Trump’s Immigration Policy Cannot Stand Legal Scrutiny

By Prof. Nafees Ahmad*

The refugee crisis exploded on the global landscape in 2015 cautioning 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. It also made available an opportunity 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 a third country. The international community has been paying considerable 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 on this planet is a refugee.

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 are growing day-by-day leading to a backlash against these refugees in the host societies.

US President Donald Trump’s executive order banning the entry of refugees into US from specified countries — Syria, Sudan, Iraq, Iran, Somalia, Yemen and Libya — has sent shock waves. The impugned order is not only violative 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 echoed by Louis Henkin of the US as “ours is the age of rights” that recognises the inalienability of equality constitutionalism in the American way of life. President Trump has eviscerated the 1951 UN 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 entry of refugees in the country of refuge.

Refugees are protected under UNCSR and its 1967 Additional Protocol (UNCSR Protocol) and UNHCR has been established as the principal subsidiary organisation for looking after refugees worldwide. 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 party to UNCSR and 146 countries who are party to UNCSR Additional Protocol that was also acceded by the US on November 1, 1968.

The UN Conference of Plenipotentiaries met in Geneva in 1951 to deliberate and draft a Convention addressing the rights, duties and legal status of refugees in conformity with the decision of the UN General Assembly Resolution 429 (V) of December 14, 1950. Consequently, UNCSR was adopted on July 28, 1951 and came into force on April 22, 1954. UNCSR, which consolidates all previous international instruments pertaining to refugees, 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 any prejudice 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 that this document is at par with ‘Nansen Passport’ which was issued 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 realised by the comity of nations to apply the UNCSR to those new waves of refugees beyond Europe. Therefore, 1967 Additional Protocol was adopted 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 the US has been rich and magnanimous in hosting refugees and migrants from different ethno-racial backgrounds since its reach to people of all civilisations. 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 period, the US distinguished between “refugee” and “immigrant” and laid down a 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 was later amended in 1965 by enacting Migration and Refugee Assistance Act, 1965 wherein the policy for refugees on a case by case basis was incorporated and it was the first Act that has consolidated the US immigration policy to further attend the questions of immigration, migration and nationality of refugees and migrants.

However, the US has promulgated the 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, US Refugee 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.

President Trump’s executive order banning refugees in the US is discriminatory and counter-productive and bound to isolate the US from its allies and governments who have been supporting its “war on terror” project since the 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.

Of late, it has been established that a few states have been supporting, practising 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) 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 giving answers. Does AFP address the “theory of American interests” outside the US in whose name an interventionist agenda has been most conspicuous and inalienable narrative of US foreign policy that has been perennially jeopardizing the principle of sovereign equality and nudges international relations in violation of “Monroe Doctrine” of US?

Further, what is the fault of the people of the banned countries who suffered because of US policies in these countries? Will the Trump administration re-build, re-construct and restore the pristine glory of these countries? Will the 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 led to armed conflicts of international implications in Syria, Sudan, Iraq, Iran, Somalia, Yemen and Libya and many more countries wherein the people have got enormously displaced and these countries have produced only refugees.

On January 28, 2017 two Iraqi refugees Hameed Khalid Darweesh and Haider Sameer Abdulkhaleq Alshawi were detained at JFK airport following Trump’s executive order and they were inhumanly treated by the immigration officials despite the fact that Darweesh worked 10 years for the US in Iraq and Alshawi too worked for a US contractor and was visiting the US to join his wife and young son. Accordingly, their attorneys filed a writ of habeas corpus in Downtown Brooklyn Court and got them released within next twenty four hours.

Likewise, many such incidents of detention of refugees were also reported from US airports following 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 the Iranian nation. Thus, more such retaliatory measures might be resorted to 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 the 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 crystalised 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 the racial 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 that States “[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 of adhering the principles of the Convention.

Therefore, the latest immigration policy under Trump’s executive order is unequivocally discriminatory and it cannot stand 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 all foreigners captured on the high seas could be deported and that the President’s executive order in this regard 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 the Sale ruling, in the case of Immigration and Naturalization Service v. Predrag Stevic, 467 US 407 [1984], the 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], the US Supreme Court held that “Clear Probability” standard was too high to satisfy the asylum claims.

Therefore, the US Supreme Court preferred the UN standard of “well-founded fear of being persecuted” that can be met by the asylum applicants in case of deportation to their home country. Therefore, it is axiomatic that the idea of liberal internationalism has always been the touchtone of US refugee protection policy but the latest executive order of President Trump banning refugees into the 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?

*Dr. Nafees Ahmad is Assistant Professor, Faculty of Legal Studies, South Asian University (SAARC)-New Delhi. Comments and suggestions on this article can be sent to [email protected]

South Asia Monitor

South Asia Monitor

South Asia Monitor is an independent web journal and online resource dealing with strategic, political, security, cultural and economic issues about, pertaining to and of consequence to South Asia and the whole Indo-Pacific region. Developed for South Asia watchers across the globe or those looking for in-depth knowledge, reliable resource and documentation on this region, the site features exclusive commentaries, insightful analyses, interviews and reviews contributed by strategic experts, diplomats, journalists, analysts, researchers and students from not only this region but all over the world. It also aggregates news and views content related to the region.

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