[Date Prev][Date Next][Thread Prev][Thread Next][Date Index
][Thread Index
]
CONGRESSIONAL RESEARCH SERVICE MEMO
- Subject: CONGRESSIONAL RESEARCH SERVICE MEMO
- From: moe@xxxxxxxxxxxxx
- Date: Wed, 17 Sep 1997 21:46:00
FILE ID:97090907.EEA
DATE:09/09/97
TITLE:09-09-97 TEXT: CONGRESSIONAL RESEARCH SERVICE MEMORANDUM ON H.R. 1685
TEXT:
(Bill gives priority to protected religious minorities) (3050)
(Editor's Note: H.R. 1685 was amended and superseded September 8, 1997
by H.R. 2431.)
Washington -- H.R. 1685, the "Freedom from Religious Persecution Act
of 1997," would modify existing asylum procedures to assure that
"members of protected religious communities would receive full
consideration of their asylum claims, beyond that afforded other
classes of asylum applicants," according to a September 8
Congressional Research Service memorandum commissioned by Doug
Bereuter (Republican of Nebraska), vice-chairman of the House
International Relations Committee.
This priority requirement for protected religious minorities "could
significantly limit the flexibility of the refugee admission process
to accommodate other foreign policy concerns and humanitarian
considerations," the memorandum warns.
"In all likelihood, the number of members of protected religious
communities will often be higher than the overall number of authorized
refugee admissions," the memorandum says. "Under these circumstances,
the priority requirement under H.R. 1685 possibly could preclude the
Executive Branch from giving any refugee who faces any type of
persecution on any ground other than religion (e.g., race, ethnic
origin, or political belief) admission priority over a refugee member
of a protected religious community. Also, members of protected
religious communities presumably could get priority over aliens who
face persecution on religious grounds but who are not members of
designated protected religious communities."
Following is the text of the Congressional Research Service Memorandum
on H.R. 1685:
(begin text)
MEMORANDUM
September 8, 1997
SUBJECT: Immigration-Related Provisions of H.R. 1685, the "Freedom
from Religious Persecution Act of 1997"
FROM: Larry M. Eig, American Law Division; Joyce C. Vialet, Education
and Public Welfare Division
This memorandum analyzes immigration-related provisions of H.R. 1685,
the "Freedom from Religious Persecution Act. " The memorandum briefly
discusses the current immigration and refugee policies that would be
modified by this legislation. It then explains how the bill would
enhance the ability of certain persecuted religious communities to be
admitted in refugee status or be granted asylum status.
"Refugees" under the Immigration Law
The Immigration and Nationality Act (INA), as amended, governs the
entry and stay of aliens, including the granting of relief to aliens
who face persecution abroad. There are two general types of relief for
persecuted aliens under the INA: refugee status, which applies to
aliens who are outside the U.S., and asylum status, which applies to
aliens who are in the U.S. or who are arriving here. Eligibility for
either status is premised upon an individual showing that he or she is
a "refugee," as that term is defined in the INA:
The term "refugee" means ... any person who ... is persecuted or has a
well-founded fear of persecution (in the country of the person's
nationality) on account of race, religion, nationality, membership in
a particular social group, or political opinion.
The only class of aliens that the definition excludes from
consideration as "refugees" is that of aliens who themselves
participated in the persecution of others.
The standards for meeting the requisite elements of "refugee" -- i.e.,
whether an individual has been "persecuted" or has a "well-founded
fear" of "persecution" based on belonging to one of the statutory
categories -- have generally been established in case decisions of the
Board of Immigration Appeals and the federal courts. However, in the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Congress deemed as persecuted on the basis of membership in
a social group those aliens who have been subjected to, fear, or have
resisted certain coercive population control policies. At the same
time, Congress capped the number of aliens who could be granted
refugee status or asylum status on the basis of coercive population
control policies at a combined annual limit of 1,000.
P.L. 104-208, the omnibus law that contained IIRIRA, also, in its
foreign operations appropriation provisions, designated certain
Vietnamese who had been interned in a reeducation camp as a
"refugee(s) of special humanitarian concern to the United States."
This special provision for Vietnamese also directs that covered aliens
be admitted notwithstanding other provisions of law (e.g., the limits
on, and allocation of, refugee admissions under 207 of the INA).
Some efforts to benefit certain groups within the refugee admission
process predate P.L. 104-208. For example, Congress had earlier
established separate screening standards and procedures for members of
certain religious minorities in successor states of the former Soviet
Union for the purpose of their qualifying for entry in refugee status.
These provisions, known as the Lautenberg amendment, also apply the
separate standards to certain East Asians. The Lautenberg amendment
standards apply only to aliens seeking entry in refugee status and not
to aliens in the U.S. who are seeking asylum status. The special
screening standards under the Lautenberg amendment are scheduled to
expire on September 30, 1997; S. 955, the foreign operations
appropriation bill for FY-1998, passed the Senate on July 17 with a
one year extension of the Lautenberg amendment.
Admission in refugee status. Under 207 of the INA, the number of
aliens who may be admitted from abroad with refugee status is set each
year by the President after appropriate consultation with Congress.
Within this limit, the President (also after appropriate congressional
consultation) allocates admissions among "refugees" of "special
humanitarian concern to the United States," an undefined term that
permits the President to take into account a range of humanitarian and
foreign policy factors.
Clearly, not all "refugees" are assured admission in refugee status
under the ceiling and allocation processes. But even though being a
"refugee" is not sufficient to assure admission, it remains necessary.
Individuals abroad who desire entry in refugee status apply to
overseas offices of the Immigration and Naturalization Service (INS),
which undertake appropriate background checks before conducting
in-person interviews. Alternatively, applicants may apply to U.S.
consuls in designated foreign cities, who may accept and screen
applicants in preparation for INS interviews. Applicants bear the
burden of showing that they are "refugees" and of overcoming any
ground of inadmissibility that otherwise would preclude their entry.
Aliens approved as "refugees" -- that is, aliens already found to be
facing persecution on race, religious, ethnic, political, or social
grounds -- may be subsequently admitted within overall limits
according to waiting lists and admission priority groups established
by the Attorney General. The processing priorities are set forth,
among other places, in the Administration's Report to Congress on
Proposed Refugee Admissions. Priority One refugees include refugees
who have been identified by the UN High Commissioner for Refugees or a
U.S. Embassy as (1) facing compelling security concerns, (2) former
political prisoners, (3) women-at-risk, (4) victims of torture or
other violence, (5) disabled, (6) in urgent need of treatment, or (7)
not having any alternative feasible durable solution. Priority Two
refugees include various groups that have been designated as being of
"special humanitarian concern" within specified countries. Among these
groups are certain religious minorities, including religious
minorities in Iran and Cuba and religious minorities covered by the
Lautenberg amendment.
Under the Lautenberg amendment, aliens within designated classes may
show a well-founded fear of persecution by asserting a "credible
basis" for "concern about the possibility" of persecution. Also, each
decision to deny refugee status to an alien within a designated class
must be in writing and state, to the maximum extent feasible, the
basis for the denial. The classes of aliens covered by the Lautenberg
amendment include: (1) nationals and residents of one of the
components of the former Soviet Union who are Jews, Evangelical
Christians, or active members of the Ukrainian Catholic Church or the
Ukrainian Orthodox Church; (2) other classes of nationals and
residents of a component of the former Soviet Union that are
designated by the Attorney General as targets of persecution; and (3)
certain classes of residents and nationals of Vie@, Laos, or Cambodia
designated by the Attorney General as targets of persecution.
Many aliens from the former Soviet Union, Laos, Vietnam, and Cambodia
have been allowed into the U.S. under the Attorney General's parole
authority after they were denied refugee status. A separate provision
of the Lautenberg amendment allows these parolees to adjust to
permanent resident status after being here one year.
Asylum under the Immigration And Nationality Act
Section 208 of the INA establishes procedures under which aliens who
are physically present in the U.S. or arriving at its borders may
apply for asylum. As was the case with refugee status, eligibility for
asylum status is premised upon an alien proving that he or she is a
"refugee."
An alien may apply for asylum in one of two contexts. An alien who is
not the subject of a formal removal proceeding may affirmatively come
forward and seek asylum with the INS. Alternatively, an alien against
whom the INS has initiated removal proceedings may apply for asylum
with an immigration judge during the course of the proceeding as a
defense against expulsion. However, as a result of IIRIRA, arriving
aliens who do not have proper documents may be removed on an expedited
basis without an opportunity for full consideration of a claim for
asylum, unless the alien voices a fear of persecution or a desire to
apply for asylum and can show within a brief period after arrival that
his or her fear of persecution is credible.
Not all aliens who meet the definition of "refugee" are eligible for
asylum. Aliens convicted of serious offenses and aliens who are
security risks are among the classes of aliens who may not be granted
asylum status. As modified by IIRIRA, the INA will, beginning April 1,
1998, preclude relief for an alien who has been in the U.S. more than
one year before applying, unless the alien can justify the delay by
showing changed circumstances abroad or other extraordinary reasons.
Protected Communities Under the "Freedom From Religious Persecution
Act of 1997"
Among its provisions, H.R. 1685 would enhance the ability of certain
persecuted religious communities to be admitted refugee status or be
granted asylum status. The religious communities that would benefit
from these provisions are those found by a newly established Office of
Religious Persecution Monitoring to have been subject to category 1 or
category 2 persecution (hereinafter protected religious communities).
The pertinent findings of persecution are to be included in annual
reports to Congress by the new Office's Director.
Category 1 religious persecution is religious persecution that is
conducted with the direct involvement or support of government
officials as part of official government policy. Category 2
persecution is religious persecution that is not undertaken as part of
official policy but which the government fails to make serious and
sustained efforts to eliminate. Religious persecution is defined as
"widespread and ongoing persecution of persons because of their
membership in or affiliation with a religion or religious
denomination, whether officially recognized or otherwise, when such
persecution includes abduction, enslavement, killing, imprisonment,
forced mass resettlement, rape or crucifixion or other forms of
torture."
Asylum benefits for members of protected religious communities. H.R.
1685 would modify existing asylum procedures to assure that members of
protected religious communities would receive full consideration of
their asylum claims, beyond that afforded other classes of asylum
applicants.
First, the bill would free an alien who credibly can claim membership
in a protected religious community from further consideration under
the new expedited removal procedures that apply to aliens who arrive
without proper documents. That is, those aliens who credibly claim to
belong to a protected community when they arrive without proper
immigration documents would not, unlike other aliens who claim to face
persecution, be required to show a "credible fear" of individualized
persecution in order to avoid expedited removal and have their asylum
claims fully considered.
At the same time, the bill is silent on how an arriving alien may
credibly show membership in a protected community for purposes of
avoiding expedited removal, and further congressional direction may be
advisable to assure accurate screening and to minimize incentives for
making false claims. It also may be advisable to clarify whether
expedited removal is to be affected by the detailed finding,
reporting, and document requirements (described below) that are
triggered under H.R. 1685 whenever a person claiming to be a member of
a protected religious minority is denied asylum on credibility
grounds. These requirements are contained in 208 of the INA and would
appear to be triggered only after an arriving alien passes the initial
credibility hurdle under the expedited removal procedures under 235.
Nevertheless, the expedited removal process could be compromised if
the documentation and reporting requirements of H.R. 1685 are to apply
in that context.
In addition to amending expedited removal rules, H.R. 1685 seeks to
assure careful consideration of religious persecution cases by
requiring INS to follow certain reporting and documentation
requirements whenever a person claiming to be a member of a protected
religious community is denied asylum under 208. Under these
requirements, whenever INS refuses to grant asylum to an alien who
credibly claimed membership in a protected community (or whenever an
immigration judge denies asylum to such an individual), INS must
provide the alien with a detailed written explanation of the denial,
including references to at least two U.S. Government reports on
country conditions.
INS must also provide a denied member of a protected class copies of
certain assessment sheets and other relevant materials. If the alien's
credibility is an issue, INS must give the alien a chance to respond
to the Government's position on the credibility issue and provide the
alien detailed certifications and documentation regarding the
credibility finding. INS also must explain how the credibility issue
relates to the religious persecution claim. These requirements are
unique to cases of aliens claiming to belong to protected religious
communities and do not apply to other religious-based cases or cases
involving, for example, race, ethnicity, or political opinion.
A final document requirement in protected religious community cases
requires making certain documentation available to adjudicators.
Whenever INS opposes granting asylum to an alien who claims to be a
member of a protected community during the course of a proceeding
before an immigration judge or a court, INS must submit copies of the
findings of the Office of Religious Persecution Monitoring that were
made in the Director's annual report to Congress, as well as copies of
any of the Director's interim reports.
The foregoing requirements do not directly affect the "well-founded
fear" standard for obtaining asylum or presumptions for meeting that
standard. The regulations that govern establishing a "well-founded
fear" through proof of how similarly situated individuals have been
treated pertain to protected community cases as well. Nevertheless,
INS has privately characterized as burdensome at least some of the
requirements that would be put upon it when an asylum applicant is
denied. The requirements that would be triggered by denying an
applicant could, in the opinion of some, indirectly affect INS
decision-making.
Refugee benefits for members of protected religious communities.
Several factors may enhance the likelihood of an individual being
allowed entry as a refugee under the INA. Among them are: (1)
statutory presumptions that members of certain groups are "refugees"
and (2) priorities set for admission among classes of "refugees." H.R.
1685 does not directly make it easier for aliens claiming to be
members of protected religious communities to prove that they are
"refugees" by, for example, adding them to the Lautenberg amendment
classes or by creating a new, separate standard of proof. However, the
bill affects priorities for admission in a way that could
significantly advance the place of protected religious communities in
the refugee admission line.
Section 207 of the INA includes provisions that call for allocating
admissions numbers to "refugees of special humanitarian concern to the
United States," as determined by the President in consultation with
Congress. Under H.R. 1685, refugees who are members of protected
religious communities would be required to be given "priority status
(for admission) at least as high as that given to any other group."
The requirements of this mandate are unclear. At a minimum, protected
religious minorities, who now generally would appear to have Priority
Two admission status, presumably would be elevated to Priority One
status ahead of Priority Two groups. Among others, these include
forced-labor conscripts and human rights activists in Cuba, ethnic
minorities and pro-democracy activists in Burma who are persecuted for
their political views, and Hmong and Lowland Lao in refugee camps, and
former U.S. Government employees. On the other hand, the priority
provisions in H.R. 1685 would appear to be limited to priorities set
in the presidential consultation process under the Refugee Act. They
do not appear to require equal treatment with statutory admission
priorities set by Congress separate from the refugee admission process
under 207 of the INA -- i.e., Vietnamese required to be admitted under
the FY-1997 foreign operations appropriations act.
More broadly, the bill's priority requirement for protected religious
minorities could significantly limit the flexibility of the refugee
admission process to accommodate other foreign policy concerns and
humanitarian considerations. In all likelihood, the number of members
of protected religious communities will often be higher than the
overall number of authorized refugee admissions. Under these
circumstances, the priority requirement under H.R. 1685 possibly could
preclude the Executive Branch from giving any refugee who faces any
type of persecution on any ground other than religion (e.g., race,
ethnic origin, or political belief) admission priority over a refugee
member of a protected religious community. Also, members of protected
religious communities presumably could get priority over aliens who
face persecution on religious grounds but who are not members of
designated protected religious communities.
According to a State Department spokesman, an estimate of the
potential impact of this legislation on numbers of applicants for
refugee status and asylum is not possible. There is no way of knowing
the numbers who would be potentially eligible under this legislation
who are not already covered by existing law, nor is there any way of
estimating the number of these who would access the program.
(end text)