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Multiple nationality and refugees.

As the proportion of Soviet Jews dropping out in Vienna grew, a heated dispute arose between Israel and the American Jewish community over the treatment of Soviet Jews as refugees. The debate was particularly intense during the years from 1976-1981, just as the Refugee Act was making its way through Congress. (318) Israel was desperate to increase its Jewish population and wanted to be the only available destination for those who lacked family-based grounds for immigrating to the United States. It urged the U.S. government to stop admitting Soviet Jews as refugees and put pressure on the American-based Jewish organizations aiding the dropouts in Europe, the Hebrew Immigrant Aid Society (HIAS) and the Joint Distribution Committee (JDC), to curtail their activities. (319) Israel's bulldog on the issue, Arye Leon Dulzin of the Jewish Agency, took every opportunity to argue that Soviet Jews were not genuine refugees. (320) As he put it, "A refugee means someone who has nowhere to go. But today all Soviet Jewish emigrants have Israeli visas--and Israel is ready to absorb them and assist them." (321)

The American Jewish community overwhelmingly favored "freedom of choice" for Jews departing the Soviet Union and supported the U.S. policy of accepting all those who did not wish to resettle in Israel. They resisted Israeli demands that HIAS and the JDC stop helping the dropouts. (322) A commitment to liberal principles, the belief that Jews in the USSR were in danger and should be encouraged to leave, and revulsion at the prospect of turning away refugees as the United States had in the 1930s all played a role in their position. (323)

The positions of the two sides were framed in legal terms as well as on moral and policy grounds. Dulzin and his allies argued that Jews leaving with Israeli visas effectively already held Israeli nationality and were under Israel's protection, and therefore could not satisfy the UN's definition of a refugee. (324) They distributed copies of an internal UNHCR legal opinion supporting this view. (325) When the Refugee Act was enacted, Israeli officials publicly urged that it not be interpreted to confer refugee status on Soviet Jews holding Israeli visas. (326) HIAS argued in response that the mere possession of an Israeli visa did not make the dropouts Israeli nationals and thus they remained refugees within the meaning of the Convention; (327) as support, it brandished a legal opinion by former UNHCR legal director Paul Weis. (328) But at the same time, HIAS argued that U.S. law provided--and the new Refugee Act would maintain--a standard more generous than the Convention's. In a widely-distributed March 1980 letter to Dulzin, HIAS's Gaynor Jacobson wrote, "As a matter of U.S. law, ... a refugee continues to be a refugee as long as he does not acquire a new nationality and has [not] been firmly resettled in the country of his new nationality"; thus, the letter argued, all the dropouts, as well as yordim who spent less than a year in Israel and were not firmly resettled, would continue to be eligible. (329)

If Congress had adopted the Convention's approach to nationality, it would have been throwing the existing policy toward Soviet Jews into doubt. The dropouts' status under the Convention was murky. As a starting point, their nationality vis-a-vis the country they were leaving was unclear. Because they were forced to surrender their Soviet nationality, they could be classified as stateless. But Atle Grahl-Madsen, the leading refugee scholar of the time, took the view that when loss of nationality results from persecution or flight, a person should still be considered to have their former nationality for purposes of Article 1A(2). (330) The more crucial issue was whether they should be classified as Israeli nationals given that they traveled with Israeli immigrant visas that entitled them to citizenship upon arrival. If so, they could not qualify as refugees under the Convention, either because they were dual nationals who did not have a well-founded fear of persecution in both countries, or because they were no longer stateless but were now nationals of a country that would not persecute them. On the other side, arguments could be made that the dropouts did not acquire Israeli nationality unless and until they actually arrived in Israel, (331) or that the absence of other ways to leave the Soviet Union made their acquisition of Israeli nationality involuntary and therefore invalid. (332) The uncertainty of the situation is reflected in reports of conflicting views within UNHCR. A 1973 legal opinion prepared by UNHCR staff had taken the view that the Soviet Jews in Vienna were under Israeli national protection and were dual nationals ineligible for refugee status unless they could show a risk of persecution in both the Soviet Union and Israel. (333) But Paul Weis, the former director of the UNHCR's legal division, reported in an opinion he drafted in 1974 that UNHCR had made a number of eligibility determinations for Jews seeking resettlement, and found most of them to be eligible for refugee status. (334)

It was clear, however, that the yordim could not meet the Convention's refugee definition. They unquestionably had acquired Israeli nationality as soon as they arrived in Israel. (335) Under Article 1C(3), refugee status ceases when a person "has acquired a new nationality, and enjoys the protection of the country of his new nationality." Unlike the cessation clauses that follow and precede it, the word "voluntarily" is not used. (336) Accordingly, Article 1C(3) has been applied without regard to whether a new nationality was obtained with an individual's consent or by operation of law. (337) Refugee tribunals had regularly relied on it to hold that post-World War II refugees who had gone to Israel and benefited from its Law of Return lost their refugee status. (338)

At the time of the Refugee Act's passage, both Congress and the Executive were strongly committed to maintaining the U.S. policy of allowing all Soviet Jews who had not been firmly resettled to enter as refugees. They would not have favored an interpretation of the Act's refugee definition that would have cast doubt on Soviet Jews' eligibility. Reading the Refugee Act's textual differences from the Convention--its use of the phase "outside any country of such person's nationality" and omission of the Convention's dual national clause--as a meaningful difference intended to preserve the U.S.'s flexibility to admit refugees even if they held another country's citizenship would thus be highly consistent with what can reasonably be presumed to have been Congress's goal. (339)

The policy of welcoming all Soviet Jews as refugees had overwhelming support in Congress, and was not questioned even in the face of rapidly rising applications that created processing backlogs and strained resettlement funds. (340) Congress's desire to facilitate and regularize the admission of Soviet Jews, together with the Indochinese crisis, provided much of the impetus for the Refugee Act's passage. (341) During its first consultation with Congress under the new Act, the State Department made it clear that the open door policy would continue. In April 1980, Secretary of State Cyrus Vance told Congressional committees that it was and "will remain" U.S. policy "to offer a haven to any refugee from the Soviet Union who wishes to resettle in this country." (342) In 1981, the State Department publicly criticized Israeli plans to stop referring the dropouts to HIAS for U.S. resettlement and reaffirmed that "United States policy has always been and will continue to be that Soviet Jewish refugees arriving in Vienna should have freedom of choice with regard to where they wish to resettle." (343)

The practice of granting refugee status to Soviet Jews who had lived as citizens in Israel for a brief time was in place throughout the period the Refugee Act was being considered by Congress and had quiet (because of Israeli sensitivities) (344) but steady support from key Congressional players and State Department officials. As early as 1970, at a House Immigration Subcommittee hearing, then-Chair Michael Feighan (with Joshua Eilberg also present) sought assurance from the INS General Counsel that Jews who went to Israel from Iron Curtain countries and "almost automatically" became citizens would not be considered firmly resettled in Israel and ineligible for U.S. refugee admission. INS counsel responded that time spent in Israel as a "bystation or stopping place" before seeking entry to the United States would not necessarily result in a finding of firm resettlement, even if the stay lasted "a couple of years." (345) In 1973, Eilberg, now the subcommittee's chairman, praised the "fine statement" given by Gaynor Jacobson of HIAS when Jacobson, in response to a committee member's question, recounted a sympathetic story to illustrate why yordim should be allowed to come to the United States as refugees. (346) In 1976, a report on Soviet Jewish emigration issued by a Congressional study group chaired by Eilberg noted that yordim were being allowed in as refugees based on case-by-case determinations of whether they had firmly resettled in Israel. (347) A 1977 Comptroller General Report to Congress extensively described the INS case-by-case approach and the State Department's practice of treating all Soviet Jews who had lived in Israel for less than a year as refugees. (348) In August 1977, a group of Congressional and Executive Branch officials monitoring implementation of the Helsinki accords reported to Congress that the situation of about 300 yordim living in "pitiful conditions" in Italy after being denied refugee status on firm resettlement grounds could be exploited by the Soviets for propaganda purposes, and recommended that they be paroled into the United States. (349) Around the same time, the U.S. government quietly asked HIAS to resume helping Soviet Jews who had left Israel and were seeking refugee admission to the United States. (350) In 1979, the INS was still approving most applications of Soviet Jews who had lived in Israel less than a year. (351)

Given the political salience of the Soviet Jewry issue and Congress's close attention to the processing of their refugee claims, if the new refugee definition had been meant to incorporate a strict Convention approach to nationality that would have made all Soviet Jews who had spent any time in Israel ineligible and raised doubts as to all the rest, one would expect this to have received some notice--especially when the Act's Congressional shepherds, Eilberg, Holtzman, Rodino, and Kennedy, were all strong proponents of an "open door" for Soviet Jews. (352) But there is no indication in the legislative history that anyone in Congress thought that the new definition would pose any obstacle to the continuation of current practices.

The fact that it was Joshua Eilberg who inserted the phrase "outside any country of ... nationality" (353) provides particular reason to believe that this language was meant to preserve existing practices toward Soviet Jews. As we have already seen, Eilberg paid close attention to the implications of wording differences from the Convention, and he had previously expressed sympathy for the view that possession of a second nationality should not stand as a bar to refugee status. (354) Eilberg was a close ally of the American Soviet Jewry movement. While his overall approach to refugee issues was more conservative than Kennedy's, (355) his advocacy for an open door policy toward Soviet Jews was unwavering. Although skeptical of the Executive Branch's authority to parole in refugees, Eilberg repeatedly lobbied for paroles of Soviet Jews to speed up their admission. (356) His relationship with HIAS was particularly close. (357) When the State Department's 1977 budget proposal cut appropriations for HIAS's resettlement work, Eilberg lobbied strenuously to have the funds restored. (358) After Israel accused HIAS of pressuring Soviet Jews in Vienna to go to the United States rather than Israel, Eilberg issued a report and press release in February 1978 that emphatically cleared HIAS of the charges and implicitly rebuked Israel for "pointing the finger" rather than looking at the underlying causes of Soviet Jews' preference for the United States. (359) Two months later, Eilberg informed HIAS that he had been visited by an Israeli official who tried to convince him that the dropouts were not refugees. (360) Eilberg was also quite familiar with U.S. policy concerning the yordim and favorably inclined toward letting in those not firmly resettled in Israel. (361) It is particularly unlikely that Eilberg, when changing the Convention's wording to "any country" in his bill at the very same time that Israel was vociferously arguing that dropouts and yordim were not refugees under the Convention, would have intended that his change in wording be understood to incorporate the Convention's approach.

It is also revealing that the Executive Branch understood the new refugee definition to not require any change in existing policies. A Carter Administration "Q and A" briefing book on the new law included these responses to anticipated queries:

Question: [I]n the past, Soviet Jews have resettled in Israel and then come to the United States as refugees. How do you explain that?

Answer: Some Soviet Jewish emigres who have gone to Israel have been granted refugee admission to the United States in the past because INS ruled, on a case-by-case basis, that these particular individuals were not firmly resettled there. INS has held that acquisition of Israeli nationality, in and of itself, does not necessarily mean that the individual is firmly resettled in Israel. The new law does not widen or otherwise change this existing avenue of admission.

Question: The Israelis are concerned that the new law considers some Soviet Jews to be refugees even after they are resettled in Israel. How do you explain that?

Answer: If they have been firmly resettled in Israel, Soviet Jews would not qualify for admission to the U.S. as refugees. The concept of firm resettlement has been an integral part of U.S. refugee law since 1948, and is specifically included in the new act. In addition, Soviet Jews firmly resettled in Israel would no longer meet the definition of refugees in the Refugee Act and in the UN Convention and Protocol on Refugees, as those persons who can demonstrate a well-founded fear of political persecution in their country of nationality. (362)

Acquiring Israeli nationality was not seen as a bar to refugee status under the new Refugee Act unless the applicant had also firmly resettled in Israel.

The Attorney General's June 1980 regulations continued to define "firm resettlement" in a manner that did not bar refugee status for persons who had citizenship or residence rights in a country but did not actually go there. (363) However, for those who did travel to and enter a country with an offer of citizenship, the presumption of firm resettlement was made harder to overcome, requiring a showing that the person's conditions of residence were "so substantially and consciously restricted by the authority of the country ... that he was not in fact resettled." (364) Under this new standard, the Soviet Jewish yordim would no longer qualify for admission--but only because they were deemed firmly resettled, not because they failed to satisfy the definition of a "refugee." The significance of this distinction was underscored in 1984, when the Jewish Agency informed HIAS that Israel was considering formally granting citizenship to Soviet Jews before they departed the USSR for Vienna, so that dropouts would no longer qualify for refugee status. HIAS responded with a legal opinion concluding that if this were done, the emigrants would not be refugees under the UN definition, but "under United States law, they would still be considered refugees because the law states that for someone to be firmly resettled in a new country, they must not only be offered a permanent 'home' but must be physically present in that country." (365) State Department officials reportedly concurred with this analysis. (366) In 1987, at a time when there were widespread reports that the Soviet Union was poised to accept Israeli proposals to put emigrating Jews on direct flights to Israel, (367) the U.S. issued proposed asylum regulations that re-liberalized the firm resettlement standard by allowing people who spent time in another country with citizenship or residence rights to overcome the presumption of firm resettlement by showing that going to that country was a necessary consequence of the flight from persecution, the stay was no longer than necessary, and the person did not establish significant ties there. (368) There were reports in the press at the time that the revision was intended to ensure that Soviet Jews who had no choice but to go directly to Israel would not be precluded from traveling on to the United States as refugees. (369) Whether or not that was the motivation, the Attorney General's regulation clearly rests on the assumption that the U.S. refugee definition does not exclude a person fleeing persecution in her home country merely because she also is a national of another country that would not persecute her.

D. The Standards for Exercising Discretion

Recognizing that the U.S. refugee definition covers multiple nationals who face persecution in any one country of their nationality does not mean that they are all entitled to asylum or refugee admission. It only makes them eligible to be considered for these forms of relief, which are discretionary in nature. (370) The Attorney General, by regulation, and the Board of Immigration Appeals, through precedential adjudication, can establish criteria to govern the appropriate exercise of discretion in such cases. (371)

An appropriate model can be found in regulations that address the closely analogous situation of internal relocation. The regulations provide that asylum applicants who could avoid persecution by relocating to a different part of their country of nationality will be denied asylum if "under all the circumstances it would be reasonable to expect the applicant to do so." (372) In assessing whether relocation is reasonable, adjudicators are instructed to consider a broad range of factors, including but not limited to "whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and family ties." (373)

There is no logical reason why applicants who could relocate to another country of nationality should be treated less favorably than those who could avoid the risk of persecution by relocating within their home country. (374) (As will be discussed in Part V, in light of the underlying purposes of refugee protection there is, if anything, stronger reason to expect someone to stay within their home country than to resettle in a nominal country of nationality that was not their actual home. (375)) The same sorts of considerations that are set out in the internal relocation regulation are equally relevant to determining whether it is reasonable, under all the circumstances, to expect a multiple national to go to another country of nationality. The scenarios set out at the beginning of this Article illustrate some circumstances where it would be unreasonable to expect relocation--situations where a person fleeing persecution would face serious hardships or barriers to integration that would make it very difficult to build a new life in that country.

Factors that the BIA has used to assess whether a discretionary grant of asylum is appropriate when an individual could have sought asylum in another country before traveling to the United States are also transferable to the situation of those who could have gone to a second country of nationality. The BIA has considered, inter alia, whether the person had any significant ties to the safe country where asylum could have been sought, and, on the positive side of the ledger, "whether the alien has relatives legally in the United States or other personal ties to this country which motivated him to seek asylum here rather than elsewhere." (376) Similarly, an applicant's family or personal ties to the United States, as balanced against a lack of significant ties in a country of nationality to which the person might have gone, could militate in favor of a discretionary asylum grant. (377)

Political and cultural affinities might also be considered in the balance. Imagine the case of an Ethiopian national who attended college in the United States, studying American political institutions and international human rights. After returning to Ethiopia he speaks out in favor of democratic reforms and is arrested and tortured. He flees to the U.S. and applies for asylum. But he is also an Italian citizen: his grandfather, who died many years ago, was a soldier during the Italian fascist occupation of Ethiopia and his parents were able to procure an Italian passport and citizenship certificate for him when he was a child. Granting asylum to this applicant would be consistent with the U.S. tradition of viewing itself as a haven for the persecuted that is enriched by those who are drawn by and share a commitment to its ideals of freedom and democracy--a theme emphasized throughout the Refugee Act's legislative history. (378) His experiences and values make him well-suited for participation in the U.S. political community, (379) and his American education and English-language skills will facilitate his integration. His ties to Italy are, in contrast, fortuitous and thin.

Considering cultural and political affinities does run the risk of opening the door to unjustifiable discrimination in favor of ethnic or religious groups with well-organized constituencies, or against those who belong to disfavored groups or hold unpopular views. The way that during the 1970s and 1980s more generous standards were applied to Soviet Jews than to similarly-situated Indochinese refugees, who were routinely denied admission if they had prospects of resettlement elsewhere, provides reason for pause. (380) But an individualized assessment of whether a person forced from home by persecution has good reasons for coming to the United States rather than another country is not in itself objectionable, and the criteria for exercising discretion can explicitly prohibit giving positive or negative weight to a person's nationality, ethnicity, or religion. (381) Consideration of an applicant's political affinities to the United States poses obvious potential for abuse (picture an immigration judge rejecting an applicant on discretionary grounds because her socialism or support for an Islamist political party is "un-American"), but at a very basic level--favoring those who share a commitment to core U.S. values such as democracy, human rights, and tolerance--is defensible. (382) These are the same values that underlie U.S. asylum law and the Refugee Convention. (383) Refugee adjudication routinely makes inescapably political distinctions resting on human rights and anti-discrimination norms when it labels some governmental actions persecution and others legitimate punishment for violations of law. (384)

The degree of persecution and trauma a person has suffered is also an appropriate discretionary factor to consider. The U.S. refugee definition (in contrast with the Convention's) has, since its earliest days, allowed for refugee status based on past persecution alone, reflecting a humanitarian and compensatory impulse to provide relief to those who have suffered for their beliefs or identities, regardless of whether they would face further persecution if the United States turns them away. (385) The Attorney General's regulations already recognize that those subjected to severe forms of persecution, or who were persecuted in the past and would suffer serious harm (other than persecution) if removed, are deserving of a favorable exercise of discretion. (386) Applicants with multiple nationalities who were severely persecuted in the country they fled, or who endured past persecution and would face further hardships if removed to a second country of nationality, should similarly receive favorable consideration.

Discretionary criteria for multiple nationality cases could provide for denial of asylum in situations where the applicant neither faced nor fears persecution in the country of nationality that she lived in, and would only be at risk if she went to another country of nationality that was not her home. Such a person literally falls within the U.S. refugee definition, but has no reason to go to the country of nationality that would persecute her. She can reasonably be expected to return to her home country. (387)

The discussion so far has focused on discretionary criteria for asylum, not the admission of refugees through the resettlement program. While the legal framework for asylum contemplates that every person applying in the United States or at its borders is entitled to an individualized determination of whether he or she satisfies the refugee definition and deserves a favorable exercise of discretion, (388) more drastic triage mechanisms are necessarily applied to winnow down the world's estimated 15.4 million refugees for the 70,000 or so resettlement slots the United States offers each year. (389)

The Refugee Act provides that, within an overall annual ceiling set by the President in consultation with Congress, admissions "shall be allocated among refugees of special humanitarian concern to the United States." (390) This is done through sub-ceilings that allocate slots by region, and priority categories established by the State Department to limit the types of refugee claims that will be considered. (391) Only those who make it through this funnel are evaluated on an individual basis to determine whether they meet the refugee definition and should be admitted as a matter of discretion. (392)

The committee reports on the Refugee Act listed as factors relevant to determining whether refugees are of "special humanitarian concern" "the extent of persecution to which they have been subjected and the severity of their present situation!], family ties, historical, cultural or religious ties, the likelihood of finding sanctuary elsewhere, and previous contact with the United States government." (393) That list is broadly similar to the factors I have proposed for discretionary consideration of multiple national asylum applicants, but in the refugee admission context the extreme scarcity of available slots justifies giving much stronger negative weight to "the likelihood of finding sanctuary elsewhere." When establishing the priority categories or exercising discretion, a general presumption that people who could live safely in another country of citizenship do not make the cut would be reasonable. But there may be special circumstances where a compelling case could be made for offering resettlement. The current priority categories include Iraqis exposed to persecution as a result of their employment by the U.S. government or other U.S.-based organizations. (394) Moral obligations toward someone who took on great risks as an interpreter for the U.S. military could warrant giving strong weight to that person's desire to be resettled in the United States rather than having to go to a second country of nationality beset by poverty and civil strife. Another preference category consists of refugees of certain nationalities with immediate family members living in the United States; (395) family reunification might provide a sufficiently compelling reason to offer resettlement even if the person could relocate to another country of citizenship where she has few connections and lacks family ties.

The zero-sum-game aspect of refugee admission (every person granted takes a slot away from other worthy claimants) does not apply to asylum. To be sure, as David Martin has cogently argued, asylum can be viewed as a scarce resource in the sense that its political viability depends on public confidence that it is reserved for those genuinely deserving of protection. If standards are defined too broadly it may lead to a surge in applications and perceptions of fraud and abuse which generate a restrictionist backlash. (396) But asylum applications from multiple nationals, while more prevalent than in the past, will continue to be but a small fraction of asylum claims. Recognizing that the refugee definition does not exclude them will not create any entitlement to asylum, and immigration judges and asylum officers are unlikely to issue discretionary grants in unsympathetic circumstances. Here we can give Joshua Eilberg, the progenitor of the U.S. refugee definition, who was ever mindful of the dangers of uncontrolled refugee flows, (397) the last word. At a 1973 hearing on refugee legislation, discussing with a witness why people fleeing persecution in Northern Ireland ought to be eligible for asylum in the United States even though both the UK and Ireland would recognize them as citizens, Eilberg observed that allowing their claims will "not materially affect our economy or population, and yet, it would be very meaningful to those few individuals involved." (398)

V. Reconsidering the Convention's Stance

A. The Incongruity of the Multiple Nationality Clause's Approach

The previous Part of this Article has shown that the distinctive wording and history of U.S. refugee definition provides strong grounds for interpreting it to cover multiple nationals who would be ineligible for refugee status under the Convention. But what about other countries whose refugee laws are based on the Convention? Should they also reconsider their approach to multiple nationals' asylum claims?

Amending the Convention refugee definition is not a realistic possibility. A 1977 UN conference aimed at negotiating a new Convention on Territorial Asylum foundered when it became apparent that nations could not reach consensus on any expansion of existing obligations and might even weaken them. (399) Nonetheless, the UNHCR, as part of its mandate to supervise international protection of refugees, has had considerable success in influencing state practice through its Handbook, other guidelines, and the Conclusions issued by its Executive Committee (Exconi). (400) UNHCR's views not only provide guidance on the Convention's interpretation; they have also been influential in spurring states to go beyond the Convention's minimum requirements. For example, the UNHCR Handbook, while acknowledging that under the Convention only "statutory" refugees (those recognized pre-1951) may maintain refugee status based on past persecution if no longer at risk in their home country, states that "[t]his exception ... reflects a more general humanitarian principle, which could also be applied to refugees other than statutory refugees ... that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate." (401) This approach has received broad international acceptance and has been incorporated into domestic asylum standards by, among others, the United States and the European Union. (402)

Two important UNHCR pronouncements address situations closely analogous to that of multiple national asylum-seekers and can provide a conceptual foundation for moving state practice in the direction of a more nuanced and humane approach to their claims. Excom Conclusion 15, issued in 1979, calls upon states to adopt common criteria to govern when asylum may be denied on the ground that refuge could be sought elsewhere, based on the following principles:
   The criteria should take into account the duration and nature of
   any sojourn of the asylum-seeker in other countries; ... The
   intentions of the asylum-seeker as regards the country in which he
   wishes to request asylum should as far as possible be taken into
   account; ... Regard should be had to the concept that asylum should
   not be refused solely on the ground that it could be sought from
   another State. Where, however, it appears that a person, before
   requesting asylum, already has a connection or close links with
   another State, he may if it appears fair and reasonable be called
   upon first to request asylum from that State. (403)

The issue of internal relocation--whether a person who could avoid persecution by moving to a different part of his or her home country qualifies for refugee protection--is addressed in the UNHCR Handbook, which states, "In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so." (404) This reasonableness test has won wide acceptance. (405) It was further elaborated in guidelines UNHCR issued in 2003, which explain that reasonableness should be assessed by asking whether the claimant would be able to "lead a relatively normal life without facing undue hardship" in the area of proposed relocation. (406) The individual's personal circumstances must be considered, including "factors such as age, sex, health, disability, family situation and relationships, social or other vulnerabilities, ethnic, cultural or religious considerations, political and social links and compatibility, language abilities, educational, professional and work background and opportunities, and any past persecution and its psychological effects." (407)

Multiple nationality is not intrinsically different. It is one type of situation in which safety from persecution could be found in another country, the general scenario addressed by Excom Conclusion 15. And like internal relocation, it is a situation where nationality confers the right to live in a country, but the person chooses to seek asylum elsewhere. If we interrogate the Convention's underlying purposes and ask why it is that persons subjected to certain types of persecution are afforded international protection, we can see that taking into account the nature of the asylum-seeker's links to another country of nationality and whether it is reasonable to expect her to live there is more in keeping with refugee protection's goals than the sharp exclusionary lines drawn by the Convention's multiple nationality clause.

B. Multiple Nationality and the Purposes of Refugee Protection

Refugee protection exists to provide a remedy when states fail to protect basic human rights and conditions become so intolerable that a person cannot reasonably be expected to remain home and seek redress from national authorities. National protection takes precedence because the bonds of loyalty and protection that exist between a country and it nationals are generally presumed to provide the most effective and least disruptive mechanism for safeguarding basic human rights. (408) States are in the best position to protect citizens living within their borders and to provide them with redress when their rights are violated. A country's nationals therefore are expected to make reasonable efforts to seek the remedies available in their home country. As James Hathaway puts it,
   Refugee law has traditionally embraced only those who are
   fundamentally excluded from the national community, in the sense
   that it is unlikely that they will be in a position to vindicate
   their claim to protection from within their own country. Those
   whose human dignity has been infringed in a manner which is
   internally remediable by working within or to restructure the
   national community ... have not been treated as refugees. (409)

The fact that refugee status is not available to all who face deprivations of fundamental rights in their home countries, but only those with a well-founded fear of persecution, dovetails with these reasons for giving precedence to national protection. Persons facing less severe kinds of harm, conduct that is rights-violating but not so intolerable that it leaves no reasonable option but to flee, can be expected to endure the risks and work from within to seek change, rather than abandoning the ties of nationality and calling upon the international community for protection. (410)

These rationales for giving priority to national protection apply with much less force when the country in question is not the country that was the refugee's home and site of the feared persecution, but instead a nominal country of nationality with which the person lacks significant ties. In such cases there are no existing close bonds to preserve, no ability on the part of the state to prevent the persecution or enact reforms to ensure it won't happen again, and no human rights gains to be had from incentivizing people to work for change from within. Asylum-seekers who could have found safety from persecution by relocating within their home country are not automatically denied refugee status; there is even less reason to disqualify those who would have to go to a different country where the person was never, in any real sense, part of the political and social community.

The only justification that can be offered for a bright-line rule denying refugee status to multiple nationals is a desire to preserve as much as possible of the traditional prerogative of states to exclude non-nationals from their territory, by limiting their protection responsibilities to situations where no other nation has a duty to take the person in. But other key goals of the international protection regime provide reason to reconsider the prevailing approach and adopt a reasonableness standard. When persecution forces flight from home, the availability of asylum elsewhere provides not only a surrogate mechanism for safety, but a way to restore some self-determination and autonomy to persons deprived of agency. (411) It is also aimed at restoring membership. One of the most basic deprivations faced by a refugee is the loss of membership in the community to which she belonged. That loss can be at least partially restored through repatriation, if changed conditions in the home country make that possible, or through acceptance into a new community where the individual has reasonable prospects to build a new life. (412) If an asylum-seeker is deflected to a country where he or she has few real ties and would face obstacles to successful integration or hardships that stand in the way of rebuilding a normal life, neither the agency-restoring nor integration-promoting objectives of the system are well-served. Relocation to a nominal country of nationality that was never "home" does not effectively substitute for the real community ties that were sundered by persecution, and often it will decrease the prospects for successful integration into a new community. (413)

Affording asylum seekers some agency in their choice of destination is also consistent with the Convention's focus on persecution based on the five protected grounds of race, religion, nationality, political opinion, or membership in a particular social group. Persecution inflicted for other reasons, such as personal vendettas or indiscriminate violence, does not give rise to refugee status. (414) The Convention's five protected grounds all relate to persecution that discriminatorily targets and subordinates people based on characteristics that are immutable or fundamental. (415) The privileging of these types of persecution can be seen as a reflection of the centrality of nondiscrimination and freedom of belief and expression as international human rights norms, and as an expression of the international community's view that persecution inflicted on these grounds is especially destructive of the foundations of free societies and deserves special condemnation--and special consideration for its victims. (416) In the words of Jean-Francois Durieux,
   [T]he refugee definition is not intended to describe those aliens
   whom we cannot deport, but, positively, those aliens whom we want
   to protect.... [It] represents the consensus over a positive and
   collective commitment to protect specific categories of persons,
   and to resolve the problems caused by their exodus and exile. This
   positive inclination, which significantly extends to solutions as
   well as protection, sets refugees ... apart from those other
   persons who also ... need protection against forcible return to ...
   danger. (417)

One thing distinctive about persecution aimed at people based on their fundamental identities or beliefs is that it is particularly destructive of agency and self-determination. I do not want to overstate the point; a threat of torture and death based on a gambling debt is just as terrifying and potentially dangerous as any other threat of death or torture. But persecution that targets people based on who they are--aspects of their identity they cannot or should not be required to change--or their exercise of the freedoms of conscience and expression, constitutes a direct attack on a person's ability to lead an authentic life, express core beliefs, and act in ways aimed at improving one's own life and the lives of others. (418) In that sense, it particularly undermines a refugee's autonomy. Giving refugees a measure of self-determination in choosing their destination when they are forced to flee a former home is thus an appropriate response to their situation, one that reflects the international community's positive concern for their plight. Once a refugee has arrived in a country and asked for asylum, to disregard her reasonable preferences and send her to a place where she lacks genuine ties or would face serious hardships compounds the loss of agency inherent in becoming a refugee with additional disruption and trauma. (419) The basic approach of the internal relocation guidelines and Excom Conclusion 15 appropriately balances the autonomy-restoring functions of refugee status with state interests by asking whether, in light of the individual's circumstances and social ties, it is reasonable to expect her to live somewhere else. The same considerations should apply with no less force when the "elsewhere" is a country of only nominal nationality.

C. Toward a More Inclusive Approach: UNHCR and the European Union

UNHCR, to date, has restricted its comments on multiple nationality to reiterating the Convention's literal requirements and admonishing states not to fall beneath that threshold by denying refugee status in situations where a person might be able to obtain but has no current entitlement to another country's nationality, (420) or where the person is a national but the country in question would not provide actual protection. (421) It should consider issuing new guidance on multiple national asylum-seekers that urges states to go beyond the Convention's text in order to better serve the underlying purposes of refugee protection. As discussed in Part III, UNHCR's statutory mandate is broader than the Convention's refugee definition, encompassing those unwilling to seek a country of nationality's protection "for reasons other than personal convenience." (422) This makes it particularly appropriate for UNHCR to take a leading role in promoting a reasonableness test for multiple nationals' asylum claims.

UNHCR took a small step in this direction in its 1999 guidelines on cessation of refugee status. Under Article 1C(3) of the Convention, a person ceases to be a refugee if "[h]e has acquired a new nationality, and enjoys the protection of the country of his new nationality." In its commentary, UNHCR states that this clause should not be applied to a person who lacks genuine ties with the country and is unwilling to avail herself of its protection, citing as example the situation of a refugee who acquires a new nationality by marriage but has not established any genuine link with the spouse's country. (423) UNHCR presented this as an interpretation of the phrase "enjoys the protection," which is textually dubious and at odds with the Handbook, which takes the phrase to mean simply that the new country of nationality is willing and able to provide effective protection. (424) As a statement of appropriate standards that go beyond the Convention's minimum requirements, however, it makes good sense, and points toward similarly considering the applicant's links and preferences in assessing whether a multiple national qualifies for refugee status in the first place. New UNHCR guidelines on the subject could go a long way in fostering state practice that responds more appropriately and humanely to the plight of persons forced from the country of nationality that was their home who have strong reasons not to go to a nominal country of nationality in which they lack real ties or would face serious hardships. (425)

The European Union's Qualification Directive (QD), which sets out minimum standards for member states' refugee determinations, also has the potential to move state practice in a more accommodating direction. The QD is one of the central pillars in the EU's efforts, growing out of the 1999 Tampere European Council, to establish a "Common European Asylum System, based on the full and inclusive application of the Geneva [Refugee] Convention" and "absolute respect of the right to seek asylum." (426) An interpretation that offers multiple nationals broader access to asylum would be consistent with the directive's text, and it would help to solve an interpretive puzzle that has troubled commentators.

The puzzle is this: Article 4(3)(e) of the QD lists among the factors adjudicators must take into account in making an evidentiary assessment of a claim for refugee protection "whether the applicant could reasonably be expected to avail himself or herself of the protection of another country where he or she could assert citizenship." (427) This procedural requirement implies a corresponding substantive standard, but the QD contains no provision that directly addresses how multiple nationality affects eligibility for refugee status. If Article 4(3)(e) were taken to mean that member states are authorized to deny protection even if the applicant has no definite right to citizenship elsewhere, it would contravene the minimum requirements of the Convention. (428) Commentators have proposed that, so as not to violate the Convention, it should be construed to allow states to consider the availability of citizenship elsewhere only if the person has an existing entitlement to it or previously resided in a country where he or she was recognized as a de facto national. (429)

But if Article 4(3)(e) applies to persons with an existing right of citizenship, (430) it necessarily follows that the QD contemplates a substantive eligibility standard for multiple nationals that is more generous than the Convention's. Article 4(3)(e) expressly states that the availability of citizenship elsewhere counts against the applicant only if he or she "could reasonably be expected" to go to that country. Commentators have generally assumed that the QD's definition of "refugee" is no broader than the Convention's, (431) but if this were so, reasonableness would be irrelevant--a well-founded fear of persecution would be the only acceptable ground for not availing oneself of a country of nationality's protection. A close reading of the QD's text, however, makes for a strong case that the same reasonableness standard that applies when a person could avoid persecution through internal relocation provides the governing standard for multiple nationals as well.

As a starting point, the QD's refugee definition incorporates only part of the Convention definition: while it closely tracks the first sentence of Article 1A(2), it omits the Convention's multiple nationality clause. (432) In addition, the QD definition refers to an individual who is outside "the country of nationality." This use of the singular does not in itself prove much; the Convention, after all, uses the same phrase and defines it to mean "each of the countries of which he is a national." But compare the phrase used in the QD's definition of the term "country of origin": "the country or countries of nationality" (433) It is a generally accepted principle in interpreting EU legislation that all provisions should be given an effet utile, so that distinctly-worded provisions are taken to reflect a difference in intended meaning. (434) When the QD's drafters wanted to refer to multiple countries of nationality, they knew how to say so. Thus, it can reasonably be inferred that the omission of the "country or countries" wording from the QD's refugee definition--together with the omission of the Convention's multiple nationality clause--means that for purposes of the QD definition it is enough for an individual to be outside any one country of his or her nationality owing to a well-founded fear of persecution.

The express inclusion of individuals with multiple nationalities in the QD's definition of "country of origin" is particularly significant because that term provides the gateway to the application of the QD's article on internal relocation. Article 8 allows for the denial of an application for refugee protection "if in a part of the country of origin" the individual would be effectively protected against persecution, "and can reasonably be expected to settle there." (435) The QD's substantive standards for granting refugee protection can thus be read in a way that harmonizes with Article 4(3) (e). A person with more than one nationality is not ineligible merely because he or she could live in one of her countries of nationality (or in some part thereof) without fear of persecution; in order to deny the application, it must be reasonable, under all the circumstances, to expect the person to resettle there. (436)

The fact that the QD was adopted for the stated purpose of establishing common criteria to guide member states in their application of the UN Convention (437) does not stand in the way of reading its text in a manner that goes beyond the minimum requirements of the Convention in order to better serve the underlying purposes of refugee protection. (438) The QD's preamble treats the Convention as "providing] the cornerstone of the international regime for the protection of refugees," (439) but a cornerstone exists to serve as a foundation to be built on. The directive's stated goal is to provide for a "full and inclusive" approach to the Convention's application, one that "seeks to ensure full respect for human dignity" and "fundamental rights" as well as meeting the Convention's minimum requirements. (440) The autonomy and membership-restoring purposes of refugee protection, which provide the basis for the reasonableness standard used to adjudge whether a refugee ought to go elsewhere within her own country, apply with equal force to the situation faced by multiple national asylumseekers. (441) Giving the QD an interpretation that its text can readily support, in order to provide access to asylum for multiple nationals who have valid objections to being sent to a country in which they lack real ties or would face significant obstacles to successful integration, would be consonant with the goals of the European Asylum System.

VI. Conclusion

In a world where multiple national affiliations are ever more prevalent and need not reflect any real ties between the individual and a state of nationality, refugee-receiving nations ultimately must choose whether to view refugee status solely as a last resort reserved for those with no place else to go, or as a compensatory and restorative measure that gives persons forced from home by persecution an opportunity to regain some control over their lives. Countries that feel under siege from uncontrolled refugee flows may gravitate toward the former view, and the minimum requirements of the Refugee Convention allow them ample room to do so. But for countries or confederations that view themselves, by virtue of history or ideology, as havens for the persecuted--such as the United States (442) and European Union (443)--going beyond the Convention's minimum requirements by accepting multiple nationals who have good reasons not to go to another country of nationality is consistent both with their founding principles and the core purposes of refugee protection. U.S. and EU asylum laws differ from the Convention's wording in significant ways, and reading those differences to embrace a broader approach to multiple nationals' eligibility is justified both by textual and purposive considerations. The UNHCR should recognize that the international regime for refugee protection is best served when persons forced from their real home country by persecution are not unreasonably forced to relocate to a nominal country of nationality, and encourage state practice that provides a more humane response to their asylum claims. The approach advocated in this Article represents a return to the original principles of the international refugee regime, which recognized that persons forced from home by persecution who have "valid objections" to seeking a country of nationality's protection should not be required to do so. (444)

(1.) See Francesco Ragazzi & Igor Stiks, Croatian Citizenship: From Ethnic Engineering to Inclusiveness, in CITIZENSHIP POLICIES IN THE NEW EUROPE 339, 347-52 (Rainer Baubock et al. eds., 2009) ("[M]embers of the Croatian 'diaspora' ... have been able to obtain Croatian citizenship quite easily and maintain their other citizenship.").

(2.) See infra note 174 and accompanying text (discussing South Korea's nationality laws).

(3.) See Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137 (entered into force Apr. 22, 1954) [hereinafter Convention] (establishing the legal status and defining the rights of refugees displaced prior to January 1, 1951); see also Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967) [hereinafter Protocol] (expanding the protections established under the Convention to people made refugees after January 1, 1951). About three-quarters of the world's countries have agreed to abide by its obligations. See U.N. Treaty Collection, Status: Protocol Relating to the Status of Refugees, _no=V-5&chapter=5&lang=en (last visited Oct. 10, 2014) [] (archived Sept. 28, 2014) (listing 146 state parties).

(4.) The scenario of the Iranian applicant is drawn from the training manual for U.S. asylum officers, which uses a similar example to explain that dual nationals will not be considered eligible for asylum unless they can establish a well-founded fear of persecution in both countries of nationality. See infra note 140. The Bosnian woman's case was handled by students in a law school clinical program the author directs. The client would have been found ineligible for asylum were it not for the fact her abuser had once followed her to Croatia when she went on a beach vacation there, enabling a sympathetic asylum officer to conclude that she would not be safe from her persecutor if she lived in Croatia. The facts of the third case are drawn from decisions of Australian refugee tribunals, which have found North Koreans ineligible for refugee protection because they are citizens of South Korea and would not be persecuted there. See RRT Case No. 0910048, [2010] RRTA 911, Australia: Refugee Review Tribunal, 20 Oct. 2010 (invalidating North Korean national's protection visa due to his South Korean citizenship); RRT Case No. 0909449, [2010] RRTA 763, Australia: Refugee Review Tribunal, 7 Sept. 2010 (same); RRT Case No. N03/47934, [2004] RRTA 148, Australia: Refugee Review Tribunal, 19 Feb. 2004, (declining to grant protection visa for same reason); see also NBLC u Minister for Immigration & Multicultural & Indigenous Affairs (2005) 149 FCR 151 (Austl.) (dismissing appeal of North Korean seeking refugee protection in Australia because he did not have a well-founded fear of persecution in South Korea).

(5.) See Convention, supra note 3, art. 1A(2) (requiring, inter alia, that a refugee be "outside the country of his nationality" and unable or unwilling to avail himself of its protection owing to a well-founded fear of persecution, and adding that if a person 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"); see also Protocol, supra note 3, art. I, at 268 (applying same standards to those made refugees after January 1, 1951).

(6.) See Immigration and Nationality Act [section] 101(a)(42)(A), 8 U.S.C. [section] 1101(a)(42)(A) (2014) [hereinafter INA] (defining the term "refugee" to include "any person who is outside any country of such person's nationality..., and who is unable or unwilling to return to ... that country because of persecution or a well-founded fear of persecution ...," and omitting the Convention's provisions on persons with more than one nationality; infra Part IV.A (discussing why the statutory text strongly supports an "any one country" interpretation).

(7.) See infra Part IV.B (discussing agency interpretations).

(8.) Matter of B-R-, 26 I. & N. Dec. 119, 122 (BIA 2013) (citation omitted) (internal quotation marks omitted) (interpreting the U.S. refugee definition as adopting the Convention's approach toward multiple nationality, despite its textual differences).

(9.) See infra Part V (discussing the conceptual underpinnings for the approach advocated in this Article).

(10.) See infra Part IV.A (analyzing the statutory text).

(11.) Commentators have justly criticized U.S. decisions that disregard internationally-accepted interpretations of the Convention when construing identically-worded provisions in the statute. See, e.g., Bassina Farbenblum, Executive Deference in U.S. Refugee Law: Internationalist Paths Through and Beyond Chevron, 60 DUKE L.J. 1059, 1121 (2011) ("[A]bsent clear statutory language to the contrary, a construction that is incompatible with international law on the Convention is inconsistent with clear congressional intent to conform domestic refugee law with the nation's obligations under the Protocol...."); Joan Fitzpatrick, The International Dimension of U.S. Refugee Law, 15 BERKELEY J. INT'L L. 1, 6-8 (1997) (decrying an "unnecessary and potentially harmful gap between U.S. and international refugee law" created by the Supreme Court).

(12.) See infra Part IV.C.3. These conclusions are based on an examination of several decades of legislative history and executive branch practice leading up to the passage of the Refugee Act, documents in the archives of the Jimmy Carter Library and Hebrew Immigrant Aid Society, and the work of historians of refugee policy. In discussing the Refugee Act's history, this Article also calls attention to the central role played by Joshua Eilberg, who chaired the House Judiciary Committee's immigration subcommittee during most of the 1970s. Eilberg's contributions to U.S. refugee law are often overlooked. He was somewhat more conservative than better-known proponents of the Refugee Act like Senator Edward Kennedy and Representatives Peter Rodino and Elizabeth Holtzman. A scandal forced his departure from Congress before the Refugee Act was passed, but he, more than anyone else, gave shape to the refugee definition that became part of U.S. law.

(13.) See infra Part IV.C.4 (discussing the U.S. policy of accepting Soviet Jews as refugees). There is also evidence that the drafters of the U.S. refugee definition wanted to ensure that persons fleeing persecution in Northern Ireland would be eligible to seek asylum in the United States despite the fact that both the Republic of Ireland and the UK considered them citizens. See infra text accompanying notes 278-89 (describing statements made in committee and on the House floor and subsequent drafting changes that reflect an intent to include Northern Irish refugees).

(14.) See infra text accompanying notes 362-69 (discussing Executive Branch statements and regulations which reflected an understanding that multiple nationals qualified as refugees as long as they had not firmly resettled in a second country of nationality).

(15.) See infra Part IV.B. (concluding that the agencies' approach to multiple nationality is inconsistent with the statutory language and runs counter to agency regulations, prior decisions, and Congress's treatment of multiple nationals' eligibility for humanitarian relief in subsequent legislation).

(16.) See infra Part IV.D (discussing the discretionary nature of asylum and appropriate criteria for the exercise of discretion).

(17.) See infra text accompanying notes 53-55 (citing and discussing several pre-Convention UN documents relating to refugees).

(18.) See infra text accompanying note 52 (quoting the Convention's language); infra text accompanying notes 57-58 (discussing the drafting history).

(19.) See infra Part V.B (discussing UNHCR and state interpretations that have extended refugee protection to persons who could escape persecution within their home country or by going to another country, if their reasons for not doing so are sufficiently strong).

(20.) See, e.g., U.N. High Comm'r for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, [paragraph] 91, U.N. Doc. HCR/IP/4/Eng/REV.1 (1979, re-edited Jan. 1992) [hereinafter UNHCR Handbook] ("[A] person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so."); see also infra text accompanying notes 403-405 (discussing international acceptance of this principle and UNHCR's similar stance that asylum should not be denied merely because it could have been sought in another country).

(21.) See, e.g., 8 C.F.R. [section] [1]208.13(b)(3) (2013) (requiring adjudicators to consider, when assessing reasonableness, a broad range of factors including "social and cultural constraints, such as age, gender, health, and social and familial ties"); see also infra text accompanying notes 403 and 406-07 (discussing UNHCR guidance calling for consideration of similar factors).

(22.) See infra Part V (explaining why allowing multiple nationals to qualify for asylum in appropriate circumstances is consistent with the core purposes that underlie the international refugee protection regime).

(23.) The term "nationality" overlaps but is not synonymous with "citizenship." "Nationality" refers to the relationship between a state and an individual that creates certain reciprocal rights and duties recognized by international law. "Citizenship" refers to rights of political participation conferred by a country's own laws. A person may be a country's national without being a citizen, as is the case for residents of some U.S.-administered islands in the Pacific. See ALFRED M. BOLL, MULTIPLE NATIONALITY AND INTERNATIONAL LAW 57-75 (2007) (discussing the history behind and distinctions between the terms). For purposes of this Article, the distinction rarely matters, and the terms will be used interchangeably. I will generally refer to "multiple" rather than "dual" nationality. Dual nationality is the most common form, but some people have three or more nationalities.

(24.) See T. Alexander Aleinikoff & Douglas Klusmeyer, Plural Nationality; Facing the Future in a Migratory World, in CITIZENSHIP TODAY: GLOBAL PERSPECTIVES AND PRACTICES 63, 79 (T. Alexander Aleinikoff & Douglas Klusmeyer eds., 2001) (estimating that multiple nationals number in the tens of millions worldwide).

(25.) See Ivan Shearer & Brian Opeskin, Nationality and Statelessness, in Foundations of International Migration Law 93, 98-99 (Brian Opeskin et al. eds., 2012) (discussing jus soli and jus sanguinis as alternative criteria employed by states in attributing their nationality and citing a 2001 study of 25 countries finding that more than half made use of both approaches).

(26.) See generally id. at 96-102 (describing the means by which people may acquire or lose nationality).

(27.) Or of three countries, if the parents are nationals of two different jus sanguinis countries. See Peter J. Spiro, Dual Nationality and the Meaning of Citizenship, 46 EMORY L.J. 1411, 1418 (1997) (noting this was often the case for children born in America to immigrant parents).

(28.) See David A. Martin, Introduction: The Trend Toward Dual Nationality, in Rights and Duties of Dual Nationals: Evolution and Prospects 3, 4-5 (David A. Martin & Kay Hailbronner eds., 2003) (noting that by UN estimates upwards of 185 million people live outside their countries of nationality, resulting in an increasing number of children being born with multiple nationalities); PETER J. SPIRO, BEYOND Citizenship: American Identity after Globalization 67-68 (2008) (concluding that dramatic growth in the number of multiple nationals in the last decade "is predicated on enhanced mobility, a defining feature of globalization").

(29.) See Rey Koslowski, Challenges of International Cooperation in a World of Increasing Dual Nationality, in RIGHTS AND DUTIES OF DUAL NATIONALS, supra note 28, at 157-60 (describing how international tensions arising from dual citizenship, including the War of 1812, which was triggered by Great Britain's impressment of British-born American citizens into its navy, led to a proliferation of bilateral treaties and the development of international norms disfavoring dual nationality); Peter J. Spiro, Dual Citizenship as Human Right, 8 INT'L J. CONST. L. Ill, 112-15 (2010) ("It is perhaps because dual nationality was at one time so threatening to world order and so immune to legal resolution that it became the object of fierce condemnation."). A 1930 Convention on nationality laws declared that "every person should have a nationality and should have one nationality only." Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, Apr. 12, 1930, 179 L.N.T.S. 89, 93 (entered into force July 1, 1937). As recently as 1974, the German Constitutional Court stated that "multiple nationality is regarded, both domestically and internationally, as an evil that should be avoided or eliminated" so that states may "set clear boundaries for their sovereignty" and be "secure in the duty of loyalty of their citizens." Aleinikoff & Klusmeyer, supra note 24, at 70-71 (quoting Opinion of German Federal Constitutional Court, May 21, 1974, 254-55). See also Rogers v. Bellei, 401 U.S. 815, 831-36 (1971) (upholding law limiting the ability of some U.S. citizens born abroad to keep their citizenship on the ground that Congress was legitimately concerned with the potential for divided loyalties and entanglements with foreign governments stemming from dual nationality).

(30.) See Koslowski, supra note 29, at 160-63 (noting that increased international migration, the demise of patriarchal citizenship laws, and declines in interstate conflict and military conscription have contributed to a trend toward increasing toleration of dual nationality); Martin, supra note 28, at 4-11 (discussing factors that have led to decline in legal restrictions on multiple nationality); David A. Martin, New Rules on Dual Nationality for a Democratizing Globe: Between Rejection and Embrace, 14 Geo. IMMIGR. L.J. 1, 3-14 (1999) (reviewing the arguments in support of eliminating restrictions on multiple nationality); Spiro, supra note 27, at 1453-64 (discussing the trend toward toleration of multiple nationality and asserting that the risks posed by divided loyalties have diminished due to changes in the nature of the global system).

(31.) See Kim Barry, Home and Away: The Construction of Citizenship in an Emigration Context, 81 N.Y.U. L. REV. 11, 28-34 (2006) (noting that emigrant-sending states have strong incentives to allow emigrants to keep their citizenship because their economies depend on remittances and capital inflows, while for many emigrants continued citizenship satisfies a psychological need for continued involvement with their homeland); Christian Joppke, Comparative Citizenship: A Restrictive Turn in Europe?, 2 Law & ETHICS HUM. RTS. 128, 152-58 (2008) (describing a trend in Europe toward liberalizing the ability of expatriates and their descendants to maintain citizenship, and providing examples of laws passed in the Netherlands, Spain, Portugal, France, and Italy); Martin, supra note 28, at 7-8 (discussing factors that led many emigration countries by the 1990s to change their policies so that emigrants would not lose their original citizenship when they naturalized elsewhere).

(32.) See Raphael Minder, Spain: Citizenship Process Eased for Sephardic Jews, N.Y. Times, Nov. 23, 2012, at A8 (reporting Spain's announcement that it will grant automatic citizenship to Jews of Sephardic descent with no requirement of residence in Spain); see also Raphael Minder, Many of Spain's Sephardic Jews Still Waiting for Citizenship, May 20, 2013, at A5 (reporting that the policy, when put in effect, will allow Sephardic Jews to obtain Spanish citizenship without renouncing their current citizenship). Germany's Basic Law of 1949 similarly gives Jews and others stripped of their nationality between 1933 and 1945 for political, racial or religious reasons--and their descendants--the right to reclaim German nationality upon request, without any requirement of residence or abandoning another nationality. See Hans Von Mangoldt, The Right of Return in German Nationality Law, 13 TEL AVIV. U. STUD. L. 29, 40-43 (1997) (discussing the application of article 116, paragraph 2 of the Basic Law).

(33.) Nottebohm Case (Liech. v. Guat.), 1955 I.C.J. 4, 23 (Apr. 6).

(34.) Cf. Linda Bosniak, Denationalizing Citizenship, in CITIZENSHIP TODAY, supra note 24, at 237, 240-41 (discussing how citizenship can be understood to include not only formal legal membership but also "active engagement in the life of a polity" and "an experience of identity and solidarity").

(35.) See SPIRO, supra note 28, at 25 (noting that Ireland, Greece and Italy "extend citizenship to any person enjoying one grandparent citizen, even if the intermediate generation--the person's parent--had never set foot in the country"); Patrick Weil, Access to Citizenship: A Comparison of Twenty-Five Nationality Laws, in CITIZENSHIP Today, supra note 24, at 17, 20 (listing jus sanguinis provisions of twenty-five countries, most lacking generational limits).

(36.) Ayalet Shachar, The Birthright Lottery 122 (2009); see also Martin, supra note 30, at 32-33 (arguing that states should limit jus sanguinis citizenship transmission in order to avoid the persistence of dual nationality "long after the family has lost real connection with the home society").

(37.) See SHACHAR, supra note 36, at 116 ("[T]he 'precious good of life-long citizenship [is bestowed] on mere transients and passers-by.'") (citation omitted).

(38.) As was the case with the Bosnian-Croatian dual national whose case is described at the beginning of this Article. Cf. Peter H. Schuck, Plural Citizenships, in Dual Nationality, Social Rights and Federal Citizenship in the U.S. and Europe 61, 70 (Randall Hansen & Patrick Weil eds., 2002) (arguing that the consensuality of a person's acquisition of dual nationality should affect the consequences that flow from it).

(39.) See infra note 174 (discussing South Korea's nationality laws).

(40.) See Ryszard Piotrowicz, Refugee Status and Multiple Nationality in the Indonesian Archipelago: Is There a Timor Gap?, 8 INT'L J. REFUGEE L. 319, 324-25 (1996) (quoting and discussing Portuguese nationality laws).

(41.) See, e.g., Kay Hailbronner, Rights and Duties of Dual Nationals: Changing Concepts and Attitudes, in RIGHTS AND DUTIES OF DUAL NATIONALS, supra note 28, at 19, 25 (noting that Iranian law "makes it practically impossible to lose or surrender nationality"); Ayelet Shachar, Whose Republic?: Citizenship and Membership in the Israeli Polity, 13 GEO. IMMIGR. L.J. 233, 239, 264-65 (1999) (discussing the difficulty of renouncing Israeli nationality, which requires Israel's consent).

(42.) See Shearer & Opeskin, supra note 25, at 120-21 (noting that it is an established principle of international law that states must allow their own nationals entry and cannot deport them); Am. Soc'y of Int'l Law, The Movement of Persons ACROSS BORDERS 39, 85 (Louis B. Sohn & Thomas Buergenthal eds., 1992) (same). The principle is not always honored in practice. See, e.g., Andrew Jacobs, No Exit: China Uses Passports as Political Cudgel, N.Y. TIMES, Feb. 23, 2013, at A1, A6 (describing cases of China denying passport renewal and/or refusing entry to citizens living abroad).

(43.) The Refugee Convention does not require that asylum be sought in the first country arrived at; it contemplates that a refugee may pass through other countries before reaching her intended destination and seeking asylum. Under Article IE, only those who actually have "taken residence" in a country and been recognized by its authorities as having rights equivalent to those of nationals are barred from claiming refugee status elsewhere. James Hathaway has noted that this framework "effectively allows most refugees to choose for themselves the country in which they will claim refugee status." JAMES C. HATHAWAY, The Law OF REFUGEE STATUS 46 (1991); see also Guy S. Goodwin-Gill & Jane McAdam, The Refugee in International Law 265 (3d ed. 2007) ("International law does not impose a duty on the asylum seeker to lodge a protection claim at any particular stage of flight."), It is, however, increasingly common for countries to enter into "readmission agreements" allowing for the return of an asylum-seeker to a "safe country" the person passed through in which asylum could have been sought, or diversion to another country willing to consider the asylum claim. See Stephen H. Legomsky, Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection, 15 INT'L J. REFUGEE L. 567, 575-78 (2003) (describing the recent proliferation of "safe third country" restrictions and readmission agreements). However, the principle that family ties and other connections and the asylum-seeker's intentions should be considered before requiring an individual to seek asylum elsewhere has gained wide (although not universal) acceptance. See infra notes 376, 403, 436 and accompanying text (discussing U.S., UNHCR, and European Union decisions or directives endorsing this principle).

(44.) See Convention, supra note 3, pmbl. [paragraph][paragraph] 1-2 (invoking the United Nations' "profound concern for refugees" and desire to assure them "the widest possible exercise of ... fundamental rights and freedoms"); GOODWIN-GILL & MCADAM, supra note 43, at 10 (noting that the Convention's "first point of reference is the individual ... as a rights-holder," and its refugee definition begins with the individual's fear of persecution and only secondarily turns to the availability of state protection); Kristen Walker, Defending the 1951 Convention Definition of Refugee, 17 GEO. IMMIGR. L.J. 583, 587-96 (2003) (discussing the strong role humanitarian concern for meeting refugees' needs played in the Convention's drafting).

(45.) HATHAWAY, supra note 43, at 135; see also id. at 124; UNHCR Handbook, supra note 20, at [paragraph] 106 ("Whenever available, national protection takes precedence over international protection.").

(46.) See Convention, supra note 3, art, 1A (defining "refugee").

(47.) Id. art. 33(1). The duty does not apply to persons reasonably regarded as a danger to the country's security or who have been convicted of a "particularly serious crime" that makes them a "danger to the community." Id. art. 33(2).

(48.) See id. arts. 2-31 (detailing refugee rights in areas such as freedom of religion and association, education, housing, employment, and travel). Some rights are limited to refugees "lawfully" in a country's territory; others extend to all refugees present in the country.

(49.) Id. art. 34.

(50.) See, e.g., 8 U.S.C. [section][section] 1158(b)(1)(A), 1159(b), 1427 (2014) (providing that those who satisfy the refugee definition are eligible for asylum then permanent residence and citizenship); Immigration and Refugee Protection Act, S.C. 2001, c. 27, [section][section] 20-21 (Can.) (providing that persons determined to be Convention refugees may become permanent residents); OLGA FERGUSON SIDORENKO, THE COMMON EUROPEAN ASYLUM System 65, 73, 121-22 (2007) (describing EU Directives that make persons meeting the refugee definition eligible to remain as refugees and subsequently qualify for long-term resident status).

(51.) See Convention, supra note 3, art. 1A. Article 1A(1) included within the definition all those who had already been classified as refugees under previous international arrangements, such as the Constitution of the International Refugee Organization, the UN agency that assisted refugees from 1946 until 1951, when its functions were taken over by UNHCR.

(52.) Id. art. 1A(2). The Convention also contained language limiting the definition's scope to those made refugees by events occurring before 1951, and allowed contracting states to narrow it further by covering only those displaced by events in Europe. See id. arts. 1A(2) and IB. The 1967 UN Protocol eliminated these temporal and geographic restrictions. Protocol, supra note 3, art. I.

(53.) G.A. Res. 8 (I), U.N. Doc. A/RES/8(I) (Feb. 12, 1946); see also LOUISE W. Holborn, The International Refugee Organization: A Specialized Agency of the United Nations: Its History and Work, 1946-1952, 29-33 (1956) (discussing the origins of this resolution in the Western powers' resistance to Soviet demands for the speedy repatriation of refugees).

(54.) Constitution of the International Refugee Organization annex I., pt. I, [section][section] A(1)-A (2), C(1), opened for signature Dec. 15, 1946, 62 Stat. 3037, 18 U.N.T.S. 3 [hereinafter IRO Constitution].

(55.) Statute of the Office of the United Nations High Comm'r for Refugees, G.A. Res. 428 (V), [paragraph] 6(A)(ii), U.N. Doc. A/RES/428(V) (Dec. 14, 1950) [hereinafter UNHCR Statute]; see 1 Atle Grahl-Madsen, The Status of Refugees in International Law 407-09 (1966) (discussing the broad range of factors that could constitute "reasons other than personal convenience"); Richard Plender, Admission of Refugees: Draft Convention on Territorial Asylum, 15 SAN DIEGO L. REV. 45, 52 (1977) (discussing the UNHCR Statute's broader coverage than the Convention in this regard).

(56.) The UNHCR Statute states that the High Commissioner's competence does not extend to a person with more than one nationality "unless he satisfies the provisions of the preceding paragraph in relation to each of the countries of which he is a national." UNHCR Statute, supra note 55, [paragraph] 7. Because the preceding paragraph contains the "for reasons other than personal convenience" provision, UNHCR's mandate can be read to include dual nationals who fear persecution in one country and have other good reasons for not seeking protection in the other.

(57.) United Kingdom Proposed Text to be Substituted for Article I of the Draft Convention in E/1618, ECOSOC Social Committee, U.N. Doc. E/AC.7/L.63 (Aug. 1, 1950); see also ECOSOC Social Comm., Summary Record of Meeting, U.N. Doc E/AC.7/SR.160 (Aug 2, 1950), at 6-7 (comments of Mr. Fearnley of the UK); see Nehemiah Robinson, Convention Relating to the Status of Refugees: Its History, Contents and Interpretation 54 (1953) (discussing origins of the Convention's multiple nationality provision in the UK proposal).

(58.) See James C. Hathaway, A Reconsideration of the Underlying Premise of Refugee Law, 31 Harv. Int'l L.J. 129, 153-54 (1990) (discussing countries' reluctance to provide a "blank check" for future refugees of unknown origin); Andreas Zimmermann & Claudia Mahler, Article 1A, para. 2, in THE 1951 CONVENTION Relating to the Status of Refugees and its 1967 Protocol: A Commentary 281, 310-11 (Andreas Zimmermann ed., 2011) (noting that the Conference of Plenipotentiaries removed the phrase "or for reasons other than personal convenience" from the refugee definition). A remnant of the old approach remained in a provision that allowed those already recognized as refugees under the IRO Constitution or other pre-1951 refugee arrangements to keep their status even if they no longer had reason to fear persecution if they had "compelling reasons arising out of previous persecution" for refusing to return to their country of former residence. See Convention, supra note 3, art. 1C(6).

(59.) UNHCR Handbook, supra note 20, [paragraph] 106.

(60.) Id. [paragraph] 107. The Handbook adds that before a nationality is deemed ineffective, an applicant generally should be required to show that he or she requested and was refused protection. Id.

(61.) See, e.g., Immigration and Refugee Protection Act, S.C. 2001, c. 27, [section] 96 (Can.) (defining a "Convention refugee" as a person who by reason of well-founded fear of persecution "is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries"); Migration Act 1958, (Cth) s 36(3) (Austl.) (amended 1999) ("Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in ... any country apart from Australia, including countries of which the non-citizen is a national"); KK & ors v. Sec'y of State for the Home Dep't, [2011] UKUT 92 (I.A.C.), [paragraph][paragraph] 2-3, aff'd sub nom. Sec'y of State for the Home Dep't v. SP (North Korea) & ors, [2012] EWCA Civ. 114 (C.A. 2012) (directly applying Convention's multiple nationals provision); Refugee Status Appeals Authority of New Zealand, Refugee Appeal No. 2067/94, 9-13 (July 4, 1996) (same).

(62.) Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 709, 752.

(63.) KK & ors, [2011] UKUT 92, [paragraph] 3.

(64.) See Piotrowicz, supra note 40, at 320, 332 (noting that many East Timorese with Portuguese nationality "regard Portugal as an oppressor State").

(65.) See Shachar, supra note 41, at 234-36 (describing the broad citizenship rights conferred by the Law of Return).

(66.) Grygorian v. Canada (Minister of Citizenship and Immigration), [19951 F.C.J. No. 1608, [paragraph][paragraph] 1-4.

(67.) Id. [paragraph][paragraph] 8-15; see also MZXLT & Anor v Minister for Immigration & Anor [2007] FMCA 799, [paragraph][paragraph] 1-14 (Austl.) (describing decision of Australia's Refugee Review Tribunal that denied a protection visa to a woman gang-raped by anti-Semites in Russia who had never been to Israel, spoke no Hebrew, and was married to an Australian man, on the ground that as a Jew she had a right to Israeli nationality); NAEN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 6, [paragraph][paragraph] 1-3 (Austl.) (upholding denial of protection visa to a Jewish woman from Russia and her Christian husband because both could obtain citizenship under the Law of Return). Australian tribunals denied the claims of several East Timorese asylum seekers because of their Portuguese nationality. See Ryszard Piotrowicz, Lay Kon Tji v. Minister for Immigration & Ethnic Affairs: The Function and Meaning of Effective Nationality, 11 INT'L J. REFUGEE L. 544 n.2 (1999) (listing Refugee Review Tribunal decisions). For decisions holding that North Koreans whom South Korea would recognize as citizens are ineligible for refugee status, see, for example, X (Re), 2013 CanLII 76469, [paragraph][paragraph] 66-67 (CA IRB) (Can.) (holding that North Koreans cannot be granted refugee status without establishing a well-founded fear of persecution in South Korea), and supra note 4 (citing Australian cases).

(68.) NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6, [paragraph] 30 (Austl.); see also id. [paragraph][paragraph] 95-98 (Kirby, J., concurring) (observing that it would be "astonishing" if the Law of Return had the effect of eliminating international protection obligations toward Jews, given that the Convention was in part a response to the international community's failure to provide refuge to Jews fleeing Nazi persecution). The High Court of Australia, while rejecting the view that Jews with prospective citizenship rights in Israel cannot qualify as refugees, acknowledged that [section] 36(3) of the Migration Act (quoted supra note 61), which was not yet in effect when the case was filed, might require a different result in future cases. Id. [paragraph][paragraph] 10, 58-60, 87-88.

(69.) In comments on the EU's 2004 directive establishing uniform minimum standards for refugee qualification, UNHCR objected to a provision allowing adjudicators to consider whether an applicant "could reasonably be expected to avail himself of the protection of another country where he could assert citizenship" on the ground that the Convention's multiple nationals clause creates no obligation to claim a nationality not already held. UNHCR Annotated Comments on the EC Council Directive 2004/83/EC of 29 April 2004, at 14-15, OJ L 304/12 (Sept. 30, 2004) (comment on Article 4(3)(e)) [hereinafter UNHCR Comments on QD].

(70.) Convention, supra note 3, art. 1A(2) (emphasis added).

(71.) See KK & ors, [2011] UKUT 92, [paragraph] 82 (concluding that for purposes of the Refugee Convention, "if [a person] is entitled to nationality, subject only his making an application for it, he is ... to be regarded as a national of the country concerned"); Canada (Minister of Citizenship and Immigration) v. Williams, [2005] FCA 126, [paragraph][paragraph] 19-34 (Can.) (holding that "if it is within the control of the applicant to acquire the citizenship of another country with respect to which he has no well-founded fear of persecution, the claim for refugee status will be denied"); see also supra note 61 (quoting Australian statute requiring the applicant to take all possible steps to take advantage of a right to citizenship elsewhere).

(72.) Nottebohm Case, 1955 I.C.J. at 22-23, discussed supra text accompanying note 33. The ICJ held that only a "real and effective" nationality provides a basis for one state to assert a claim on behalf of its national against another state, with effectiveness to be determined by factors such as "the habitual residence of the individual concerned ...[,] the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc."

(73.) See Katkova v. Canada (Minister of Citizenship and Immigration), [1997] 40 Imm. L.R. (2d) 216 (Can.) (holding that a Russian Jew who never lived in Israel and had no immediate family there should not have been denied refugee status in Canada, even though Israel would recognize her as a national); see also Matter of Fatoumata Toure, No. A24 876 244, 1990 Immig. Rptr. LEXIS 1435, at *21, *29 (BIA June 26, 1990) (relying in part on Nottebohm to hold that a passport issued by an Ivory Coast diplomat to a Guinean woman with few real ties to Ivory Coast did not confer effective nationality).

(74.) See Shearer & Opeskin, supra note 25, at 97-98 (stating that Nottebohm now has limited value as authority and can be understood as merely restricting, in certain circumstances, a state's right to provide diplomatic protection to a national with whom it lacks genuine ties); BOLL, supra note 23, at 110-13, 279 (discussing Nottebohm's limited scope).

(75.) See KK & ors, [2011] UKUT 92, [paragraph][paragraph] 62-67, 90 (concluding that when assessing whether a person meets the refugee definition, "there is no separate concept of 'effective' nationality; the issue is the availability of protection in the country in question"); Jong Kim Koe v Minister for Immigration & Multicultural Affairs, (1997) 74 FCR 508, 143 ALR 695, 1997 AUSTR FEDCT LEXIS 179, at *17-20, *28-34 (holding that for purposes of the Refugee Convention, the issue is whether a country that recognizes the person as a national will provide protection, and not its effectiveness under Nottebohm); see also supra text accompanying note 60 (discussing similar view taken by the UNHCR Handbook).

(76.) See Lay Kon Tji v Minister for Immigration and Ethnic Affairs, (1998) 158 ALR 681, 1998 AUST FEDCT LEXIS 909, at *26, *20-27 (discussing international law authorities); see also Piotrowicz, supra note 40, at 327-29 (discussing the range of acceptable links under international law).

(77.) MZXLT, [2007] FMCA 799, [paragraph][paragraph] 62-67 (Austl.); Katkova, [1997] 40 Imm. L.R. (2d) 216; see also Lay Kon Tji, 1998 AUST FEDCT LEXIS 909, at *37--*47 (relying on evidence that Portugal would recognize as nationals only East Timorese who expressed a desire for Portuguese nationality as basis for finding that Portuguese nationality was not effective for those who lacked such a desire, and thus did not preclude refugee protection in Australia).

(78.) See Convention, supra note 3, art. 1A(2) ("[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."); see also Andrew Wolman, North Korean Asylum Seekers and Dual Nationality, 24 INT'L J. REFUGEE L. 793, 812 (2012) ("The Refugee Convention ... at no point implies that individuals should be considered refugees if they lack the desire to go to their country of nationality."); MA (Ethiopia) v. Sec'y of State for the Home Dep't, [2009] EWCA (Civ) 289, [83] (Eng.) ("[R]efugee status is not a matter of choice. A person cannot be entitled to refugee status solely because he or she refuses to make an application to her embassy, or refuses or fails to take reasonable steps to obtain recognition and evidence of her nationality."); see also cases cited supra note 71.

(79.) Katkova, [1997] 40 Imm. L.R. (2d) 216 (reasoning that because Israel retains discretionary authority to deny citizenship in certain circumstances, a Jewish applicant should not be denied Convention refugee status on the ground that she holds an entitlement to Israeli nationality); see also KK & ors, [2011] UKUT, [paragraph] 80 (dicta) (endorsing Katkova's reasoning).

(80.) Cf. UNHCR Handbook, supra note 20, [paragraph] 107 (stating that as a general rule there should be a request for and refusal of protection before it is established that a nationality is ineffective).

(81.) NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 6, [paragraph] 93 (Austl.) (Kirby, J., concurring).

(82.) Refugee Act of 1980, Pub. L. No. 96-212, [section] 201(a), 94 Stat. 102, 102-03 (codified as amended at 8 U.S.C. [section] 1101(a)(42) (2014)).

(83.) 8 U.S.C. [section][section] 1157(c), 1158(b)(1)(A) (2014).

(84.) 8 U.S.C. [section][section] 1157(c)(1), 1158(b)(1)(A) (2014); see Matter of Salim, 18 I. & N. Dec. 311, 314 (BIA 1982) (discussing asylum's discretionary nature under the Refugee Act). Providing the opportunity to be considered for refugee admission or asylum was enough to satisfy the requirement of Article 34 of the Refugee Convention that countries "as far as possible facilitate" the assimilation of refugees. See INS v. Cardoza-Fonseca, 480 U.S. 421, 441 (1987) (explaining that Article 34 "is precatory [and] does not require the implementing authority actually to grant asylum to all who are eligible").

(85.) 8 U.S.C. [section] 1253(h) (1976).

(86.) Refugee Act of 1980 [section] 203(e), 94 Stat. 102, 107 (codified as amended at 8 U.S.C. [section] 1231(b)(3)(A) (2014)). See H R. REP. NO. 96-781, at 20 (1980) (Conf. Rep.) (explaining that the withholding of deportation language was adopted "with the understanding that that it is based directly upon the language of the Protocol").

(87.) Cf. 8 U.S.C. [section] 1159 (2014) (permitting refugees and asylees to adjust their status to permanent residents after one year).

(88.) See 8 U.S.C. [section] 1231(b)(1), (2) (2014) (authorizing the removal of an alien to any country of his or her citizenship or nationality, or, if push comes to shove, to any country whose government will accept the person); Matter of Lam, 18 I. & N. Dec. 15, 18 (BIA 1981) (explaining that "withholding of deportation is country-specific, barring deportation only to a single place" and does not bar removal to "any other place to which an alien may be deported").

(89.) 8 U.S.C. [section] 1101(a)(42)(B) (2014).

(90.) Compare id. at [section] 1101(a)(42)(A), with Convention, supra note 3, art. 1A(2) (containing no reference to past persecution as a basis for refugee status).

(91.) See H.R. REP. No. 96-608, at 9 (1979); see also S. REP. No. 96-256, at 4 (1979) (acknowledging that the U.S. refugee definition's in-country provision covers persons not considered refugees under the Convention); Matter of L-S-, 25 I. & N. Dec. 705, 710 n.5 (BIA 2012) (explaining that the U.S. refugee definition's language makes clear that "the experience of past persecution itself' renders a person a refugee).

(92.) The Convention itself seems to use the terms interchangeably; Article 33 refers to threats to life or freedom "on account of' any of the five protected grounds. Convention, supra note 3, art. 33. The U.S. definition also changes the Convention's phrase "owing to" to "because of' when expressing the idea that persecution must be the cause of the individual's unwillingness to return, rewords "membership of a particular social group" to read "membership in" and changes the Convention's reference to a stateless person's country of "former habitual residence" to the country where the person "last habitually resided." Compare id. art. 1A(2), with 8 U.S.C. [section] 1101(a)(42)(A) (2014).

(93.) See supra text accompanying note 52 (quoting the second paragraph of Article 1A(2)).

(94.) 8 U.S.C. [section] 1101(a)(42)(A) (2014) (emphasis added).

(95.) See generally LARRY M. EIG, CONG. RESEARCH SERV., STATUTORY INTERPRETATION: GENERAL PRINCIPLES AND RECENT TRENDS (2011) (summarizing the Supreme Court's statutory construction jurisprudence).

(96.) See, e.g., Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992) ("[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous ... judicial inquiry is complete") (citations omitted) (internal quotation marks omitted).

(97.) See Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984) (setting standards for judicial deference to agency decisions).

(98.) See, e.g., Comm'r v. Engle, 464 U.S. 206, 214--24 (1984) (employing these tools to interpret a statute after finding that the agency's construction was unreasonable).

(99.) Webster's Third New International Dictionary Of The English LANGUAGE Unabridged 97 (1986). The Supreme Court has said that "[r]ead naturally, the word 'any' has an expansive meaning," United States v. Gonzales, 520 U.S. 1, 5 (1997), but this tells us little, since all of the senses in which the word can be used are expansive in their own ways. As the Supreme Court noted in another case, "'any' can and does mean different things depending upon the setting." Nixon v. Mo. Mun. League, 541 U.S. 125, 132 (2004).

(100.) See Jill C. Anderson, When Words Fail Us (forthcoming, on file with author).

(101.) Gen. Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 596 (2004).

(102.) The Convention definition also uses the phrase "that country," but the phrase there refers back to "the country of his nationality," which is then explicitly defined to mean "each of the countries of which he is a national," and is further clarified by language stating that a multiple national does not qualify as a refugee if he lacks valid, well-founded fear based reasons for not returning to "one of the countries of which he is a national." Convention, supra note 3, art. 1A(2).

(103.) The Dictionary Act states that "unless the context indicates otherwise ... words importing the singular include and apply to several persons, parties, or things." 1 U.S.C. [section] 1 (2014). However, the Supreme Court has declined to apply this presumption when Congress uses the singular in a setting where one would expect to see a plural had a plural meaning been intended. See United States v. Hayes, 555 U.S. 415, 421-22 (2009) (reasoning that because Congress used the singular word "element" in a statute, while referring to "elements" in other provisions, it meant to describe only one required element). The Court noted: "On the rare occasions when we have relied on [the Dictionary Act] rule, doing so was 'necessary to carry out the evident intent of the statute.'" Id. at 422 n.5 (quoting First Nat'l Bank in St. Louis v. Missouri, 263 U.S. 640, 657 (1924)). Here, both the grammatical structure of the sentence and other aspects of the statute's wording point toward a singular meaning. See infra text accompanying notes 103-117.

Had Congress adopted the Convention's phrasing ("outside the country of his nationality"), there would be a stronger case for applying the singular-includes-the-plural presumption, because that wording leaves unclear what is to be done if the person has more than one country of nationality. When "the country" becomes "the countries," the next phrase, which refers to the person's inability or unwillingness to return to "that country," can correspondingly be transformed into "those countries." But the language Congress instead employed ("outside any country of such person's nationality") already contemplates the existence of more than one country of nationality. The subsequent use of the singular (such person's inability or unwillingness to return to "that country") indicates that "any" is referring to one of those countries, not all of them. And as will be discussed in Part IV.C, legislative history provides no "evident intent" that would require reading the singular to include the plural; on balance, it supports the "any one country" interpretation.

(104.) The legislative history shows that Representative Joshua Eilberg, the Chair of the House Judiciary Committee's subcommittee on immigration, viewed this wording change as meaningful. See infra text accompanying notes 213-15.

(105.) The Board of Immigration Appeals noted in a non-precedential decision that "[t]he Act's use of the phrase 'return to' suggests that a country of nationality was contemplated as a country of origin, or at least the person's usual place of abode." Matter of Fatoumata Toure, No. A24 876 244, 1990 Immig. Rptr. LEXIS 1435, *17 (BIA June 26, 1990). See infra text accompanying notes 130-39 (discussing Toure).

(106.) See Yusupov v. AG of the United States, 518 F.3d 185, 204 n.32 (3d Cir. 2008) (stating that Congress's use of language essentially identical to a provision appearing in the Convention and Protocol provided "one of the strongest indicators that Congress intended to incorporate the understanding of the Protocol developed under international law into the U.S. statutory scheme").

(107.) A similar, oft-cited principle of statutory construction, which the Supreme Court has applied when interpreting the Refugee Act, provides that when Congress "includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." INS v. Cardoza-Fonseca, 421 U.S. 421, 432 (1987) (internal quotations and citations omitted).

(108.) In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 (Can.), Canada's Supreme Court, interpreting a statutory refugee definition that tracked Article 1A(2) but omitted its multiple nationality provision, nonetheless read the statute to incorporate the Convention's approach, citing the surrogate state protection rationale for refugee protection and the statutory construction principle that that "words in the singular include the plural." Id. at 751-55. The Canadian statute, however, signaled by its use of the phrase "Convention refugee" (which does not appear in the U.S. refugee definition) that congruence with the Convention definition was intended, and it lacked the U.S. definition's other textual departures from the Convention discussed above (such as the change from "the country" to "any country"). Subsequent to Ward, Canada amended the definition of "Convention refugee" in its immigration law to expressly provide that applicants must be "outside each of their countries of nationality" and unable or due to a well-founded fear "unwilling to avail themself of the protection of each of those countries." Immigration and Refugee Protection Act, S.C. 2001, c. 27, [section] 96 (Can.).

(109.) See 8 U.S.C. [section] 1231(b)(3)(A) (2014) ("The Attorney General may not remove an alien to a country if ... the alien's life or freedom would be threatened in that country...."); see also supra text accompanying notes 82-86.

(110.) 8 U.S.C. [section] 1158(b)(1)(A) (2014); 8 U.S.C. [section] 1101(a)(42)(A) (defining "refugee").

(111.) 8 C.F.R. [section] 1240.11(c)(1) (2013); see also C.F.R. [section][section] 1240.33(a)(1), 1240.49(c)(2). Relying on these regulations, a Court of Appeals held that eligibility for asylum was established when an applicant demonstrated a well-founded fear of persecution in a country of his nationality; he was not required to prove that he would also be at risk of persecution in another country that had been designated as the country to which he would be deported. Andriasian v. INS, 180 F.3d 1033, 1042 n.14 (9th Cir. 1999).

(112.) 8 U.S.C. [section] 1158(c)(2)(E) (2014) (originally enacted as part of Illegal Immigration Reform and Immigrant Responsibility Act of 1996 [hereinafter IIRIRA], Pub. L. No. 104-208, [section] 604(a), div. C, 110 Stat. 3009-546, 693).

(113.) Convention, supra note 3, art. 1C(3); see HATHAWAY, supra note 43, at 210 (noting Article lC(3)'s "substantive symmetry" with the multiple nationality provision of Article 1A(2)'s refugee definition).

(114.) Refugee Act of 1980 [section] 208(b), 94 Stat. 102, 105 (codified at 8 U.S.C. [section] 1158(b) (1982)) (language concerning stateless persons omitted).

(115.) See H.R. REP. No. 104-469 Part I, at 81, 260 (1996) (setting forth the new termination of asylum language with no discussion of its purpose or implications for the definition of refugee).

(116.) Asylees become eligible for permanent resident status one year after the asylum grant. See supra note 87.

(117.) An asylum-seeker who married a person of a different nationality might acquire the spouse's nationality without applying for it, by operation of the laws of that country. By 1996, however, this would have been unusual. The widely-adopted 1957 Convention on the Nationality of Married Women obliged state parties to not automatically confer nationality on a woman marrying one of its nationals, a duty reaffirmed in 1981 by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). CEDAW art. 9(1), Dec. 18, 1979, 1249 U.N.T.S. 13 (entered into force Sept. 3, 1981); Convention on the Nationality of Married Women art. 1, Feb. 20, 1957, 309 U.N.T.S. 65 (entered into force Aug. 11, 1958); see Peter J. Spiro, A New International Law of Citizenship, 105 Am. J. Int'l L. 694, 713 (2011) (noting that the Convention on the Nationality of Married Women was widely adopted, although sex-discriminatory nationality practices have persisted).

(118.) See Tesfamichael v. U.S. Attorney General, 469 F.3d 109, 112-15 (5th Cir. 2006) (reading the phrase "that country' in the refugee definition to mean that asylum eligibility must be determined with reference to "one 'test country'"). The U.S. Court of Appeals for the Second Circuit similarly relied on the "plain language" of the statute to hold that an individual can satisfy the refugee definition by showing she has a well-founded fear of persecution in a country of which she is a national, even if she was born and raised in another country, could be removed to that country, and would not face persecution there. Dhoumo v. Bd. of Immigration Appeals, 416 F.3d 172, 174-75 (2d Cir. 2005); accord, Wangchuck v. Dep't of Homeland Security, 448 F.3d 524, 528-29 (2d Cir. 2006). The facts of these cases did not require the courts to opine on the dual national situation, but their reading of the statutory language would support the idea that satisfying the statutory test with respect to "one test country" of nationality is sufficient.

The case that came closest to addressing the issue was Palavra v. INS, 287 F.3d 690 (8th Cir. 2002), involving a Bosnian family denied asylum because they possessed Croatian passports and did not fear persecution in Croatia. The court held that the agency had impermissibly ignored evidence that the applicants were not in fact Croatian nationals, and therefore found it unnecessary to rule on their separate argument that even if dual nationals, they satisfied the refugee definition because they faced persecution in one of their countries of nationality. Id. at 692-94. A dissenting judge would have upheld the agency on the ground that dual nationals are ineligible for asylum unless they show a risk of persecution in both countries, but gave no reasoning to justify that conclusion. Id. at 694-95 (Hansen, J., dissenting).

(119.) The existence of some ambiguity does not always lead courts to seek meaning from sources beyond the statutory text. In one recent decision, the Supreme Court rejected a "literally possible" reading of statutory language when "all of the textual clues" cut against it. Samantar v. Yousuf, 560 U.S. 305, 314-16 (2010); see also Cuomo v. Clearing House Ass'n, 557 U.S. 519, 525 (2009) (stating that presence of some ambiguity in statutory language does not preclude rejecting an administrative interpretation as contrary to the statute).

(120.) See, e.g., Sebelius v. Cloer, 133 S. Ct. 1886, 1896 (2013) (stating that courts must follow the plain meaning of statutory language "at least where the disposition required by the text is not absurd").

(121.) Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1984).

(122.) Id. at 842-45. Some Supreme Court decisions refuse to look beyond the statute's language and structure in assessing whether Congress has unambiguously expressed its intentions, e.g., K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988), while others also examine legislative history in making this assessment, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 432-43 (1987). The Refugee Act's legislative history, considered in conjunction with its language and structure, could bolster a court's conclusion that the statute unambiguously allows a person facing persecution in any one country of his or her nationality to qualify as a "refugee." For purposes of this section, however, I will assume that the statute is ambiguous.

(123.) United States v. Mead Corp., 533 U.S. 218, 229 (2001); see also Christensen v. Harris County, 529 U.S. 576, 586-87 (2000) (indicating that documents which lack the force of law, like opinion letters, should not receive Chevron deference). Less authoritative agency pronouncements are examined under the standard of Skidmore v. Swift & Co., 323 U.S. 134 (1944), which holds that an agency's interpretation of the law is "entitled to respect," but only to the extent it has "power to persuade based on factors such as "the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements." Id. at 140.

(124.) 8 U.S.C. [section] 1103(a)(1), (g) (2014). The Attorney General has delegated to the BIA the authority to issue controlling legal rulings when deciding appeals and authorized the BIA to designate selected decisions as precedents binding on immigration judges and agency personnel in all matters concerning the same issue. 8 C.F.R. [section] 1003.1(d)(1), (d)(3)(ii), (g) (2013). Accordingly, courts give Chevron deference to interpretations of the immigration laws that take the form of regulations or precedential BIA decisions, INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999), but apply Skidmore's standards when deciding whether to accept interpretations contained in non-precedential BIA decisions or in manuals or guidelines issued by the immigration agencies. See Arobelidze v. Holder, 653 F.3d 513, 519-20 (7th Cir. 2011) (noting that non-precedential statements by the Board are "less formal" agency statements not entitled to Chevron deference).

(125.) The regulations provide that asylum and refugee applicants must satisfy the Act's refugee definition, but do not define or interpret the definition's "outside any country of ... nationality" language. See 8 C.F.R. [section] 207.1(a) (2013) (eligibility criteria for refugee admission); 8 C.F.R [section] [1]208.13(a) (2013) (asylum eligibility standards).

(126.) See infra text accompanying notes 130-43.

(127.) Matter of B-R-, 26 I. & N. Dec. 119 (BIA 2013); see infra text accompanying notes 144-54.

(128.) See infra text accompanying notes 155-68.

(129.) See infra text accompanying notes 169-86.

(130.) Matter of Fatoumata Toure, No. A24 876 244, 1990 Immig. Rptr. LEXIS 1435, at *6-7 (BIA June 26, 1990).

(131.) See id. at *10-11 (stating that the statute's use of the word "any" indicates that asylum is not warranted if "an individual has a second country of nationality to which she can safely return").

(132.) Id. at *17-18; see supra text accompanying notes 104-05.

(133.) Id. at *18 (emphasis added) (quoting Refugee Act of 1980, [section] 101(a), 94 Stat. 102).

(134.) Id. at *21.

(135.) Id. The BIA noted that U.S. courts generally determine a person's nationality by applying the municipal law of the country in question, but found "there are good reasons for tempering the determination of nationality with a careful examination of the purpose of the nationality provision in the definition of refugee...." Id. at *15-16.

(136.) Id. at *21.

(137.) Id. at *21, *29.

(138.) See supra text accompanying notes 33-34 and 72-76.

(139.) Toure, 1990 Immig. Rptr. LEXIS 1435, at *22-26.

(140.) U.S. Citizenship & Immigration Services [USCIS], Asylum Division, Asylum Officer Basic Training Course, Eligibility Part I: Definitions; Past Persecution 10-11 (Mar. 6, 2009) [hereinafter AOBTC]; USCIS, REFUGEE, ASYLUM, and International Operations Directorate, RAIO Combined Training Course, Refugee Definition Training Module 15-16 (Mar. 29, 2013) [hereinafter RAIO Training], Similar guidance has appeared in agency training manuals since 1995. See Immigration and Naturalization Service, Basic Law Manual: U.S. Law and INS Refugee/Asylum Adjudications [section] III.B. 1(b), reprinted in CHARLES GORDON ET AL., IMMIGRATION Law And PROCEDURE (Matthew Bender rev. ed., 1996) (Special Supp. 1995).

(141.) AOBTC, supra note 140, at 10; RAIO Training, supra note 140, at 15.

(142.) See supra text accompanying note 94 (quoting the statute).

(143.) AOBTC, supra note 140, at 10-11; RAIO Training, supra note 140, at 15 n.34.

(144.) Matter of B-R-, 26 I. & N. Dec. 119, 121 (BIA 2013).

(145.) Id. at 119-20.

(146.) Id. at 122.

(147.) Id. at 120.

(148.) See supra text accompanying notes 99-111. The BIA claimed to find textual support for its interpretation in the statutory provision making acquisition of a new nationality a ground for terminating asylum. Id. at 122. However, as discussed previously, that 1996 amendment sheds little light on the refugee definition's meaning. See supra text accompanying notes 112-17. The BIA also referenced an INA provision authorizing an alien's removal "to a country of which the alien is a ... national." Id. at 122 (quoting 8 U.S.C. [section] 1231(b)(2)(D) (2006)). That provision is irrelevant because it applies only to persons who have been denied asylum or other relief and ordered removed. The fact that Congress would allow multiple nationals who fail to establish eligibility for asylum to be deported to any country that will take them reveals nothing about Congress's intent as to whether having more than one nationality renders a person ineligible for asylum.

(149.) Matter of B-R-, 26 I. & N. Dec. at 121-22 (citing S. REP. No. 96-256, at 4, 15 (1979)). The BIA mischaracterized the Senate Report by claiming that it "clarifies that the phrase 'any country' in section 101(a)(42) of the Act referred to the elimination of the geographical and ideological restrictions in the former [law]." The Senate Report simply stated that the new refugee definition eliminated those restrictions; it did not say or suggest that the phase "any country" was used to refer to this change. S. REP. NO. 96-256, at 15-16.

(150.) Matter of B-R-, 26 I. & N. Dec. at 121.

(151.) In fact, the Refugee Act's legislative history frequently speaks of bringing U.S. law into compliance with the Convention by eliminating the current geographic and ideological restrictions. See 125 CONG. Rec. 4798, 4799-800, 23232 (1979) (remarks of Reps. Rodino and Holtzman and Sen. Kennedy) (discussing, in consecutive sentences, how the bill removes geographical and ideological restrictions in the current law and basically conforms to the Convention's refugee definition); Admission of Refugees Into the United States Part II: Hearings on Indochina Refugees and U.S. Refugee Policy Before the Subcomm. on Immigration, Citizenship, and Int'l Law of the H. Comm, on Judiciary, 95th Cong. 235 (1977-78) (remarks of Rep. Eilberg) [hereinafter 1978 House Hearings] (same).

(152.) The BIA pointed to the Senate report's statement that the new definition "basically conforms" to the Convention. Matter of B-R-, 26 I. & N. Dec. at 121 (citing S. REP. NO. 96-256, at 14-15 (1979)). But a desire to "basically" conform to the Convention is not inconsistent with providing broader coverage where Congress chose different wording, and the legislative history shows that Congress understood that the statutory definition went beyond the Convention's minimum requirements. See infra Part IV.C.1.

(153.) 8 U.S.C. [section]1158(b)(2)(A)(vi) (2014) (providing that asylum is not available if "the alien was firmly resettled in another country prior to arriving in the United States").

(154.) Matter of B-R-. 26 I. & N. Dec. at 122 (quoting Tchitchui v. Holder, 657 F.3d 132, 137 (2d Cir. 2011)) (internal quotation marks omitted). The BIA also pointed to the "safe third country" bar to asylum as evidence of Congressional intent to protect only those who would face persecution in all countries they could go to. Id. (citing 8 U.S.C. [section] 1158(a)(2)(A) (2012)) (precluding those who may be removed pursuant to a bilateral or multilateral agreement to a safe country from applying for asylum unless the Attorney General finds it is in the public interest for the person to receive asylum). This provision was added in 1996, long after Congress's enactment of the refugee definition. IIRIRA, supra note 112, [section] 604(a), 110 Stat. 3009-546, 690-91. The United States has entered into only one such agreement, with Canada; it generally provides that asylum-seekers entering from Canada will be returned to have their asylum claims heard there unless they have family members in the United States. See Deborah E. Anker, Law of Asylum in the United States [section] 6:44 (2014) (detailing terms of the agreement). Given these limitations, and the fact that Congress expressly preserved the Attorney General's discretion to grant asylum, the "safe third country" provision sheds little light on Congress's intentions in enacting the refugee definition.

(155.) 8 C.F.R. [section] [1]208.15 (2013).

(156.) See 8 C.F.R. [section] 1003.1(d)(1) (2013) ("The Board shall resolve the questions before it in a manner that is ... consistent with the Act and regulations.").

(157.) 8 U.S.C. [section][section] 1157(c)(1), 1158(b)(2)(A)(vi) (2014). The Refugee Act made firm resettlement a bar to refugee admission, but omitted any reference to it in its asylum provisions. Refugee Act, Pub. L. No. 96-212, [section] 201(b), 94 Stat. 102, 103, 105. Nonetheless, the House-Senate Conference Report treated the "determination of whether a refugee is 'firmly resettled'" as part of the "refugee" definition and directed the Attorney General to issue regulations defining firm resettlement. H.R. REP. No. 96781, at 19 (1980) (Conf. Rep.). Those regulations made firm resettlement a bar to asylum as well as refugee admission. See infra note 158. In 1996, Congress amended the statutory asylum provisions to expressly include firm resettlement as an asylum bar. IIRIRA, supra note 112, [section] 604(a), 110 Stat. 3009-546,-691.

(158.) 8 C.F.R. [section][section] 207.1(b), 208.8(f)(l)(ii), and 208.14 (1981). The 1980 interim regulations issued by the Attorney General provided that an alien would be considered firmly resettled "if he was offered resident status, citizenship, or some other type of permanent resettlement by another nation and travelled to and entered that nation...." Id. (emphasis added). The asylum portion of the regulations technically applied only to determinations made by INS District Directors, not immigration judges, but the BIA decided in a series of early cases that similar firm resettlement standards should be considered by immigration judges when deciding whether to grant asylum. See Matter of Lam, 18 I. & N. Dec. 15, 18-19 (BIA 1981) (holding that asylum will not be granted if an alien was firmly resettled); Matter of Soleimani, 20 I. & N. Dec. 99, 104-05 (BIA 1989) (clarifying that firm resettlement was not a mandatory bar under the regulations but nonetheless "would normally preclude a grant of asylum as a matter of discretion"). In 1990, the regulations were amended to make firm resettlement a mandatory ground for denial of an asylum application, whether by an immigration judge or an asylum officer. See 8 C.F.R. [section][section] 208.14(c)(2), 208.15 (1991).

(159.) 8 C.F.R. [section] [1J208.15 (2013) (emphasis added).

(160.) The regulations excuse an alien from the firm resettlement bar if he or she shows, inter alia, "[t]hat his or her entry into that country was a necessary consequence of his or her flight from persecution, that he or she remained in that country only as long as was necessary to arrange onward travel, and that he or she did not establish significant ties in that country." Id.

(161.) 20 I. & N. Dec. 99 (BIA 1989).

(162.) Id. at 106.

(163.) Id. at 106-07. The BIA considered the facts that she was recuperating from an illness, did not seek out permanent status or government benefits (although she did attend school and study Hebrew), and had stronger family ties in the United States than in Israel.

(164.) She v. Holder, 629 F.3d 958 (9th Cir. 2010).

(165.) Id. at 960-61.

(166.) Id. at 961-62.

(167.) Id. at 962-64 and 963 n.3; see also Rife v. Ashcroft, 374 F.3d 606, 611-12 (8th Cir. 2004) (holding that Azerbaijani citizens who fled to Israel, where they were granted citizenship and lived three years before coming to the United States, were ineligible for asylum because they had firmly resettled, an approach that would have been unnecessary if their acquisition of Israeli citizenship had meant they were not "refugees" within the meaning of the U.S. refugee definition); Yasin v. Holder, 530 Fed. Appx. 466 (6th Cir. 2013) (upholding denial of asylum to a dual national because he had firmly resettled in his second country of nationality and had failed to show a well-founded fear of persecution in either one of his countries of nationality).

(168.) Cf. Valdiviezo-Galdamez v. Attorney General, 663 F.3d 582, 603-07 (3d Cir. 2011) (holding that BIA's failure to account for inconsistency with its own precedents rendered a statutory interpretation unreasonable and unworthy of Chevron deference); see also Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 41-42 (1983) (holding that if an agency abandons a prior rule's approach it must provide reasoned analysis for the change).

(169.) See EIG, supra note 95, at 47-50 (stating that although "subsequent legislative history," such as later statements by a legislator or legislative committee about what an earlier law was intended to mean, is generally given little weight by courts, subsequent legislation that clarifies the intent of an earlier statute is often weighed heavily in statutory construction).

(170.) Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 4978, 5030-31 (codified as amended at 8 U.S.C. [section] 1254a(a)(l) and (b)(1) (2014)); see H.R. Rep. No. 101-245, at 8-9 (1989) (explaining that TPS addresses the plight of persons who face danger in their home countries for reasons other than persecution and therefore fall outside the refugee definition).

(171.) 8 U.S.C. [section] 1254a(a)(l) and (c)(2)(B)(ii) (2014). The incorporation by reference of the asylum bars was added in 1996 by IIRIRA, supra note 112, [section] 308(g)(7)(E)(i), 110 Stat. 3009-546, -624.

(172.) 8 C.F.R. [section] 244.2 (2013); U.S. Citizenship and Immigration Services, Questions and Answers: Designation of Syria for Temporary Protected Status, Mar. 29, 2012, at 2 (stating that an applicant who is both a national of Syria and a national of another country will satisfy the nationality requirement for TPS, but will be ineligible if the individual firmly resettled in that other country).

(173.) See Elisabeth Rosenthal, North Korean Migrants Pull U.S. Into a Diplomatic Mess, N.Y. TIMES, May 11, 2002, at 4 (discussing a "recent spate" of North Koreans entering U.S. consulates in China and seeking asylum in the United States); H.R. REP. No. 108-478(1), at 16 (2004) (noting reports that State Department officials denied North Koreans' requests for asylum and pressured them to resettle in South Korea instead).

(174.) See U.S. Gov't Accountability Office, GAO-10-691, Humanitarian Assistance: Status of North Korean Refugee Resettlement and Asylum in the United States 25 (2010) (noting that "the South Korean Constitution considers all Koreans on the Korean Peninsula, including North Koreans, to be citizens of South Korea"); Wolman, supra note 78, at 798 (explaining that North Korean escapees are automatically South Korean nationals under provisions of South Korea's Constitution and Nationality Act).

(175.) See Andrew Salmon, Measure Would Let Refugees Seek Asylum: North Riled by U.S. Bill on Koreans, N.Y. TIMES (Oct. 6, 2004) (quoting U.S. diplomat's statement that South Korean citizenship makes North Koreans ineligible for asylum); Senate Omnibus Appropriations Bill Passes with NSEERS Funding Cut; New Bills Introduced, 80 INTERPRETER RELEASES 153 (2003) ("The State Department currently believes it is barred from granting refugee status to any escapees from North Korea because those escapees are automatically granted citizenship by South Korea, and thus are not considered to be refugees under U.S. law....").

(176.) North Korean Human Rights Act of 2004 [hereinafter NKHRA], [section] 302, Pub. L. No. 108-333, 118 Stat. 1287, 1295-96; see articles cited supra note 175 and infra note 184.

(177.) NKHRA, supra note 176, [section] 302(b).

(178.) Id. [section] 302(a) (emphasis added). The legislative history explains the purpose of this provision:
   [It] [c]larifies that North Koreans are eligible to apply for U.S.
   refugee and asylum consideration (as anyone else is), and are not
   presumptively disqualified by any prospective claim to citizenship
   they may have under the South Korean Constitution. This does not
   change U.S. law but makes it clearer, explicitly endorsing the
   approach of U.S. Immigration Courts in proceedings involving North
   Koreans, in which their asylum claims were adjudicated with
   reference to the actual circumstances they faced inside North
   Korea. It is meant to put to rest the erroneous opinion (proposed
   by some State Department personnel) that, because North Koreans may
   be able to claim citizenship if and when they relocate to South
   Korea, they must be regarded as South Koreans for U.S. refugee and
   asylum purposes, irrespective of whether they are able or willing
   to relocate to South Korea.

H.R. REP. NO. 108-478(1), at 22 (2004).

(179.) NKHRA, supra note 176, [section] 302(a).

(180.) See Matter of K-R-Y- & K-C-S-, 24 I. & N. Dec. 133, 135-37 (BIA 2007) (holding that the NKHRA left the firm resettlement bar to asylum undisturbed and finding that that two North Korean applicants who had lived for extended periods in South Korea were firmly resettled and ineligible for asylum).

(181.) See id. at 136 (BIA statement suggesting they took this view: "[T]he legislative history confirms our interpretation that North Koreans cannot be denied asylum based on their right under the South Korean Constitution to apply for and become a citizen of South Korea." (emphasis added)).

(182.) NKHRA, supra note 176, [section] 302(a) (emphasis added); see supra text accompanying notes 177-78.

(183.) As is in fact the case. See supra note 174.

(184.) See U.S. Senator Introduces Bill to Grant Asylum to N.K. Refugees, YONHAP ENGLISH News, Oct. 19, 2002 (quoting statement of Senator Sam Brownback: "[T]he moral obligation that we have for refugees everywhere seeking basic human liberties should not be laid aside because of that legal technicality....").

(185.) H.R. REP. NO. 108-478(1), at 16 (2004).

(186.) NKHRA, supra note 176, [section] 302(a); see supra text accompanying notes 177-78 and 182-85.

(187.) INA [section] 203(a)(7) (codified at 8 U.S.C. [section] 1153(a)(7) (1976)).

(188.) See, e.g., 1978 House Hearings, supra note 151, at 215 (Rep. Joshua Eilberg stating that the goal of his Refugee Act was to eliminate "[t]he present system of ad hoc piece-meal measures" and "haphazard, stop-gap parole programs and replace them with an orderly and workable refugee policy").

(189.) See H.R. Rep. No. 96-608, at 2-4 (1979) (describing pre-1980 refugee legislation).

(190.) INA [section] 212(d)(5) (codified at 8 U.S.C. [section] 1182(d)(5) (1976)). The INA gave the Attorney General discretionary authority to temporarily parole otherwise inadmissible aliens into the United States "for emergent reasons or for reasons deemed strictly in the public interest." Id. Parole was used to admit large numbers of Hungarians after the 1956 Soviet invasion, Cubans in the 1960s, and Indochinese and Soviet Jews in the 1970s. It was also resorted to at various points for Chinese refugees from Hong Kong, post-World War II refugees lingering in European refugee camps, Czechs fleeing the 1968 Soviet invasion, and persons of Asian descent expelled from Uganda. See H.R. REP. No. 96-608, at 3-4 (1979). Many in Congress viewed these group-based paroles as an abuse of the parole statute and a usurpation of Congress's responsibility to set policy on immigration and refugees. See David A. Martin, The Refugee Act of 1980: Its Past and Future, 3 MICH. YEARBOOK INT'L LEGAL STUD. 91, 93-94 (1982) (citing statements in committee reports and hearings casting doubt on the legal foundation for large-scale refugee paroles).

(191.) Edward M. Kennedy, Refugee Act of 1980, 15 INT'L MIGRATION REV. 141, 143-44 (1981).

(192.) See Immigration: Hearings on H.R. 9112, 15092 and 17370 to Amend the Immigration and Nationality Act and for Other Purposes Before Subcomm. No. 1 of the H. Comm, on the Judiciary, 91st Cong. (1970) [hereinafter 1970 House Hearings]-, Western Hemisphere Immigration: Hearings on H.R. 981 Before Subcomm. No. 1 of the H. Comm, on the Judiciary, 93rd Cong. (1973) [hereinafter 1973 House Hearings]-, Western Hemisphere Immigration: Hearings on H.R. 367, 981 and 10323 Before Subcomm. on Immigration, Citizenship and Int'l Law of the H. Comm, on the Judiciary, 94th Cong. (1975-76) [hereinafter 1975-6 House Hearings]; see also Deborah E. Anker & Michael H. Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980, 19 SAN DIEGO L. Rev. 9, 20-30 (1981) (describing the history of early refugee reform proposals).

(193.) A 1973 Western Hemisphere immigration bill that included a revised refugee definition and new parole procedures was passed by the House but died in the Senate. H.R. 981, [section][section] 5-6, 93rd Cong. (1973); see H.R. 93-461, at 2-3, 9-12, 17-19 (1973) (reprinting bill and discussing refugee provisions); 119 CONG. REC. 31477-78 (1973) (House passage); Anker & Posner, supra note 192, at 28 (discussing Senate Judiciary Committee's failure to act on the bill).

(194.) From 1975 to 1979, the Ford and Carter Administrations repeatedly invoked the parole power to admit over 300,000 Indochinese refugees. During the same period, Jewish emigration from the Soviet Union outstripped the available refugee visas and led to further group-based paroles. See Martin, supra note 190, at 92-93; David W. Haines, Refugees and the Refugee Program, in REFUGEES IN THE UNITED States: A Reference Handbook 3, 5-6 (David W. Haines ed., 1985).

(195.) H.R. 14386, 94th Cong. (1976); see also H.R. 3056, 95th Cong. (1977); H.R. 7175, 95th Cong. (1977) (subsequent versions of Eilberg's bill).

(196.) Admission of Refugees Into the United States: Hearings on H.R. 3056 Before the Subcomm. on Immigration, Citizenship, and Int'l Law of the H. Comm, on the Judiciary, 95th Cong. (1977) [hereinafter 1977 House Hearings]; 1978 House Hearings, supra note 151.

(197.) See S. 2751, 95th Cong. (1978); see also Kennedy, supra note 191, at 144.

(198.) See Kennedy, supra note 191, at 144. The bill was the result of intensive consultations between Executive Branch officials and House and Senate Judiciary Committee staffers between November 1978 and February 1979. Id.

(199.) See S. 643, 96th Cong. (1979), 125 CONG. Rec. 4881-86 (1979); H.R. 2816, 96th Cong. (1979), 125 CONG. REC. 4798-4802 (1979); see also Eilberg Pleads Guilty; Bargain Sets Penalty at Probation and Fine, N.Y. TIMES, Feb. 25, 1979, at 1, 16 (discussing Eilberg's indictment two weeks before the election).

(200.) See The Refugee Act of 1979, S. 643: Hearing Before the S. Comm, on Judiciary, 96th Cong. (1979) [hereinafter 1979 Senate Hearing]; Refugee Act of 1979: Hearings on H.R. 2816 Before the Subcomm. on Immigration, Refugees, and Int'l Law of the H. Comm, on Judiciary, 96th Cong. (1979) [hereinafter 1979 House Judiciary Hearings], Hearings were also held before the House Foreign Affairs Committee. Refugee Act of 1979: Hearings on H.R, 2816 Before the Subcomm. on Int'l Operations of the H. Comm, on Foreign Affairs, 96th Cong. (1979) [hereinafter 1979 House Foreign Affairs Hearings].

(201.) See generally S. REP. No. 96-256 (1979); H.R. Rep. No. 96-608 (1979); see also Anker & Posner, supra note 192, at 50-56 (discussing amendments incorporated into the House and Senate reports).

(202.) 125 CONG. REC. 23224-54 (1979) (Senate); 125 CONG. REC. 35812-27, 37198-247 (House); see Kennedy, supra note 191, at 148 (noting that "the House bill differed on a number of substantive points from the Senate bill").

(203.) S. REP. NO. 96-590 (1980) (Conf. Rep.); H.R. REP. No. 96-781 (1980) (Conf. Rep.); see Kennedy, supra note 191, at 141, 148-52 (describing the Conference Committee's actions, final passage, and signing).

(204.) See generally Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102. The 50,000 limit was put in place only for fiscal years 1980-1982; after that, the Act provided that the number would be set annually by the President in consultation with Congress. Id. [section] 201(b).

(205.) Kennedy, supra note 191, at 145-48; see infra Part IV.C.2.

(206.) See infra notes 210, 224-25.

(207.) Each of the themes summarized in this paragraph are discussed below in Parts IV.C.1 to 4.

(208.) This policy even extended to Soviet Jews who entered Israel as citizens, spent some time living there, and then changed their minds and decided they preferred to go to the United States. See infra text accompanying notes 313-17 and 344-51.

(209.) INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

(210.) Id. at 436-37; see S. REP. No. 96-256, at 4 (1979) (stating that "the new definition will bring United States law into conformity with our international treaty obligations" under the Convention and Protocol).

(211.) The refugee definition in Eilberg's 1977 bill was essentially identical to subsection A of the definition as enacted in the 1980 Refugee Act. Compare H.R. 3056, 95th Cong. [section] 2(a) (1977), reprinted in 1977 House Hearings, supra note 196, at 2-3 (containing the phrase "outside any country of his nationality" and omitting the Convention's multiple nationality provision), with 8 U.S.C. [section] 1101(a)(42)(A) (1982) (using identical wording except language made gender-neutral). Eilberg's first version of the Refugee Act, filed in 1976, and Kennedy's initial Senate version omitted the Convention's multiple nationals provision but used the Convention's phrase "outside the country of his nationality." H.R. 14386, [section] 2(a), 94th Cong. (1976); S. 2751, [section] 2(a), 95th Cong. (1978). Kennedy adopted Eilberg's revised wording of 1977 in the bill he brought before the Senate Judiciary Committee in 1979. S. 643, [section] 201(a) (1979), reprinted in 1979 Senate Hearing, supra note 200, at 73-74.

(212.) See 1977 House Hearings, supra note 196, at 14; see also 1973 House Hearings, supra note 192, at 327 (describing the bill's refugee definition as a "broadened definition of refugee, close to but not identical with the U.N. protocol").

(213.) The Convention, in contrast, uses "return to" only in connection with a stateless person's country of former residence. Convention, supra note 3, art. 1A(2). As discussed previously, this wording change has implications for persons with multiple nationalities: the use of "return to" suggests that "any country" of nationality does not mean all countries of nationality, which would include countries where the individual never lived and thus could not "return to." See supra text accompanying notes 104-05.

(214.) 1977 House Hearings, supra note 196, at 64 (noting, in a colloquy with a State Department witness, that his bill's definition "requires that both conditions be met ... whereas the U.N. Protocol ... indicates] that only one of the conditions is required to be met").

(215.) In the hearings he presided over, Eilberg stressed that the refugee definition in his bill was one that "we have struggled long and hard in coming up with." 1978 House Hearings, supra note 151, at 235.

(216.) Convention, supra note 3, art. 1F(a).

(217.) 1979 House Judiciary Hearings, supra note 200, at 71.

(218.) H R. REP. NO. 96-608, at 10, 38 (1979).

(219.) 125 CONG. REC. 4798 (1979) (statement of Rep. Rodino describing the new refugee definition as "bringing us closer to conforming to the definition we subscribed to in the U.N. Protocol"); id. at 4800 (quoting Rep. Holtzman saying "[t]he new definition essentially conforms"); id. at 4883-84 (State Department memo and section-by-section analysis entered into record by Sen. Kennedy using the phrases "in substantial conformity" and "basically conforms"). These qualifications could not have been referring to the subsection of the U.S. refugee definition that went beyond the Convention by covering persons still within their own countries, which was not yet in the bill.

(220.) See H.R. REP. NO. 96-608, at 9 (1979) (stating that "[t]he first part of the new definition essentially conforms to that used under the [Convention and Protocol]"); 125 CONG. REC. 35814 (1979) (quoting Rep. Holtzman describing the definition similarly in summarizing the bill at the outset of House debate); id. at 23232 (quoting Sen. Kennedy, at the start of Senate debate, describing the new refugee definition as one that "basically conforms" to the Convention definition). But see H.R. REP. No. 96-781, at 19 (1980) (Conf. Rep.) (stating that the House and Senate bills "incorporated" the Convention definition as well as additional coverage for internally displaced persons).

(221.) See 1979 House Judiciary Hearings, supra note 200, at 40 (quoting Dick Clark, U.S. Coordinator for Refugee Affairs, stating that the bill "essentially adopts" the Protocol's refugee definition); 1979 Senate Hearing, supra note 193, at 11 (same); 1979 House Foreign Affairs Hearings, supra note 200, at 69 (quoting Clark stating that the new definition "comes much closer" to the UN definition); 1978 House Hearings, supra note 151, at 217-18 (quoting INS Commissioner Leonel Castillo stating that the expanded refugee definition in Eilberg's H.R. 7175 "will conform substantially" to the Convention). But see 1979 House Foreign Affairs Hearings, supra note 193, at 71-72 (quoting Justice Department official Doris Meissner saying that the bill "simply incorporated" the UN definition and the State Department's David Martin stating that the United States will continue to use the UN standard in asylum cases).

(222.) 8 U.S.C. [section] 1101(a)(42)(B) (2014). The bill passed by the Senate also extended refugee status to another group not covered by the Convention, those displaced by military or civil disturbance. S. REP. No. 96-256, at 4, 20 (1979); 125 CONG. REC. 23252 (1979). That provision was dropped in Conference. H.R. Rep. No. 96-781, at 19 (1980) (Conf. Rep.).

(223.) See H.R. REP. No. 96-608, at 9 (1979); S. REP. No. 96-256, at 4 (1979).

(224.) H.R. Rep. NO. 96-781, at 20 (1980) (Conf. Rep.).

(225.) See id. (explaining that while the Senate bill made withholding unavailable if deportation would be allowed under the UN Convention and Protocol, the Conference adopted the House version listing four specific bars to withholding, with the understanding that those four bars are "based directly upon the language of the Protocol and it is intended that the provision be construed consistent with the Protocol"). The Supreme Court's statement in INS v. Cardoza-Fonseca, 480 U.S. at 437, that the Conference Report called for the refugee definition to be construed consistently with the Protocol, was incorrect. It makes sense, of course, to read the U.S. refugee definition consistently with the UN definition when the wording is the same (as was the case with the phrase "well-founded fear" at issue in Cardoza-Fonseca), but it does not follow that Congress meant to incorporate the Convention's meaning when it chose different language.

The Senate report includes one statement which, if read out of context, could be misinterpreted to mean that the U.S. definition was meant to be coextensive with the Convention's. In discussing the Senate bill's asylum provisions, the report states, "[A]sylum will continue to be granted only to those who qualify under the terms of the United Nations Protocol...." S. Rep. No. 96-256, at 9 (1979). The Senate bill, however, made asylum available only if the individual's deportation would be barred under the bill's section on withholding of deportation, which required a showing that the person's life or freedom would be threatened in the country of proposed removal--the standard of Article 33 of the Convention. See id. at 16, 26, 29. What the Senate Report was saying was that only those refugees who qualified for non-refoulement under Article 33 would be eligible for asylum. Elsewhere, the report expressly acknowledged that the bill's definition of "refugee" was broader than the Convention's. See id. at 4 ("The new definition has been amended ... to include 'displaced persons' who are not technically covered by the United Nations Convention."). The Senate's limitation of asylum to those who could meet the withholding of deportation standard did not remain in the final bill, which made anyone satisfying the refugee definition eligible for a discretionary grant of asylum. 8 U.S.C. [section] 1158(a) (1982); see Cardoza-Fonseca, 480 U.S. at 435 n.17 (noting that this provision of the Senate bill was rejected by Congress).

(226.) See 1979 House Judiciary Hearings, supra note 200, at 180 (quoting witness Hurst Hannum of Amnesty International, responding to a question about whether it is "contradictory" for U.S. law to define "refugee" differently than the Convention: "[T]he international obligation sets a minimum level for our concerns.... [Broader coverage] should not cause any problem.").

(227.) Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, July 2-25, 1951, Final Act, [section] IV.E, July 28, 1951, U.N. Doc. A/Conf.2/108/Rev.l (Nov. 26, 1952); see Plender, supra note 55, at 59 (noting that the Convention's drafters assumed that states were free to grant refugee status to those not qualifying under the Convention). There is, however, some indication in the Convention's drafting history that delegates believed that granting refugee status to internally-displaced persons still inside their country of nationality would be an impermissible infringement of state sovereignty under international law. See ECOSOC Social Comm., Summary Record of Meeting, U.N. Doc. E/AC.7/SR.172, at 4 (Aug. 12, 1950) (remarks of Mr. Rochefort of France); see also Matthew T. Clyde Pace, What You Are Depends on Where You're Standing: How Expanding Refugee Protections to the Internally Displaced Through the Refugee Act of 1980 Violates International Law, 74 U. PITT. L, Rev. 107 (2012) (arguing that the Refugee Act violates international law by expanding the definition of "refugee" to include internally displaced groups). Whether this conclusion remains valid in light of the post-1951 evolution of international law, which increasingly recognizes the legitimacy of states acting to protect against violations of fundamental human rights in other countries, is open to doubt. See HATHAWAY, supra note 43, at 32 (suggesting that the legitimate reach of refugee law to deal with the problems of internally displaced persons has expanded over time because of increasing recognition of the international community's authority over human rights). In any event, non-intervention principles clearly pose no barrier to granting refugee status to a person with more than one nationality who is not inside any of those countries.

(228.) In 1979, the crucial year in Congressional deliberations, over 200,000 refugees arrived in the United States, exceeding by more than a factor of ten the 17,400 refugee visas then authorized by law. See Kennedy, supra note 191, at 145-46 (noting that the large influx created political pressures both for and against the Refugee Act). The influx strained resettlement resources and sparked community tensions. In September 1979, Congressional supporters stressed "[w]e have to get this bill through while we can" because "a great negative wave will get there at any moment.... [T]he backlash on this problem is unbelievable." 1979 House Foreign Affairs Hearings, supra note 200, at 56, 58 (remarks of Subcomm. Chair Dante Fascell and Rep. Joel Pritchard).

(229.) See, e.g., 125 CONG. REC. 35814 (1979) (remarks of Rep. Holtzman: "[T]his expanded definition will in no way open the floodgates to hordes of refugees.... This expanded definition will simply give our Government the flexibility to admit refugees of special humanitarian concern....").

(230.) See, e.g., H.R. REP. 96-608, at 61 (1979) (minority views of Reps. Hyde and Sawyer); 125 CONG. REC. 35814, 37225-26 (1979) (remarks of Reps. Holtzman, Fish, and Collins).

(231.) See 1979 House Foreign Affairs Hearings, supra note 200, at 69-70 (exchange between Rep. Fascell and U.S. Refugee Coordinator Clark agreeing that meeting the criteria of the definition does not entitle a person to entry); 1979 Senate Hearing, supra note 200, at 22 (Kennedy-Clark exchange); H.R. REP. 96-608, at 10 (1979); 125 CONG. REC. 35814 (1979) (Rep. Holtzman stating that "[m]erely ... com[ing] within the new definition does not guarantee resettlement in the United States"); id. 23232 (similar statement by Sen. Kennedy).

(232.) 8 U.S.C. [section] 1157(c)(1) (2014).

(233.) H.R. REP. No. 96-608, at 13 (1979). The Senate Report acknowledged that U.S. "foreign policy interests" would also play a role in deciding whom to admit. S. REP. NO. 96-256, at 6 (1979).

(234.) See 8 U.S.C. [section] 1158(a) (1982) (providing that an alien meeting the refugee definition "may be granted asylum in the discretion of the Attorney General"). Congress gave asylum much less attention than refugee admissions from abroad. No one anticipated the mass arrivals that would begin with the Mariel boatlift from Cuba just a few weeks after the Refugee Act was signed into law, soon to be followed by a surge in asylum-seekers from Central America. The Refugee Act set a cap of 5,000 on the number of asylees to be granted permanent resident status each year, which seemed ample in comparison with the annual flow of asylum cases during the late 1970s. 8 U.S.C. [section] 1159(b) (1982); see Doris Meissner, Reflections on the Refugee Act of 1980, in THE NEW Asylum Seekers 57, 60 (David A. Martin ed., 1988) ("Providing for political asylum in the Refugee Act was almost an afterthought.... an annual number of 5,000 was authorized.... [t]he number was arbitrary but was seen as most generous and highly unlikely to be needed...."); NORMAN L. ZUCKER & NAOMI FLINK Zucker, The Guarded Gate: The Reality Of American Refugee Policy 141-42

(1987) ("Five thousand was a very generous number, since fewer than one thousand refugees received asylum each year.").

(235.) H.R. REP. NO. 96-608, at 9 (1979).

(236.) S. Rep. No. 96-256, at 4 (1979); see also 125 CONG. Rec. 35814 (1979) (remarks of Rep. Holtzman describing the broadened refugee definition as providing "flexibility to admit refugees of special humanitarian concern").

(237.) Regulations issued shortly after the Refugee Act's passage authorized consideration of an applicant's ability to go elsewhere as part of the discretionary balance: "Among other grounds, the district director may deny a request for asylum ... in the exercise of discretion if ... there is an outstanding offer of resettlement by a third nation where the applicant will not be subject to persecution and the applicant's resettlement in a third nation is in the public interest." Dep't of Justice, INS, Refugee and Asylum Procedures, 45 Fed. Reg. 37,392, 37,395 (June 2, 1980) (codified at 8 C.F.R. [section] 208.8(f)(2) (1981)). The "public interest" proviso provided ample room to consider countervailing factors that might make it unreasonable to expect the person to go to another country, or ways in which granting asylum might serve the interests and values of the United States. In 1990, the regulations were amended to eliminate any reference to the factors to be considered in exercising discretion. See 8 C.F.R. [section] 208.14(a) (1991) (giving adjudicators discretion to grant or deny asylum but containing no reference to standards for exercising it).

(238.) See, e.g., 125 CONG. REC. 23235, 35813, 35818, 37201, 37224, 37226 (1979) (remarks of Sen. Kennedy and Reps. Lott, Sensenbrenner, Butler, Sawyer, and Collins).

(239.) See, e.g., 125 CONG. REC. 37226-27 (1979) (quoting Rep. Buchanan, who responded to "fair share" arguments by "remind[ing] my colleagues this day that this is a Nation of immigrants"); see also infra text accompanying notes 299-304. Moreover, as will be discussed in Part IV.C.4, there was strong support in Congress for the U.S. policy of accepting all Soviet Jewish refugees who wanted to come to the United States even though Israel was eager to have them as citizens.

(240.) Strom Thurmond, the ranking Republican on the Senate Judiciary Committee, who had previously taken steps to block the Refugee Act in the Senate, changed his position and endorsed it as a direct result of the Geneva Conference. See 125 CONG. REC. 23237-38 (remarks of Sen Thurmond referencing the encouraging international response to the world refugee problem in connection with his decision not to oppose the bill); Kennedy, supra note 191, at 147 (describing the Geneva Conference's impact in securing Congressional support).

(241.) INS v. Cardoza-Fonseca, 480 U.S. 421, 434-36 (1987) (concluding that Congress intended no change in pre-Refugee Act U.S. jurisprudence requiring less than a probability of persecution to establish refugee status).

(242.) H.R. Rep. No. 96-608, at 1 (1979); see also id. at 9 (stating the new definition "eliminates the ... restrictions now applicable ... under section 203(a)(7) ... which is limited to those fleeing communist countries or the Middle East").

(243.) The Senate Report states that the bill "repeals the current immigration law's discriminatory treatment of refugees," "eliminat[ing] the geographical and ideological restrictions now applicable ... under section 203(a)(7)." S. REP. No. 96-256, at 1, 4 (1979). During the hearings and floor debates, the refugee definition was repeatedly described as an expansion of [section] 203(a)(7)'s definition that would eliminate its limitation to those fleeing Communist and Middle Eastern countries. See, e.g., 1979 Senate Hearing, supra note 200, at 9 (statement of U.S. Refugee Coordinator Dick Clark); id. at 19 (statement of Associate Attorney General Michael Egan); 1978 House Hearings, supra note 151, at 235 (Rep. Eilberg describing purpose of his bill's refugee definition); 125 CONG. REC. 4798, 4800, 23232 (1979) (remarks of Reps. Rodino and Holtzman and Sen. Kennedy).

(244.) H.R. REP. NO. 96-608, at 10 (1979).

(245.) S. REP. NO. 96-256, at 1 (1979).

(246.) See 1979 House Judiciary Hearings, supra note 200, at 24, 66-67 (Rep. Holtzman expressing concern that without such amendment the refugee definition would not "include persons who are in the country of their origin, such as Cuba or Vietnam"); H.R. REP. No. 96-608, at 9-10 (1979); S. Rep. No. 96-256, at 4 (1979) (explaining purpose of the committee amendments); see also Martin, supra note 190, at 101-02 (describing the addition of the in-country provision as an effort to deal with the fact that "[historically, some of the largest groups resettled as refugees by the United States had moved directly from their home countries" and would not have qualified as refugees under the UN definition).

(247.) INA [section] 203(a)(7) (codified at 8 U.S.C. [section] 1153(a)(7) (1976)) (internal section designations omitted).

(248.) See Act of Sept. 11, 1957, [section] 15(c)(1), Pub. L. 85-316, 71 Stat. 639, 643 (defining "refugee-escapee" as "any alien who, because of persecution or fear of persecution on account of race, religion, or political opinion has fled or shall flee (A) from any Communist, Communist-dominated, or Communist-occupied area, or (B) from any country within the general area of the Middle East, and who cannot return to such area, or to such country, on account of race, religion, or political opinion."). The Fair Share Law of 1960, Pub. L. No. 86-648, [section] 1, 74 Stat. 504, incorporated the 1957 Act's definition of "refugee-escapee," but added an additional requirement that the person fall within the UNHCR's mandate. The Fair Share Law was enacted for the specific purpose of helping UNHCR close out the remaining refugee camps in Europe, and its restriction to those within UNHCR's mandate was congruent with that goal. It was not intended to change the underlying definition of a "refugee" for purposes of U.S. law. See Shen v. Esperdy, 428 F.2d 293, 300 (2d Cir. 1970) ("[T]he specialized purpose of the Fair Share Law--participation in the World Refugee Year in order to close out the D.P. camps of Europe--cuts against any interpretation of this enactment as a pervasive declaration of immigration policy."). The legislative history of the 1965 Act, which repealed the Fair Share Law and replaced it with [section] 203(a)(7), shows that Congress viewed the elimination of the restriction to those within UNHCR's mandate as a restoration of underlying U.S. definition that would "again permit the United States to determine who is or who is not a refugee." H.R. REP. No. 89-745, at 15 (1965); see Shen, 428 F.2d at 300-01 (citing further legislative history indicating that this was Congress's goal).

(249.) The Refugee Relief Act of 1953, [section] 2(b), 67 Stat. 400 [hereinafter RRA], defined "escapee" as "any refugee who, because of persecution or fear of persecution on account of race, religion, or political opinion, fled from the [Soviet Union] or other Communist, Communist-dominated or Communist-occupied area of Europe ... and who cannot return thereto because of fear of persecution on account of race, religion, or political opinion." It defined "refugee" as a person "who because of persecution, fear of persecution, natural calamity or military operations is out of his usual place of abode and unable to return thereto, who has not been firmly resettled, and who is in urgent need of assistance...." Id. [section] 2(a). The first major U.S. refugee statute, the Displaced Persons Act of 1948, had defined its operative term, "displaced person," by incorporating by reference those identified in the Constitution of the International Refugee Organization as refugees or displaced persons of concern to the IRO. [section] 2(b), 62 Stat. 1009.

(250.) Compare 8 U.S.C. [section] 1153(a)(7) (1976) ("because of persecution or fear of persecution"), with Convention, supra note 3, art. 1A(2) ("owing to well-founded fear of being persecuted").

(251.) The Convention allowed only certain "statutory refugees" (those recognized pre-1951) to maintain refugee status based on past persecution alone. See supra notes 51 and 58.

(252.) S. REP. NO. 85-1057, at 6 (1957).

(253.) See Convention, supra note 3, art. 1A(2) (excluding those who could avail themselves of the protection of one of their countries of nationality without a well-founded fear of being persecuted); supra Part III.

(254.) Section 203(a)(7) of the 1965 Act did include one nationality-focused provision: a requirement that a person seeking refugee admission from abroad not be a national of the country in which the application was made. 8 U.S.C. [section] 1153(a)(7)(A)(iii) (1976). That limitation must be understood in the context of the regulations in effect at the time, which allowed applications for refugee visas to be submitted only at INS offices in seven countries: Austria, Belgium, France, Germany, Greece, Italy, and Lebanon. 8 C.F.R. [section] 235.9 (1970). It did not foreclose refugee applications from persons who held or acquired the nationality of any other country, nor did it apply to persons who sought refugee status after arriving in the United States. See Shen v. Esperdy, 428 F.2d 293, 298 (2d Cir. 1970) (concluding that the provision was relevant only to aliens who were nationals of one of the seven listed countries and submitted a refugee application in that country). The Supreme Court, in Rosenberg v. Yee Chien Woo, endorsed Shen's analysis and found that the "not a national" provision did not displace flight from home and the absence of firm resettlement as the central considerations in determining refugee status. 402 U.S. 49, 54, 57 (1971).

(255.) 402 U.S. 49 (1971).

(256.) Id. at 55-56. For discussion of the firm resettlement doctrine's development, see Robert D. Sloane, An Offer of Firm Resettlement, 36 Geo. Wash. Int'l L. REV. 47 (2004).

(257.) RRA, supra note 249, [section] 2(a), 67 Stat. 400. The Displaced Persons Act of 1948 had similarly limited those eligible for certain displaced persons visas to those who "on January 1, 1948, had not been firmly resettled." [section] 2(c)(1), 62 Stat. 1009. The 1948 Act's general definition of the term "displaced person" also incorporated the concept of firm resettlement by referring to those deemed of concern by the International Refugee Organization. Id. [section] 2(b). Under the IRO Constitution, displaced persons ceased to be of concern when they acquired a new nationality or had otherwise "become firmly established." IRO Constitution, supra note 54, annex I, pt. I, [section] D. See Matter of A-G-G-, 25 I. & N. Dec. 486, 489-90 (BIA 2011) (detailing the IRO Constitution's treatment of displaced persons who had become "firmly established"); Yee Chien Woo, 402 U.S. at 54 n.3 (noting that the 1948 Act incorporated a firm resettlement test through its reference to the IRO Constitution).

(258.) Yee Chien Woo, 402 U.S. at 55-56.

(259.) Id. at 57 n.6.

(260.) H.R. CONF. REP. No. 83-1069, at 10 (1953). This did not preclude considering a person's voluntary decision to acquire citizenship in a country of residence as a factor probative of firm resettlement. Under INS guidelines issued in 1978 acceptance of a status conferring permanent residence rights could be considered in determining whether a refugee had firmly resettled, but in itself would not lead to a firm resettlement finding unless one or more of the other listed factors was also present (e.g., residence of more than a year, voluntarily serving in the military, taking employment of a permanent nature). INS, Guidelines for Firm Resettlement, reprinted in U.S. Refugee Programs: Hearing Before the Senate Comm, on the Judiciary, 96th Cong. 34-35 (1980).

(261.) Matter of Sun, 12 I. & N. Dec. 36, 38-39 (Reg. Comm'r BIA 1966). Several subsequent administrative decisions cited Sun as the leading case on firm resettlement. Matter of Chai, 12 I. & N. Dec. 81, 82 (BIA 1967); Matter of Hung, 12 I. & N. Dec. 178, 180 (BIA 1967); Matter of Ng, 12 I. & N. Dec. 411, 411-12 (BIA 1967); see also Matter of A-G-G-, 25 I. & N. Dec. 486, 490-91 (BIA 2011) (discussing Sun as exemplar of firm resettlement doctrine during the period from 1957 to 1990).

(262.) Hung, 12 I. & N. Dec. at 181 (determining that the applicant was not firmly resettled because she was a minor during her time in Hong Kong, her parents had subsequently been paroled into the United States, and she no longer had "any close family ties or equities in Hong Kong"). In the initial decision that the Regional Director overturned, an INS District Director, while denying her application for refugee status on firm resettlement grounds, had acknowledged that "[a]n applicant's nationality per se is not a basis for finding an applicant ineligible." Id. at 178.

(263.) See Gil LOESCHER & JOHN A. SCANLON, CALCULATED KINDNESS: REFUGEES And AMERICA'S Half-Open Door 45-46 (1986) (discussing the numbers and origins of entrants under the 1953 Act).

(264.) See RRA, supra note 249, [section][section] 2(c), 4(a)(1), 67 Stat. 400 (allocating 55,000 visas to German expellees residing in West Germany, West Berlin or Austria); H.R. REP. NO. 83-974, at 11 (1953) (discussing how West Germany had taken in millions of German ethnics expelled from countries falling under Communist domination). Under section 116 of Germany's Basic Law, these expellees would have been considered German nationals as soon as they entered German territory--or at least would have been so recognized by early 1955, when clarifying legislation was enacted. See Von Mangoldt, supra note 32, at 33-36 (discussing automatic acquisition of nationality under the Basic Law).

(265.) RRA, supra note 249, [section] 4(a)(5) and (7); see H.R. Rep. No. 83-974, at 13-14 (1953) (discussing Greece's "internal refugee problem" necessitating resettlement for many of its "own citizens" and the need to relieve "surplus population" in Italy).

(266.) RRA, supra note 249, [section] 4(a)(9); see H.R. Rep. No. 83-974, at 15 (1953) (discussing plight of Dutch Indonesians whose families lived in Indonesia for generations "returning] to a country badly devastated by the war, and already seriously overcrowded"). Visa allocations for the Dutch Indonesians were extended by subsequent legislation, and by 1962 the United States had taken in over 30,000 of the 300,000 who had left Indonesia for the Netherlands. See Richard Feree Smith, Refugees, 367 ANNALS AM. ACAD. POL. & SOC. SCI. 43, 47 (1966) (chronicling the movement of Dutch Indonesians from Indonesia to the Netherlands to the United States).

(267.) See Act of Sept. 2, 1958, Pub. L. 85-892, 72 Stat. 1712, 1712-13 (extending visa allotments for specified groups); Act of Sept. 11, 1957, [section] 15, Pub. L. 85-316, 71 Stat. 639, 643 (same); S. REP. NO. 85-1057, at 6 (1957).

(268.) Act of Sept. 2, 1958, 72 Stat. 1712, 1712-13; H.R. REP. No. 85-2558, at 2-6 (1958).

(269.) H.R. Rep. NO. 85-2558, at 8-9 (1958) (reprinting State Department letter expressing support for the Senate-passed bill aiding "refugees from the Azores Islands" and requesting the House to add relief for the "Dutch refugees from Indonesia").

(270.) The protection available from the Nationalist government was more theoretical than real; despite the fact that it viewed them as citizens, it allowed very few to enter, and did not agree until 1962 that it would accept all who wished to come. See Decision Shunned on China Refugees; U.N. Agency to Study Problem but No One Will Take Red Victims Now in Hong Kong, N.Y. Times, Apr. 30, 1953 (discussing the plight of Chinese refugees stranded in Hong Kong and Taiwan's refusal to take them); Taiwan Offers to Accept Refugees from Red China, N.Y. TIMES, May 22, 1962, at 1 (reporting Taiwan's 1962 decision to finally accept the refugees).

(271.) A report commissioned by UNHCR questioned whether the Chinese could be considered refugees from a legal point of view, given that Nationalist China recognized them as citizens. In 1957, the UN General Assembly issued a resolution empowering the High Commissioner to use his "good offices" to raise money to assist the refugees, without regard to whether the UNHCR Statute applied to their situation. See Gil Loescher, The Unhcr And World Politics 92-95 (2001) (discussing UN responses to the Hong Kong refugee problem); Refugee Chinese Puzzle for U.N.; Large Hong Kong Group Has Complex Legal Status That Blocks Aid Program, N.Y. TIMES, Mar. 8, 1955, at 3 (summarizing report that found the UN could not concede the Hong Kong Chinese needed UNCHR protection given that they were nationals of the UN-recognized Chinese government in Taiwan); Kathleen Teltsch, U.N. to Consider China Refugees; U.S. to Present Problem of 700,000 now in Hong Kong to Assembly in Fall, N.Y. TIMES, July 23, 1957, at 10 (describing the lack of legal refugee status and the 1957 push for a UN resolution to authorize UNCHR assistance). Three years later, a General Assembly resolution explicitly stated that the Chinese refugees were among those "who do not come within the immediate competence of the United Nations." See 1 LOUISE W. HOLBORN, REFUGEES: A PROBLEM OF OUR TIME: THE WORK OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES 436 (1975) (quoting and discussing UN General Assembly Res. 1499[XV] of Dec. 5, 1960).

(272.) The Refugee Relief Act of 1953 included allocations of 3,000 visas for "Far Eastern" refugees and an additional 2,000 specifically set aside for Chinese refugees. RRA, supra note 249, [section] 4(a)(12)-(13), 67 Stat. 400, 402. Later, persons fleeing Communist China could qualify for visas set aside for "refugee-escapees" under the 1957 Act and for refugee admission or adjustment of status under [section] 203(a)(7) of the 1965 Act. The parole authority was used to admit more than 15,000 Chinese refugees residing in Hong Kong between 1962 and 1965. See 1977 House Hearings, supra note 196, at 22 (providing a table listing the approximate numbers of refugees accepted by the United States under various programs).

(273.) See cases discussed supra notes 261-62 and accompanying text.

(274.) See 1973 House Hearings, supra note 192, at 94 (discussing the Attorney General's 1972 authorization of parole for "up to 1,000 stateless Ugandan Asians"); Kathleen Teltsch, Refugee-Aid Unit Bids U.S. Take More Ugandan Asians, N.Y. TIMES, Jan. 8, 1973 (noting that 27,000 Ugandan Asians who held British passports were admitted by Britain, while those left stateless had been resettled in the United States or remained in UN refugee camps).

(275.) See David Binder, $85 Million Aid to Go to Lisbon, N.Y. TIMES, Oct. 11, 1975 (reporting U.S. announcement of economic aid package and airlift); U.S. Linking Airlift of Angola Refugees To Shifts in Lisbon, N.Y. TIMES, Aug. 27, 1975 (discussing U.S. willingness to offer aid provided that Portugal's new government did not align itself with Communism and press reports asserting that resettling some of the refugees in the United States was under discussion). U.S. officials were highly suspicious of the revolutionary regime in Portugal. This may have contributed to the United States' decision not to relieve Portugal's burden by taking in some of the refugees. Absorbing nearly a million returnees caused hardship and unrest in Portugal and inserted a new right-wing element into Portuguese politics. See Marvine Howe, Refugees Are a Major Factor in Portuguese Election, N.Y. TIMES, Apr. 22, 1976 (discussing the returnees' right-wing orientation and the prospect that their votes could bring about "a decisive shift" in a country that had been heavily Socialist); Marvine Howe, The Ex-Colonizers: Still Not at Home, N.Y. TIMES, Mar. 7, 1976 (discussing the economic hardship caused by the mass influx into "Western Europe's poorest country"). U.S. leaders may well have desired these results. Cf. Mario Del Pero, 'Which Chile, Allende?' Henry Kissinger and the Portuguese Revolution, 11 COLD WAR HISTORY 625 (2011) (discussing the Secretary of State's hostility toward, and efforts to undermine or isolate, Portugal's government).

(276.) See 1977 House Hearings, supra note 196, at 51 (Rep. Eilberg asking State Department witness whether the United States had taken any of the "Angolan refugees who have fled"; response explains that only financial assistance has been provided but does not dispute that they could be admitted as refugees); see also 1978 House Hearings, supra note 151, at 268 (State Department witness explaining that the exodus from Angola and Mozambique was not deemed a refugee emergency because Portugal was able to resettle them); supra text accompanying note 233 (discussing criteria traditionally used to determine whether refugees should be deemed of "special concern" and accepted for resettlement).

(277.) Because of the political salience of this issue to the Refugee Act's drafters, it will be discussed separately, infra Part IV.C.4.

(278.) 1973 House Hearings, supra note 192, at 323-29. Collins attributed this to the executive branch's desire not to "embarrass Great Britain." Id. at 326.

(279.) Applicants from Northern Ireland were ineligible for refugee admission under INA [section] 203(a)(7) because they were not fleeing a Communist or Middle Eastern country. See id. at 326.

(280.) Id. at 329-30 (quoting State Department letter).

(281.) Id. at 330. The transcript quotes Collins as stating "they take the same attitude with regard to a number of other nationalities," but when read in conjunction with Collins' next sentence, which is quoted above, it is clear he meant that the same reasoning was not being employed to reject applicants of other nationalities. Id.

(282.) Id.; see also id. at 327-28 (Eilberg calling attention to refugee definition in bill and getting Collins to agree that it would take care of some of the cases he is concerned with); id. at 15 (reprinting the refugee definition in the version of H.R. 981 then under consideration).

(283.) Id. at 330.

(284.) H.R. 981, 93d Cong. [section] 5 (1973); see H.R. REP. No. 93-461 (1973) (report by Eilberg for House Judiciary Committee sending bill to House floor); supra note 193 (discussing House passage of the bill).

(285.) H.R. 981, [section] 5, reprinted in H.R. REP. NO. 93-461, at 2 (1973).

(286.) 119 CONG. REC. 31366 (remarks of Rep. Biaggi, who also gave Soviet Jews as an example of eligible refugees).

(287.) H.R. 367, [section] 5, 94th Cong. (1975), reprinted in 1975-6 House Hearings, supra note 196, at 14, 17.

(288.) H.R. 14386, [section] 2(a), 94th Cong. (1976).

(289.) H.R. 3056, [section] 2(a), 95th Cong. (1977), reprinted in 1977 House Hearings, supra note 196, at 2-3. The language relating to nationality remained unchanged in subsequent versions through the Act's 1980 passage. See supra note 211.

(290.) Refugee Act of 1980, [section] 101(a), 94 Stat. 102 (emphasis added); see supra text accompanying notes 132-35 (discussing BIA's consideration of that language).

(291.) See supra text accompanying notes 104-05.

(292.) See, e.g., 1979 House Judiciary Hearings, supra note 200, at 67 (U.S. Refugee Coordinator Dick Clark stating that the bill's definition "provide [s] that a refugee is someone outside his or her country of origin, and would be subject to persecution upon return"); 1977 House Hearings, supra note 196, at 30 (Rep. Eilberg using the phrase "unwilling to return to his home country" in describing what a person must prove to satisfy the refugee definition); H.R. REP. No. 96-608, at 9 (1979) (using the phrase "outside ... [his or her] country") (brackets in original); 125 CONG. Rec. 37201 (1979) (Rep. Fascell interchangeably using "home country," "country of residence," and "country of nationality").

(293.) See, e.g., 1979 Senate Hearing, supra note 200, at 1 (introductory statement by Sen. Kennedy); 1979 House Judiciary Hearings, supra note 200, at 1 (Rep. Holtzman's introductory statement); 1977 House Hearings, supra note 196, at 18, 21 (testimony of State Department's James Carlin); S. Rep. No. 96-256, at 1 (1979) ("It

reflects one of the oldest themes in America's history--welcoming homeless refugees to our shores."); H.R. REP. No. 96-608, at 2 (1979); 125 CONG. REC. 23232 (1979) (Kennedy remarks presenting bill).

(294.) 8 U.S.C. [section][section] 1157(c)(1), 1159(b)(4) (1982); see also S. Rep. No. 96-256, at 9, 15 (1979) (stating that refugee applicants must show they have not become firmly resettled); H.R. REP. No. 96-608, at 17-18 (1979) (also noting the "not firmly resettled" requirement for asylees adjusting their status to permanent resident). The Refugee Act did not expressly make firm resettlement a bar to an initial grant of asylum, which appears to have been an oversight. The regulations issued by the Attorney General shortly after the Act's enactment prohibited INS District Directors from granting asylum to an applicant who had been firmly resettled, and Congress later added it to the statute as an asylum bar. See supra notes 157-58 (discussing the regulations and statutory change).

(295.) See H.R. REP. No. 96-781, at 19 (1980) (Conf. Rep.) (discussing under the heading "Definition of 'Refugee'" the "determination of whether a refugee is 'firmly resettled' under the statutory definition"); see also Arnold H. Liebowitz, The Refugee Act of 1980: Problems and Congressional Concerns, 467 ANNALS AM. ACAD. POL. & SOC. SCI. 163, 167 (1983) (special counsel to U.S. Senate immigration subcommittee describing the firm resettlement standard as part of the statute's definition of refugee).

(296.) See 1979 House Judiciary Hearings, supra note 193, at 70 (Rep. Holtzman raising with the State Department whether a definition of firm resettlement is needed); 1977 House Hearings, supra note 196, at 94-95 (information provided by INS to Rep. Eilberg regarding the denial of requests for asylum from Chinese nationals who fled to Hong Kong and resided there for a substantial period of time); 1973 House Hearings, supra note 196, at 98-99, 105-06, 254-55, 260, 268-69 (discussing firm resettlement as a question of fact in the context of the Hong Kong refugees); 1970 House Hearings, supra note 192, at 188, 190 (discussing whether to amend the INA's refugee section to add an explicit firm resettlement provision and the definition of firm resettlement). As discussed in the next section, it was well-known to Congress that Soviet Jews were being found to have not been firmly resettled and were being admitted as refugees even when they had gone to Israel first and lived there as citizens for some months.

(297.) H.R. REP. NO. 96-781, at 19 (1980) (Conf. Rep.).

(298.) See discussion of the administrative standards supra note 158 and infra text accompanying notes 363-69.

(299.) The image of the United States as a haven for refugees has deep roots in the nation's political discourse. Thomas Paine's revolutionary war pamphlet described the new nation as an "asylum for mankind" ready to "receive the fugitive" from "[e]very spot of the old world ... overrun with oppression." THOMAS PAINE, Common Sense (1776), in THE GREAT WORKS OF THOMAS PAINE 35 (1877). George Washington declared "[t]he bosom of America is open to receive ... the oppressed and persecuted of all [n]ations." Address of December 2, 1784, 27 THE WRITINGS OF GEORGE WASHINGTON 254 (1938). Andrew Jackson's Nullification Proclamation described the United States as "the asylum where the wretched and the oppressed find a refuge and support." JON MEACHUM, AMERICAN LION: ANDREW JACKSON IN THE WHITE HOUSE 228 (2008) (quoting proclamation of December 10, 1832). The Supreme Court opened a seminal First Amendment decision with a paean to a country whose cities are populated by "children of those who sought refuge in the new world from the cruelty and oppression of the old, where men have been ... driven into exile in countless numbers for their political and religious beliefs." Schneiderman v. United States, 320 U.S. 118, 120 (1943). Ronald Reagan invoked the arrival of Indochinese and Caribbean "boat people" and Iron Curtain refugees in his nomination acceptance speech and asked: "Can we doubt that only a Divine Providence placed this ... island of freedom here as a refuge for all those people yearning to breathe free?" Ronald W. Reagan, Presidential Nomination Acceptance Speech (July 17, 1980), quoted in BOSTON GLOBE Newspaper, July 18,1980, at 10.

(300.) 1979 House Judiciary Hearings, supra note 200, at 223, 226. Subcommittee chair Elizabeth Holtzman thanked Califano for this "very eloquent and important testimony." Id. at 226.

(301.) Id. at 26.

(302.) S. REP. NO. 96-256, at 1 (1979).

(303.) H.R. REP. No. 96-608, at 17 (1979), see also id. at 2 (quoting Elizabeth Holtzman opening the 1979 Refugee Act hearings by invoking "our country's humanitarian tradition of extending a welcome to the world's homeless"). In both the Senate and House reports, conforming to American tradition is mentioned before and given stronger emphasis than conforming to the Convention.

(304.) Kennedy, supra note 191, at 148. The country's refugee heritage was a prominent theme in the House and Senate floor debates. See, e.g., 125 CONG. REC. 23239 (1979) (Sen. Boschwitz stating that the United States "is the only country that is a country of refugees.... [It] has been energized and given substance by people who came to our country to start anew."); id. at 35816 (Rep. Fish: "Most of us in this Chamber trace our ancestry to ... earlier refugees. We have before us an opportunity to reaffirm America's historic proud role as haven for the oppressed and the persecuted.").

(305.) So much so that when foreign policy officials asked President Carter to adopt an Indochinese refugee policy distinct from the overall refugee bill, the Justice Department strongly objected on the ground that there would be "less opposition to admitting Indochinese refugees if linked to a more comprehensive policy including the admission of Soviet Jews." Draft Memorandum from Zbigniew Brzezinski and Stu Eizenstat, to the President (Feb. 27, 1978), Domestic Policy Staff--Annie Guttierez's Files (Civil Rights and Justice), "Refugee Policy [O/A 8110][1]," Box 31, Jimmy Carter Library (recounting Justice Department concerns).

(306.) See FRED. A. LAZIN, THE STRUGGLE FOR SOVIET JEWRY IN AMERICAN JEWISH POLITICS 28-30 (2005) (describing the origins, goals, and tactics of the American Jewish Conference on Soviet Jewry).

(307.) See id. at 41-45, 295 (discussing the movement's activities and the sources of its political appeal); LOESCHER & SCANLON, supra note 263, at 88-95 (describing its influence on U.S. policy).

(308.) See LOESCHER & SCANLON, supra note 263, at 91-94; LAZIN, supra note 306, at 45-50 (both discussing the Jackson-Vanik amendment).

(309.) LAZIN, supra note 306, at 311.

(310.) See id. at 31; PETRUS BUWALDA, THEY DID NOT DWELL ALONE: JEWISH EMIGRATION FROM THE SOVIET UNION, 1967-1990, at 54-55, 76 (1997) (describing the process of obtaining visas at the Netherlands embassy in Moscow). Only small numbers who had first-degree relatives in the United States were allowed to travel on U.S. visas. Those seeking to come to the United States as refugees had to leave the USSR first because [section] 203(a)(7) required that application be made in a non-Communist country. After 1980, the Refugee Act allowed for the possibility of in-country processing, but that provision was never invoked, probably because U.S. officials realized that the USSR would not be willing to grant exit visas to people labeled refugees. See BUWALDA, supra, at 57-59 (explaining why Soviet Jews generally could not leave with U.S. visas).

(311.) See The Law of Return, [section][section] 1-2, 4 LSI 114 (1950) (Isr.), amended by 24 LSI 28, available at _of_Return.html_[] (archived Aug. 31, 2014) (granting every Jew the right to settle in Israel); Nationality Law, [section] 2(b)(2), 6 LSI 50 (1952) (Isr.), available at [] (archived Aug. 31, 2014) (regarding acquisition of nationality); Shachar, supra note 41, at 236; Claude Klein, The Right of Return in Israeli Law, 13 Tel. Aviv U. STUD. L. 53, 60--61 (1997) (both discussing automatic conferral of nationality upon arrival).

(312.) LAZIN, supra note 306, at 80, 310; COMPTROLLER GENERAL OF THE UNITED STATES, REPORT TO CONGRESS, U.S. ASSISTANCE PROVIDED FOR RESETTLING SOVIET REFUGEES, NO. ID-76-85 (1977) [hereinafter COMPTROLLER GENERAL REPORT], at 3, 31 (listing and discussing changes in the annual percentage of departing Soviet Jews who declined to go to Israel). In Vienna, the Jewish emigres were received by representatives of the Israel-affiliated Jewish Agency, which tried to persuade them to continue on to Israel. Those who insisted on "dropping out" were turned over to the Hebrew Immigrant Aid Society (HLAS), which moved them to Rome, where the United States processed their applications for entry. LAZIN, supra note 306, at 80-82; see also BUWALDA, supra note 310, at 59-60; Rita J. Simon, Soviet Jews, in HAINES, supra note 194, at 181, 185 (both discussing HIAS' role).

(313.) See LAZIN, supra note 306, at 88; COMPTROLLER GENERAL REPORT, supra note 312, at 34-35 (both discussing the situation of Soviet Jews who left Israel and sought resettlement in the United States.).

(314.) See Gregg A. Beyer, The Evolving United States Response to Soviet Jewish Emigration, 3 INT'L J. REFUGEE L. 30, 32--33 (1991) (discussing the U.S. "open door" policy); LAZIN, supra note 306, at 84,186 (explaining that until the late 1980s it was U.S. policy to accept all Soviet Jews as refugees and provide them with "freedom of choice" as to their destination); S. COMM. OF THE HOUSE COMM. ON THE JUDICIARY, 94th CONG., REP. ON ITS TRIP TO THE SOVIET UNION: EMIGRATION OF SOVIET JEWS 3-4 (Comm. Print 1976) [hereinafter EMIGRATION OF SOVIET JEWS] (explaining that since 1971 the United States maintained an "open door" policy for persons leaving the USSR who expressed a desire to go the United States, using refugee visas up to the available limits and parole when needed).

(315.) See LOESCHER & SCANLON, supra note 263, at 94, 125, 154; LAZIN, supra note 306, at 83-84, 130-31 (both describing set-asides of refugee visas and repeated resorts to parole to meet the demand for admission).

(316.) EMIGRATION OF SOVIET JEWS, supra note 314, at 4. In a January 1975 legal opinion, the INS General Counsel instructed agency staff that acquisition of Israeli nationality under the Law of Return did not in itself disqualify a person from refugee status under [section] 203(a)(7), and the involuntary acquisition of Israeli nationality, in the absence of any overt act signifying acceptance, would not be considered evidence of firm resettlement. If an individual had applied for admission to Israel as an immigrant, an initial presumption of firm resettlement would apply, but that presumption could be rebutted if the person presented evidence showing that, under all the circumstances, he or she was not in fact firmly resettled. Opinion from Sam Bernsen, INS General Counsel, Conditional Entry Eligibility of Soviet Jews Who Initially Emigrated to Israel (Jan. 6, 1975) [hereinafter INS General Counsel Opinion], at 1, 6-8, copy in HIAS Files, "USSR Nerida and Neshrim," Box 1141; see also COMPTROLLER GENERAL REPORT, supra note 312, at 34, 46 (discussing the legal opinion). Part of INS counsel's reasoning was that U.S. law does not recognize the involuntary acquisition of a nationality, INS General Counsel Opinion, supra, at 4-6, but the opinion also made it clear that "with or without acquisition of Israeli nationality," the decisive question was whether the individual became firmly resettled in Israel. Id. at 1, 6-7.

(317.) The State Department considered all Soviet Jews who spent less than a year in Israel not firmly resettled, and provided them with refugee assistance in Rome. COMPTROLLER GENERAL REPORT, supra note 312, at 35-36 (describing the State Department policy). INS, which adjudicated their applications for admission, applied a case-by-case firm resettlement standard and sometimes denied applications even when the person had been in Israel less than a year. See id. at 35 (describing INS' rejection of fifty-one such cases even though the State Department had granted refugee assistance). However, INS guidelines stated that "[r]esidence of less than one year in a third country would not ordinarily create a presumption of resettlement," Guidelines For Firm Resettlement, supra note 260, and it was the impression of American Jewish resettlement agencies that most yordim who had spent less than a year in Israel were being admitted. Memorandum from Philip Bernstein to Ralph Goldman and Joan Wolchansky, Council of Jewish Federations, Inc., Re: Statement on Soviet Jewish Emigration at 5 (May 29, 1979), copy in HIAS Files, "Noshrim--Statements, Telexes, Press Releases, 'Papers,' etc.," Box 1024.

(318.) See GAL BECKERMAN, WHEN THEY COME FOR US, WE'LL BE GONE: THE EPIC STRUGGLE TO SAVE SOVIET JEWRY 356-63 (2010); LAZIN, supra note 306, at 2, 79-178; Stephen F. Windmueller, The "Noshrim" War, in A SECOND EXODUS: THE AMERICAN MOVEMENT TO FREE SOVIET JEWS 161-72 (Murray Friedman and Abert D. Chernin eds., 1999); David A. Harris, THE CONTROVERSY OVER REFUGEE STATUS OF SOVIET JEWISH EMIGRES 3 and passim (1987); WILLIAM W. ORBACH, THE AMERICAN MOVEMENT TO AID SOVIET JEWS 75-76 (1979) (all discussing the dispute over Soviet Jewish noshrim).

(319.) See generally sources cited supra note 318 (discussing the dispute between Israel and American Jewish organizations); see also David Landau, Special Interview: Dulzin Cites Need to End Dropout of Soviet Jews, JTA DAILY NEWS BULLETIN, June 18, 1979 (reporting on Dulzin's desire to redirect Soviet Jewish emigrants to Israel).

(320.) See David Landau, Israeli and U.S. Jewish Leaders Reach No Conclusions on Drop-out Issue, JTA Daily News BULLETIN, June 29, 1979 (noting Dulzin's frequent references to the dropout problem as a "calamity" for Israel). The Jewish Agency is Israel's quasi-official migration agency.

(321.) Landau, supra note 319 (quoting Dulzin); for similar Dulzin statements, see Murray Zuckoff, Dulzin Tells CJF Assembly Israelis, Diaspora Jewry Bound to "Agenda of Common Concerns," JTA DAILY News BULLETIN, Nov. 19, 1979 ("A refugee is someone who is compelled to leave his country and has no place to go.... [T]oday there are no Jewish refugees."); David Landau, Behind the Headlines: Dulzin Not Against Aiding Soviet Jews Who Reach the U.S., JTA DAILY NEWS BULLETIN, July 11, 1979 ("No Jew leaving the Soviet Union can be considered a refugee since Israel is ready to receive him with open arms.").

(322.) See LAZIN, supra note 306, at 95-96 (noting that the American Jewish community supported freedom of choice); see generally sources cited supra note 318; see also Landau, supra note 320 (discussing statements made by American Jewish leaders "that they would oppose measures to restrict the work of HIAS and the JDC on grounds that every Jew deserves the right of free choice as to where he wants to live"); David Landau, Fisher Says U.S. Jews Will Not End Aid to Soviet Jewish "Drop-Outs", JTA DAILY NEWS BULLETIN, June 29, 1978 (reporting statement by the Jewish Agency's chair that he and "most American Jewish leaders" opposed Israeli demands for an end to aid for the "drop outs"). In 1973, HIAS and the JDC gave in to Israeli pressure to suspend assistance to emigres from Israel (the yordim), but by 1977 HIAS had resumed helping them apply for refugee admission to the United States. See LAZIN, supra note 306, at 88-90, 133 (describing HIAS's involvement with the yordim).

(323.) See LAZIN, supra note 306, at 2-3, 95-96 (discussing the impact of memories of the American government turning away refugees trying to flee Hitler's Germany, as well as liberal values and attachment to the communal tradition of rescuing Jews in danger, as factors underlying American Jews' strong commitment to freedom of choice); see also Gil Sedan, Meeting in Washington May 16 to Deal With Soviet Dropout Problem, JTA DAILY NEWS BULLETIN, Apr. 17, 1980 (quoting Howard Squadron, President of the American Jewish Congress, stating: "What they (the Israelis) are asking us to do is to repudiate the values we have always stood for and fought for."); SCA Says All Soviet Jews Should Be Aided Regardless of Their Destination, JTA DAILY NEWS BULLETIN, Dec. 31, 1976 (describing Synagogue Council of America's resolution that the Jewish community has a "sacred obligation" to assist Soviet Jews who wish to come to the United States).

(324.) See Yitzhak Shargil, U.S. Refugee Act Seen as Having Negative Effect on Soviet Jewish Emigration to Israel, JTA DAILY NEWS BULLETIN, Apr. 4, 1980 ("Dulzin said ... Jews leaving the USSR are not political refugees because they ... are already citizens of Israel under the Law of Return"); Sarah Honig, Olim Could Be "Refugees" in U.S., JERUSALEM POST, Mar. 30, 1980, at 6 (quoting Dulzin statement that "a Jew who leaves the Soviet Union ... is a priori a citizen of Israel"); Arye Dulzin, Memorandum Relating to the Legal Definition of the Term "Refugee," sent to Gaynor Jacobson, HIAS (Mar. 27, 1980), copy in HIAS Files, Box 1227, Noshrim Correspondence 1980-81 folder, at 2-3 (analyzing the Convention refugee definition and arguing that it does not apply to visa holders to whom Israel has extended national protection); see also infra text accompanying note 360 (discussing Israeli attempt to convince Rep. Joshua Eilberg that Soviet Jews were not refugees).

(325.) See Landau, supra note 321 (discussing Jewish Agency official's citation of the 1973 UNHCR opinion as support for the argument that Soviet Jewish emigrants do not qualify for refugee status); infra note 333 and accompanying text (discussing the UNHCR opinion).

(326.) See Begin Chides U.S. on Soviet Jews, N.Y. TIMES, Apr. 3, 1980 (quoting Israeli Prime Minister Menachim Begin's statement that the new Refugee Act, while "noble and humanitarian, ... it should not apply to Jews with Israeli visas in their travel document," and that he was considering raising the issue with President Carter); Gil Sedan, supra note 323 (Dulzin urging that the law not be applied "to Soviet Jews who have Israeli visas and certainly not to would be yordim from Israel); Shargil, supra note 324 (Dulzin urging Begin to "explain to the U.S. President that Soviet emigrants cannot be considered political refugees since they all have exit visas to Israel").

(327.) See Letter from Gaynor Jacobson to Arye Leon Dulzin, at 1-2 (Mar. 4, 1980), copy in HIAS Files, "Noshrim Correspondence 1980-81," Box 1227 (explaining HIAS's interpretation of the Convention).

(328.) David Landau, Differing View of Jewish "Refugees," JTA DAILY NEWS BULLETIN, July 12, 1979 (stating that an "authoritative source" had provided a lengthy 1974 legal opinion by Paul Weis concluding that "Jews from Eastern Europe who are assisted by HIAS are not ordinary emigrants but are to be regarded as refugees"). In 1979, HIAS sent a copy of the Weis opinion to Hamilton Fish, an ally on the House Judiciary Committee, to help him respond to concerns raised by "one or two ... [House] colleagues" who had questioned the Soviet Jews' refugee status. Letter from Gaynor Jacobson to Rep. Hamilton Fish (Dec. 11, 1979), copy in HIAS Files, "Noshrim Correspondence," Box 1024. The Weis legal opinion actually had nothing to say on the question of whether Soviet Jewish emigrants were Israeli nationals and therefore not Convention refugees. Weis prepared the opinion to help HIAS respond to a letter from the British Inspector of Taxes contending that HIAS's migration assistance activities were not charitable in nature because the Jews were emigrating voluntarily rather than "being driven from their country of residence by outright official persecution." Weis therefore focused his opinion on showing that Jews in Iron Curtain countries faced persecutory conditions and were fleeing for that reason; he carefully avoided raising the question of whether the availability of national protection in Israel affected their refugee status. See Paul Weis, untitled draft of legal opinion (Mar. 26, 1974), available in Paul Weis Archive, Bodleian Social Science Library, University of Oxford, Ref. No. PW/PR/PMSC/17 (giving his opinion on whether Jewish individuals from Eastern Europe assisted by HIAS should be regarded as emigrants or refugees).

(329.) Letter from Jacobson to Dulzin, supra note 327, at 2-3. Israeli officials, in their responses to HIAS's March 1980 letter, essentially conceded the legal point that dropouts and yordim could satisfy the U.S. refugee definition, and shifted to arguing on policy grounds that the U.S. government and resettlement agencies should, as a matter of discretion, refuse to admit them or provide them with aid. See Letter from Arye Dulzin to Gaynor Jacobson (Mar. 27, 1980); Letter from Yehuda Avner, Adviser to Prime Minister Menachim Begin, to Gaynor Jacobson, HIAS (Mar. 12, 1980), copies in HIAS Files, "Noshrim Correspondence 1980-81," Box 1227; see also Honig, supra note 324, at 6 (discussing the understanding of Israeli officials that the new U.S. Refugee Act would confer refugee status on Soviet Jews who went to Israel but were not firmly resettled). But see Sedan, supra note 323 (reporting that a background paper prepared for the American Jewish Committee said that Soviet Jews who went to Israel and automatically became Israeli citizens would not qualify under the new refugee definition).

(330.) GRAHL-MADSEN, supra note 55, at 158-60. As Grahl-Madsen pointed out, if it were otherwise, a persecuting government could prevent a non-resident citizen from claiming refugee status by denationalizing him; if classified as stateless, such a person would not qualify as a refugee because he does not fear persecution in his country of habitual residence. But see Paul Weis, The Concept of the Refugee in International Law, 87 J. DU DROIT INT'L 928, 972 (1960) (arguing that nationality under the Convention should be determined solely by "whether the person is considered [a national] by the authorities of that country").

(331.) But, as we have seen, many refugee tribunals have refused to grant Convention refugee status to people who have a right to a safe country's nationality but decline to use it. See supra notes 71, 78, and accompanying text.

(332.) Under Israeli law, foreign nationals entering on Israeli visas can avoid acquiring Israeli nationality if they express that wish before or within three months after their arrival, but stateless persons are not given that option. Because nearly all exiting Soviet Jews were stripped of their Soviet citizenship, Israel treated them as citizens upon arrival, regardless of their wishes. INS General Counsel Opinion, supra note 316, at 2-3. Although international law may prohibit states from naturalizing foreign nationals against their will, involuntarily conferring nationality on stateless persons has been seen as permissible. See PAUL WEIS, NATIONALITY AND STATELESSNESS IN INTERNATIONAL LAW 113-19 (1956) (discussing acquisition of nationality).

(333.) The opinion reasoned that "[s]ince Jewish immigrants from the Soviet Union are Israeli-protected persons from the moment of their arrival in Austria, they cannot be considered as refugees under the UN High Commissioner's mandate. Jewish immigrants not wishing to proceed to Israel, in view of the availability of the protection and services of the Israel government through the Jewish Agency, cannot claim UN High Commissioner assistance as refugees unless they are able to fulfill the eligibility criteria, vis-a-vis the Soviet Union and Israel." Landau, supra note 321 (quoting from the UNHCR staff opinion).

(334.) Weis, supra note 328, at 11-12. That passage is crossed out in pen in the surviving draft, and might not have been included in the final legal opinion.

(335.) See supra note 311 and accompanying text.

(336.) Cf. Convention, supra note 3, art. 1C(1) ("He has voluntarily re-availed himself of the protection of his country of nationality"); art. 1C(2) ("Having lost his nationality, he has voluntarily reacquired it"); art. 1C(4) ("He has voluntarily re- established himself in the country which he left or outside which he remained owing to fear of persecution").

(337.) See GRAHL-MADSEN, supra note 55, at 395-96 (explaining that art. 1C(3) "is not subject to the proviso of voluntariness" and "applies irrespective of the way in which the person concerned acquires a new nationality, whether by ... grant on application ... or by operation of law in any manner whatsoever"); Weis, supra note 328, at 978 (describing as an example of this principle a UN advisory ruling that ethnic German refugees in Austria no longer fell within the UNHCR's mandate when Germany enacted legislation declaring them nationals). It remains the prevailing view that voluntariness is not required. See Susan Rneebone & Maria O'Sullivan, Article 1C, in The 1951 CONVENTION, supra note 58, at 481, 499 ("Art. 1 C, para. 3 clearly contemplates situations involving both voluntary and involuntary action, or automatic acquisition of nationality.").

(338.) Weis, supra note 328, at 976, 978; GRAHL-MADSEN, supra note 55, at 396 (both describing a series of decisions by the French Commission des Recours).

(339.) As is often the case in statutory interpretation, trying to ascertain what Congress as a whole intended is necessarily an exercise in "imaginative reconstruction," given that most in Congress probably gave no thought at all to how the language they enacted differed from the Convention's and what the differing language should be taken to mean. See WILLIAM N. ESKRIDGE, JR. ET AL., LEGISLATION AND STATUTORY INTERPRETATION 226-27 (2d ed. 2006) (explaining imaginative reconstruction). There is, however, specific reason to believe that Joshua Eilberg, who drafted the relevant statutory language, was deeply concerned with the refugee status of Soviet Jews and likely to have been conscious of how niceties of wording could affect their eligibility. See infra text accompanying notes 344-61.

(340.) See LOESCHER & SCANLON, supra note 263, at 94 (discussing the continuing political support for Soviet Jewish admissions). The strength of Soviet Jews' political support is also reflected in the disproportionate share of resettlement funding they received as compared with other groups. See LAZIN, supra note 306, at 84-85 and 132-33 (citing a Senator complaining in private of the disparity of "$2,400 to help a Soviet Jew ... $600 to assist a Cuban ... 50 cents per person to help a Vietnamese"). A rare note of Congressional dissent can be seen in comments appended to the House report on the Refugee Act by two members who complained that its refugee definition would cover Soviet Jews despite the fact that they have "a valid destination in a democratic hospitable country where they are wanted, needed, and cared for." H.R. REP. No. 96-608, at 61-62 (1979) (Additional Minority Views of Reps. Henry Hyde and Harold Sawyer); see also 125 CONG. REC. 37224 (1979) (similar comments by Hyde on House floor).

(341.) LOESCHER & SCANLON, supra note 263, at 154; see 1977 House Hearings, supra note 196, at 15 (Rep. Fish describing Soviet Jewish and Indochinese refugees as the central concerns of the subcommittee); see also 1979 House Judiciary Hearings, supra note 200, at 30, 73 (statements by Reps. Lungren and Holtzman).

(342.) U.S. Refugee Programs, supra note 260, at 4, 7 (testimony of Secretary Vance).

(343.) Helen Silver, State Department Says Soviet Jewish Migrants Should Have Freedom of Choice on Where They Want to Settle, JTA DAILY NEWS BULLETIN, Aug. 27, 1981 (quoting State Department spokesman Dean Fisher); see also Bernard Gwertzman, U.S. and Israel Disagree on Giving Soviet Choice Where to Settle, N.Y. TIMES, Aug. 26, 1981 (reporting on the dispute with Israel and the State Department's stance). An attempt in 1987 by Israeli Prime Minister Yitzchak Shamir to convince the United States that Soviet Jews with Israeli visas should not be admitted as refugees was rebuffed by Secretary of State George Shultz, who made it clear that as long as the American Jewish community favored freedom of choice, it would remain the U.S. position. LAZIN, supra note 306, at 199-200. In the late 1980s, as the Soviet Union began to eliminate exit restrictions and the prospect of a mass migration loomed, the United States ended its commitment to accepting all Soviet Jews who wished to come. Even then, they were not deemed ineligible for refugee status based on their ability to go to Israel; INS Commissioner Alan Nelson was careful to reassure Congress that "freedom of choice" remained the U.S. policy. Soviet Refugees, Hearing Before the Subcomm. on Immigration, Refugees, and Int'l Law, House Comm, on Judiciary, 101st Cong. 92 (1989) (testimony regarding Soviet refugees). Instead, numerical limits on annual refugee admissions from the USSR and individualized assessments of whether each applicant had a well-founded fear of persecution were used as the screening mechanisms. See BECKERMAN, supra note 318, at 530--32 (discussing the institution of entry quotas); LAZIN, supra note 306, at 275-77 (describing the negotiations that led to numerical limits). Although Congress and the American Jewish community accepted the need to set admission quotas, continuing Congressional sentiment in favor of Soviet Jews was reflected in the 1989 enactment of the Lautenberg Amendment, which effectively created a presumption that Soviet Jews satisfied the refugee definition's well-founded fear test. See Victor Rosenberg, Refugee Status for Soviet Jewish Immigrants to the United States, 19 TOURO L. Rev. 419, 426-36, 440-43 (2003)); Beyer, supra note 314, at 52-53; LAZIN, supra, at 270-81 (discussing the Lautenberg Amendment).

(344.) Israel found the idea of labeling citizens emigrating from Israel as refugees particularly offensive. See Honig, supra note 324, at 6 (reporting on Israeli concerns that the new Refugee Act would encourage emigration from Israel by allowing yordim to qualify as refugees); Memorandum, Summary Comments on Meeting in Jerusalem on Issue of Handling by HIAS of Russian Refugees Departing Israel, at 12, copy in HIAS Files, "Mtgs. Noshrim," Box 1024 (quoting Prime Minister Rabin as telling American Jewish organizations in a 1974 meeting that "[n]o government in Israel can accept the fact that a yored is a refugee. This would be the end of Zionism.").

(345.) 1970 House Hearings, supra note 192, at 190 (exchange between Rep. Feighan and INS General Counsel Charles Gordon); see also id. at 175 (listing members present at hearing).

(346.) 1973 House Hearings, supra note 192, at 303-04. Jacobson described the situation of a "young engineering student I spoke to in Rome, who had learned English intending to immigrate to the United States.... He was imprisoned in Leningrad because he was a leader in the fight for human rights. He was finally able to exit to Israel. He worked to pay back all of his immigration debts and then arrived in Rome to achieve what he said has been his destination, the United States." Id. at 303.

(347.) EMIGRATION OF SOVIET JEWS, supra note 314, at 4. Later in 1976, HIAS, at Eilberg's request, submitted a letter containing a detailed description of the situation of Soviet Jews in Rome. It noted that yordim who had stayed in Israel less than a year were receiving U.S. funded refugee assistance and being admitted to the United States as refugees. Letter from Carl Glick to Rep. Joshua Eilberg (Mar. 9, 1976), copy in HIAS files, "Carl Glick Noshrim Jan-April 1976," Box 1292.

(348.) See COMPTROLLER GENERAL REPORT, supra note 312, at 34-36, 46 (describing the State Department and INS approaches).

(349.) See COMM'N ON SECURITY AND COOPERATION IN EUROPE, REPORT TO THE CONGRESS OF THE UNITED STATES ON IMPLEMENTATION OF THE FINAL ACT OF THE CONFERENCE ON SECURITY AND COOPERATION IN EUROPE: FINDINGS AND RECOMMENDATIONS TWO YEARS AFTER HELSINKI 173-74 (1977) (discussing situation of the "Ostia Jews"). Some of them were later resettled in the United States. See LAZIN, supra note 306, at 133, 164 n.17 (describing the commission's recommendation and subsequent resettlement efforts).

(350.) See id. at 133 (quoting HIAS official explaining in 1977 that "we have been quietly requested by American government officials to assume responsibility for processing these individuals"). In 1973, HIAS and the JDC, at Israel's request, had suspended assistance to the yordim in Rome. See supra note 322. Until HIAS resumed providing services, they were helped by the International Rescue Committee and other non-Jewish groups (still with U.S. government funding), while HIAS handled their resettlement once they arrived in the United States. See 1976 Letter from Carl Glick, supra note 347 (describing HIAS' activities in Rome).

(351.) See supra note 317.

(352.) In 1971, when Attorney General John Mitchell said he lacked statutory authority to use the parole power to let in Soviet Jewish refugees, Rodino, who then chaired the House immigration subcommittee, persuaded him to change his mind. See 1973 House Hearings, supra note 192, at 161. Rodino and Holtzman later pressed the Carter Administration to speed up paroles of Soviet Jews. See Letter from Reps. Peter Rodino, Elizabeth Holtzman, Robert McLory and Hamilton Fish, Jr. to Attorney General Griffin Bell (Mar. 29, 1979), copy in HIAS Files, "USSR Parole 1978/79," Box 1024 (urging that processing commence immediately). Kennedy pushed for the open-ended use of parole to admit Soviet refugees. See Bernard Gwertzman, State Department Seeking to Admit 10,000 Vietnamese, N.Y. TIMES, Dec. 4, 1977, at 1, 18 (describing Kennedy's stance). On Eilberg, see infra text accompanying notes 353-61.

(353.) See supra note 211 and text accompanying notes 288-89 (discussing Eilberg's introduction of this change in his Refugee Act of 1977).

(354.) See supra text accompanying notes 211-15 and 277-83.

(355.) See Kennedy, supra note 191, at 144 (describing Eilberg's versions of the Refugee Act as "conservative and restrictionist"). Eilberg's bill set a relatively low annual limit of 20,000 on annual refugee admissions, placed stringent limits on Presidential authority to exceed that number, and included restrictions designed to make it harder for "economic migrants" and illegal entrants to be granted relief. See Anker & Posner, supra note 192, at 31-42; see also Martin, supra note 190, at 94 (noting Eilberg's and Kennedy's contrasting views).

(356.) See Gwertzman, supra note 343, at 18 (discussing Eilberg's requests for emergency paroles of Soviet Jews in 1976 and 1977); Joseph Polakoff, Action Asked for Entry into U.S. of 2000 Soviet Jews Now in Rome, JTA, Feb. 11, 1975 (Eilberg pressuring the State Department and Attorney General to authorize paroles). On Eilberg's often-expressed view that refugee paroles lacked legal legitimacy, see Martin, supra note 190, at 94.

(357.) When Eilberg got into legal trouble, Carl Glick, HIAS's President, even offered to testify as a character witness on his behalf. Letter from Carl Glick to Rep. Joshua Eilberg (Feb. 6, 1978), copy in HIAS Files, "Noshrim--Statements, Telexes, Press Releases, 'Papers,' etc.," Box 1024.

(358.) See Letter from Reps. Charles Vanik, Jonathan Bingham and Joshua Eilberg to Senate Appropriates Comm. Chair John McLellan (Mar. 23, 1977), copy in HIAS Files, "USSR Legislation Bills (appropriations etc.) 1976-77," Box 1048 (asking the committee to consider increasing the State Department's budget for HIAS's resettlement work).

(359.) Press Release, Office of Congressman Joshua Eilberg, HIAS Not Diverting Soviet Jews to U.S., Eilberg Report Shows (Feb. 1, 1978), copy in HIAS Files, "Noshrim --Statements, Telexes, Press Releases, 'Papers,' etc.," Box 1024; see also LAZIN, supra note 306, at 134 (Eilberg defending HIAS); 1978 Letter from Carl Glick, supra note 357 (expressing pleasure that "your information coincides almost exactly with our statements" and stating that the report will be an "antidote" to the "politically inspired venom" of an Israeli official who had recently "emitted a loud yowl about HIAS's activities in Vienna"); Congressional Report Says HIAS Is Not Diverting Soviet Jews to the U.S., JTA, Feb. 2, 1978 (reporting on Eilberg's comments).

(360.) Letter from Carl Glick to Elie Wiesel (Apr. 20, 1978), copy in HIAS Files, "Noshrim--Statements, Telexes, Press Releases, 'Papers,' etc.," Box 1024 (describing what Glick was told about a visit Eilberg received the previous week from Shmuel Adler, an advisor to the Israeli Knesset's Committee on Immigration and Absorption); see also LAZIN, supra note 306, at 133-34 (recounting Adler's statement to Eilberg and his staff that Soviet emigres were not political refuges).

(361.) See supra text accompanying notes 345-47.

(362.) Refugee Policy Q & A 1980, undated, Records of the Cabinet Secretary (Carter Administration)--Stephen Page's Files, "Refugee Policy Q & A 1980," Box 131, Jimmy Carter Library. Although the date, author and distribution of the document is not specified, the contents suggest it was prepared in March or April 1980 (one answer states that it was unclear whether a drop in Soviet Jewish exit visas in the first few months of 1980 represented a new and more restrictive Soviet policy; by May or June this had become clear). The Q & A book may have been put together to help officials preparing to appear before the House and Senate Judiciary committees for the first consultations under the Refugee Act in April 1980.

(363.) Dep't of Justice, INS, Refugee and Asylum Procedures, Interim Regulations, 45 Fed. Reg. 3791, 3793, 2795 (June 2, 1980), codified at 8 C.F.R. [section][section] 207.1(b), 208.14 (1981); see supra note 158 (quoting regulation).

(364.) Refugee and Asylum Procedures, supra note 363. It appears that this reflected a longstanding INS view that the firm resettlement standards had generally been too lenient. See Problems Under the Refugee Act of 1980 Discussed, 57 INTERPRETER RELEASES 212-13 (1980) (reporting that INS Central Office officials told resettlement agencies at a May 1980 conference that regulations soon to be issued under the Refugee Act would "tighten up" firm resettlement); U.S. Refugee Programs, supra note 260, at 33 (April 1980 Congressional testimony by Ingrid Walter of the American Council of Voluntary Agencies stating that the INS firm resettlement guidelines adopted in the late 1970s were the result of "lengthy discussions" with resettlement agencies and had survived "repeated attempts to whittle them down"); see also Comptroller General Report, supra note 312, at 34-36 (discussing INS's determinations that some Soviet Jews who had been in Israel for less than a year were firmly resettled, which was more restrictive than the State Department's stance).

(365.) HIAS Exec. Comm, minutes (Oct. 16, 1984), Jewish Agency Suggestion re Nationality of Soviet Jewish Emigrants, at 7, copy in HIAS Files, "USSR Noshrim Jan.-Oct. 1984," Box 1223 (describing Israeli proposal and legal opinion submitted by HIAS Associate Secretary and immigration lawyer Dale Schwartz); see also Summary of Staff Analysis of Effects of Conferring Israeli Nationality on Soviet Jewish Emigres (Sept. 12, 1984 (same box and folder) (concluding that, under the firm resettlement standard of U.S. law, "[i]n the ease we are considering, the Soviet emigre may hold Israeli nationality, but will not have stepped upon Israeli soil and, therefore, could still qualify as a refugee under U.S. law").

(366.) HIAS Exec. Comm, minutes, supra note 365, at 7 (stating that "[s]ources in the U.S. State Department concurred in the above legal opinion").

(367.) See LAZIN, supra note 306, at 221-25 (describing discussions of direct flight plans). The "direct flights" under discussion would have included a stop-over in Romania, but in contrast with Vienna, there would be no real opportunity for Soviet Jews to "drop out" in a Communist dictatorship. Id. at 223.

(368.) Dep't of Justice, INS, Proposed Rules, 52 Fed. Reg. 32,552, 32,557 (Aug. 28, 1987) (codified at 8 C.F.R. [section] 208.15). The revised firm resettlement rule was enacted in 1990 and has stayed essentially unchanged since. See supra notes 158-60. Although the revised rule applied only to asylum, comments from Justice Department sources suggested that the INS would apply the same standard to refugee admissions. See Israel and U.S. Compete for Exiting Soviet Jews, REFUGEE REPORTS (U.S. Comm, for Refugees) [hereinafter 1988 REFUGEE REPORTS], July 15, 1988, at 11, 12-13 (quoting Justice Department sources as stating they did not want two different standards for refugee admission and asylum, although they were "not jumping" to rewrite the admission regulation).

(369.) 1988 REFUGEE REPORTS, supra note 368, at 12 (discussing June 1988 Evans and Novak column stating that Justice Department regulations cleared by the State Department "'will give Soviet Jewish refugees flown to Israel via Romania a new right to come immediately to the United States as 'refugees,' despite the fact that they would be granted Israeli citizenship automatically under Israel's Law of Return"); A.M. Rosenthal, On My Mind; Justice at State, N.Y. TIMES, July 12, 1988 (reporting that if direct flights were instituted and Soviet Jews would no longer have the opportunity to drop out in Vienna, the State Department planned to amend immigration regulations to ensure that those going to Israel could still immigrate to the United States).

(370.) See supra text accompanying notes 83-89.

(371.) This has been done, for example, in regulations that set out the circumstances in which applicants who satisfy the refugee definition because of past persecution should be granted asylum as a matter of discretion, without being required to demonstrate that they have a well-founded fear of future persecution. 8 C.F.R. [section] [1]208.13(b)(1) (2013).

(372.) 8 C.F.R. [section] [1]208.13(b)(1)(i)(B), (b)(2)(ii) (2013).

(373.) 8 C.F.R. [section] [1]208.13(b)(3) (2013); see Doe v. Holder, 736 F.3d 871, 879-80 (9th Cir. 2013) (explaining that the regulations' "reasonableness" test does not require a showing that the applicant would face persecution in the place of proposed relocation; lesser hardships such as discrimination, inability to find work, and lack of family connections may suffice).

(374.) The situations cannot be distinguished on the ground that there is a greater likelihood of persecution if the person remains in the same country. The reasonableness of expecting relocation is only considered under the regulations if there has first been a finding that the applicant would be able to avoid future persecution by relocating. See 8 C.F.R. [section] [1]208.13(b)(1)(i)(B), (b)(2)(ii) (2013).

(375.) See infra Part V.B.

(376.) Matter of Pula, 19 I. & N. Dec. 467, 474 (BIA 1987). In that case, the applicant fled persecution in Yugoslavia and spent six weeks in Belgium before traveling to the United States. The BIA, in determining that a discretionary asylum grant was warranted, emphasized that he did not seek asylum in Belgium because he wanted to join relatives in the United States, whereas in Belgium he had "no significant ties." Id. at 468-70, 475; see also Matter of Kasinga, 21 I. & N. Dec. 357, 359, 367-68 (BIA 1996) (favorably exercising discretion in the case of an applicant who spent two months in Germany after fleeing her home country; the BIA found she had valid reasons for not seeking refuge in Germany because she had no relatives there but did have relatives in the United States); Matter of Soleimani, 20 I. & N. Dec. 99, 101-02, 107-08 (BIA 1989) (granting asylum to a woman who spent ten months in Israel and could have remained there if she wished; applying Pula's balancing test, the BIA gave strong weight to the fact that she had several close relatives in the United States while only her grandmother lived in Israel).

(377.) Cf. Deborah E. Anker, Discretionary Asylum: A Protection Remedy for Refugees Under the Refugee Act of 1980, 28 VA. J. INT'L L. 1, 46-47, 63-65 (1987) (arguing that "[a]n evaluation of the real qualities of contacts and connections that an applicant has with a country" is needed to determine whether discretionary denial based on a reasonable alternative source of refuge is appropriate, but questioning the relevance of U.S. family ties).

(378.) See supra text accompanying notes 299-304. Cf. John A. Scanlon & O.T. Kent, The Force of Moral Arguments for a Just Immigration Policy in a Hobbesian Universe, in OPEN BORDERS? CLOSED SOCIETIES? THE ETHICAL AND POLITICAL ISSUES 61, 80-84 (Mark Gibney ed., 1988) (discussing the appropriateness of basing immigration policies on values that citizens ascribe to the nation as a whole, including the self-image of the United States as a nation committed to human rights and welcoming refugees); MICHAEL WALZER, SPHERES OF JUSTICE 49 (1983) (arguing that a country's ideological affinities with those facing persecution based on shared values can give rise to an obligation to admit them as refugees).

(379.) Cf. Mark Tushnet, Creedal Citizenship, 9 ISSUES IN LEGAL SCHOLARSHIP 1, 3-4 (2011) (discussing the idea of granting citizenship based on a person's demonstration of commitment to a nation's "founding and animating" principles).

(380.) See H.R. Rep. No. 96-608, at 63 (1979) (pointing out that Indochinese refugees, unlike Soviet Jews, were disqualified from participation in the U.S. refugee program if another country was willing to take them); see also Kate Aschenbrenner, Discretionary (Injustice: The Exercise of Discretion in Claims for Asylum, 45 U. MICH. J.L. REFORM 595, 624, 631 (2012) (arguing that the inherent vagueness of discretion invites inconsistent application).

(381.) The Refugee Convention requires that states apply its provisions "without discrimination as to race, religion or country of origin." See Convention, supra note 3, art. 3.

(382.) Cf. Tushnet, supra note 379, at 3 (arguing that "creedal" criteria for citizenship should rest on acceptance of core principles but allow for contestation "at the level of detail"). The case for taking political affinities into account may be at its strongest in situations where the person's other country of nationality is undemocratic or has a politics rooted in ethnic or religious identity rather than tolerance and pluralism. (Consider the Bosnian asylum applicant described at the beginning of this Article who was repulsed by the ethnic nationalism of her second country of nationality).

(383.) See HATHAWAY, supra note 43, at 101-24 (discussing the foundational role of human rights norms in defining the concept of persecution); see also Daniel Steinbock, Interpreting the Refugee Definition, 45 UCLA L. REV. 733, 787-96 (1998) (viewing nondiscrimination and the protection of belief and expression as the core values underlying the refugee definition); Guy S. Goodwin-Gill, Asylum: The Law and Politics of Change, 7 INT'L J. REFUGEE L. 1, 2-4, 17-18 (1995) (arguing that tolerance is the central value reflected in refugee protection and asylum).

(384.) See generally Daniel Kanstroom, Loving Humanity while Accepting Real People: A Critique and Cautious Affirmation of the "Political" in U.S. Asylum and Refugee Law, in DRIVEN FROM HOME: PROTECTING THE RIGHTS OF FORCED MIGRANTS 115 (David Hollenback ed., 2010) (critiquing and cautiously affirming the "political" in U.S. asylum and refugee law); MATTHEW E. PRICE, RETHINKING ASYLUM 24-94 (2009). Compare, e.g., Romeike v. Holder, 718 F.3d 528, 535 (6th Cir. 2013) (holding it is not persecution for Germany to punish home-schooling parents who for religious reasons refuse to comply with compulsory school attendance laws), with Matter of Izatula, 20 I. & N. Dec. 149, 153-54 (BIA 1990) (holding that it is persecution rather than legitimate prosecution for a dictatorship to punish those who seek to forcibly overthrow it in countries where a coup is the only way to effect a change in the political regime).

(385.) See supra text accompanying notes 90-91, 250-51.

(386.) 8 C.F.R. [section] [1]208.13(b)(1)(iii) (2013).

(387.) Denying a discretionary grant of asylum in this situation would also be consistent with Congress's statement in the Refugee Act that the goal of U.S. refugee policy is to respond to the needs of those "subject to persecution in their homelands." See supra text accompanying note 290.

(388.) See 8 U.S.C. [section] 1158(a)(1) (2014) ("Any alien who is physically present in the United States or who arrives in the United States ... irrespective of such alien's status, may apply for asylum....").

(389.) See U.S. Dep'ts of State, Homeland Security, and Health and Human Services, Proposed Refugee Admissions for Fiscal Year 2014: Report to the Congress 1, 5 (2013) [hereinafter Refugee Admissions] (estimating number of refugees worldwide and showing annual admissions ceilings and actual refugee arrivals since fiscal year 2012).

(390.) 8 U.S.C. [section] 1157(a)(2)-(3) (2014).

(391.) Refugee Admissions, supra note 389, at 5-13.

(392.) Id. at 14-15.

(393.) H.R. REP. NO. 96-608, at 13 (1979); see also S. REP. No. 96-256, at 6 (1979) (containing a similar list that also includes U.S. "foreign policy interests").

(394.) Refugee Admissions, supra note 389, at 10-11.

(395.) Id. at 11-13.

(396.) David A. Martin, The Refugee Concept: On Definitions, Politics, and the Careful Use of a Scarce Resource, in REFUGEE POLICY: CANADA AND The UNITED STATES 30 (Howard Adelman ed., 1991); see also Scott Busby, The Politics of Protection: Limits and Possibilities in the Implementation of International Refugee Norms in the United States, 15 BERKELEY J. INT'L L. 27, 33-37 (1997) (discussing policy concerns that make decision-makers reluctant to accept a broad definition of refugee).

(397.) See supra note 355.

(398.) 1973 House Hearings, supra note 192, at 330; see supra text accompanying notes 278-83 (discussing and quoting from Eilberg's colloquy with John Collins).

(399.) See ATLE Grahl-MADSEN, TERRITORIAL ASYLUM 61-68 (1980); Paul Weis, The Draft United Nations Convention on Territorial Asylum, 50 BRIT Y.B. INT'L L. 151, 169 (1979); see also Joan Fitzpatrick, Revitalizing the 1951 Refugee Convention, 9 HARV. Hum. RTS. J. 229, 234 (1996) ("The reluctance of the international community to abandon the 1951 foundation reflects ... a pragmatic awareness that hoped-for advances might instead dilute standards of protection.").

(400.) See Convention, supra note 3, art. 35; Protocol, supra note 3, art. II (setting out UNHCR's role supervising the application of the Convention and Protocol and the duty of states to cooperate); see also Guy Goodwin-Gill, The Dynamic of International Refugee Law, 25 INT'L J. REFUGEE L. 651, 655-58 (2014) (discussing how UNHCR's Handbook and guidelines have influenced the progressive development of state practice); Jennifer Moore, Restoring the Humanitarian Character of U.S. Refugee Law: Lessons from the International Community, 15 BERKELEY J. INT'L L. 51, 52-53 (1997) (explaining that because Excom consists of over 50 states with a strong interest in refugees, its Conclusions provide significant evidence of evolving international consensus).

(401.) UNHCR Handbook, supra note 20, [paragraph] 136.

(402.) See 8 C.F.R. [section] [1]208.13(b)(1)(iii) (authorizing grants of asylum based on past persecution alone where an applicant shows compelling reasons for being unwilling to return arising from the severity of past persecution or a reasonable possibility of other serious harm); Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, For a Uniform Status for Refugees or For Persons Eligible for Subsidiary Protection, and For the Content of the Protection Granted (recast), art. 11(3) [hereinafter Qualification Directive] (providing a similar exception for those "able to invoke compelling reasons [for unwillingness to return] arising out of previous persecution"); Joan Fitzpatrick & Raphael Bonoan, Cessation of Refugee Protection, in REFUGEE PROTECTION IN INTERNATIONAL LAW 489, 501-512, 519 (Erika Feller et al. eds., 2003) (listing twelve examples of countries adopting this approach in national legislation).

(403.) UNHCR, Exec. Comm, of the High Commissioner's Programme, Refugees Without an Asylum Country, [paragraph][paragraph] (h)(ii)-(iv), 16 October 1979, Conclusion No. 15 (XXX)--1979, available at &docid=3ae68c960 [] (archived Aug. 31, 2014); U.N. GAOR, 34th Sess., Supp. No. 12A at 17, U.N. Doc. A/34/12/Add.l (1979); see also Legomsky, supra note 43, at 664 (noting that in the context of interstate agreements allocating responsibility for determining asylum claims, "the consistent position of UNHCR has been that asylum seekers should not be returned to third countries with which they lack sufficient connection").

(404.) UNHCR Handbook, supra note 20, [paragraph] 91.

(405.) See generally Reinhard Marx, The Criteria of Applying the "Internal Flight Alternative" Test in National Refugee Status Determination Procedures, 14 INT'L J. REFUGEE L. 179, 199-212 (2002) (discussing general international acceptance of this reasonableness test, albeit with considerable variance in how countries interpret and apply it); see also Januzi v. Secretary of State for the Home Department, [2006] UKHL 5 [paragraph] [paragraph] 7-8 (discussing adoption of UNHCR's reasonableness test in Canada, New Zealand, Australia, and the UK). The European Union's directive setting minimum standards for member states' refugee determinations follows UNHCR's approach. See infra text accompanying note 435. As previously discussed, so do the U.S. asylum regulations. See supra text accompanying notes 372-73.

(406.) UNHCR, Guidelines on International Protection: "Internal Flight or Relocation Alternative" within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, [paragraph] 23, U.N. Doc. HCR/GIP/03/04 (July, 23, 2003).

(407.) Id. 1 25. Whether rights of fundamental importance to the individual are respected in the area of proposed relocation is another factor to be considered. Id. [paragraph] 28.

(408.) See GRAHL-MADSEN, supra note 55, at 79 (stating that the defining feature of a refugee is "that the normal mutual bond of trust, loyalty, protection, and assistance between an individual and the government of his home country has been broken (or simply does not exist)"); Andrew E. Shacknove, Who Is a Refugee? 95 ETHICS 274, 277-78 (1985) (noting that the prevailing conception of refugeehood rests on the idea that there has been a rupture in the "normal, minimal bond of trust, loyalty, protection, and assistance [that] has always existed between virtually every human being and some larger collectivity--be it clan, feudal manor, or modern state").

(409.) James C. Hathaway, Reconceiving Refugee Law as Human Rights Protection, 4 J. REFUGEE STUD. 113, 123 (1991).

(410.) See Martin, supra note 396, at 41-42.

(411.) Cf. Hathaway, supra note 409, at 120, 124 (arguing that refugee status should be viewed as an international entitlement that appropriately responds to the deprivation of human dignity in the refugee's country of origin by reserving for refugees "a sphere of autonomy" which empowers them to leave abusive situations, "facilitates self-determination," and "gives people some amount of direct control over their own lives").

(412.) Cf. WALZER, supra note 378, at 29, 48-49 (suggesting that states may have special duties toward refugees because they have been deprived of "membership itself," so that their needs cannot be satisfied by exporting resources but "can be met only by taking people in"); PRICE, supra note 384, at 13, 164-68, 173-74 (arguing that because persecuted individuals have been "targeted for harm in a manner that repudiates their claim to political membership," providing surrogate membership in a state of refuge is the appropriate remedy, serving both an expressive and a restorative function).

(413.) Even from a strictly state-centered viewpoint, there is something to be said for assigning responsibility for an asylum claim to a country where family ties or other affinities enhance the prospects for successfully integration, rather than sending the person to a place where such ties are lacking or there are other obstacles to successful resettlement. Even if each individual asylum claim imposes a resource burden on the host state, in the long run states tend to benefit from taking the asylum-seeker's connections into account. Cf. Legomsky, supra note 43, at 667 ("Meaningful links ... permit speedier and more successful integration, a crucial benefit for both the applicant and the host society.... [A] willingness to consider the relationship between the applicant and each of the two countries additionally fosters international solidarity and equitable responsibility-sharing.").

(414.) Although it sometimes may give rise to other non-refoulement protections, such as the Convention Against Torture's prohibition on return to a place where torture is likely, or the European Union's provision of "subsidiary protection" to persons facing serious risks of severe harm for reasons not covered by the Refugee Convention. See generally Jane McAdam, The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime, 17 INT'L J. REFUGEE L. 461 (2005) (discussing subsidiary protection under the Qualification Directive).

(415.) See Matter of Acosta, 19 I. & N. Dec. 211, 234 (BIA 1985) (explaining that all five of the Convention grounds involve "an immutable characteristic ... a characteristic that either is beyond the power of the individual to change or is so fundamental to their individual identities or consciences that it ought not be required to be changed"); Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 733-39 (Can.) (finding that the five Convention grounds rest on anti-discrimination human rights principles and should be interpreted accordingly). The Convention begins with a reference to the Universal Declaration of Human Rights and "the principle that human beings shall enjoy fundamental rights and freedoms without discrimination." Convention, supra note 3, pmbl. [paragraph] 1.

(416.) See, e.g., GOODWIN-GILL & McAdam, supra note 43, at 92-93; Steinbock, supra note 383, at 787-96; Walker, supra note 44, at 603-04.

(417.) Jean-Francois Durieux, Salah Sheekh is a Refugee: New Insights into Primary and Subsidiary Forms of Protection 17 (Refugee Studies Ctr. Working Paper Series, Paper No. 49, Univ. of Oxford, 2008). The Convention's numerous provisions requiring states to provide refugees with economic, social, and political rights, its requirement that states "as far as possible" facilitate their integration and naturalization, and its affirmation of the international community's "profound concern for refugees" and commitment to "assure refugees the widest possible exercise of [their] fundamental rights and freedoms," all support Durieux's point. Convention, pmbl. [paragraph] 2 and arts. 3-31, 34.

(418.) Cf. Matthew Lister, Who Are Refugees?, 32 LAW & PHILOSOPHY 645, 669-70 (2013) (arguing that persecution based on the Convention-covered grounds can be more serious and threatening than persecution based on "merely contingent or idiosyncratic factors" because it targets "aspects of our lives that are ... central to our identities").

(419.) Cf. Legomsky, supra note 43, at 667 (arguing that that when determining which country is responsible for an asylum claim, there are strong humanitarian reasons to consider an asylum-seeker's preferences and links to the countries in question in order to avoid inflicting further trauma and disruption).

(420.) See UNHCR Comments on QD, supra note 69, at 14-15.

(421.) UNHCR Handbook, supra note 20, [paragraph] 107.

(422.) See supra notes 55-56 and accompanying text.

(423.) UNHCR, The Cessation Clauses: Guidelines on their Application, April 1999, [paragraph] 17.

(424.) UNHCR Handbook, supra note 20, [paragraph] [paragraph] 129-30; see also Kneebone & O'Sullivan, supra note 337, at 499-500.

(425.) The fact that refugee tribunals in various countries have noted the harsh and unfair results often produced by the Convention's multiple nationality cause and looked for ways to mitigate its impact suggests that UNHCR guidance on the subject would have some influence on state practice. See supra text accompanying notes 68-81.

(426.) Qualification Directive, supra note 402, pmbl. [paragraph] 3; Presidency Conclusions, Tampere European Council, Oct. 15-16, 1999, [paragraph] 13 [hereinafter Tampere Conclusions], [] (archived Aug. 31, 2014). The QD was initially promulgated in 2004, and substantially revised in 2011. For an overview of the origins and development of the Common European Asylum System, see Maryellen Fullerton, A Tale of Two Decades: War Refugees and Asylum Policy in the European Union, 10 WASH. U. GLOBAL STUD. L. REV. 87 (2010).

(427.) Qualification Directive, supra note 402, art. 4(3)(e). This provision was enacted as part of the original QD in 2004. Council Directive (EC) No. 2004/83 of 29 April 2004, art. 4(3)(e) [hereinafter QD 2004], It remained unchanged in the 2011 revision.

(428.) UNHCR has criticized the provision on the ground that the Convention does not allow refugee status to be denied based on the possibility of "asserting" citizenship in another country; the multiple nationality clause of Article 1A(2) applies only to those who have multiple nationality, while Article IE excludes only those who have "taken residence" in a country that grants them rights and obligations equivalent to nationality. See UNHCR Comments on QD, supra note 69, at 14-15.

(429.) HEMME BATTJES, EUROPEAN ASYLUM LAW AND INTERNATIONAL LAW 266 (2006); Gregor Noll, Evidentiary Assessment in Refugee Status Determination and the EU Qualification Directive, 12 EUROPEAN PUBLIC L. 295, 308--09 (2006); see also KK & ors v. Sec'y of State for the Home Dep't, [2011] UKUT 92 (I.A.C.), H 41, aff'd sub nom. Sec'y of State for the Home Dep't v. SP (North Korea) & ors, [2012] EWCA Civ. 114 (C.A. 2012) (discussing expert submission of Guy Goodwin-Gill contending that, in order to interpret the QD consistently with the Refugee Convention, Article 4(3)(e) should be read as if the words "of which he is a citizen" appeared rather than "where he could assert citizenship").

(430.) In addition to ensuring that the QD is not interpreted so as to deny refugee status to those entitled to it under the Convention, this interpretation does no violence to the text of Article 4(3)(e). A person who holds or is entitled to citizenship in another country is necessarily someone who "could assert citizenship" in that country. Qualification Directive, supra note 402, art. 4(3)(e).

(431.) See, e.g., Jane McAdam, The Qualification Directive: An Overview, in THE QUALIFICATION DIRECTIVE: CENTRAL THEMES, PROBLEM ISSUES, AND IMPLEMENTATION IN SELECTED MEMBER STATES 7, 10 (Karin Zwunn ed., 2007) (stating that the QD's definition of "refugee" is "substantively identical" to Article 1A(2) of the Convention except that it is narrower in that nationals of EU member countries cannot qualify as refugees); SIDORENKO, supra note 50, at 65 (making the same observation).

(432.) Qualification Directive, supra note 402, art. 2(d) (article 2(c) in the 2004 QD). As originally drafted by European Commission, the QD would have incorporated by reference the refugee definition set forth in Article 1A of the Refugee Convention. See Comm'n of the European Communities, Proposal for a Council Directive, Sept. 12, 2001, at 10. This was modified in Council to make the definition freestanding. See Council of the European Union, Asylum Working Party, Outcome of Proceedings, Sept. 6, 2002, Doc. No. 11356/02 ASILE 40 (adopting an autonomous refugee definition).

(433.) Qualification Directive, supra note 402, art. 2(n) (article 2(k) in the 2004 QD) (emphasis added).

(434.) See Durieux, supra note 417, at 16.

(435.) Qualification Directive, supra note 402, art. 8(1) (emphasis added).

(436.) A standard focusing on whether the applicant can reasonably be expected to live in another country of nationality would also be consistent with the "safe third country' ground for refusing to consider an asylum application in the BU directive on asylum procedures. Under the Procedures Directive, an application may be deemed inadmissible if the person could seek refuge in a safe third country and the decision is made in accordance with "rules requiring a connection between the person seeking asylum and third country concerned on the basis of which it would be reasonable for that person to go that country." Council Directive 2005/85/EC of 1 December 2005 on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status, arts. 25(2)(c) & 27(2)(a). This echoes the approach of Excom Conclusion 15. See supra text accompanying note 403.

Another provision in the Procedures Directive allows member states to apply a rebuttable presumption that an asylum application is "unfounded" if a person is a national of a country designated a "safe country of origin." Council Directive 2005/85/EC, supra, arts. 23(4)(c), 31, & Annex II. This provision, however, addresses whether an individual comes from a country so manifestly safe that the person's claim of facing persecution there is not credible, rather than the question of whether persecution could be avoided by going elsewhere.

(437.) See Qualification Directive, supra note 402, pmbl. UK 23-24.

(438.) See QD & AH v. Secretary of State for the Home Dep't, [2009] EWCA (Civ) 620, [18] (Eng.) (stating that the Qualification Directive "has to stand on its own legs and be treated, so far as it does not expressly or manifestly adopt extraneous sources of law, as autonomous"); cf. Hugo Storey, EU Qualification Directive: A Brave New World?, 20 INT'L J. REFUGEE L. 1, 9-11 (2008) (acknowledging the force of, although ultimately rejecting the view that the Directive's refugee definition must be interpreted on its own terms and not as simply incorporating the approach of the Convention). The QD clearly goes beyond the Convention's text in its provision adopting UNHCR's "humanitarian principle" that refugee status can be maintained even if changed conditions in the home country eliminate the risk of persecution, when an individual has compelling reasons arising from past persecution for not returning. Qualification Directive, supra note 402, art. 11(3); see supra text accompanying notes 401-02.

(439.) Qualification Directive, supra note 402, pmhl. [paragraph] 4.

(440.) Id. pmbl. [paragraph][paragraph] 3, 16; Tampere Conclusions, supra note 426, [paragraph] 13. The European Court of Justice has held that the QD "must ... be interpreted in the light of its general scheme and purpose" as set forth in the recitals in its preamble. Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08, Aydin Salahadin Abdulla et al. v. Bundesrepublik Deutschland, 2010 E.C.R. 1532, [paragraph][paragraph] 51-54.

(441.) See supra Part V.B.

(442.) See supra text accompanying notes 299-304.

(443.) The Tampere European Council, which established the framework for the Common European Asylum System, declared that, "It would be in contradiction with Europe's traditions to deny ... freedom to those whose circumstances lead them justifiably to seek access to our territory." Tampere Conclusions, supra note 426, [paragraph] 3.

(444.) U.N.G.A. Res. 8(1) and IRO Constitution, supra notes 53-54; UNHCR Statute, supra note 55.

Jon Bauer, Clinical Professor of Law and Richard D. Tulisano '69 Scholar in Human Rights, University of Connecticut School of Law. I am grateful for the helpful comments provided by Deborah Anker, Jill Anderson, A.C.E. Bauer, Sachin Pandya, and workshop participants at Brooklyn Law School's Migration Law Reading Group, the University of Connecticut School of Law, and the 2012 Immigration Law Teachers Workshop. Thanks also to Jane McAdam, Guy Goodwin-Gill, and Daniel Kanstroom for responding to my inquiries with a wealth of useful information, and to Keith Shuler at the Jimmy Carter Library, Heather Halliday and Roberta Elliott of the Hebrew Immigrant Aid Society, Sarah Rhodes at Oxford's Paul Weis archive, and the University of Connecticut law library staff. Ruth Vaughan provided superb research assistance. The support and encouragement of Deans Jeremy Paul, Willajeanne McLean, and Timothy Fisher, and generous travel and research funding provided by the Tulisano endowment, were essential in bringing this project to completion. None of the above-listed should be blamed for the results.
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Title Annotation:Continuation of IV. Multiple Nationality Under the U.S. Refugee Act C. Legislative History 4. The Case of Soviet Jews through VI. Conclusion, with footnotes, p. 973-1005
Author:Bauer, Jon
Publication:Vanderbilt Journal of Transnational Law
Date:Oct 1, 2014
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