Courts in the United States still consider the 1967 Protocol Relating to the Status of Refugees (1967 UN Protocol), and the UN Handbook that explains it, as persuasive guidance when considering certain domestic principles of asylum law. In another post, we described how the 1951 UN Convention established certain definitions and provisions (i.e., Articles 2 to 34), which the 1967 UN Protocol incorporated. The U.S. eventually signed the 1967 UN Protocol in 1968.
Before the 1967 UN Protocol
Before the U.S. signed the 1967 UN Protocol, Section 243(h) of the Immigration and Naturalization Act of 1952 (INA § 243(h)) served as the primary legislative framework for refugees and asylees in the country. The Refugee Act of 1980—which reflected definitions and principles from the 1967 UN Protocol—substantially revised INA § 243(h).
In many respects, INA § 243(h) limited protections for refugees and asylees in a much more limited manner compared to those the Refugee Act of 1980 provided. For example, Section 243(h) initially limited its protections to probable victims of “physical” persecution. The original language provided:
The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to physical persecution and for such period of time as he deems to be necessary for such reason.INA § 243(h), Pub. L. No. 82-414, 66 Stat. 163 (1952)
In 1965, Congress expanded that provision from allowing asylum for physical persecution to include persecution based on race, religion, and political opinion:
The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason.Pub. L. No. 89-236, § I l(f), 79 Stat. 918 (1965)
Expressly, the amendment stated: “Section 243(h) is amended by striking out ‘physical persecution’ and inserting in lieu thereof ‘persecution on account of race, religion, or political opinion.’ Id.
Today, the language from the Refugee Act of 1980 contains even more expansive language, including the more general category of protected “particular social group[s]”:
The term refugee means  any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion …Refugee Act of 1980
Other differences between INA § 243(h) and the Refugee Act of 1980
The INA § 243(h) and the Refugee Act of 1980 also differed in two major respects. First, section 243(h) applied only to “deportable aliens,” but not “excludable aliens.” “Deportable aliens” were noncitizens who were lawfully admitted aliens but who eventually became subject to deportation. “Excludable aliens” were those who were never formally admitted into the U.S. The Refugee Act of 1980 did not distinguish in that manner.
Second, and significantly, INA § 243(h) seemed to allow for more permissive, or discretionary, grants of asylum, than as reflected in current language. Under INA § 243(h), the immigration judge or BIA could deny asylum even to qualified applicants. In at least one case, BIA exercised such discretion when it denied asylum for a Nationalist soldier from China. The applicant entered the U.S. through Guam, then studied and gained employment in the U.S. See Matter of Liao, 11 I&N Dec. 113 (B.I.A. 1965). The applicant in that case claimed he was politically opposed to Nationalist government, and that he would be sentenced to death if he returned to Formosa. Id. at 114. The BIA emphasized the”wide latitude” the A.G. had for its discretionary, or permissive, nature of relief under Section 243(h):
This permissive language means that the Attorney General or his delegate may consider factors other than those directly related to an alien’s claim of physical persecution in forming his opinion as to whether discretion would be exercised either in favor of, or contrary to, the alien’s request for relief.
The Attorney General or his delegate has wide latitude and the primary consideration is whether the alien has had a fair opportunity to present his case; whether the Attorney General or his delegate has exercised his discretion and whether there has been an error of law in the proceeding.Matter of Liao, 11 I&N Dec. 113 (B.I.A. 1965) at 118-119
After the 1967 UN Protocol
Before Congress passed the Refugee Act of 1980, executive agencies also recognized that the United States’s signature to 1967 UN Protocol served to apply the provisions of the 1951 United Nations Convention to refugees in the U.S. For example, in Matter of Dunar, 14 I&N Dec. 310 (BIA 1973), the BIA observed:
The major objective of the Protocol was to Make the Convention applicable to all refugees covered by its definition irrespective of the January 1, 1951 deadline, and this was accomplished in Article
I of the Protocol. In acceding to the Protocol, the United States undertook to apply Articles 2 to 34, inclusive, of the Convention to refugees as defined in the Protocol.
Since it supplements and incorporates the substantive provisions of the Convention, the Protocol must be regarded as a treaty, which is part of the supreme law of the land, UnitedMatter of Dunar, 14 I&N Dec. 310, 313 (BIA 1973)
States Constitution, Article VI, Cl. 2. Such a treaty, being self-executing, has the force and effect of an ad of Congress, Valentine v. United States, 299 U.S. 5, 10 (1936).