The Refugee Act of 1980 established the modern approach to asylum law still effective in the United States today. As the U.S. Supreme Court clarified, one of the Act’s purposes was to bring U.S. law in conformance with the 1967 UN Protocol. See Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 436 (1987) (“If one thing is clear from the legislative history of the … definition of ‘refugee,’ and indeed the entire 1980 [Refugee] Act, it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees.”); id. at 469 n. 27 (1987) (“The 1980 Act was the culmination of a decade of legislative proposals for reform in the refugee laws.”). One academic has described the Act’s impact:
The Refugee Act of 1980 solidified the relationship between resettlement agencies and the federal government, established political asylum in U.S. law, and created the refugee resettlement program and a series of assistance programs to help refugees transition to life in the United States. This legislation marked a decisive turning point in the field of refugee resettlement.Anastasia Brown and Todd Scribner, Unfulfilled Promises, Future Possibilities: The Refugee Resettlement System in the United States, 2 J. Migration and Hum. Security, No. 2, 101, 101 (2014).
This post takes a brief look at that Act’s background and history. Other posts will discuss what the Act and other companion statutes require from refugee and asylum applicants.
As a signatory to the 1967 UN Protocol, the United States was required to agree to minimum protections to refugees under the Protocol’s Article 33(1) (which in turn the Protocol incorporated from the 1951 UN Convention). That provision guaranteed3 the withholding of deportation for refugees who would face persecution if returned to their home country. Congress eventually passed the Refugee Act of 1980 over a decade after the U.S. signed the Protocol:
The purpose of the Refugee Act of 1980, which amended the Immigration and Nationality Act, was to provide a permanent and systematic procedure for the admission to this country of refugees of special humanitarian concern to the United States. Also, the Refugee Act brought the domestic laws of the United States into conformity with its treaty obligations under the [1967 UN Protocol]. In response to the urgent needs of those subject to persecution in their homelands, the Refugee Act revised and regularized the procedures governing the admission of refugees into the United States.Marincas v. Lewis, 92 F.3d 195, 198 (3d Cir. 1996) (internal citations omitted).
Before the Refugee Act of 1980, the Immigration and Naturalization Service (INS) conducted asylum proceedings under the U.S. Attorney General’s discretionary authority. The Refugee Act of 1980 standardized those proceedings in line with obligations under the 1967 UN Protocol. Among other provisions, the Act adopted the Protocol’s definition of “refugee,” through INA §101(a)(42); set the parameters for asylum eligibility in INA §208; adopted the Protocol’s non- refoulement provision into the former INA §243(h), which is now at INA §241(b)(3); and required the trier of fact’s consideration of factors when determining whether an alien convicted of an aggravated felony could be excluded from withholding.
Increase in refugee admissions through executive determination
The Refugee Act of 1980 also expanded the admission of refugees into the U.S., and created a new process by which those individuals could be admitted. Before the Act, U.S. law allowed only 17,400 “conditional entries” each year for refugees who had been screened overseas, and was available only to individuals who fled communist countries or the Middle East. When the influx of noncitizens exceeded those numbers, U.S. officials resorted to granting individuals parole from deportation—yet that relief was inadequate, as it only provided temporary relief from deportation.
The Refugee Act set the cap of refugee admissions at 50,000 but also created a mechanism that empowered the President to set refugee admission totals at the beginning of each fiscal year. Specifically, the law authorized the President to exceed this limit “if, at the beginning of a fiscal year and after appropriate consultation, he determines it to be for humanitarian purposes.” It defined “appropriate consultation” as:
[Personal] discussions by Cabinet-level representatives of the President with members of [the Judiciary Committees of the House and Senate] to review the refugee situation or emergency refugee situation, to project the extent of possible United States participation therein, to discuss the reasons for believing that the proposed refugee admission is in the national interest, and to provide such members with information that shall include: (1) a description of the nature of the refugee situation; (2) a description of the number and allocation of of refugees to be admitted, and an analysis of conditions within their home countries; (3) an analysis of the anticipated social, economic, and demographic impact of their admission to the United States; (4) a description of the proposed resettlement plans, including estimated costs involved; (5) a description of the extent to which other countries will admit and assist in such refugee resettlement; (6) an analysis of the impact of United States participation in the resettlement of such refugees on United States foreign policy; and (7) any other appropriate information.Refugee Act of 1980
At the height of the aftermath of the Vietnam crisis, refuge admissions into the U.S. reached approximately 200,000. Over the next three decades, admissions ranged from 40,000 to 130,000. See The Refugee Act of 1980: A Forlorn Anniversary – Lawfare (lawfareblog.com).
The Federal Refugee Resettlement Program
The Refugee Act of 1980 also created The Federal Refugee Resettlement Program, which aims to assist refugees with effective resettlement and economic self-sufficiency as soon as they arrive in the U.S. See The Refugee Act | The Administration for Children and Families (hhs.gov).
According to the Office of Refugee Resettlement, the Department of Homeland Security (DHS), Department of State, and Department of Health and Human Services together implement the program as follows:
Once the United Nations and U.S. embassies refer refugee cases for resettlement consideration, U.S. Citizenship and Immigration Services (USCIS) Visit disclaimer page officers at DHS conduct individual interviews and clearances, and final determinations for admission.
The State Department’s Bureau for Population, Refugees and Migration (PRM) Visit disclaimer page coordinates admissions and allocations to specific cities and resettlement agencies, in conjunction with nine national voluntary agencies that oversee a network of some 250 affiliates in 49 states plus the District of Columbia through the Reception & Placement Program Visit disclaimer page. When refugees arrive at their destination, these local affiliates greet them at the airport, help them with housing and access to other resources.
From the date of arrival, the Office of Refugee Resettlement (ORR) at HHS provides short-term cash and medical assistance to new arrivals, as well as case management services, English as a Foreign Language classes, and job readiness and employment services — all designed to facilitate refugees’ successful transition in the U.S., and help them to attain self-sufficiency.
ORR supports additional programs to serve all eligible populations beyond the first eight months post-arrival, including micro-enterprise development, ethnic community self help, agricultural partnerships, and services for survivors of torture.Source: Office of Refugee Resettlement
Image Source: Office of Refugee Resettlemen
Table of Authorities
- Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421 (1987)
- Marincas v. Lewis, 92 F.3d 195 (3d Cir. 1996)
- Anastasia Brown and Todd Scribner, Unfulfilled Promises, Future Possibilities: The Refugee Resettlement System in the United States, 2 J. Migration and Hum. Security, No. 2, 101, 101 (2014)
- The Refugee Act of 1980: A Forlorn Anniversary – Lawfare (lawfareblog.com)
- The Refugee Act | The Administration for Children and Families (hhs.gov)