Recent controversies over the resettlement of refugees from the Middle East (especially Syria), both in Europe and the United States, have been dominated by emotionally charged rhetoric. Taking a step way from that may be helpful for objectively illuminating both the problem and developing workable policy alternatives.
Immigration policy is inherently controversial for economic, social and political reasons. Economically, immigration may reduce prevailing wages by adding to the supply of certain categories of labor and create new social welfare burdens. Socially, immigrants may change national cultures, especially to the extent that they do not (and in some cases refuse to) assimilate. Politically, immigrants may alter the distribution of power among a nation’s citizens, especially if they are granted voting rights. Individually, these sources of potential conflict can be exacerbated by related pathologies and interactive effects such as human trafficking, national security risks, and identity theft. These social costs are not uniformly distributed across the population, either.
Refugee resettlement is a subset of immigration policy. The United Nations and Federal law define refugees broadly as persons fleeing persecution in foreign lands under certain circumstances, and with a long list of exceptions and provisos, such that the application of both definitions are subjective. Much of the political controversy in the US is a conflict between the views of a majority of Members of Congress and the nearly unfettered discretion Congress previously delegated to the President to make eligibility determinations.
Because refugee determinations are subjective, they reflect differing views concerning how trade-offs across competing policy objectives should be resolved. To illustrate, let’s simplify by characterizing refugee determination decisions has having just two factors: (1) the humanitarian objective of refugee resettlement and (2) national security — specifically, the exclusion of persons who pose a threat of terrorism. (An important source of legal controversy, ignored for this illustration, is whether the President has conducted “appropriate consultation” with Congress, as required by 8 USC 1157(e).)
President Obama’s announced policy would maximize the number of Syrians admitted as refugees subject to a constraint in which the national security risk they pose is deemed acceptable. His critics believe that refugee policy should admit Syrians as refugees subject to a much lower level of acceptable national security risk. Thus, the controversy concerns how to apply the Precautionary Principle to refugee resettlement, or alternatively, how to make risk-based decisions instead.
A key weakness of the Precautionary Principle is that there is no way to be simultaneously precautionary with respect to competing objectives at the same time. The US can be precautionary with respect to avoiding the risk of denying refugee status, or precautionary with respect to persons who pose national security risks. The former risk can be minimized only by allowing admission to all candidates claiming refugee status. The latter risk can be minimized only by allowing no candidates admission.
There are a number of ways to inform inform subjective judgment, for example by estimating or ranking candidates’ qualifications as refugees and estimating or ranking their national security risks. The table below is illustrative of one way to strike such a balance. This model would exclude all potential candidates for refugee status who are rated high national security risks (the left column) or about whom there is low evidence of eligibility (the bottom row). It also would admit all potential candidates who have strong evidence of eligibility and pose low national security risks.
The model below does not eliminate debate; rather, it refocuses debate on where the key uncertainties lie:
- What kinds of evidence should be deemed “low,” medium,” or “high”?
- What should be done when the available evidence is mixed?
- What should be done when the available evidence is murky?
Still, narrowing the problem this way offers the potential for a consensus, risk-based solution.
|National Security Risk Rating
Article 1, Definition of the Term “Refugee”
A. For the purposes of the present Convention, the term “refugee” shall apply to any person who:
(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of
the International Refugee Organization;
Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section;
(2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
The term “refugee” means
(A) 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, or
(B) in such special circumstances as the President after appropriate consultation (as defined in section 1157(e) of this title) may specify, any person who is within the country of such person’s nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The term “refugee” does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.
“Appropriate consultation” defined. For purposes of this section, the term “appropriate consultation” means, with respect to the admission of refugees and allocation of refugee admissions, discussions in person by designated Cabinet-level representatives of the President with members of the Committees on the Judiciary of the Senate and of the House of Representatives to review the refugee situation or emergency refugee situation, to project the extent of possible participation of the United States therein, to discuss the reasons for believing that the proposed admission of refugees is justified by humanitarian concerns or grave humanitarian concerns or is otherwise in the national interest, and to provide such members with the following information:
(1) A description of the nature of the refugee situation.
(2) A description of the number and allocation of the refugees to be admitted and an analysis of conditions within the countries from which they came.
(3) A description of the proposed plans for their movement and resettlement and the estimated cost of their movement and resettlement.
(4) An analysis of the anticipated social, economic, and demographic impact of their admission to the United States.
(5) A description of the extent to which other countries will admit and assist in the resettlement of such refugees.
(6) An analysis of the impact of the participation of the United States in the resettlement of such refugees on the foreign policy interests of the United States.
(7) Such additional information as may be appropriate or requested by such members.
To the extent possible, information described in this subsection shall be provided at least two weeks in advance of discussions in person by designated representatives of the President with such members.