Status of Persons Who Emigrate for Economic Reasons Under the Refugee Act of 1980., 81-43
| Decision Date | 24 August 1981 |
| Docket Number | 81-43 |
| Citation | 5 Op. O.L.C. 264 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | Status of Persons Who Emigrate for Economic Reasons Under the Refugee Act of 1980. |
Theodore B. Olson, Assistant Attorney General Office of Legal Counsel
Status of Persons Who Emigrate for Economic Reasons Under the Refugee Act of 1980.
Under the Refugee Act of 1980, a "refugee" is defined as a victim of persecution on account of 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 Act of 1980 should normally be considered on an individual basis. While the Immigration and Naturalization Service may apply commonly known circumstances to people falling within particular groups without requiring 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 of prosecution for departing a country in violation of 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 of the proscribed reasons. If the country treats departure as a political act and punishes that act in a harsh and oppressive manner, such circumstances would qualify as "persecution on account of political opinion" under the Act.
MEMORANDUM OPINION FOR THE GENERAL COUNSEL IMMIGRATION AND NATURALIZATION SERVICEThis 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 generally 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 account 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. § 11 S3(e)(7)(Supp. III 1979). Ending these geographic and ideological limits was one of the major reforms intended [ 265] 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).
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) (); 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 [ 266] refugees of special humanitarian concern to the United States in accordance 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 Act.[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 Refugee 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 Act.[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). "[W]here, as here, Congress adopts a new law incorporating 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 [ 267] § 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 persecution 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, ¶ 62. See also Cheng Kai Fu v. INS, 386 F.2d 750, 753 (2d Cir. 1967), cert, denied, 390 U.S. 1003 (1968) ()
The Bureau for Refugee Programs has argued that all persons who leave Laos, Kampuchea, and Vietnam are, regardless of their motivation for leaving, treated as political opponents on their return and will probably suffer political persecution.[8] The Bureau Memorandum, at 6. You have expressed 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...
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