that asylum should be denied only when it would be reasonable, under all the circumstances, to expect the person to resettle in a second country of nationality after taking into account factors
such as family ties, social and cultural constraints, and any hardships the person would face.
The Refugee Act's text and historical context establish that Congress intended to allow multiple nationals to qualify as refugees if they face persecution in any one of their countries of nationality. Drawing on archival research as well as a close examination of legislative and administrative history, this Article shows that the Refugee Act's drafters meant to preserve a longstanding U.S. policy of accepting refugees with more than one nationality as long as they had not "firmly resettled" in another country of nationality before coming to the United States--a policy especially salient to the Act's proponents because it allowed for the continued admission of Soviet Jews as refugees even though Israel welcomed them as citizens.
This Article also argues that other refugee-receiving countries should reconsider their stance toward multiple national asylum-seekers. The Convention's approach to multiple nationality has become increasingly anomalous in light of the wide international acceptance of the principle that persons who could avoid persecution by going elsewhere--by relocating to a different part of their home country, or seeking asylum in some third country--should not be denied refugee status unless it is reasonable, under all the circumstances to expect them to do so. The Article concludes by discussing how the UNHCR and European Union are well-positioned to play a leading role in developing a new norm for the treatment of multiple nationals who seek refuge from persecution.
Table of Contents I. Introduction II. The Rise of Multiple Nationality and Its Implications For Refugees III. Multiple Nationality Under The Refugee Convention IV. Multiple Nationality Under the U.S. Refugee Act A. The Statutory Text B. Administrative Interpretations C. Legislative History 1. Congressional Awareness of Differences from the Convention 2. "Floodgate" and Fair Share Concerns 3. Continuity with the Approach of Prior U.S. Law to Refugees of Multiple Nationality 4. The Case of Soviet Jews D. The Standards for Exercising Discretion V. Reconsidering the Convention's Stance A. The Incongruity of the Multiple Nationality Clause's Approach B. Multiple Nationality and the Purposes of Refugee Protection C. Toward a More Inclusive Approach: UNHCR and the European Union. VI. Conclusion
Consider these situations:
1. Fatemeh is 30-year old citizen of Iran. Upon learning that she is about to be arrested because of her on-line advocacy for democratic reforms, she flees the country. She travels to Los Angeles, where her aunt, uncle and cousins live, and applies for asylum in the United States. Fatemeh is a dual national; she inherited French citizenship from her mother, a French citizen who married an Iranian man and moved to Teheran before Fatemeh was born. She has never been to France. No family members currently live there, and she has no other ties to the country. She is fluent in English and Farsi but does not speak French.
2. Maria is a citizen of Bosnia-Herzegovina, where she was born. She belongs to a Catholic family of Croatian descent that has lived in Bosnia for more than a century. During the Balkan war of the 1990s, when Maria was a child, her father secured Croatian passports and citizenship papers for all of his family in case they had to flee Bosnia. (Croatia's citizenship law allowed ethnic Croats living anywhere in the world to become citizens. (1)) The family remained in Bosnia throughout the war. Later, when Maria was in her twenties, she became involved in a relationship with a Muslim man who was psychologically and physically abusive. He would beat her and call her a "Catholic whore" while forcing her to perform sex acts, and he threatened to kill her if she left him. The authorities in Bosnia provided no protection to victims of domestic violence. Maria finally escaped her situation by coming to the United States to work as an au pair. Her abuser continued to threaten her by phone and email. Fearing for her safety if she returns home, she applies for asylum. Although her citizenship papers enable her to enter and live in Croatia, she cannot imagine living there. After having experienced the relative tolerance and pluralism of the United States, she is frightened and repulsed by the idea of returning to the region where she endured her traumatic experiences, and where the ethnic and religious hatreds that played out in her own persecution play a central role in politics and culture.
3. A North Korean man fleeing political repression crosses the border to China. The Chinese authorities return him to North Korea, where he is detained and tortured. He escapes again, and this time an uncle procures a fake passport for him, which he uses to travel to Australia, where he applies for refugee protection. Under South Korea's Constitution, all of Korea is considered one country and citizens of the North are recognized as citizens of the South. (2) He does not want to go to South Korea, however, because of the social stigma and employment discrimination North Korean defectors have experienced there. In addition, he fears that his relatives in the North would be harmed; North Korea has a history of retaliating against the families of those who defect to the South.
Under the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol, on which most countries' refugee protection laws are based, (3) none of these applicants can qualify as a refugee. (4) Although they have a well-founded fear of being persecuted in the country of nationality that was their home, they are also nationals of another country. Their connections to that second country of nationality are minimal, and they have compelling reasons for seeking refuge elsewhere. The Convention's definition of refugee, however, expressly excludes persons with more than one nationality unless the individual can show that he or she would be exposed to a well-founded fear of persecution in all countries of nationality. (5) In the United States, despite a statutory refugee definition that differs in wording from the Convention's and is most naturally read to allow a person who has fled from any one country of his or her nationality due to persecution to qualify for asylum, (6) administrative agencies have followed the Convention's approach. (7)
The prevailing view that multiple nationals forced from their homes by persecution should be required to go to a second country of nationality--no matter how tenuous the individual's links to that country, what hardships they would face there, or how strong their ties to the place where they wish to seek asylum--rests on the idea that the sole purpose of refugee status is to ensure safety from persecution. In this view, international protection is unneeded if national protection is available. As a U.S. administrative appeals board put it in a recent decision denying a multiple national's asylum claim, the core purpose of asylum is "to protect [refugees] with nowhere else to turn," not provide "a broader choice of safe homelands." (8)
This Article challenges the view that refugee status should be unavailable to multiple nationals merely because they could avoid persecution in a second country of nationality. The international refugee regime serves as more than a last-resort surrogate for national protection. It is also meant to restore a measure of self-determination to the lives of those forced to flee their homes. Persons displaced by persecution have suffered a loss of membership in the political and social community in which they lived. When a refugee cannot safely return home (which, when feasible, is the best way to restore community membership), asylum provides a mechanism for integrating the individual into a new community. Allowing refugees some agency in choosing their destination, rather than forcing them to go to a country of nominal nationality where they lack genuine ties and would face significant barriers to successful integration, serves these autonomy-restoring and integration-promoting goals. (9)
With respect to U.S. asylum law, this Article contends that the governing statutory language, which differs significantly from the Convention's refugee definition (the U.S. definition omits the Convention's exclusionary clause about multiple nationals and states that a person outside any country of his or her nationality and unable or unwilling to return to that country because of persecution qualifies), is properly read to allow multiple nationals who suffered or reasonably fear persecution in any one country of their nationality to be granted asylum. (10) The text of the statute supports my proposed reading, but ascertaining why Congress would want to depart from the Convention's approach to multiple nationals' asylum claims is more complex. One key Congressional purpose in enacting the Refugee Act of 1980 was to bring U.S. law into compliance with the Convention. (11) If that were all, it might make sense to assume that the wording differences were inadvertent and Congress really meant to incorporate the Convention's approach. Through a close examination of the Refugee Act's legislative history and historical context, this Article uncovers strong evidence that the law's Congressional architects intended to preserve a longstanding approach in U.S. refugee law and policy that viewed multiple nationality as no barrier to refugee status so long as the individual did not actually resettle in another country before seeking haven in the United States. (12) Adopting the Convention's approach to multiple nationality also would have called into question the highly popular policy of according refugee status to all Soviet Jews who wished to come, despite the fact that Israel recognized them as nationals-a result that Congress clearly would not have intended. (13)
During the Refugee Act's first decade, its implementation by the Executive Branch reflected an understanding that multiple nationals were not excluded from asylum merely because they could avoid persecution in a second country of nationality. (14) More recently, the immigration agencies have taken a contrary view, but those decisions rest on an unreasonable interpretation of the statutory language and are not entitled to judicial deference. (15) This does not mean multiple nationality can never be considered when assessing an asylum application. Under U.S. law, a grant of asylum is discretionary. Asylum could be denied as a matter of discretion in situations where, under all the circumstances, it would be reasonable to expect the applicant to resettle in another country of nationality, considering factors such as family ties, social affinities, and hardships the person would face. (16)
This Article also addresses how multiple nationals' asylum claims should be treated in countries that apply the Convention's definition of a refugee. The approach I propose clearly goes beyond what the text of the Convention requires. It is, however, consistent with the original vision set forth in the post-World War II UN resolutions that laid the foundations of the international refugee regime, which provided that refugees with "valid objections" and "reasons other than personal convenience" for not returning to a country of nationality would not be required to do so. (17) In drafting the Refugee Convention, states seeking to cabin their obligations added a multiple nationality clause that foreclosed refugee status whenever another state would recognize the person as a national and protect them from persecution. (18) However, that approach has become increasingly anomalous in light of the progressive interpretation of the Refugee Convention by the UN High Commissioner for Refugees (UNHCR) and state parties. (19) It has become a well-accepted principle of refugee law that asylum claims should not be rejected merely because a person could safely relocate to a different region within his or her country of origin, or another country where asylum could have been sought, unless it would be reasonable under all the circumstances to expect the individual to do so. (20) Family ties, former residence, and social and cultural constraints are all considered when assessing whether expecting relocation elsewhere would be reasonable. (21) There is no good reason why the same principles should not extend to persons who are nationals of another country where they lack significant ties or face substantial barriers to successful integration. (22)
This Article proceeds in the following Parts. Part II explores the factors that have given rise to the increasing prevalence of multiple nationality and the problems that arise when multiple nationals seek asylum. Part III examines the Refugee Convention's approach and how refugee tribunals have responded to its frequently harsh results. Part IV turns to an in-depth examination of the U.S. Refugee Act, and concludes that both the statute's text and history show that Congress intended to allow multiple nationals fleeing persecution in any one country of their nationality to be eligible for a discretionary grant of asylum. It also considers the standards that should govern the exercise of that discretion.
Part V turns to the question of how refugee-receiving countries that have traditionally applied the Convention's restrictive definition should respond to the claims of multiple nationals. It argues that the underlying purposes of refugee protection and widely accepted interpretations of the Convention that have evolved in analogous areas support the development of state practice allowing multiple nationals who face persecution in the country that was their home to qualify for refugee status, unless it would be reasonable, under all the circumstances, to expect them to relocate to a second country of nationality. It also considers the potential role of the UNHCR and European Union in fostering a more inclusive approach toward multiple nationals' refugee claims.
II. The Rise of Multiple Nationality and Its Implications For Refugees
The number of people with more than one nationality (23) has grown immensely in recent decades. (24) A confluence of factors has contributed to this trend. Every country has the power to determine under its own laws who its nationals are, and there is no uniformity in the rules governing how nationality is conferred. Some states' regimes are based primarily on the principle of jus soli (birth in the territory of the state), others on jus sanguinis (birth to a citizen parent, whether in or outside the state's territory); many combine elements of the two. (25) States also set their own rules concerning naturalization (acquisition of nationality through marriage, residence, or other factors) and loss of nationality. (26) When people move across borders, or marry or have children with a person of differing nationality, opportunities for multiple nationality increase. A person who settles in a new country may naturalize without losing a prior nationality, and his or her descendants may be nationals of both countries. If country A assigns its nationality by jus soli and country B by jus sanguinis, a child born in country A to parents who are nationals of B will be a national of both. (27) Globalization and the increased speed and ease of international travel and communication have vastly multiplied the opportunities for the intersection of national laws to produce multiple nationals. (28)
A parallel trend has been the increasingly tolerant or even encouraging stance that states and the international community have taken toward multiple nationality. During the nineteenth century and continuing into the middle decades of the twentieth, national laws and international agreements generally looked upon multiple nationality with distrust, viewing it a source of potential friction between states and divided loyalties in individuals. (29) States often sought to limit it by requiring people to abandon previous nationalities when they naturalized, forcing women to give up their old nationality and take on their husband's when they married or ascribing only the father's nationality to the children, and/or requiring dual national children to elect one or the other nationality upon reaching the age of majority. In most countries, these sorts of restrictions have fallen away over time, reflecting the emergence of an international consensus against gender-discriminatory laws and the growing realization that multiple nationality no longer poses serious dangers to state interests. (30) Emigrant-producing countries see benefit in allowing their diasporas to keep their nationality in order to encourage affective ties, remittances, and investment. (31) Nationality has even been offered as a form of reparation for historic wrongs, as in Spain's recent decision to allow Sephardic Jews whose ancestors were expelled in 1492 to become Spanish citizens without giving up their citizenship elsewhere. (32)
The growth of multiple nationality to a large degree reflects the reality that more and more people have genuine and important links to more than one country. A person's second country of nationality may be a former home, a place where many relatives and friends still live, and a country to which the person feels closely bound by ties of language and culture. In such cases, the legal fact of nationality corresponds well with the definition given by the International Court of Justice in the oft-quoted Nottebohm case: "a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties." (33)
But the increasing ease with which multiple nationality can be acquired and retained also means that there are more and more cases in which nationality does not correspond with affective ties, social links, participation, or even familiarity. (34) Many people hold a second citizenship in a country where they have never lived and have no real connections. Some countries confer nationality on descendants of citizens in perpetuity, and others for two or three generations. (35) In jus sanguinis systems, as Ayelet Shachar notes, "the offspring of an emigrant parent gains automatic citizenship in the parent's country of origin, even where the family has severed all effective ties to the society that they have left behind." (36) Jus soli can also result in citizenship without real connection. A child born in a country during a short-term visit by parents may hold that country's citizenship even if he or she never returns there or establishes any ties with that country. (37)
Nor is the possession of a second nationality necessarily based on an individual's consent or choice; frequently it is assigned automatically at birth or conferred non-consensually during childhood as a result of a parent naturalizing. (38) Territorial disputes or state succession can result in entire populations acquiring dual citizenship through no doing of their own, as with South Korea's conferral of citizenship on North Koreans, (39) or Portugal's law providing that those born in its colonies before they gained independence in the 1970s kept their Portuguese citizenship. (40) Once a person has acquired a second citizenship, there is little incentive to abandon it, and some states make renunciation difficult or impossible. (41)
Inevitably, some multiple nationals are forced to flee their former homes due to persecution. Their multiple nationality does provide them with one benefit mono-nationals do not have: another country is obliged to let them enter its territory and live there. (42) But if this translates into an obligation on the part of the asylum-seeker to go to a country of nationality where he or she has no real ties or would face serious hardships, the multiple national is worse off than other asylum-seekers, who can exercise some control over where to seek asylum. As long as they can get to the country they wish to resettle in, that country will generally be responsible for hearing their asylum claim. (43)
The question of how to handle cases like the ones described at the beginning of this Article exposes a tension between two underlying purposes of refugee protection. One purpose is humanitarian, to effectively meet refugees' needs and alleviate their suffering. (44) Providing some agency to those who have been uprooted from their homes and allowing them a degree of choice in where to seek asylum, especially when being forced to go elsewhere would inflict further suffering and make it difficult to build a new life, is consistent with this purpose. But refugee protection also rests on the notion that states are responsible for protecting their own nationals and have a sovereign right to refuse non-nationals admission to their territory. Refugee law provides a backstop, a form of "surrogate or substitute protection" that comes into play only when national protection is unavailable. (45) From this state-centered perspective, it seems unreasonable to ask one country to provide refuge if another country has a preexisting duty to do the job.
As the next two Parts of this Article will show, the drafters of the Refugee Convention privileged state-centered over humanitarian concerns by inserting a clause that expressly excludes multiple nationals from the definition of a refugee unless they can show that none of their countries of nationality will protect them from persecution. The U.S. refugee definition, however, is worded decidedly differently, and both its text and its history warrant a broader interpretation. Part V will return to the question of the international refugee regime's underlying purposes, and argue that the goals of refugee protection are best served by requiring multiple nationals to seek refuge in a second country of nationality only when it is reasonable, under all the circumstances, to expect them to do so.
III. Multiple Nationality Under the Refugee Convention
The 1951 UN Convention Relating to the Status of Refugees requires states to adhere to certain minimum standards of treatment toward people who meet the definition of a "refugee." (46) The bedrock obligation is Article 33's prohibition against expelling or returning a refugee "in any manner whatsoever" to a place where the person's life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion (the duty of non-refoulement). (47) But satisfaction of the refugee definition confers more than protection against non-refoulement. The Convention requires states to grant an array of social and economic rights to refugees present in their territories, (48) and Article 34 provides that states "shall as far as possible facilitate the assimilation and naturalization of refugees." (49) While the "as far as possible" language effectively makes this provision non-binding, in many developed countries meeting the refugee definition makes an individual at least presumptively eligible for an asylum grant that provides a path to permanent residence. (50)
The refugee definition set out in Article 1A(2) (51) applies to any person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence ... is unable, or, owing to such fear, is unwilling to return to it. In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national. (52)
The second paragraph unequivocally denies refugee status to multiple nationals unless they can show that their unwillingness to return to each country of nationality is justified by a well-founded fear of persecution.
The Convention's refugee definition was the result of considerable debate and compromise, and the approach ultimately taken toward multiple nationals was far from inevitable. As originally envisioned by the UN General Assembly in a 1946 resolution setting forth general principles for a refugee protection regime, displaced persons who "expressed valid objections to returning to their countries of origin" would not be compelled to do so. (53) The Constitution of the UN's first refugee agency, the International Refugee Organization, defined refugees within the agency's concern as persons outside their country of nationality or former habitual residence who had "valid objections to returning to those countries," which could include not just risk of persecution but also "objections of a political nature, ... compelling family reasons arising out of previous persecution, or, compelling reasons of infirmity or illness." (54) The General Assembly's 1950 statute creating the office of the UN High Commissioner for Refugees similarly gave the UNHCR a mandate to assist persons who had fled persecution who were unwilling to seek the protection of a country of nationality either because of a well-founded fear of being persecuted "or for reasons other than personal convenience." (55) These formulations provided some scope for considering multiple nationals refugees, even if they could avoid persecution in one such country, if they had sufficiently strong reasons not to seek refuge there. (56)
The Convention's multiple nationality provision had its origins in language proposed by a British delegate who objected to treating persons with "dual or even plural nationality" as refugees if protection could be found in one of those countries. (57) That view prevailed in the Economic and Social Council and at the Conference of Plenipotentiaries that finalized the Convention. It reflected the desire of many states to limit their obligations toward refugees, which can also be seen in the decisions to restrict coverage to those displaced by pre-1951 events and to abandon the "valid objections to returning" approach in favor of limiting refugee status to those who would still face persecution if they returned. (58)
The UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status, which has wide international acceptance as a guide to interpreting the Convention, explains that the second paragraph of Article 1A(2) rests on the principle that, "Wherever available, national protection takes precedence over international protection." (59) As a corollary, it cautions that "possession of a nationality in the legal sense" does not necessarily show "the availability of protection by the country concerned"; a nationality may be "ineffective" if it "does not entail the protection normally granted to nationals"--i.e, the right to enter and remain in the country without being persecuted or subjected to refoulement. (60)
Many refugee-receiving countries have embraced the Convention's multiple nationality provision, either applying it directly or incorporating it into their domestic laws. (61) Canada's Supreme Court described it as the natural outgrowth of "the rationale underlying international refugee protection ... to serve as 'surrogate' shelter coming into play only upon failure of national support." (62) "If a person has a nationality of a country where he is not at risk of persecution," reasoned a UK refugee tribunal, "he ought not to be of any international concern." (63)
The Convention's multiple nationals clause affords no room for considering the reasonableness of asking an asylum-seeker to go to another country. Whether the person has ever set foot in that country, speaks its language, would have any family or social ties, would face economic hardship or a lack of political freedom, or exercised any choice in acquiring the nationality are all deemed irrelevant. Refugee tribunals troubled by the harsh results this can produce in individual cases have struggled to find ways to limit the sweep of the exclusion. Courts have shown particular angst in situations where nationality has been conferred on broad classes based on tenuous links. When Indonesia annexed East Timor and repressed its populace, many East Timorese (now Indonesian citizens) sought refuge in Australia, but having been born in a Portuguese colony they also held the citizenship of a hated colonial power half a world away. (64) Under Israel's Law of Return, virtually any Jew in the world can acquire Israeli nationality simply by expressing a desire to immigrate and setting foot on Israeli soil. (65) And, as described in one of the scenarios at the beginning of this Article, South Korea recognizes all North Koreans as citizens.
Does this mean that there can be no such thing as a Jewish, North Korean, or East Timorese refugee? Some tribunals have not shied away from this conclusion. A Canadian court, for example, ruled against a Jewish citizen of Azerbaijan who fled religious persecution and sought asylum in Canada, where her daughter lived. (66) She had no relatives or friends in Israel, but the court found that since Israeli citizenship was open to her "by simple demand" she could not be considered a Convention refugee; "any other more liberal result or less stringent obligation would violate the underlying rationale of refugee law as a remedy of last resort." (67) But others have recoiled from the "exquisite irony," as an Australian jurist put it, of finding that a Convention adopted in the shadow of the Holocaust would have meant from its very outset that Jews could not be refugees. (68)
Efforts to find coherent limiting principles, however, have not been very successful. One approach, which UNHCR has endorsed, is to draw a bright line between a nationality currently held and a potential nationality, which would not count even if available by right. (69) While textually defensible--the Convention's multiple nationality provision refers to "countries of which [a person] is a national" (70)--this approach yields some arbitrary and irrational results. It saves Jews from exclusion (under Israeli law they do not become citizens unless and until they arrive in Israel), but not North Koreans or East Timorese (because the nationality laws of South Korea and Portugal already treat them as citizens). People who are nominally citizens of a country where they lack any genuine ties would be denied refugee status, while others who have real and close ties with a country in which they have a right to citizenship upon request could qualify as refugees, merely because they refuse to apply. Unsurprisingly, refugee tribunals in a number of countries have concluded that the surrogate state protection principle requires treating a nationality available by right no differently than a currently held nationality. (71)
Another limiting strategy is to adopt the standard of the International Court of Justice's Nottebohm decision, which stated that only a nationality that reflects a "genuine connection" and "social fact of attachment" between the individual and the country concerned is valid under international law. (72) Although a few refugee tribunals have endorsed this approach, (73) most have rejected it. Nottebohm's test for effective nationality has generally been understood as limited to its context of determining when a state can exercise diplomatic protection and assert a claim on behalf of its national against another state. (74) Nationality serves a very different function in the
Convention's multiple nationality provision, where it is a marker for the availability of protection against persecution. (75) In any event, the links of ancestry or birthplace which underlie jus sanguinis and jus soli citizenship have been uniformly found sufficient to meet any effectiveness requirement that may exist under international law. (76) Applying Notttehohm's standard thus does nothing to help most asylum-seekers who lack real ties to their second country of nationality. If they are descended from distant ancestors who emigrated, or were born in a country but left it during infancy, or are still considered citizens by a former colonial power, they are out of luck.
Another strategy sometimes used to avoid harsh outcomes is seize on any discretionary or contingent element in a country's nationality laws as a basis for finding that national protection is not assured. Some refugee judges have reasoned that because Israel's Law of Return confers a right to nationality on "every Jew who has expressed his desire to settle in Israel," Jews lacking a genuine desire to live in Israel have no entitlement to its nationality. (77) That approach is hard to square with the Convention refugee definition's exclusion of those who fail to seek a country of nationality's protection for any reason other than a well-founded fear of persecution. (78) (It also presupposes the existence of other options--presumably an asylum-seeker would have a genuine desire to go to Israel if the only other choice were returning to the country of persecution.) A provision that allows Israel's immigration minister to deny entrance if a person has a "criminal past" or poses a danger to public health or security has also been cited as reason to treat Israeli nationality as discretionary rather than available by right. (79) But it is unclear why, in the absence of any facts suggesting that one of these exceptions would apply, a person who satisfies the main standard for claiming citizenship should not be viewed as entitled to it. (80)
None of this is to fault courts for trying to find ways to avoid requiring people to go to a nominal country of nationality in situations where it seems unfair and unreasonable to do so. But it is an inevitable byproduct of the Convention's stance toward multiple nationals that, as a Justice of Australia's High Court put it, many are left "hostage to arrangements ... made affecting their nationality by countries with which they may have no real connection." (81)
IV. Multiple Nationality Under the U.S. Refugee Act
The Refugee Act of 1980 adopted a refugee definition modeled on but not identical to the Convention definition. (82) A person who satisfies the statutory definition may be admitted as a refugee from abroad through the refugee resettlement program, or, if already present in the United States or at its borders, may be granted asylum. (83) Both forms of relief are discretionary. (84)
To bring U.S. law into conformity with the Convention's obligation of non-refoulement, the Refugee Act beefed up an already-existing provision that gave the Attorney General discretion to withhold deportation to a country where an individual would face persecution. (85) The Act made such withholding mandatory when a person's "life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion"--language drawn directly from Article 33 of the Convention. (86) Unlike asylum and refugee admission, withholding of removal confers no path to permanent residence; (87) it merely guarantees that for as long as the likelihood of persecution remains, the person will not be deported to the country where the risk exists. If any other country is willing to accept the person, he or she can be deported there. (88) Thus, multiple nationals who could be safe in one of their countries of nationality are not eligible for withholding of removal. What turns on whether the refugee definition covers them is whether they may be considered for a discretionary grant of asylum or refugee admission.
Although the U.S. refugee definition closely resembles the Convention's, there are a number of textual differences. While the Convention requires that a refugee be "outside the country of his nationality," the Refugee Act added a subsection allowing the President to designate persons still inside their home countries as refugees. (89) The U.S. definition also goes beyond the Convention by allowing those unwilling to return to a country either "because of persecution or a well-founded fear of persecution" to qualify, whereas the Convention definition covers only those with a current well-founded fear. (90) These differences in wording have long been understood as significant departures from the Convention that evince Congressional intent to provide a broader scope of coverage under U.S. law. (91)
Some other minor wording differences are most plausibly read as reflecting the drafters' stylistic preferences rather than any intent to diverge from the international definition's substance. For example, the U.S. definition refers to persecution "on account of" one of the five protected grounds, while the Convention speaks of persecution "for reasons of" those grounds. It is hard to imagine any difference in meaning was intended. (92)
In contrast, the differences concerning nationality are fairly striking. First of all, the U.S. definition completely omits the second paragraph of the Convention definition, which defines "the country of his nationality" to mean "each of the countries of which [the person] is a national" and declares multiple nationals ineligible for refugee status unless they have well-founded fear-based reasons for not going to each such country. (93) Second, the U.S. definition changes "the country of his nationality," the phrase used in the Convention, to "any country of such person's nationality." In full, the main clause of the U.S. definition reads:
The term "refugee" means (A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, ... (94)
Under the approach to statutory interpretation espoused by the U.S. Supreme Court, (95) the starting point for construction is the statute's language. If the "plain meaning" of the text points clearly in one direction, that generally ends the inquiry. (96) When statutory language is ambiguous, courts will defer to an authoritative interpretation issued by an administrative agency charged with the law's implementation, provided that the administrative interpretation is reasonable. (97) In the absence of a reasonable administrative construction that warrants deference, courts will consider the statute's language, structure, purpose and legislative history to determine what reading best furthers Congressional intent. (98)
A. The Statutory Text
The U.S. refugee definition's use of the phrase "any country of such person's nationality" clearly contemplates that a person may have more than one nationality. Considered in isolation, that phrase could be referring to one country of which a person is a national (no matter which one), or to all such countries. In common usage "any" can take on either meaning. Its dictionary definitions include "one or some of whatever kind or sort" (as in "any plan is better than no plan"); "one or more: not none" (e.g., "I can't find any stamps"); and "all" (e.g., "give me any letters you find"). (99) In linguistic terms, "any" is a "function word" whose primary role is to do something to the semantic structure of a sentence rather than to stand for something in itself. Thus, the meaning of a phrase using "any" is heavily dependent on its grammatical surroundings. (100) And in statutory construction, it is axiomatic that "language must be read in context since a phrase gathers meaning from the words around it." (101)
The wording of the rest of the U.S. refugee definition strongly suggests that "any" is being used in the sense of "one, no matter which," not "all." The same sentence goes on to require that a person "outside any country of such person's nationality" be unable or unwilling to return to and seek the protection of "that country," in the singular. It does not say "each such country" or something along those lines, which is what one would expect to see if "any" meant "all." (102) The grammar of the sentence signifies that what a multiple national needs to show is the existence of a country of nationality to which he or she is unable or unwilling to return because of persecution, not that this would be true for all her countries of nationality. (103)
Another change from the Convention's wording made by the Refugee Act's drafters lends further support to the "any one country" interpretation. The U.S. definition refers to the inability or unwillingness of a person outside any country of his or her nationality (or last habitual residence, if stateless) "to return to, and ... avail himself or herself of the protection of, that country...." The Convention, in contrast, omits "return to" and speaks only of a national's inability or unwillingness to avail himself of the country of nationality's protection. (104) (The phrase "return to" is used in the Convention only when referring to the "former habitual residence" of a stateless person.) To avail oneself of a country's protection is something that can be accomplished whether or not a person has previously been there. To "return to" a country, in contrast, is something that can only occur if the person was previously located in that country and left. The U.S. definition's requirement that the person establish an inability or unwillingness to "return to" any country of nationality thus only makes sense if "any country" is referring to the country in which the person was persecuted or faced a well-founded fear of persecution--which generally would be the place where the person previously lived. (105) If it meant all countries of a person's nationality, it frequently would include countries a person never resided in or even visited, which, by definition, a person could not "return to."
A reading of the refugee definition that would allow claims by multiple nationals facing persecution in any one country of their nationality is bolstered by Congress's decision to entirely omit the sentence in the Convention's refugee definition that requires multiple nationals to establish a well-founded fear of persecution with respect to each such country. When Congress incorporates language from a treaty into domestic legislation, it is generally presumed that it intends to adopt the internationally-accepted meaning of that treaty language. (106) But when Congress consciously borrows language from a treaty, but omits a significant provision, it is reasonable to assume that Congress meant something by the omission. (107) The absence of the Convention's multiple nationality clause from the U.S. definition, together with the wording changes discussed previously, suggest that Congress meant to take a different approach than the Convention on this issue. (108)
The contrast in wording between the Refugee Act's provisions on withholding of removal and asylum also supports this interpretation. The withholding section requires the applicant to establish a risk of persecution in each specific country of potential removal in order to avoid deportation to that country. (109) The asylum provisions do not limit relief to the country or countries where a risk of persecution has been shown; if an applicant faces persecution in "any country of such person's nationality," the U.S. government "may grant asylum." (110) The regulations echo this statutory difference by requiring immigration judges to advise an alien who expresses a fear of harm in "any of the countries to which the alien might be removed" of the right to "apply for asylum in the United States or withholding of removal to those countries." (111)
The only textual clue that arguably cuts in favor of construing the U.S. definition as if it contained the Convention's multiple nationality language is a section in the asylum statute, added by Congress in 1996, that provides for termination of asylum if, inter alia, "the alien has acquired a new nationality and enjoys the protection of the country of his or her new nationality." (112) This language was taken verbatim from a Convention clause on cessation of refugee status which echoes the Convention refugee definition's approach to multiple nationality. (113) This later addition, however, sheds little light on what Congress meant when it enacted the U.S. refugee definition in 1980, or even what the 1996 Congress understood the refugee definition to mean. The Refugee Act of 1980 provided that asylum could be terminated only if the person was "no longer a refugee within the meaning of [the statutory definition] owing to a change in circumstances in the alien's country of nationality." (114) That formulation suggests that in using the phrase "country of nationality," the 1980 Congress had in mind only the specific country in which the applicant had experienced or feared persecution. When Congress added additional grounds for asylum termination in 1996, it did not amend the refugee definition, and there is little reason to think that Congress meant clarify or change its meaning. (115) The acquisition of a new nationality by a person granted asylum but not yet a U.S. permanent resident would be a rare event, (116) and unlike an asylum applicant's possession of a second nationality (typically acquired at birth or in childhood), it would almost never occur without a voluntary act. (117) Congress could have reasonably viewed those choosing to pledge allegiance to another country after being granted asylum in the United States as less deserving of continuing protection than persons who were multiple nationals to begin with.
The language of the U.S. refugee definition, in the eyes of a textually-inclined court, could be dispositive; taken as a whole, it points toward the "any one country" interpretation. Several Courts of Appeals, without directly confronting the issue of whether a multiple national facing persecution in only one of those countries is eligible for asylum, have noted that the "plain language" of the statute calls for assessing whether the applicant satisfies the terms of the refugee definition with respect to "one test country," regardless of what the situation might be with respect to other countries. (118)
Arguably, there is some degree of ambiguity; perhaps Congress meant "any country" to mean "every country" and the tension between that reading and the rest of the section's wording was merely the result of sloppy drafting. (119) Courts sometimes depart from a "plain meaning" approach in situations where reading a statute to mean what it says would produce results that seem arbitrary or clearly at odds with the statute's purpose. (120) If there were no good explanation as to why Congress would want to deviate from the Convention approach, reading the Convention meaning into the U.S. statutory language despite the textual differences might be appropriate. As will be discussed in Part IV.C, the Refugee Act's legislative history in fact provides strong indications that Congress meant to preserve past practices which had allowed multiple nationals fleeing persecution in their former homes to come to the United States as refugees even if they could have found safety in another country of nationality. Courts, however, sometimes give decisive weight to administrative interpretations of statutory language without considering legislative history. I will therefore first examine whether the immigration agencies' reading of the refugee definition warrants deference.
B. Administrative Interpretations
Under the framework developed by the Supreme Court in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., (121) if Congress has not unambiguously expressed its intent with respect to a particular issue, controlling weight will be given to an interpretation made by an agency entrusted with the statute's enforcement, provided the agency's interpretation is reasonable. (122) Only agency interpretations resulting from formal processes through which Congress has authorized the agency "to speak with the force of law," such as notice-and-comment rulemaking or precedential adjudication, are entitled to Chevron deference. (123) The INA authorizes the Attorney General to issue regulations and make "controlling" rulings "with respect to all questions of law" arising under the immigration statutes; thus, immigration regulations and precedential decisions issued by the Board of Immigration Appeals (BIA), the administrative review board created by the Attorney General to decide appeals, are reviewed under Chevron's standard. (124)
No agency regulations directly address the meaning of the phrase "any country of such person's nationality" in the refugee definition. (125) Starting in 1990 a series of informal agency pronouncements declared, with little supporting reasoning, that the U.S. definition incorporates the Convention's approach to multiple nationality. (126) In 2013, the BIA issued a precedential decision to this effect, (127) but its logic is severely flawed. It fails to adequately account for the statutory language and misconstrues legislative history. Most importantly, it cannot be reconciled with longstanding regulations issued by the Attorney General, which treat multiple nationals as eligible for refugee admission or asylum unless they have actually gone to and "firmly resettled" in another country before coming to the United States. (128) Congress has endorsed the regulations' approach in subsequent legislation. (129) The BIA's interpretation ignores all this, and cannot qualify as a reasonable interpretation that deserves Chevron deference.
The BIA first addressed the multiple nationality issue in a 1990 non-precedential decision involving a Guinean citizen who fled to the United States after a coup removed her uncle from the presidency. An Ivory Coast diplomat issued her a passport that on its face appeared to confer that country's nationality. (130) The BIA held that the word "any" in the U.S. refugee definition refers to all countries of a person's nationality, but apart from noting that the Convention and UNHCR take this approach it gave no reasons for reading the statutory language this way. (131) Nonetheless, the BIA found that the Refugee Act's use of the phrase "return to" (132) and its declared statutory purpose of aiding persons "subject to persecution in their homelands" (133) "compel an interpretation of the phrase 'any country of such person's nationality' consonant with notions of home or place of habitual residence." (134) It therefore rejected a formalistic approach to nationality that would "require the deportation of an asylum applicant to a country to which she has little or no connection merely because she has been designated as a 'national' under that country's laws." (135)
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|Title Annotation:||Abstract into IV. Multiple Nationality Under the U.S. Refugee Act B. Administrative Interpretation, p. 905-938|
|Publication:||Vanderbilt Journal of Transnational Law|
|Date:||Oct 1, 2014|
|Previous Article:||In memoriam: Professor Harold G. Maier.|
|Next Article:||Multiple nationality and refugees.|