4

According to Wikipedia:

As of 2011, the UNHCR itself, in addition to the 1951 definition, recognizes persons as refugees:

"who are outside their country of nationality or habitual residence and unable to return there owing to serious and indiscriminate threats to life, physical integrity or freedom resulting from generalized violence or events seriously disturbing public order."

I'm trying to figure out if the US has adopted this definition. (I know that the EU hasn't technically done that but instead invented its own "subsidiary protection" notion, with more limited rights.)

I was able to find a "2001-2009" US State Department glossary page, which contains the definitions that were used at the UN for decades (i.e. the narrow [1951] definition of refugee, coupled with "externally displaced persons" as the broader category):

Displaced Person: an individual who has been forced or obliged to flee or leave his or her home temporarily and who expect to return eventually.

Internally displaced persons (IDPs) have relocated within their country, while externally displaced persons have crossed an international border. Depending upon their ability to return, and whether they are subject to persecution in their home country, externally displaced persons may be entitled to recognition as refugees under UNHCR's -mandate.

Has the US government adopted the broader UNHCR definition of refugee in the meantime? If not literally, has the US come up with another term for the "extra-Convention" refugees (e.g. like the EU did)?

A footnote in a 2012 UNHCR document says

The European Union, Canada, the United States, Hong Kong and New Zealand have comparable provisions for complementary protection.

The latter is the UNHCR-preferred term for EU's "subsidiary protection". So I guess the answer for the US' adoption of the broader notion of refugee is mostly yes, although I'm still curious what specific terminology they use.

3

Basically no, the US uses the narrow definition of refugee in its domestic law. Also, in the US case, complementary protection does not have a (single) name, although a catchall "withholding of removal" covers some of it, but also covers categories not reflected in international classifications. The temporary protected status (TPS) probably comes closest to meeting the extended refugee definition, but TPS has a distinctly group-based nature.

A 2014 comparative study concluded that

In Canada, complementary protection is well integrated into the RSD [refugee status determination] regime; in the United States, it is unpredictable and highly fragmented; and in Australia, complementary protection is a highly politicized discretionary power of the Immigration Minister. [.....]

Like its RSD regime, the American complementary protection regime is incredibly complex and multifaceted. There are almost a dozen different forms of relief from deportation that have been layered onto existing legislative frameworks over time, leading to an almost incomprehensible web of legal categories. Some forms of relief lead to permanent residency status; many do not. Some forms are connected to international legal obligations and others stem from domestic politics or foreign policy objectives. As with the American RSD regime, the broader world of humanitarian protection in the United States involves a lot of different players, is highly legalistic, and has varied over time and presidential administrations. As Kanstroom (2010:118) recently put it, “this patchwork quilt of specific protective measures evidences certain deep underlying humanitarian urges that have garnered specific political support.” In other words, the complexity of the system is not the product of a holistic or coordinated vision for protection, but of the ad hoc nature of migration policymaking in a fragmented institutional landscape.

In fact, the United States has a major complementary protection avenue that predates its RSD system. Before the 1980 Refugee Act established an RSD process based on the Convention definition, American immigration law included a provision that would prevent deportation of anyone who could demonstrate a “clear probability of persecution” if returned to their home country (Immigration and Nationality Act, Section 243(h)). This provision is called withholding of removal, and prior to 1980, it was purely discretionary and was not linked to a path to permanent residency or eventual citizenship. When the Refugee Act inserted an RSD system based on the 1951 Convention definition into American law, it layered this new RSD process onto the existing framework, leaving the withholding of removal component intact. The only change the Refugee Act made to the withholding of removal category was to shift it from a discretionary form of relief to a mandatory form of protection. This change was made in order to comply with Article 33 of the UN Convention—the nonrefoulement pledge.

The relationship between the new asylum provision and the old withholding provision in the law was the subject of confusion for several years after the 1980 Act was passed. There is no evidence in the historical record surrounding the passage of the Act to suggest that Congress deliberately intended to create two distinct forms of protection. Rather, this outcome seems to be an oversight; the asylum provision was barely discussed in the hearings on the bill because it was eclipsed by a focus on overseas resettlement issues—in particular, the immediate crisis in Southeast Asia (Martin 1990, Hamlin and Wolgin 2012). It took two separate Supreme Court decisions to resolve the question of whether the “clear probability of persecution” standard of proof for withholding of removal was different from the new “well-founded fear of persecution” standard the Act had created for RSD (INS vs. Stevic, [467 U.S. 407, 1984] and INS vs. Cardoza-Fonseca, [480 U.S. 421, 1987]) Initially, the BIA [Board of Immigration Appeals] found that the two standards were “not meaningfully different and, in practical application, converge” (Matter of Acosta [Interim Decision #2986, 1985]). By this logic, withholding of removal had been subsumed into the new category of refugee protection. However, in Cardoza-Fonseca, the Supreme Court concluded (without reference to any supporting evidence) that because Congress had left the two forms of relief separate from one another when they passed the 1980 Act, they intended for them to be two distinct forms of relief.

Today, withholding of removal requests are considered at the same time as an asylum claim in the same hearing, but they have split standards. Withholding of removal has a greater burden of proof, and still does not result in a full legal status. Thus, it becomes relevant when it is used as a safety net for asylum seekers who do not meet the refugee definition but can show that they will be persecuted if deported.

It goes on discussing withholdings under

  • CAT [convention against torture]
  • IIRIRA (seldom successful) if causing “exceptional and extremely unusual hardship” to an American citizen or permanent resident family member
  • temporary protected status (TPS); this is probably the closest thing to a complementary protection as envisaged by UNHCR, and the most flexible, but TPS is also a fairly political decision as to which groups (rather than individuals) get this designation
  • T and U visas: for victims and witnesses of human trafficking who are willing to testify

These withholding paths however are not all integrated in the RSD process. The Liberians TPS case is perhaps illustrative as to how complex and ad-hoc this can be:

Finally, in the cases of several national groups, TPS has been anything but temporary. For example, a large group of Liberians had their TPS renewed for decades with no pathway to permanent residency on the horizon, leaving them in a legal limbo (Wasem and Ester 2008). When their TPS finally expired in 2007, President Bush invoked his power of Deferred Enforced Departure (DED), which had been created to replace EVD as a discretionary presidential power to protect those who did not qualify for TPS (U.S. Department of Homeland Security 2007). The Liberians have continued to have their DED status renewed every 18 months since 2007, and although they can work legally in the United States and often have citizen children, they are not on the path to citizenship.

And concludes

Overall, the complementary protection system in the United States has been cast as a wide net, with many crisscrossing threads, but also some large holes. The RSD regime includes a channel for making CAT claims and complying with nonrefoulement obligations, but the rest of the protection avenues have not been integrated with that system. In addition, the long-term trend in the United States is unclear. Some beneficiaries of complementary protection, such as the Liberians with (not-so) temporary status, and the mostly female victims of human trafficking, have received protection that would not have been available to them 20 years ago. Others, such as Haitians, Central Americans, and undocumented immigrants who cannot prove extreme hardship to a U.S. citizen, are seeing their protection options contract. Thus, protection is not holistic and can be very inconsistent over time, depending on whether the individual or national origin group in question is politically sympathetic. [... Thus,] in the U.S. case, complementary protection has diversified (albeit inconsistently) the circumstances that are officially recognized as valid reasons for seeking protection.

A 2014 US study basically disagrees that a EU-style subsidiary protection is superior to TPS:

by requiring applicants to make an individualized showing of harm, the subsidiary protection regime requires individualized hearings and a fairly lengthy adjudication process in which an applicant’s credibility and supporting documentation is assessed. (Wettergren and Wikstrom 2013, 569). A process like TPS, in contrast, generally does not require a lengthy hearing, as individuals may be approved or denied on the basis of more “objective” criteria. Given that the goal of TPS is to provide short-term humanitarian relief, there is merit to retaining a process that is relatively simple, straightforward, and can be implemented fairly quickly.

Of course, the problem with TPS is that in practice it seems to have proved the old adage that temporary solutions become permanent (a fact acknowledged in the same US study.) A 2018 update on TPS indicates that Trump has massively terminated the program on several countries in Latin America... but these decision were met with legal challenges. The main argument in these appears to be the fact that the administration seemingly lacks objective standards for making TPS determinations. (Ironically, that was considered a strength in the 2014 paper quoted above.) According to Vox, the Trump administration is expected to ultimately prevail on these matters at the Supreme Court, given the latter's deference toward executive privileges on matters of immigration.

And yes, there's an opposite scholarly opinion that TPS is worse than subsidiary protection:

While it extends protection beyond those who face persecution, the availability of TPS is severely limited; it applied only when US officials exercise their discretion to designate a country's nationals for TPS protection and it protects only those nationals already in the US. It falls far of subsidiary protection in the EU.

Interestingly, this latter article claims that in the Matter of LS (2012) the BIA essentially created a de facto US equivalent of subsidiary protection.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.