Abstract

Excerpted From: Bill Frelick, What Would an Expanded, More Inclusive Refugee Definition Look Like? How the U.S. or Canada Could Expand Refugee Protection and Serve as a Model for Others, 39 Georgetown Immigration Law Journal 169 (Winter 2025) (110 Footnotes) (Full Document).

It may seem counterintuitive, even delusional, to suggest expanding the refugee definition at a moment in history when the political tides that once provided at least partial buy-in to the proposition that people fleeing persecution deserve international protection have turned and been replaced by increasingly widespread dismissal, if not outright hostility, to the claims of those seeking asylum. Yet, the countervailing reality is that the number of people forcibly displaced and at risk is the highest in recorded history; the construction of walls, closing of doors, and heightening of legal bars to protection will not make asylum seekers’ motivation to survive by crossing borders any less imperative or their reasons for fleeing any less valid. This article argues that dysfunctional asylum systems, backlogs of pending cases, and backlashes in public receptivity toward refugees are attributable, in large part, to an anachronistic and overly narrow refugee definition that has failed to align the legitimate need for protection of many of the today’s refugees with the standards needed to qualify for asylum. This article, therefore, will propose language for future legislators in Canada and the United States to consider expanding their country’s respective refugee definitions to encompass more realistically the drivers of forced migration in the mid twenty-first century and the actual threats to life and person returned people are likely to face, while recognizing that in the current political environment opening the refugee definition to change would too likely result in narrowed grounds for refugee eligibility and risk further damage to an already precarious global asylum system.

Many of the life-threatening conditions that currently force people from their homes, including but not limited to lawless and indiscriminate violence, rising sea levels, desertification, and persecution based on gender or sexual orientation, were not recognized--or even contemplated--as grounds for international protection in 1951 by the drafters of the Convention Relating to the Status of Refugees (“1951 Convention”). In a world where millions are forcibly displaced for reasons that do not readily fit within the concept of being persecuted on one of the five protected grounds enshrined in the 1951 Convention, states and regions should consider a refugee definition that would encompass a broader set of people facing existential threats. While I recognize that the 47th U.S. president and the 119th Congress have signaled their intention to narrow the scope of protection provided in U.S. law, this essay will argue to the contrary that expanding the refugee standard would not only provide a more relevant and effective means of providing protection to deserving applicants but would also improve processing efficiency and lower costs.

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The proposed amendment would change Section (241(b)(3) of the U.S. Immigration and Nationality Act on withholding of removal as follows:

Restriction on removal, expulsion, or return in any manner whatsoever from any place where the United States has jurisdiction or exercises effective power or control to a country place where there is a real risk the alien’s non-citizen’s life, security of person, or freedom would be threatened-

(A) ... the Attorney General may shall not remove an alien a non-citizen to a country if the Attorney General decides that the there is a real risk the alien’s person’s life, security of person, or freedom would be threatened because of the alien’s person’s race, religion, ethnicity or nationality, gender or sexual orientation, membership in a particular social group, or political opinion; or

(B) The Attorney General decides there is a real risk the non-citizen would be subject to torture or to cruel, inhuman or degrading treatment or punishment, or that their life, security of person, or freedom would be threatened.

The amendment draws the phrase “in any manner whatsoever” from Article 33. of the 1951 Convention. As Sir Elihu Lauterpacht and Daniel Bethlehem have observed, “The phrase 'in any manner whatsoever’ leaves no room for doubt that the concept of refoulement must be construed expansively and without limitation.”

By prohibiting return “from any place where the United States has jurisdiction or exercises effective power or control,” this amendment would effectively put an end to extraterritorial violations of the principle of non-refoulement countenanced by the U.S. Supreme Court in Sale v Haitians Center Council. The UNHCR characterized the Sale decision as a “setback to modern international refugee law,” because “the obligation not to return refugees to persecution arises irrespective of whether governments are acting within or outside their borders.”

The amendment would replace the word “country” with “place.” Article 33. of the 1951 Convention prohibits forcible return “to the frontiers of territories.” The use of the plural and the absence of reference to specific countries indicates that the drafters of the 1951 Convention were aware of the possibility of expulsion to places other than countries where a refugee could face serious harm, such as disputed territories. Lauterpacht and Bethlehem write that the implication of the use of the word “territories” rather than countries or states “is that the legal status of the place to which the individual may be sent is not material. The relevant issue will be whether it is a place where the person concerned will be of risk.”

This brings to mind pushbacks or pushouts of boat migrants to drift in the high seas by Thai, Indonesian, and Malaysian authorities; thousands have been set adrift in places that could neither be characterized as countries or territories, but where their lives and physical integrity are nevertheless threatened. On land or water, no one should be returned, expelled, or forced in any manner whatsoever to any place where their life, freedom, or physical integrity would be at risk.

Throughout the INA, I propose replacing the term “alien” with “non-citizen” or “person.” In recognition that the word “alien” is dehumanizing, the Biden administration has directed the executive branch to avoid the term. In addition, the major Democratic-sponsored immigration reform bill introduced in 2021 would replace the word “alien” with “non-citizen” wherever it appears in the INA.

These proposed amendments to the INA and the Foreign Affairs Reform and Restructuring Act of 1998 would: (1) bring the United States into compliance with its obligations as a party to the International Covenant on Civil and Political Rights; (2) ensure the United States adheres to its non-refoulement obligation under 1967 Protocol relating to the Status of Refugees wherever it exercises jurisdiction or control; and (3) clarify that threats protected by the principle of non-refoulement are not limited to life and freedom, but also, consistent with the ICCPR, include threats to physical and moral integrity.

Bill Frelick is the Refugee and Migrant Rights director at Human Rights Watch.