CONGRESSIONAL RESEARCH SERVICE MEMO

[moe@xxxxxxxxxxxxx]

FILE ID:97090907.EEA

DATE:09/09/97

TITLE:09-09-97  TEXT:  CONGRESSIONAL RESEARCH SERVICE MEMORANDUM ON H.R. 1685


TEXT:

(Bill gives priority to protected religious minorities) (3050)


(Editor's Note: H.R. 1685 was amended and superseded September 8, 1997

by H.R. 2431.)


Washington -- H.R. 1685, the "Freedom from Religious Persecution Act

of 1997," would modify existing asylum procedures to assure that

"members of protected religious communities would receive full

consideration of their asylum claims, beyond that afforded other

classes of asylum applicants," according to a September 8

Congressional Research Service memorandum commissioned by Doug

Bereuter (Republican of Nebraska), vice-chairman of the House

International Relations Committee.


This priority requirement for protected religious minorities "could

significantly limit the flexibility of the refugee admission process

to accommodate other foreign policy concerns and humanitarian

considerations," the memorandum warns.


"In all likelihood, the number of members of protected religious

communities will often be higher than the overall number of authorized

refugee admissions," the memorandum says. "Under these circumstances,

the priority requirement under H.R. 1685 possibly could preclude the

Executive Branch from giving any refugee who faces any type of

persecution on any ground other than religion (e.g., race, ethnic

origin, or political belief) admission priority over a refugee member

of a protected religious community. Also, members of protected

religious communities presumably could get priority over aliens who

face persecution on religious grounds but who are not members of

designated protected religious communities."


Following is the text of the Congressional Research Service Memorandum

on H.R. 1685:


(begin text)


MEMORANDUM

September 8, 1997


SUBJECT: Immigration-Related Provisions of H.R. 1685, the "Freedom

from Religious Persecution Act of 1997"


FROM: Larry M. Eig, American Law Division; Joyce C. Vialet, Education

and Public Welfare Division


This memorandum analyzes immigration-related provisions of H.R. 1685,

the "Freedom from Religious Persecution Act. " The memorandum briefly

discusses the current immigration and refugee policies that would be

modified by this legislation. It then explains how the bill would

enhance the ability of certain persecuted religious communities to be

admitted in refugee status or be granted asylum status.


"Refugees" under the Immigration Law


The Immigration and Nationality Act (INA), as amended, governs the

entry and stay of aliens, including the granting of relief to aliens

who face persecution abroad. There are two general types of relief for

persecuted aliens under the INA: refugee status, which applies to

aliens who are outside the U.S., and asylum status, which applies to

aliens who are in the U.S. or who are arriving here. Eligibility for

either status is premised upon an individual showing that he or she is

a "refugee," as that term is defined in the INA:


The term "refugee" means ... any person who ... is persecuted or has a

well-founded fear of persecution (in the country of the person's

nationality) on account of race, religion, nationality, membership in

a particular social group, or political opinion.


The only class of aliens that the definition excludes from

consideration as "refugees" is that of aliens who themselves

participated in the persecution of others.


The standards for meeting the requisite elements of "refugee" -- i.e.,

whether an individual has been "persecuted" or has a "well-founded

fear" of "persecution" based on belonging to one of the statutory

categories -- have generally been established in case decisions of the

Board of Immigration Appeals and the federal courts. However, in the

Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(IIRIRA), Congress deemed as persecuted on the basis of membership in

a social group those aliens who have been subjected to, fear, or have

resisted certain coercive population control policies. At the same

time, Congress capped the number of aliens who could be granted

refugee status or asylum status on the basis of coercive population

control policies at a combined annual limit of 1,000.


P.L. 104-208, the omnibus law that contained IIRIRA, also, in its

foreign operations appropriation provisions, designated certain

Vietnamese who had been interned in a reeducation camp as a

"refugee(s) of special humanitarian concern to the United States."

This special provision for Vietnamese also directs that covered aliens

be admitted notwithstanding other provisions of law (e.g., the limits

on, and allocation of, refugee admissions under 207 of the INA).


Some efforts to benefit certain groups within the refugee admission

process predate P.L. 104-208. For example, Congress had earlier

established separate screening standards and procedures for members of

certain religious minorities in successor states of the former Soviet

Union for the purpose of their qualifying for entry in refugee status.

These provisions, known as the Lautenberg amendment, also apply the

separate standards to certain East Asians. The Lautenberg amendment

standards apply only to aliens seeking entry in refugee status and not

to aliens in the U.S. who are seeking asylum status. The special

screening standards under the Lautenberg amendment are scheduled to

expire on September 30, 1997; S. 955, the foreign operations

appropriation bill for FY-1998, passed the Senate on July 17 with a

one year extension of the Lautenberg amendment.


Admission in refugee status. Under 207 of the INA, the number of

aliens who may be admitted from abroad with refugee status is set each

year by the President after appropriate consultation with Congress.

Within this limit, the President (also after appropriate congressional

consultation) allocates admissions among "refugees" of "special

humanitarian concern to the United States," an undefined term that

permits the President to take into account a range of humanitarian and

foreign policy factors.


Clearly, not all "refugees" are assured admission in refugee status

under the ceiling and allocation processes. But even though being a

"refugee" is not sufficient to assure admission, it remains necessary.

Individuals abroad who desire entry in refugee status apply to

overseas offices of the Immigration and Naturalization Service (INS),

which undertake appropriate background checks before conducting

in-person interviews. Alternatively, applicants may apply to U.S.

consuls in designated foreign cities, who may accept and screen

applicants in preparation for INS interviews. Applicants bear the

burden of showing that they are "refugees" and of overcoming any

ground of inadmissibility that otherwise would preclude their entry.


Aliens approved as "refugees" -- that is, aliens already found to be

facing persecution on race, religious, ethnic, political, or social

grounds -- may be subsequently admitted within overall limits

according to waiting lists and admission priority groups established

by the Attorney General. The processing priorities are set forth,

among other places, in the Administration's Report to Congress on

Proposed Refugee Admissions. Priority One refugees include refugees

who have been identified by the UN High Commissioner for Refugees or a

U.S. Embassy as (1) facing compelling security concerns, (2) former

political prisoners, (3) women-at-risk, (4) victims of torture or

other violence, (5) disabled, (6) in urgent need of treatment, or (7)

not having any alternative feasible durable solution. Priority Two

refugees include various groups that have been designated as being of

"special humanitarian concern" within specified countries. Among these

groups are certain religious minorities, including religious

minorities in Iran and Cuba and religious minorities covered by the

Lautenberg amendment.


Under the Lautenberg amendment, aliens within designated classes may

show a well-founded fear of persecution by asserting a "credible

basis" for "concern about the possibility" of persecution. Also, each

decision to deny refugee status to an alien within a designated class

must be in writing and state, to the maximum extent feasible, the

basis for the denial. The classes of aliens covered by the Lautenberg

amendment include: (1) nationals and residents of one of the

components of the former Soviet Union who are Jews, Evangelical

Christians, or active members of the Ukrainian Catholic Church or the

Ukrainian Orthodox Church; (2) other classes of nationals and

residents of a component of the former Soviet Union that are

designated by the Attorney General as targets of persecution; and (3)

certain classes of residents and nationals of Vie@, Laos, or Cambodia

designated by the Attorney General as targets of persecution.


Many aliens from the former Soviet Union, Laos, Vietnam, and Cambodia

have been allowed into the U.S. under the Attorney General's parole

authority after they were denied refugee status. A separate provision

of the Lautenberg amendment allows these parolees to adjust to

permanent resident status after being here one year.


Asylum under the Immigration And Nationality Act


Section 208 of the INA establishes procedures under which aliens who

are physically present in the U.S. or arriving at its borders may

apply for asylum. As was the case with refugee status, eligibility for

asylum status is premised upon an alien proving that he or she is a

"refugee."


An alien may apply for asylum in one of two contexts. An alien who is

not the subject of a formal removal proceeding may affirmatively come

forward and seek asylum with the INS. Alternatively, an alien against

whom the INS has initiated removal proceedings may apply for asylum

with an immigration judge during the course of the proceeding as a

defense against expulsion. However, as a result of IIRIRA, arriving

aliens who do not have proper documents may be removed on an expedited

basis without an opportunity for full consideration of a claim for

asylum, unless the alien voices a fear of persecution or a desire to

apply for asylum and can show within a brief period after arrival that

his or her fear of persecution is credible.


Not all aliens who meet the definition of "refugee" are eligible for

asylum. Aliens convicted of serious offenses and aliens who are

security risks are among the classes of aliens who may not be granted

asylum status. As modified by IIRIRA, the INA will, beginning April 1,

1998, preclude relief for an alien who has been in the U.S. more than

one year before applying, unless the alien can justify the delay by

showing changed circumstances abroad or other extraordinary reasons.


Protected Communities Under the "Freedom From Religious Persecution

Act of 1997"


Among its provisions, H.R. 1685 would enhance the ability of certain

persecuted religious communities to be admitted refugee status or be

granted asylum status. The religious communities that would benefit

from these provisions are those found by a newly established Office of

Religious Persecution Monitoring to have been subject to category 1 or

category 2 persecution (hereinafter protected religious communities).

The pertinent findings of persecution are to be included in annual

reports to Congress by the new Office's Director.


Category 1 religious persecution is religious persecution that is

conducted with the direct involvement or support of government

officials as part of official government policy. Category 2

persecution is religious persecution that is not undertaken as part of

official policy but which the government fails to make serious and

sustained efforts to eliminate. Religious persecution is defined as

"widespread and ongoing persecution of persons because of their

membership in or affiliation with a religion or religious

denomination, whether officially recognized or otherwise, when such

persecution includes abduction, enslavement, killing, imprisonment,

forced mass resettlement, rape or crucifixion or other forms of

torture."


Asylum benefits for members of protected religious communities. H.R.

1685 would modify existing asylum procedures to assure that members of

protected religious communities would receive full consideration of

their asylum claims, beyond that afforded other classes of asylum

applicants.


First, the bill would free an alien who credibly can claim membership

in a protected religious community from further consideration under

the new expedited removal procedures that apply to aliens who arrive

without proper documents. That is, those aliens who credibly claim to

belong to a protected community when they arrive without proper

immigration documents would not, unlike other aliens who claim to face

persecution, be required to show a "credible fear" of individualized

persecution in order to avoid expedited removal and have their asylum

claims fully considered.


At the same time, the bill is silent on how an arriving alien may

credibly show membership in a protected community for purposes of

avoiding expedited removal, and further congressional direction may be

advisable to assure accurate screening and to minimize incentives for

making false claims. It also may be advisable to clarify whether

expedited removal is to be affected by the detailed finding,

reporting, and document requirements (described below) that are

triggered under H.R. 1685 whenever a person claiming to be a member of

a protected religious minority is denied asylum on credibility

grounds. These requirements are contained in 208 of the INA and would

appear to be triggered only after an arriving alien passes the initial

credibility hurdle under the expedited removal procedures under 235.

Nevertheless, the expedited removal process could be compromised if

the documentation and reporting requirements of H.R. 1685 are to apply

in that context.


In addition to amending expedited removal rules, H.R. 1685 seeks to

assure careful consideration of religious persecution cases by

requiring INS to follow certain reporting and documentation

requirements whenever a person claiming to be a member of a protected

religious community is denied asylum under 208. Under these

requirements, whenever INS refuses to grant asylum to an alien who

credibly claimed membership in a protected community (or whenever an

immigration judge denies asylum to such an individual), INS must

provide the alien with a detailed written explanation of the denial,

including references to at least two U.S. Government reports on

country conditions.


INS must also provide a denied member of a protected class copies of

certain assessment sheets and other relevant materials. If the alien's

credibility is an issue, INS must give the alien a chance to respond

to the Government's position on the credibility issue and provide the

alien detailed certifications and documentation regarding the

credibility finding. INS also must explain how the credibility issue

relates to the religious persecution claim. These requirements are

unique to cases of aliens claiming to belong to protected religious

communities and do not apply to other religious-based cases or cases

involving, for example, race, ethnicity, or political opinion.


A final document requirement in protected religious community cases

requires making certain documentation available to adjudicators.

Whenever INS opposes granting asylum to an alien who claims to be a

member of a protected community during the course of a proceeding

before an immigration judge or a court, INS must submit copies of the

findings of the Office of Religious Persecution Monitoring that were

made in the Director's annual report to Congress, as well as copies of

any of the Director's interim reports.


The foregoing requirements do not directly affect the "well-founded

fear" standard for obtaining asylum or presumptions for meeting that

standard. The regulations that govern establishing a "well-founded

fear" through proof of how similarly situated individuals have been

treated pertain to protected community cases as well. Nevertheless,

INS has privately characterized as burdensome at least some of the

requirements that would be put upon it when an asylum applicant is

denied. The requirements that would be triggered by denying an

applicant could, in the opinion of some, indirectly affect INS

decision-making.


Refugee benefits for members of protected religious communities.

Several factors may enhance the likelihood of an individual being

allowed entry as a refugee under the INA. Among them are: (1)

statutory presumptions that members of certain groups are "refugees"

and (2) priorities set for admission among classes of "refugees." H.R.

1685 does not directly make it easier for aliens claiming to be

members of protected religious communities to prove that they are

"refugees" by, for example, adding them to the Lautenberg amendment

classes or by creating a new, separate standard of proof. However, the

bill affects priorities for admission in a way that could

significantly advance the place of protected religious communities in

the refugee admission line.


Section 207 of the INA includes provisions that call for allocating

admissions numbers to "refugees of special humanitarian concern to the

United States," as determined by the President in consultation with

Congress. Under H.R. 1685, refugees who are members of protected

religious communities would be required to be given "priority status

(for admission) at least as high as that given to any other group."

The requirements of this mandate are unclear. At a minimum, protected

religious minorities, who now generally would appear to have Priority

Two admission status, presumably would be elevated to Priority One

status ahead of Priority Two groups. Among others, these include

forced-labor conscripts and human rights activists in Cuba, ethnic

minorities and pro-democracy activists in Burma who are persecuted for

their political views, and Hmong and Lowland Lao in refugee camps, and

former U.S. Government employees. On the other hand, the priority

provisions in H.R. 1685 would appear to be limited to priorities set

in the presidential consultation process under the Refugee Act. They

do not appear to require equal treatment with statutory admission

priorities set by Congress separate from the refugee admission process

under 207 of the INA -- i.e., Vietnamese required to be admitted under

the FY-1997 foreign operations appropriations act.


More broadly, the bill's priority requirement for protected religious

minorities could significantly limit the flexibility of the refugee

admission process to accommodate other foreign policy concerns and

humanitarian considerations. In all likelihood, the number of members

of protected religious communities will often be higher than the

overall number of authorized refugee admissions. Under these

circumstances, the priority requirement under H.R. 1685 possibly could

preclude the Executive Branch from giving any refugee who faces any

type of persecution on any ground other than religion (e.g., race,

ethnic origin, or political belief) admission priority over a refugee

member of a protected religious community. Also, members of protected

religious communities presumably could get priority over aliens who

face persecution on religious grounds but who are not members of

designated protected religious communities.


According to a State Department spokesman, an estimate of the

potential impact of this legislation on numbers of applicants for

refugee status and asylum is not possible. There is no way of knowing

the numbers who would be potentially eligible under this legislation

who are not already covered by existing law, nor is there any way of

estimating the number of these who would access the program.


(end text)