Legality Of Banning Refugees’ Entry Into United States Under Domestic And International Laws


The refugee crisis exploded on the global landscape in 2015 which cautioned the comity of nations that refugees are not socio-political resources. The year 2016 corroborated that the refugee crisis is not going to be a vanishing point of human existentialism. But it has made available an opportunity that to address the plight of flight of refugees in 2017. It is, now, incumbent upon the comity of nations in 2017 to have an agenda of legal and ethical ramifications to motivate the refugees to promote transformation in their country of origin as the fourth sustainable solution in tune with three durable solutions. First is voluntary repatriation, second is integration in the country of shelter and third is resettlement in the third country. Though, International community has considerably been paying attention to refugees at staggering stages of international discourse including the deliberations done at Davos in the World Economic Forum (WEF) meeting in 2015. In spite of this there are 65.3 million refugees in the world as recorded by the UN High Commissioner for Refugees (UNHCR) in 2016 and one out of every 113 people is a refugee on this planet. Globally, 2016 witnessed refugee exoduses of high scale and many thousands of them lost their lives while crossing the Mediterranean Sea en route to European countries. These refugees have been sheltered in cities where their needs growing day by day that pandered to the backlash against these refugees in the host societies.

The President Donald Trump’s executive order on banning refugees’ entry into US from specified countries; Syria, Sudan, Iraq, Iran, Somalia, Yemen and Libyahave sent shock-waves to planet refugees. The impugned order is not only in violations of American Constitutional values and its history of democracy of diversity, pluralism and multiculturalism based on equality, liberty and fraternity but also in circumvention of legal and ethical commitments under international law. The idea of human rights in the preceding century has also been reverberated by Louis Henkin of USas “ours is the age of rights” that has recognized the inalienability of equality constitutionalism in American way of life. President Trump has eviscerated the 1951UN Convention Relating to the Status of Refugees (UNCSR) and international protection regime contemplated thereunder for refugees. International Refugee Law (IRL) — The resurgent branch of international law—proscribes the banning of refugee entry in the country of refuge. Refugees are protected under UNCSR and its 1967 Additional Protocol (UNCSR Protocol) and UNHCR has been established as the principle subsidiary organization for looking after the refugees world-wide. With the passage of time, these international refugee protection arrangements came to be known as International Refugee Law (IRL) complemented by a vast pool of international human rights instruments. Today, there are as many as 145 countries who are parties to UNCSR and 146 countries who are parties to UNCSR Additional Protocol that was also acceded by the US on November 01, 1968.


The UN Conference of Plenipotentiaries congregated at Geneva in 1951 to deliberate and draft a Convention addressing the rights, duties and legal status of refugees in conformity with the decision ofthe UN General Assembly Resolution 429 (V) of 14 December 1950. Consequently, UNCSR was adopted on July 28, 1951 that came into force on April 22, 1954. UNCSR consolidates all previous international instruments pertaining to refugees. UNCSR postulates the most comprehensive codification of rights of refugees ever endeavored at international plane. UNCSR stipulates fundamental minimum international standards for the refugees and their treatment without discrimination as to race, religion or country of origin, political opinion or social origin and devoid of anyprejudice or practice pursued by states that is detrimental to the overall interests of refugees. UNCSR also contains multiple safeguards against the detention and expulsion of refugees and provides provisions for their documentation and granting refugee travel document in the passport form. Many states grant this document that is at par Nansen Passport during the inter-war period. UNCSR provisions are so fundamental that no derogation, exemption or reservation may be permitted thereunder. These consist of two significant clauses of “refugee’ (Article-1 of UNCSR) and principle of “non-refoulement”(Article-33 of UNCSR) whereunder no Contracting State shall expel or return or “refouler” a refugee contrary to his or her will to territory of persecution.Similarly, Article-3 of 1984 UN Convention against Torture (CAT) incorporates the same principle of “non-returning” or expelling of any person to the persecutors’ territory. However, UNCSR does not cover Palestinian refugees who are protected by the UN agencies other than UNHCR like UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA). The ambit of UNSCR was initially limited to intra-European refugees in the wake of World War-II but with the emergence of new refugee situations, it was realized by the comity of nations to apply the UNCSR to those new waves of refugees beyond Europe. Therefore, 1967 Additional Protocol was adopted in commensurate with the UN General Assembly Resolution 2198 (XXI) of December 16, 1966 and become operational on January 31, 1967 that has made UNSCR universally applicable and dispensed with the geo-political limitation. However, many of the provisions of UNCSR have attained the status of jus cogens (pre-emptory norms of international law) wherefrom no exemption or reservation is possible even under Vienna Convention on Law of Treaties, 1969 as has been the practice of many states.

The history of US has been rich and magnanimous in hosting refugees and migrants from different ethno-racial backgrounds since its reach to people of all civilizations.But its refugee protection system has got emasculated over the last two decades. The emerging refugee populations and their diverse needs in post-9/11 scenario have exposed severe limitations in the standard resettlement approach.But in post-World War-II US have distinguished between “refugee” and “immigrant” and laid down the policy whereunder refugees were addressed specifically that too outside the immigration policy.Consequently, a slew of legislations like the Displaced Persons Act, 1948, the Immigration and Nationality Act, 1952, the Refugee Relief Act, 1953 and Refugee-Escape Act, 1957 were initially enacted by the US Congress. However, the Immigration and Nationality Act, 1952 which was later amended in 1965 by enacting Migration and Refugee Assistance Act, 1965 whereinthe policy for refugees on a case by case basis was incorporated and it was the first Act that has consolidated the U.S. immigration policyto further attend the questions of immigration, migration and nationality of refugees and migrants. However, US have promulgated United States Refugee Act, 1980 that amended previous legislations (i.e. Immigration and Nationality Act, 1952 and Migration and Refugee Assistance Act, 1965) to make provisions for permanent, comprehensive, systematic and uniform procedure to admit refugees of exceptional humanitarian interests to US by incorporating identical definition of term “refugee” provided in UNCSR Additional Protocol of 1967. Thus, USRefugee Act,1980 envisaged a pragmatic resettlement and assimilation programme for admitted refugees in the US. Therefore, the Refugee Act of 1980 was the first consolidated and comprehensive legislation promulgated by President Jimmy Carter on March 17, 1980 applicable to the realities of modern refugee situations in clear-cut terms with operative and malleable machinery in place called US Refugee Admission Program (RAP). But RAP has been grappling with significant challenges including enhanced security reviews, scant harmonization between government and NGOs and fluid policy conflicts between the objectives of sheltering the extremely defenseless.

While President Trump’s executive order banning refugees in US is discriminatory and counter-productive and bound to isolate US from its allies and governments who have been supporting its “war on terror” project since post- 9/11 tragedy. This discrimination is two-fold, one is discrimination among the states that violates the principle of sovereign equality under Article 1 (2) and Article 2 (4) of UN Charter-1945 and second is violation of equality on the ground of nationality or political opinion under Article-1 (A) of the 1967 Additional Protocol to UNCSR. Off late, it has been established that few states have been supporting, practicing and exporting terrorism but what about the genuine victims of persecution and massive violations of human rights in these seven countries whose refugees have been banned. The America First Policy (AFP) advocated at the hustings and now adopted is also a dangerous doctrine because of its one sidedness. AFP and its contours have not been made clear by the Trump Administration as it poses more questions than answers like; does AFP address the “theory Of American interests” outside US in whose name an interventionist agenda has been most conspicuous and inalienable narrative of US foreign policythat has been perennially jeopardizing the principle of sovereign equality and nudges international relationsin violation of “Monroe Doctrine” of US. Further, what is the fault of the people of banned countries who suffered because of US policies in these countries? Will Trump government re-build, re-construct and restore the pristine glory of these countries? Will US under Trump abdicate its policy of forced regime change (FRC) in countries that do not support it on many issues of national and international importance? However, FRC policy has ensued armed conflicts of international implications in Syria, Sudan, Iraq, Iran, Somalia, Yemen and Libya and many more countries wherein people have got enormously displaced and these countries produced only refugees.

On January 28, 2017 two Iraqi refugees Hameed Khalid Darweesh and Haider Sameer AbdulkhaleqAlshawiwere detained at JFK airportfollowing Trump’s executive order and they were inhumanely treated by the immigration officials. Despite the fact Darweesh worked 10 years for US in Iraq andAlshawi too worked for a US contractor and was visiting US to join his wife and young son.Accordingly, their attorneys filed a writ of habeas corpusin Downtown Brooklyn Court and got them released within next twenty four hours.Likewise, many such detention of refugee episodes were also reported from all US airports since the implementation of the executive order since Friday night i.e. 27.01.2017.Correspondingly, counteractions have also emerged in Iran who stated to limit the visas to US nationals in the name of reciprocity and dignity of Iranian nation. Thus, more such retaliatory measures might be resorted by rest of the countries in the coming weeks.There are many more apprehensions like does President Trump want pre-multi-cultural, pre-pluralism and pre-multi-racial America in the name of AFP? Is it his surreptitious agenda?  Nevertheless, President Trump’s Executive Order has presented an unprecedented challenge to the well-established and vibrant American institutions wedded with democracy, rule of law, human rights, judicial review and independence of judiciary to respond to the high handedness of US border security forces, immigration officials and law enforcement agencies in cases of refugee detention, asylum denial and decimation of human rights of uprooted people.

The position of aliens under International Covenant on Civil and Political Rights (ICCPR) has been enunciated in UN Human Rights Committee’s (UNHRC) General Comment No. 15 whereunder it states that “it is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise.”Similarly, instant position is further crystalized in UNHRC General Comment No.8 which concedes that “the ICCPR prohibits discrimination in law or in fact in any field regulated and protected by public authorities.” Further, in theracial and religious discrimination framework, Article 1 (3) of The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) imposes limitations of constitutional merits under international law that states, “Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.”Furthermore, the Committee on the Elimination of Racial Discrimination (CERD)’s General Recommendation states that “[e]nsure that legislative guarantees against racial discrimination apply to non-citizens regardless of their immigration status, and that the implementation of legislation does not have a discriminatory effect on non-citizens.”Yet CERD also lays down thatStates “[e]nsure that immigration policies do not have the effect of discriminating against persons on the basis of race, colour, descent, or national or ethnic origin,”with the purpose ofadhering the principles of the Convention.Therefore, latest immigration policy under Trump’s executive order is unequivocally discriminatory and it cannot brace the judicial scrutiny under municipal legal system of US and international law.

There are not many decisions of US Supreme Court in the field of refugees’ protection that have made the task of appreciating the judicial line of argument tougher. But the US Supreme Court in an important case of Sale v. Haitian Centers Council, Inc., 509 US 155 [1993] ruled that the President’s executive order regarding all foreigners captured on the high seas could be deported and that executive order was not restricted by the Immigration and Nationality Act, 1952 or UNCSR’s Article-33.The US Supreme Court interpretation in the instant case has adversely affected the IRL system owing to its approbation of stopping and returning Haitians at Sea without verifying the antecedents and credentials of persons fleeing persecution contrary to highest principle of non-refoulement embodied in IRL.But prior to Sale ruling, in the case of Immigration and Naturalization Service v. PredragStevic, 467 US 407 [1984] US Supreme Court evolved a test of “Clear Probability” whereupon a refugee has to prove that he would be persecuted if deported to his country of origin.However, in Immigration and Naturalization Service v.Cardoza-Fonseca, 480 U.S. 421 [1987], US Supreme Court held that “Clear Probability” standard was too high to satisfy the asylum claims. Therefore, US Supreme Court preferred UN standard “well-founded fear of being persecuted” that can be met by the asylum applicants in case of deportation to their home country. Therefore, it axiomatic that the idea of liberal internationalism has always been the touchtone of US refugee protection policy but the latest executive order of the President Trump of banning refugees into US amounts to shirking its international and humanitarian obligations under international law and refugee jurisprudence developed by the municipal legal system of United States barring few aberrations. But the question that still remains unanswered is; will Trump be a trump for refugees or he trumps them? Is Trump a trump?

Nafees Ahmad LL.M, Ph. D, Assistant Professor, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi, Nafees Ahmad is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author writes on International Forced Migrations, Climate Change Refugees & Human Displacement Refugee, Policy, Asylum, Durable Solutions and Extradition Issus. He conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. He has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law.  He has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA [email protected], [email protected]

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