U.S. Obligations to Refugees & the National Security Exception
By David Manthos
Migration can be fraught with risk, both for migrants and host nations facing waves of desperate people. The uncomfortable balance between humanitarian concern and national security has played out many times in recent memory, from Jewish refugees turned away from New York City on the fear that some passengers might be Nazi spies to Cuban emigres painted by the Castro administration as criminals, social outcasts, and spies. At present, the United Nations High Commissioner for Refugees is tracking no fewer than twelve major refugee emergencies and situations worldwide, from Myanmar, to Syria, to Central America. The latter has prompted the Trump Administration to declare a national emergency at the southern U.S. border. With continuing tensions at the border, what are the obligations of the United States to refugees under international law, and what exceptions are permitted on the grounds of national security?
First, to clarify the distinction between refugees and migrants. The designation “migrant” can apply to anyone who relocates from one nation to another, regardless of the legal status of that migration or the individual’s motivation. Refugees, however, are defined by international agreements including the 1951 Convention Relating to the Status of Refugees (“1951 Convention”) and the 1967 Protocol Relating to the Status of Refugees (“1967 Protocol”). The 1951 Convention defines refugees as individuals who are outside of their country due to a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” This definition was codified into U.S. law by the Refugee Act of 1980 at 8 U.S.C. § 1101(a)(42). However, the same section provides that classification as a refugee is not available to anyone who has ordered, incited, assisted, or otherwise participated in the persecution of others on account of the others’ membership in the aforementioned protected classes. Finally, an asylum-seeker is an alien seeking legal recognition as a refugee, typically at the border or from within the host nation after arrival.
A person qualifying as a refugee is entitled to a variety of assurances from a host country party to the Convention or Protocol, also known as a “contracting state.” These include the right to treatment at least as favorable as that afforded to nationals of the contracting state with regards to religious freedom, access to courts, elementary education, and public relief. (See 1951 Convention, Art. 4, 16, 22, and 23, respectively). These also include the right to treatment at least as favorable as other foreign nationals in the same circumstances with regard to freedom of association and freedom of employment. (See 1951 Convention, Art. 14, 17, and 18, respectively). Contracting states are also obligated to provide refugees with identity papers, and, with limited exceptions for national security and public order, with travel documents for travel outside of the territory. (See 1951 Convention, Art. 27-28).
One of the most critical protections afforded to refugees by the 1951 Protocol is the right against refoulement.
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
1951 Convention, Art. 33.1; see also 8 U.S.C. § 1231(b)(3)(A).
However, the prohibition on refouler does not extend to refugees for whom there are “reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” 1951 Convention, Art. 33.2; see also 8 U.S.C. § 1231(b)(3)(A). Similarly, a contracting state may not expel a refugee lawfully present in the territory, except on grounds of national security or public order. 1951 Convention, Art. 32.1. Even so, unless there is a compelling national security interest requiring otherwise, a refugee being expelled is entitled to due process and representation before competent authority prior to expulsion. 1951 Convention, Art. 32.2.
The national security exception allows for removal of refugees if there are “reasonable grounds” to believe they are a threat to national security, but that threat must be established by substantial evidence. In Yusupov v. Att’y Gen. of the United States, petitioners were two Uzbek Muslims whom the Board of Immigration Appeals (“BIA”) had held were likely to face persecution if extradited to Uzbekistan. 518 F.3d 185, 190-94 (3rd. Cir. 2008)(“Yusupov I”). However, the BIA also held the petitioners were ineligible for withholding of removal under 8 C.F.R. § 208.16 because their emails, computer records, and affiliations suggested they may pose a threat to national security. Id. at 193-94 (emphasis added). The court agreed with the petitioners only on a single point, that the Attorney General must ask whether the alien is a danger to the security of the United States, not whether the alien may pose a danger to the national security. Id. at 190 (emphasis in original). The Court held, “[Congress] did not intend this exception to cover aliens who could be such a danger or have the ability to pose such a danger (a category nearly anyone can fit). Id. at 201. The Court remanded the case to apply the correct standard. Id. at 205.
Yusupov I also granted Chevron deference to the Attorney General’s interpretation that “reasonable grounds to believe” a refugee is a threat to national security means a probable cause standard. Id. at 200. In Malkandi v. Holder, the Ninth Circuit affirmed this standard, denying review of a case where an Iraqi refugee was in communication with a notorious Al-Qaeda operative, making travel arrangements for the operative’s visit to the United States. 576 F.3d 906, 909-11, 914, 920 (9th Cir. 2009)(“[t]he constellation of undisputed facts connects the dots …[t]he documentation, names, location, and timing are far too compelling to be written off as chance or coincidence.”). On a second appeal, Yusupov v. Att’y Gen. of the United States, the court reviewed BIA’s additional findings and conclusions where BIA tried again to establish that the petitioners were threats to national security. 650 F.3d 968, 993 (3rd. Cir. 2011) (“Yusupov II”). The court in Yusupov II did not consider extradition requests and Interpol warrants issued from Uzbekistan as probative on the basis that some of the information was apparently obtained by Uzbekistan through torture. Id. at 982-93. Other information that BIA relied upon was “impermissibly speculative” and did not satisfy a probable cause standard. Id. at 983. Having given the BIA two opportunities to address the legal and factual issues, the Court refused to remand the case again and directed BIA to grant the petitioners application for withholding of removal. Id. at 993.
In conclusion, the United States may deport refugees that pose a threat to national security, but the Government must show more than mere suspicion that the refugee might pose a threat in the future. In the interim, however, the Government may generally take such measures as it sees fit to protect national security while the removal cases are adjudicated. The petitioners in Yusupov I & II spent at least three years in immigration detention, and Malkandi spent five years in immigration detention before he was separated from his wife and children and deported to Iraq.