The following article is an amended version of one that appeared in the Federal Bar Association’s immigration newsletter, The Green Card (which is expertly edited by Hon. Larry Burman). I have divided the topic into two parts; the first covers the period from 1938 through the 1970s. I will post part II next week, which covers the period from 1980 to the present.
Both of these articles are dedicated to the memory of the late Arthur C. Helton, my first hero and mentor in the field of asylum and refugee law, who taught me so much, and inspired me to learn the rest.
U.S. asylum policy is a product of the tension between the public sentiments of compassion and fear. In the words of a former Deputy UN High Commissioner: “The public will not allow governments to be generous if it believes they have lost control.”1
While case law might be more insulated from such outside factors, developments via legislation and policy must be viewed through the lens of contemporary events and their impact on the public’s fear and compassion scales. Fear factors include economic fears (i.e. whether admissions would be viewed as creating unwanted competition for jobs or other resources), as well as fears relating to security (i.e. whether those admitted would be criminals, terrorists, or pose ideological threats, such as communists or anarchists). Historically, communism has weighed heavily on the fear/compassion scales, resulting in a greater willingness to admit those fleeing communist regimes.
Although asylum can be traced back at least to the Old Testament, for all practical purposes, U.S. asylum policy began on the eve of World War II.
WWII: Millions displaced
In the late 1930s, no asylum or refugee provisions existed under U.S. law. Furthermore, there was little public support for the admission of refugees. While the Great Depression created a fear of admitting refugees to compete for jobs, the strong anti-semitic sentiments of the time dampened public sympathy. In 1938, President Roosevelt convened representatives of western governments in Evian, France to discuss the admission of Jewish refugees fleeing the Nazis. With the exception of the Dominican Republic (which agreed to issue 100,000 visas to European refugees, of which only 600-plus were actually used), those in attendance refused to open their doors. The U.S. representative stated that his country would accept no refugees; the Canadian representative went one step further, exclaiming that “none would be too many.”
A secret intervention, code-named “Operation Texas,” rerouted some refugees to Houston, TX. Although many were placed into deportation proceedings upon arrival, the program saved as many as 400 lives. It is widely believed that Lyndon Johnson (then a congressman) was responsible for the program.2 Otherwise, U.S. policy was exemplified by its treatment of the ship the St. Louis, labeled the“Voyage of the Damned,” carrying over 900 Jewish refugees from Germany. The refusal of the U.S. to permit the ship to dock in Florida in May 1939 eventually forced its return to Europe.
During World War II, the processing of visas for Jews wishing to escape the Nazis was overseen by Breckinridge Long, an infamous special assistant Secretary of State. Tragically, Long prevented the issuance of 90 percent of visas earmarked for Jews fleeing the Nazis by directing U.S. consulates to “put every obstacle in the way” of visa applicants “and to require additional evidence and to resort to various administrative devices which would postpone and postpone and postpone the granting of the visas.”
The U.S. did allow 982 Jews determined to be at high risk into this country as parolees. Strong opposition from Congress and the press caused this group to remain in detention in upstate New York until 1947.
Post-war: Displaced Person (“DP”) camps established in Europe
Intended as a temporary solution, western European governments established Displaced Person (“DP”) camps; believing that refugees housed there would soon return to their pre-war homes. However, the camp populations actually continued to grow in the years following the war. Some refugees no longer had homes to return to; others did not wish to live among those who had persecuted them during the war. Some Jewish returnees were subsequently forced to flee by homegrown nationalist groups.
President Truman sent former INS commissioner Earl G. Harrison to visit and assess conditions in the DP camps. Harrison reported “we appear to be treating the Jews as the Nazis treated them, except we are not exterminating them.”
Aftermath: 1951 Convention
Coming to the conclusion that the refugee population would not repatriate of its own accord, Western European governments convened in Geneva in 1951, and succeeded in creating the present-day definition of “refugee.” After designating “race, religion, nationality and political opinion” as bases for refugee status, the Swedish plenipotentiary to the Convention advocated for the addition of a fifth, “catch-all” category that would afford status to those clearly in need of protection but who did not fall within the above four categories. As a result, “particular social group” was added as a protection ground.
The Convention’s scope was limited geographically to Europe and to events occurring before Jan. 1, 1951. Although the United States sent an observer, it was not a signatory to the Convention, choosing to view the refugee crisis as a European issue.
US policy after WW II
Although President Truman was alarmed by the Harrison report, Congress would pass only piecemeal acts and parole for limited groups of interest i.e. British orphans (but not Jews); and later, Hungarians (in 1956) and Cubans (in the early 1960s), as anti-communist sentiment prevailed over anti-immigrant fears.
In 1952, Congress enacted the I&N Act (the “McCarran-Walter Act”). Section 243(h) of the Act provided legislative protection to refugees in the form of withholding of deportation. Under this section, the Attorney General was “authorized” (not required) to withhold deportation to any country where “in the Attorney General’s opinion” the applicant would suffer physical persecution. Such relief was both discretionary and temporary. Case law was also restrictive, as, for example, the U.S. Court of Appeals for the Third Circuit narrowly interpreted the term “physical persecution” to mean “confinement, torture, or death.”
Thirteen years later, the Immigration and Nationality Act of 1965 created a 7th Preference visa category for refugees from Communist countries and the Middle East only, in deference to Cold War priorities. Furthermore, section 243(h) was amended, with its “physical persecution” requirement replaced by “persecution on account of race, religion or political opinion.” However, withholding of deportation remained discretionary, and was unavailable in exclusion proceedings.
In 1966, Congress passed the Cuban Refugee Adjustment Act, which allowed Cuban nationals with one year physical presence in the U.S. to adjust status to that of a lawful permanent resident. This statute impacted hundreds of thousands of Cuban parolees; 78,000 of whom arrived in the U.S. in 1962 alone.3
1967: NY Protocol creates universal refugee definition
By 1967, world events led the international community to expand refugee protection. The 1967 Protocol (which was acknowledged by the U.N. General Assembly at its New York headquarters, and came into force in October 1967) accorded the refugee definition of the 1951 Convention universal application by removing its limitations as to time and place. The United States became a signatory to the Protocol in 1968, when it was ratified by Congress. However, there was no corresponding impact on U.S. domestic law; members of Congress were persuaded to vote for ratification by assurances that the U.S. was already in compliance, and that ratification would not require statutory amendments to the immigration laws. It took another 12 years for the Protocol’s refugee definition to be incorporated into U.S. immigration law.
Nov. 1970: Simas Kudirka incident
On November 23, 1970, Simas Kudirka, a Lithuanian sailor, leaped from his Soviet vessel onto a U.S. Coast Guard ship in a bid for asylum. The ships were docked next to each other at Martha’s Vineyard, where U.S. and Soviet officials were meeting to discuss fishing rights. While Soviet officers insisted on his return, Coast Guard officials were unable to obtain official guidance from Washington for hours. Eventually, Soviet officers were permitted to board the Coast Guard ship and forcibly return Kudirka, which was accomplished in a brutal manner in full view of the Coast Guard crew. Public outrage to the incident spurred the creation of an asylum procedure, resulting in the publication of regulations in 1974, and the creation of an official application, form I-589. The regulations granted “special inquiry officers” (the predecessors of immigration judges) authority to consider claims for relief under Art. 32 and 33 of the 1951 Convention. The regulations also required a State Department advisory opinion.
Copyright 2017 Jeffrey S. Chase. All rights reserved.
1. W.R. Smyser, Refugees: Extended Exile, New York: Praeger (1987), at 119. quoted in David A. Martin, Reforming Asylum Adjudication: On Navigating the Coast of Bohemia, 138 U. PA L.R. 1247, 1269-70 (1990).
2. I first heard this story recounted at the 1994 AILA awards ceremony by the late Sam Williamson, who as a young immigration lawyer in Houston represented many of the arriving refugees. Also seeSmallwood, James (2009) "Operation Texas: Lyndon B. Johnson, The Jewish Question and the Nazi Holocaust," East Texas HistoricalJournal: Vol. 47: Iss. 1, Article 6.
3. Ruth Ellen Wasem, Cuban Migration to the United States: Policy and Trends, Congressional Research Service, June 2, 2009, at 1-2.