Academic journal article Vanderbilt Journal of Transnational Law

A New Standard for Evaluating Claims of Economic Persecution under the 1951 Convention Relating to the Status of Refugees

Academic journal article Vanderbilt Journal of Transnational Law

A New Standard for Evaluating Claims of Economic Persecution under the 1951 Convention Relating to the Status of Refugees

Article excerpt

ABSTRACT

The United Nations Convention and Protocol Relating to the Status of Refugees define the requirements for qualification as a "refugee" and the protection that should be afforded to qualifying persons. Satisfying the Convention definition of refugee usually qualifies a person for asylum; thus, interpretation of its requirements can determine whether an alien is able to escape alleged persecution in his or her country of origin. Currently, 147 countries are parties to the Convention, the Protocol, or both, including the United States. In order to qualify for refugee status, an asylum seeker must prove a well-founded fear of persecution. However, the Convention does not define what harm rises to the level of persecution, and there is no internationally accepted definition. While physical harm easily suffices, confusion and inconsistency exist regarding when non-physical economic disadvantage constitutes persecution and what standard should be applied to such claims. This Note examines the Convention, development of economic asylum claims in the United States, and trends in international approaches to this issue. It then proposes a uniform standard consistent with general international principles that the United States should adopt.

TABLE OF CONTENTS

I.    INTRODUCTION
II.  THE UNITED NATIONS CONVENTION RELATING
     TO THE STATUS OF REFUGEES
III. UNITED STATES ASYLUM LAW
     A. The Immigration and Nationality Act
        and Its Regulations
     B. The Development of Economic Asylum
        Claims in U.S. Courts
        1. Varying Standards in U.S. Courts
        2. Clarification--The In re T-Z- Standard
        3. Continued Confusion Among U.S. Courts
IV.  CLAIMS OF ECONOMIC PERSECUTION AROUND
     THE WORLD
V.   PROPOSING AN INTERNATIONAL STANDARD FOR
     CLAIMS OF ECONOMIC PERSECUTION
     A. A Discussion of the Proposed Standard
     B. Addressing Potential Criticisms
VI.  WHY THE UNITED STATES SHOULD ADOPT THE
     PROPOSED STANDARD
VII. CONCLUSION

I. INTRODUCTION

The world has changed; it has become smaller. Nowadays, most refugees are mainly on the run from war and regional conflicts. A part of the asylum seekers who come knocking on our doors are not refugees in the proper sense of the word, but people who are looking for a better life, without poverty and crime.

--State Secretary of Justice of the Netherlands, Nebahat Albayrak (1)

Asylum claims based on non-physical forms of persecution, specifically social and economic deprivation, have received increased attention in recent years. Scholars have analyzed and proposed various approaches to such claims both in the United States and internationally. (2) However, neither the international community nor domestic U.S. courts have come to a consensus in developing an approach, leading to confusion and inconsistent results.

Social and legal developments demand further examination and resolution of this issue. The number of people fleeing their native countries and seeking asylum is staggering. (3) As United Nations High Commissioner for Refugees (UNHCR) Antonio Guterres noted, "ongoing violence and instability in some parts of the world force increasing numbers of people to flee and seek protection in safe countries." (4) The UNHCR website estimates that there were 983,000 asylum seekers around the globe at the beginning of 2011. (5) Overall, the number of refugees stood at 10.3 million. (6) In the first half of 2009, industrialized nations saw a 10 percent increase in new asylum applications over the first half of 2008, (7) and the United States alone received over 20,000 applications during that period. (8) Consistent with the High Commissioner's assessment, countries suffering from conflict and instability are the largest producers of asylum seekers--Iraqis have constituted the highest percentage of asylum seekers for four consecutive years, with Afghans and Somalis close behind. …

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