Religion and Refugees: The President vs. the Statute

The debate over whether to admit 10,000 Syrian refugees has illuminated one point quite clearly: a troubling number of pundits and politicians either do not understand what refugee status [see article] entails, or are willfully misrepresenting facts to the public (please note that the consequences of these willful misrepresentations are much less severe than they are in the immigration context [see article]).

However, this terrific blog post [link]¹ by Andrew C. McCarthy at the Corner Blog on the National Review Online goes against the trend that I described. McCarthy dealt with the following quote from President Obama:

When I hear political leaders suggesting that there would be a religious test for which a person who's fleeing from a war-torn country is admitted … that's shameful…. That's not American. That's not who we are. We don't have religious tests to our compassion.

The President was responding generally to Republicans, such as Senator Ted Cruz [see blog], who argued that the United States should only admit Christians from Syria as refugees. However, as McCarthy points out, the President badly missed the mark with his quote.

For one, as defined in section 101(a)(42) [PDF version] of the Immigration and Nationality Act (INA), a refugee must have been persecuted or have a well-founded fear of persecution on account of:

Race;
Religion;
Nationality;
Membership in a particular social group; or
Political opinion.

Despite the President's contention that considering religion is “shameful,” “not American,” and “not who we are,” it seems that the INA, which the President is bound to follow in matters concerning refugees, is not in alignment with his lofty rhetoric on what is “American.” The President is assuredly correct that there are no “religious tests for our compassion,” but qualifying for our compassion is not the same as qualifying for refugee status. Unlike qualifying for our compassion, religious persecution is explicitly included in the statute defining “refugee” in U.S. law.

McCarthy gets to the heart of the problem with the President's views on refugee status. The President is trying to recast refugee status as a catch-all remedy for people fleeing terrible circumstances. However, he notes that “there is no right to emigrate to the United States” and that “[Civil wars are] often violent, and, for many, tragic; but it does not necessarily make them wars in which one side is persecuting the other side.”

There are two crucial points in the passage that I quoted above. Firstly, no one is entitled to refugee status. Of all of the people who are persecuted in the world, only a small number are admitted to the United States as refugees each year. Accordingly, discretion is used in determining which persons are able to apply for refugee status. Secondly, the Congress could have written the definition of “refugee” much more broadly than it did. For example, the statute could have been written, as the President may prefer, to define a refugee as any person who is “fleeing from a war-torn country.” However, the Congress wrote the statute to define as refugees those who are fleeing specific types of persecution, not those fleeing any horrible circumstance.

Going back to the arguments over whether Syrian Christians should be prioritized, McCarthy points out quite correctly that Christians in Syria are clearly obvious targets of religious persecution by the Islamic State and various other groups fighting in Syria. This is not to say; separate of asking whether admitting 10,000 Syrian refugees is good policy, that every Syrian Muslim is presumptively unable to meet the requirements for qualification as a Syrian refugee. The Syrian war is a sectarian struggle in addition to a religious one, and many Syrian Muslims who have fled may be able to demonstrate that they have suffered or have a well-founded fear of suffering persecution of the kind listed in the refugee statute. However, this can be true while also recognizing that Christians and other non-Muslim religious minorities in Syria would seem to have the most clear cases for refugee status, based upon U.S. law, of the people who have fled Syria. What the President coined un-American is in fact a sensible reading of American law.

The main takeaway from this article is that to suggest religion should be taken into account in determining whether to admit refugees is neither “shameful” nor “not American.” Religion is taken into account for certain refugees because of the law. Looking at religious persecution for potential refugees is no different than looking at persecution based upon sexuality, race, political opinion, or any of the numerous other categories covered by statute. Every immigration lawyer who deals with matters involving refugees is aware of these rules. One can only hope that the President has a better handle of the statutes he is executing than his public statements would suggest.

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1. McCarthy, Andrew, “Refugee 'Religious Test' Is 'Shameful' and 'Not American' … Except that Federal Law Requires It,” The Corner, November 18, 2015, http://www.nationalreview.com/corner/427262/refugee-religious-test-shameful-and-not-american-except-federal-law-requires-it-andrew