Status of Persons Who Emigrate for Economic Reasons Under the Refugee Act of 1980 ( 1981 )

Stotas of Personas Who Emigrate ffor Ecomomnc Measomis HJmder
the Mefftmgee Actt off 12)80
U nder the Refugee A ct of 1980, a “ refugee” is defined as a victim o f persecution on
account o f race, religion, nationality, membership in a particular social group, or
political opinion; economic hardship by itself is not a basis for eligibility as a refugee
under the Act.
Refugee status under the Refugee A ct o f 1980 should normally be considered on an
individual basis. While the Im migration and Naturalization Service may apply com ­
monly known circumstances to people falling within particular groups without requir­
ing the facts necessary to determine eligiblity to be proved individually in each and
every case, group determinations should generally be reserved for situations in which
the need to provide assistance is extremely urgent and political reasons preclude an
individual determination of status.
Fear o f prosecution for departing a country in violation o f its travel laws is not sufficient
to entitle an individual to refugee status, unless it can be shown that such prosecution
would be motivated by one o f the proscribed reasons. If the country treats departure as
a political act and punishes th at act in a harsh and oppressive manner, such circum­
stances would qualify as "persecution on account o f . . . political opinion” under the
A ct.
August 24, 1981
MEMORANDUM OPINION FOR TH E GENERAL COUNSEL,
IMMIGRATION A N D NATURALIZATION SERVICE
This responds to your request for our views on the memorandum
prepared by your Office titled “Processing of Refugees of Special
Humanitarian Concern,” dated June 25, 1981 (Memorandum). We gen­
erally agree with the conclusions set forth in that Memorandum, but
add the following comments regarding whether persons who leave a
country for economic reasons may be considered refugees under the
Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (Act) because
they are threatened with harsh treatment upon return to their country.
The answer to this question depends on what constitutes a refugee
under the Act.
The Act created a new category of aliens called “refugee[s].” Under
the existing law prior to the adoption of the Act, admission was limited
to “conditional entrants” who were fleeing from persecution “on ac­
count of race, religion, or political opinion” in the Middle East or a
Communist country or who had been “uprooted by catastrophic natural
calamity.” 8 U.S.C. § 1153(e)(7)(Supp. Ill 1979). Ending these geo­
graphic and ideological limits was one of the major reforms intended
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by the Act. The comments of Representative Holtzman, chairwoman of
the House subcommittee in charge of the bill, are typical: “The new
definition . . . will give our Government the flexibility to deal with
crises such as the evacuation of Vietnam in 1975 and to respond as well
to situations in countries such as Cuba or Chile today where there are
political detainees or prisoners of conscience.” 126 Cong. Rec. 4499
(1980).
As a result, the status of “conditional entrant” was eliminated and
that of “refugee” was created. Section 201(a) of the Act, (to be codified
at 8 U.S.C. § 1101(a)(42)), defines a refugee as
any person who is outside any country of such person’s
nationality . . . and who is unable or unwilling to return
to, and is unable or unwilling to avail himself or herself of
the protection of, that country because of persecution or a
well-founded fear of persecution on account of race, reli­
gion, nationality, membership in a particular social group,
or political opinion. . . .
The expansion of the definition to eliminate ideological and geographi­
cal restrictions was intended to conform our law to the definition found
in the United Nations Convention and Protocol Relating to the Status
of Refugees (Convention), Jan. 31, 1967, 19 U.S.T. 6223, 6259 T.I.A.S.
No. 6577.1
[T]he new definition will bring United States law into
conformity with our international treaty obligations under
the United Nations Protocol Relating to the Status of
Refugees which the United States ratified in November
1968, and the United Nations Convention Relating to the
Status of Refugees which is incorporated by reference
into United States law through the Protocol.
S. Rep. No. 256, 96th Cong., 1st Sess. 4 (1979). See also S. Rep. No.
590, 96th Cong., 2d Sess. 19 (1980); H.R. Rep. No. 781, 96th Cong., 2d
Sess. 19 (1980); H.R. Rep. No. 608, 96th Cong., 1st Sess. 9 (1979); 126
Cong. Rec. 23,232 (1979) (remarks of Sen. Kennedy, floor manager); id.
at 4499, 4503 (1980); id. at 3757 (1980). It was not intended to require
us to accept for admission the millions of individuals who might qualify
as refugees. H.R. Rep. No. 608, supra, at 10; 126 Cong. Rec. 23,232
(1979); id. at 4507 (1980). Instead, a cap of 50,000 was placed on annual
admissions through 1982. Act, § 207(a)(1) to be codified at 8 U.S.C.
§ 1157(a)(1).2 Further, all refugee admissions must “be allocated among
1 The exception contained in the prior law for victims of natural calamities—who are likely to
become economic migrants—was eliminated.
2 A fter 1982, the President will set the limit. In an emergency situation, the President may now,
after consultation with Congress, admit a fixed number o f additional refugees. Act, § 207(b), to be
codified at 8 U.S.C. § 1157(b).
265
refugees of special humanitarian concern to the United States in accord­
ance with a determination made by the President after appropriate
consultation [with Congress].” Id., § 207(a)(3), to be codified at 8
U.S.C. § 1157(a)(3). See also id., §207 (b), (c)(1) to be codified at 8
U.S.C. §1157, (b), (c)(1).
There are three aids that can be used to determine whether Congress
intended to allow purely economic migrants to claim refugee status
under the A ct.3 First is the legislative history of the Protocol when it
was ratified by the Senate in 1968, thereby automatically adopting the
Convention. Second is the U.N.’s interpretation of the Convention.
Third is the courts’ interpretations over the years of 8 U.S.C. § 1253(h).
A basic rule of statutory construction is that a statute based upon
another statute, even that of a foreign state, “generally is presumed to
be adopted with the construction which it has received.” James v.
Appel, 192 U.S. 129, 135 (1904).4 In 1979, the United Nations High
Commissioner for Refugees (UNHCR) issued a nonbinding guide to aid
the Convention’s signatory states in determining whether someone was
a refugee. Handbook on Procedures and Criteria for Determining Refu­
gee Status Under the Convention and Protocol (Handbook). We assume
that Congress was aware of the criteria articulated in the Handbook
when it passed the Act in 1980, and that it is appropriate to consider
the guidelines in the Handbook as an aid to the construction of the
A ct.5
A second relevant rule of statutory construction is that provisions of
a statute that are repeated in an amendment to the statute, either in the
same or equivalent words, are considered a continuation of the original
law. 1A Sands, Sutherland on Statutory Construction § 22.33 (4th ed.
1972) (Sands). “[WJhere, as here, Congress adopts a new law incorpo­
rating sections of a prior law, Congress normally can be presumed to
have had knowledge of the interpretation given to the incorporated
law, at least insofar as it affects the new statute.” Lorillard v. Pons, 434
U.S. 575, 581 (1978).
Prior to its amendment in 1980, 8 U.S.C. § 1253(h) authorized the
Attorney General to suspend the deportation of any alien who “would
be subject to persecution on account of race, religion or political
opinion.” 6 Numerous cases have discussed the meaning of “persecution
on account of . . . political opinion.” Section 203(e) of the Act added
“nationality” and “membership in a particular social group,” so that
3 T he legislative history of the A ct contains no aid to interpretation beyond repeated statements
that it is adopting the Convention’s definition o f “refugee/’
4 See also Willis v. Eastern Trust & Banking Co., 169 U.S. 295, 307-08 (1898); Cathcart v. Robinson,
30 U.S. (5 Pet.) 264, 280 (1831); Roberto v. Aguon, 519 F.2d 754, 755 (9th Cir. 1975); Chauffeurs, Local
Union No. 364 v. R uan Transport Corp., 473 F. Supp. 298, 302-03 (N.D. Ind. 1979).
5 T he guidelines from the Handbook are just that—guidelines. T hey may be accepted or rejected
w ith respect to a signatory state’s interpretation o f the Convention, and, more importantly, with
respect to your interpretation of the Act.
* Prior to 1965, the section referred only to “physical persecution.” 8 U.S.C. § 1253(h) (1964).
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§ 1253(h) now tracks the definition of "refugee” found in § 1101(a)(42).
These two provisions should be construed together. 2A Sands, supra,
§ 51.02. The earlier cases remain relevant, therefore, for a discussion of
persecution based on political opinion.
We believe that the definition of “refugee” is limited by both its plain
language and these interpretive aids to those who are victims of perse­
cution based on one of the five bases named: race, religion, nationality,
membership in a particular social group, or political opinion. Political
persecution may take the form of economic reprisals, such as denying
individuals the opportunity to work.7 Likewise, an individual suffering
economic hardship may also become the victim of political persecution
because of political upheavals. Economic hardship itself, however, is
not a basis for eligibility as a refugee under the Act. This interpretation
is supported by all the sources consulted. See, e.g., S. Ex. Rep. No. 14,
90th Cong., 2d Sess. 13 (1968). Economic migrants, who are moved
“exclusively” by economic conditions, are not refugees. Handbook, H
62. See also Cheng Kai Fu v. INS, 386 F.2d 750, 753 (2d Cir. 1967), cert,
denied, 390 U.S. 1003 (1968) (“[PJhysical hardship or economic difficul­
ties . . . shared by many others . . . do not amount to . . . particular­
ized persecution.”)
The Bureau for Refugee Programs has argued that all persons who
leave Laos, Kampuchea, and Vietnam are, regardless of their motiva­
tion for leaving, treated as political opponents on their return and will
probably suffer political persecution.8 The Bureau “contends that there
is no need to examine individual cases, as blanket refugee status for all
these [refugees] is mandated. . . . The act of leaving will be all that is
necessary to become a refugee.” Memorandum, at 6. You have ex­
pressed disagreement with this position, on both legal and policy
grounds. Memorandum, at 5-9. We agree with you that applications for
refugee status should be considered on an individual basis, but suggest
that the law allows considerable discretion in means by which these
determinations are made and certainly does not foreclose your applica­
tion of commonly known circumstances to people falling within par­
ticular groups. For example, where it has been shown to your satisfac­
tion that a particular country persecutes all individuals with particular
political views, it would not seem necessary for you to require that fact
to be proved individually in each and every case.
We also concur with you that the “act of leaving” in and of itself is
not alone sufficient to entitle an individual to refugee status. Nor do we
feel that the fact of prosecution for the violation of a nation’s travel
7 “The denial o f an opportunity to earn a livelihood in a country such as the one involved here is
the equivalent of a sentence to death by means of slow starvation and none the less final because it is
gradual." Dunat v. Hurney, 297 F.2d 744, 746 (3d Cir. 1961) See also Soric v Flagg, 303 F 2d 289, 290
(7th Cir. 1962); Handbook, 63
8 Letter from the Acting Director, Bureau for Refugee Programs, to the Acting Commissioner,
Immigration and Naturalization Service, Feb. 27, 1981.
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laws rises to the level o f “persecution on account of . . . political
opinion.” However, systematic and harsh punishment for the act of
leaving a country may, in some circumstances, meet this standard.
Whether a particular situation meets this standard is largely a factual
matter which must be determined in individual situations depending
upon the extent to which a country punishes those who attempt to
leave.
This latter conclusion is reflected in the source material. Our courts,
the U.N., and the Immigration and Naturalization Service (INS) have
recognized that the threat of prosecution for violations of travel laws
does not in itself constitute persecution.9 It is when the prosecution is
politically motivated that the courts have said they will intervene.
Berdo v. INS, 432 F.2d 824, 845-47 (6th Cir. 1970); Kovac v. INS, 407
F.2d 102, 104-05 (9th Cir. 1969); Kalatjis v. Rosenberg, 305 F.2d 249,
252 (9th Cir. 1962); In re Nagy, 11 I. & N. Dec. 888, 891-92 (1966);
Handbook, H61.10 If individuals leave a country for economic reasons,
their behavior may be condemned by their country, but their disagree­
ment with the state is presumably based on economics, not politics.
Prosecution for violation of the state’s travel laws when they return is
not persecution unless the laws are applied for one of the proscribed
reasons. In re Chumpitazi, 16 I. & N. Dec. 629, 633-34 (1978); In re
Janus and Janek, 12 I. & N. Dec. 866, 876 (1968); Handbook, “[I 61.
Once the alien has proved that the laws are being applied for a pro­
scribed reason, however, he is eligible to be recognized as a refugee. If
the country treats the departure as a political act and punishes that act
in a harsh and oppressive manner, we believe that such circumstances
fall within the definition o f the Act. Henry v. INS, 552 F.2d 130, 131
(5th Cir. 1977) (Petitioners alleged that “anyone who had fled the
regime [in Haiti], would be received with hostility by the present
government. If proved, such an allegation might form a sound basis for
fear of persecution regardless of the placidity of an individual’s political
past.”)
You have questioned whether this is a proper interpretation because
“a foreign government could in effect create ‘political’ opponents for
opportunistic reasons” by simply declaring that citizens who leave will
be deemed to be political opponents. However, we believe that such a
declaration would not be sufficient proof that an individual had a well-
9 West Germ any and Austria have adopted a somewhat broader interpretation. Prosecution for
leaving certain countries will be deem ed to be persecution i f the alien left because of his political
opinions. M emorandum to UNHCR B ranch Office for the United States, from D irector of Protection,
Jan. 21, 1981, UK 27-29, 32.
10 In Sovich v. Esperdy, 319 F 2 d 21, 28-29 (2d Cir. 1963), the court stated that imprisonment for
illegal departure was punishment and only became persecution if it was excessive. “However repug­
nant to our ow n concept o f justice, a brief confinement for illegal departure or for political opposition
to a totalitarian regime would not necessarily fall within the ambit o f [§ 243(h)]. W e are unwilling to
believe, however, that Congress has precluded from relief under § 243(h) an alien threatened with long
years o f imprisonment, perhaps even life imprisonment. . . .” Accord, In re Dunar, 14 I. & N. Dec.
310, 324 (1973).
268
founded fear that he would be persecuted on his return. Issues of fact
cannot be resolved in the absence of information about factors such as
whether the government is really enforcing the policy, whether the
policy is being applied against all returnees or just some, whether the
policy involves application of longstanding domestic travel laws or new
restrictions, and whether it is likely that the alien’s departure and
subsequent return will be noticed by his country. Compare Fleurinor v.
INS, 585 F.2d 129, 132-33 (5th Cir. 1978) with Coriolan v. INS, 559
F.2d 993, 1002-04 (5th Cir. 1977). As the drafters of the Convention
said, the definition of refugee is meant to cover a person who “has
either been actually a victim of persecution or can show good reason
why he fears persecution,” U.N. Doc. E/1618 and Corr. 1, at 11 (1950),
and the signatory state is the ultimate judge of the validity of that fear.
Moreover, as noted earlier, the law does not require the United States
to accept an individual even if he does qualify as a refugee. Act,
§ 207(a)(3), (b), (c)(1).11
Furthermore, your concern that a foreign government could “create
‘political’ opponents for opportunistic reasons” arises from the language
of the Act itself. A foreign nation may do so whenever it determines to
persecute particular groups and may single out virtually any social
group or political view to implement its “opportunistic reasons.” If this
possibility is to be eliminated, Congress has the means at its disposal to
do so.
As noted above, an application for refugee status should normally be
reviewed on an individual basis. One of the major purposes of the Act
was to allow the President to select those refugees for admission who
were of “special humanitarian concern to the United States.” Act,
§ 207(a)(3), to be codified at 8 U.S.C. § 1157(a)(3). Individual interviews
would seem to be the easiest and best way to identify those who have
an especially strong claim on us as well as to determine how “well-
founded” the fear is in differently situated individuals. See Handbook,
HU44-45. A country may produce political refugees as well as eco­
nomic migrants and the Act requires that the two groups be distin­
guished. In re Williams, 16 I. & N. Dec. 697, 703 (1979) (Haiti). Group
determinations are usually reserved for situations in which the need to
provide assistance is extremely urgent and political reasons preclude an
individual determination of status.
We are not in a position to evaluate the situation that now exists in
Southeast Asia with regard to whether Laos, Kampuchea, and Vietnam
are persecuting those who leave because departure is viewed as a
political act.12 We do believe, as the courts have recognized, that an
11 You have expressed concern that the government will be swamped with asylees, 8 U.S.C.
§ 1253(h), if a country close to the United States adopts such a policy. Memorandum, at 8-9. We
believe that a solution to such a problem, to the extent it exists, must come from the Legislative
Branch.
12 Letter from the A cting Director, Bureau for Refugee Programs, to the Acting Commissioner,
Immigration and Naturalization Service, Feb. 27, 1981, at 3
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alien outside his country may have a well-founded fear of persecution if
his country is persecuting departure as a political act. Henry, supra.
Whether the fear exists should, except in exceptional circumstances, be
evaluated on an individual basis.
T h e o d o r e B. O l s o n
Assistant Attorney General
Office o f Legal Counsel
270