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Multiple Nationality and Refugees Jon Bauer University of Connecticut School of Law University of Connecticut OpenCommons@UConn Faculty Articles and Papers School of Law 2014 Multiple Nationality and Refugees Jon Bauer University of Connecticut School of Law Follow this and additional works at: https://opencommons.uconn.edu/law_papers Part of the Immigration Law Commons Recommended Citation Bauer, Jon, "Multiple Nationality and Refugees" (2014). Faculty Articles and Papers. 232. https://opencommons.uconn.edu/law_papers/232 +(,121/,1( Citation: 47 Vand. J. Transnat'l L. 905 2014 Content downloaded/printed from HeinOnline (http://heinonline.org) Mon Aug 15 16:41:07 2016 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0090-2594 ARTICLES Multiple Nationality and Refugees Jon Bauer* ABSTRACT Persons with more than one nationality ("multiple nationals")who flee persecution in their home country may have compelling reasons to seek asylum elsewhere rather than go to a second country of nationality where they have no ties or face serious hardships. The 1951 U.N. Convention Relating to the Status of Refugees, however, expressly makes them ineligible for refugee status unless they have a well-founded fear of being persecuted in all their countries of nationality. The U.S. Refugee Act omits this exclusionary language but nonetheless has been read by immigration agencies as if it incorporated the Convention's approach. This Article challenges the view that multiple nationals should not be considered refugees. It argues that asylum should be denied only when it would be reasonable, under all the circumstances, to expect the person to resettle in a second country of nationality after taking into account factors * Clinical Professor of Law and Richard D. Tulisano '69 Scholar in Human Rights, University of Connecticut School of Law. I am grateful for the helpful comments provided by Deborah Anker, Jill Anderson, A.C.E. Bauer, Sachin Pandya, and workshop participants at Brooklyn Law School's Migration Law Reading Group, the University of Connecticut School of Law, and the 2012 Immigration Law Teachers Workshop. Thanks also to Jane McAdam, Guy Goodwin-Gill, and Daniel Kanstroom for responding to my inquiries with a wealth of useful information, and to Keith Shuler at the Jimmy Carter Library, Heather Halliday and Roberta Elliott of the Hebrew Immigrant Aid Society, Sarah Rhodes at Oxford's Paul Weis archive, and the University of Connecticut law library staff. Ruth Vaughan provided superb research assistance. The support and encouragement of Deans Jeremy Paul, Willajeanne McLean, and Timothy Fisher, and generous travel and research funding provided by the Tulisano endowment, were essential in bringing this project to completion. None of the above-listed should be blamed for the results. 905 906 VANDERBILT]OURNAL OF TRANSNATIONAL LAW [VOL. 47-905 such as family ties, social and cultural constraints, and any hardships the person would face. The Refugee Act's text and historical context establish that Congress intended to allow multiple nationals to qualify as refugees if they face persecution in any one of their countries of nationality. Drawing on archival research as well as a close examination of legislative and administrative history, this Article shows that the Refugee Act's drafters meant to preserve a longstanding U.S. policy of accepting refugees with more than one nationality as long as they had not "firmly resettled" in another country of nationality before coming to the United States-a policy especially salient to the Act's proponents because it allowed for the continued admission of Soviet Jews as refugees even though Israel welcomed them as citizens. This Article also argues that other refugee-receiving countries should reconsider their stance toward multiple national asylum-seekers. The Convention's approach to multiple nationality has become increasingly anomalous in light of the wide internationalacceptance of the principle that persons who could avoid persecution by going elsewhere-by relocating to a different part of their home country, or seeking asylum in some third country-should not be denied refugee status unless it is reasonable, under all the circumstances to expect them to do so. The Article concludes by discussing how the UNHCR and European Union are well-positioned to play a leading role in developing a new norm for the treatment of multiple nationals who seek refuge from persecution. TABLE OF CONTENTS I. INTRODUCTION ..................................... 907 II. THE RISE OF MULTIPLE NATIONALITY AND ITS IMPLICATIONS FOR REFUGEES ......................... 913 III. MULTIPLE NATIONALITY UNDER THE REFUGEE CONVENTION......................................... 919 IV. MULTIPLE NATIONALITY UNDER THE U.S. REFUGEE ACT ....................................... 927 A. The Statutory Text............. ........... 930 B. Administrative Interpretations.. ............. 936 C. Legislative History ................. ....... 947 1. Congressional Awareness of Differences from the Convention .......... 950 2. "Floodgate" and Fair Share Concerns ........ 954 3. Continuity with the Approach of Prior U.S. Law to Refugees of Multiple Nationality.......................... 957 2014/ MULTIPLE NATIONALITYAND REFUGEES 907 4. The Case of Soviet Jews ..................... 971 D. The Standardsfor Exercising Discretion.......... 986 V. RECONSIDERING THE CONVENTION'S STANCE............... 992 A. The Incongruity of the Multiple Nationality Clause'sApproach ....................... 992 B. Multiple Nationality and the Purposes of Refugee Protection. ........................ 995 C. Toward a More Inclusive Approach: UNHCR and the European Union............ 999 VI. CONCLUSION ....................................... 1004 I. INTRODUCTION Consider these situations: 1. Fatemeh is 30-year old citizen of Iran. Upon learning that she is about to be arrested because of her on-line advocacy for democratic reforms, she flees the country. She travels to Los Angeles, where her aunt, uncle and cousins live, and applies for asylum in the United States. Fatemeh is a dual national; she inherited French citizenship from her mother, a French citizen who married an Iranian man and moved to Teheran before Fatemeh was born. She has never been to France. No family members currently live there, and she has no other ties to the country. She is fluent in English and Farsi but does not speak French. 2. Maria is a citizen of Bosnia-Herzegovina, where she was born. She belongs to a Catholic family of Croatian descent that has lived in Bosnia for more than a century. During the Balkan war of the 1990s, when Maria was a child, her father secured Croatian passports and citizenship papers for all of his family in case they had to flee Bosnia. (Croatia's citizenship law allowed ethnic Croats living anywhere in the world to become citizens.1 ) The family remained in Bosnia throughout the war. Later, when Maria was in her twenties, she became involved in a relationship with a Muslim man who was psychologically and physically abusive. He would beat her and call her a "Catholic whore" while forcing her to perform sex acts, and he threatened to kill her if she left him. The authorities in Bosnia provided no protection to 1. See Francesco Ragazzi & Igor Stiks, Croatian Citizenship: From Ethnic Engineering to Inclusiveness, in CITIZENSHIP POLICIES IN THE NEw EUROPE 339, 347- 52 (Rainer Baubock et al. eds., 2009) ("[M]embers of the Croatian 'diaspora' .. have been able to obtain Croatian citizenship quite easily and maintain their other citizenship."). 908 VANDFRBILT/OURNAL OF TRANSNATIONAL LAW [VOL. 47905 victims of domestic violence. Maria finally escaped her situation by coming to the United States to work as an au pair. Her abuser continued to threaten her by phone and email. Fearing for her safety if she returns home, she applies for asylum. Although her citizenship papers enable her to enter and live in Croatia, she cannot imagine living there. After having experienced the relative tolerance and pluralism of the United States, she is frightened and repulsed by the idea of returning to the region where she endured her traumatic experiences, and where the ethnic and religious hatreds that played out in her own persecution play a central role in politics and culture. 3. A North Korean man fleeing political repression crosses the border to China. The Chinese authorities return him to North Korea, where he is detained and tortured. He escapes again, and this time an uncle procures a fake passport for him, which he uses to travel to Australia, where he applies for refugee protection. Under South Korea's Constitution, all of Korea is considered one country and citizens of the North are recognized as citizens of the South.2 He does not want to go to South Korea, however, because of the social stigma and employment discrimination North Korean defectors have experienced there. In addition, he fears that his relatives in the North would be harmed; North Korea has a history of retaliating against the families of those who defect to the South. Under the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol, on which most countries' refugee protection laws
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