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Secretary Clinton to Meet with Leadership of Judiciary Committees
on FY '10 Refugee Admissions
By Micheal E. Hill
September 14, 2009 -- 9:05 am
Secretary of State Hillary Rodham Clinton has scheduled separate closed door meetings for this week with the leadership of the House and Senate Judiciary Committees to discuss the Department of State's proposed U.S. refugee admissions program for fiscal year 2010. Her meeting with the leadership of the Senate Judiciary Committee is scheduled for 9:30 am on Thursday, September 17, 2009, at the Department of State. Her meeting with the House Judiciary Committee leadership is scheduled for 11:30 am on the dame day in the Capitol complex.
Brief Description of the Refugee Admissions Process. In its most recent World Refugee Survey, the U.S. Committee for Refugees reports that there are more than 14 million refugees and asylum seekers throughout the world. The United States has long been a country that has generously offered assistance to refugees in their countries of first asylum, and it also has been generous over the years in accepting refugees for admission to the United States.
The law governing the U.S. refugee admissions process is the Refugee Act of 1980, which has been codified in various sections of the Immigration and Nationality Act. [1]
With so many refugees in the world, the United States generally accepts for resettlement refugees “of special humanitarian concern to the United States.” [2] All refugees who are admitted to the United States are carefully selected and screened prior to their arrival in the United States. Each year over the last several decades, the United States has admitted somewhere between 40,000 and just over 200,000 refugees from abroad, all of whom were either subjected to persecution or had “a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion...” [3]
The process by which the United States determines how many refugees it will admit in a given year, identifies those refugees, and admits them into the United States is an orderly, multi-step process:
- Step One – Consultation Process. The refugee admissions process starts with a consultation that takes place between the Administration and Congress on the number and nature of refugees who will be admitted to the United States in the coming fiscal year. This “consultation process,” which is governed by Section 207 of the Immigration and Nationality Act, requires that “[b]efore the start of each fiscal year the President shall report to the Committee on the Judiciary of the House of Representatives and of the Senate regarding the foreseeable number of refugees who will be in need of resettlement during the fiscal year and the anticipated allocation of refugee admissions during the fiscal year.” [4] It ultimately leads to a “Presidential Determination” on the number of refugees who are to be admitted to the United States in the coming fiscal year. This “Presidential Determination” must be released prior to admitting any refugees into the United States.
The law requires “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.” [5]
The law requires the Administration, to the greatest extent possible, to provide the above information at least two weeks in advance of the consultation discussion. After the President initiates the consultation (and prior to the Presidential Determination on refugee admissions for the coming fiscal year), the House and Senate Judiciary Committees are supposed to publish the consultation information in the Congressional Record [6] and hold a public hearing to examine the proposed Presidential Determination. [7]
The law also requires the President to “provide for periodic discussions between designated representatives and members of such committees regarding changes in the worldwide refugee situation, the progress of refugee admissions, and the possible need for adjustments in the allocation of admissions among refugees.”
- Step Two – Presidential Determination. Following this consultation process, the Administration establishes a ceiling for the number and nature of refugees who will be admitted into the United States. This ceiling is established prior to the beginning of a fiscal year in a document known as the Presidential Determination (PD). The Determination is required by Section 207 of the Immigration and Nationality Act. It is necessary before refugees can be admitted into the United States. The Presidential Determination usually includes an overall ceiling for refugees to be admitted during the fiscal year, a region-by-region ceiling on the number of refugees to be admitted during the year, the number of persons previously been granted asylum who are expected to have their status adjusted to lawful permanent residence status during the year, and a designation of those countries where the United States expects to conduct in-country refugee processing during the year.
Most attention focuses on the first two items: the overall ceiling on refugee admissions and the region-by-region breakdown on where those refugees will come from.
Over the years, the ceiling has ranged from more than 200,000 in the 1980s and early 1990s to a low of just over 26,000 for fiscal year 2002.
- Step Three – Identification of the Refugees. Subsequent to the establishment of the ceiling, the United States government works in partnership with international organizations and U.S.-based voluntary agencies to identify, admit, and resettle refugees into the United States.
The process of identifying refugees usually begins with the United Nations High Commission for Refugees (UNHCR) referring to the United States government refugees whom it believes are cases in need of resettlement. In very limited circumstances, individuals may also be referred for consideration as a refugee by U.S. embassies. Overseas processing entities (OPEs), some of which are United States private voluntary agencies, often help prepare cases for individuals prior to their interviews with DHS.
DHS has the role of decision-maker, determining who meets the requirements for refugee status and is otherwise admissible to the United States under United States law. Ultimately, it must interview each person and determine that he or she meets the definition of a refugee under United States law before he or she may be admitted to the United States as refugees.
The United States government employs a worldwide processing priority system for determining who among those who will be considered for admission to the United States as refugees. Being eligible under a priority establishes access to the program but does not guarantee resettlement.
There are five priorities in the system:
Priority One. UNHCR or, under specific limited circumstances, the U.S. Embassy-identified cases: persons facing compelling security concerns in countries of first asylum; persons in need of legal protection because of the danger of refoulement; those in danger due to threats of armed attack where they are located; persons who have experienced recent persecution because of political, religious, or human rights activities (prisoners of conscience); women-at-risk; victims of torture or violence; physically or mentally disabled persons; persons in urgent need of medical treatment not available in the first asylum country; and persons for whom other durable solutions are not feasible and whose status in the place of asylum does not present a satisfactory long-term solution.
Priority Two. Groups of Special Concern.
Priority Three. Spouses, unmarried sons and daughters, and parents of persons lawfully admitted to the United States as permanent resident aliens, refugees, asylees, conditional residents, and certain parolees; the over 21 year old unmarried sons and daughters of U.S. citizens; and parents of U.S. citizens under 21 years of age.
Priority Four. Spouses, unmarried sons and daughters, and parents of persons lawfully admitted to the United States as permanent resident aliens, refugees, asylees, conditional residents, and certain parolees; the over 21 year old unmarried sons and daughters of United States citizens; and parents of United States citizens under 21 years of age.
Priority Five. Uncles, aunts, nieces, nephews, first cousins of United States citizens and persons lawfully admitted to the United States as permanent resident aliens, refugees, asylees, conditional residents, and certain parolees.
In recent years, the United States government has only considered refugees meeting the first three of these priorities for admission into the United States.
Refugee processing procedures prior to DHS interviews vary. Some applicants are referred to the United States Refugee Program for resettlement consideration by officials of UNHCR. Others are eligible to apply for the USRP directly. Generally, the Department of State arranges for an Overseas Processing Entity (OPE) to conduct pre-screening interviews and prepare cases for submissions to DHS. This involves completing the required forms and compiling other necessary documents. In in-country refugee processing programs, applicants usually register by mailing completed preliminary questionnaires to the appropriate processing entity. These include the Refugee Resettlement Section in Ho Chi Minh City for Vietnamese and the U.S. Interests Section in Havana for Cubans.
In order to be approved as a refugee, an applicant must establish that he or she has suffered past persecution, or has a well-founded fear of future persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion. This determination requires the examination of objective and subjective elements of an applicant's claim. A DHS officer conducts a personal interview of the applicant.
After the DHS interview, an applicant found eligible for refugee status must undergo a medical examination, a security check, and receive a sponsorship assurance. A refugee admission number deducted from the annual ceiling is allocated.
- Step Four – Arrival and Resettlement in the United States. Once a refugee has been approved for admission to the United States, transportation arrangements generally are made through the International Organization for Migration (IOM) and the refugee signs a promissory note to repay the cost of airfare. He or she is flown to the United States. At the U.S. port of entry, the DHS admits the refugee to the United States and authorizes employment.
After one year, a refugee is eligible to apply for adjustment of status to lawful permanent resident. Five years after admission, a refugee is eligible to apply for citizenship via naturalization.
Systemic Problems with the Consultation Process. Pro-refugee advocates contend that, over the years, a number of systemic problems have developed in the consultation process. They argue that, taken together, these problems have made the process irrelevant. Instead of being a true consultative process, they say, it has devolved into a mere “heads up” to Congress of what the Administration long-ago decided that it would do.
- Process Takes Place Too Late to Be Meaningful. For many years, now, the formal consultation meetings between Congress and the Department of State have taken place much too late in the year to be meaningful. The timing of the forthcoming fiscal year 2005 consultation meetings is a perfect example of this: those meetings are scheduled to take place on September 8, 2004, and September 13, 2004. These dates are just days before October 1, 2004, which is the first day of fiscal year 2005. Shortly after those meetings take place, the President is expected to make his Presidential Determination on the number of refugees to admit to the United States in the coming fiscal year.
Clearly, the Administration had made up its mind on the number of refugees it wishes to admit in the coming fiscal year long before scheduling the consultation meeting with Congress. Under these circumstances, it is clear that the meeting with Congress that takes place is merely a formality to fulfill the narrowest possible reading of the requirement in the law that there be a consultation meeting prior to the Presidential Determination.
An analysis of recent decades of actions on refugee admissions shows that, in reality, the Presidential Determination on refugee admissions has rarely differed from the number of refugee admissions that are assumed in the President’s budget submission for the coming fiscal year, a submission that occurs nearly nine months before the Presidential Determination is made. Thus, pro-refugee advocates contend, the Administration has decided the most important features of the determination at least eight months prior to the consultation meeting.
- Inadequate, Inconsistent, and Unfocused Congressional Oversight. Some critics believe that Congress has not done all that it could to make the refugee consultation process more meaningful. For instance, some believe that Judiciary Committees of the Senate and the House of Representatives have not insisted strongly enough that the consultation process take place early in the year. They contend that the Committees have not regularly held hearings to keep themselves apprised of the progress (or lack thereof) of the Department of State in identifying and admitting enough refugees to meet the ceiling that is established each year. And they point out that, while the law requires that the Judiciary Committees of the Senate and House of Representatives hold public hearings after its consultation with the Department of State and before the Presidential Determination, it has been more than a decade since such a hearing has been held. Indeed, this has only occurred once in the last fifteen years, then the Senate Judiciary Committee held a hearing on refugee admissions for September 23, 2004, a week before the beginning of fiscal year 2005.
To be fair, a number of factors beyond the control of Congress might account for some of those factors.
One factor that may inhibit stronger oversight over the consultation and admissions processes is the lateness of the consultation meetings. This has made it difficult (if not impossible) for the Judiciary Committees to hold hearings prior to the release of the Presidential Determination. Nonetheless, the Committees generally have not held hearings on the consultation even after the Presidential Determinations are issued.
Another factor could be the fragmented congressional jurisdiction over refugee matters. For instance, the House and Senate Judiciary Committees have jurisdiction over the DHS and the Department of Health and Human Services’ Office of Refugee Resettlement; the Senate and House Foreign/International Relations Committees have jurisdiction over the Department of State’s Bureau of Population, Migration, and Refugees; and six different House and Senate appropriations subcommittees have jurisdiction over the various appropriations matters relating to refugees. This fragmented jurisdiction means that, oftentimes, one authorizing committee has no idea what the other is doing with respect to refugees. And this often has resulted in poor coordination of oversight and legislation relating to refugees programs. It also makes it more likely that Congress’ fragmented voice will speak with more than one mind on refugees. This certainly has been the case over the last eight years as the Chairmen of the House Judiciary Committee and of its Subcommittee on Immigration have opposed a robust refugee admissions program. It was the case during periods in the 1980s and 1990s in the Senate, as well.
Yet another factor could be that the need to attend to other, urgent legislative and oversight matters results in both Members and Staff for the various committees of jurisdiction placing refugee issues at a relatively low priority.
General Concerns of the Refugee Advocacy Community about Refugee Admissions. The United States refugee advocacy community is a broad-based group of organizations that includes faith-based organizations such as the United States Conference of Catholic Bishops (USCCB), the Hebrew Immigrant Aid Society (HIAS), the Episcopal Migration Ministries (EMM), and the Lutheran Immigration and Refugee Service (LIRS); secular organizations such as the U.S. Committee for Refugees (USCR) and the International Rescue Committee (IRC); ethnic-based organizations such as the Ethiopian Community Development Council (ECDC); and human rights organizations such as the Lawyers Committee for Human Rights (LCHR).
The refugee advocacy community has been deeply troubled for years by chronic, long-term problems in the way the Department of State and, to a lesser degree, the Department of Homeland Security, has administered the refugee admissions program.
The community’s concerns reflect a deep concern about a more than decade-long diminution of the United States’ commitment to refugee protection.
More specifically, the community is deeply concerned by:
- the relatively small number of refugees that the Department of State recommends bringing into the United States for resettlement each year;
- the Department of State’s failure until recently to bring in even the number of refugees that it has told Congress it would admit;
- the Department of State’s failure to identify and admit particularly vulnerable refugees;
- the Department of State's halt in processing refugees with close familial ties to persons in the United States;
- the impact of material support to terrorism grounds of inadmissibility on refugee admissions; and
- the inadequacy of funding that current is being provided by both the Department of State's Bureau of Population, Refugees, and Migration (PRM) and the Department of Health and Human Services Office of Refugee Resettlement (ORR).
The refugee advocacy community believes the failure of Administrations over the years to both increase the refugee admissions ceiling and to admit the number of refugees established by the ceiling is due, in part, to a lack of respect for and commitment to the program by one or two long-term career professionals in the Department. The community believes that, instead of taking the position that the Department has a responsibility to establish mechanisms to find and then admit enough refugees to meet the ceiling established in the President’s annual Presidential Determination, these career bureaucrats dig in their heels and refuse to use innovative approaches to accomplish that goal.
The refugee advocacy community, further, believes that there has been a lack of imagination and commitment on the part of past Administrations in refugee resettlement. They complain that the Administration never asks Congress for adequate funding for the Office of Refugee Resettlement, and that Congress never appropriates adequate funding for the Office. Moreover, the pro refugee advocacy community contends that the programs that provide for resettlement assistance to refugees are 30 years old and are in great need of reexamination.
The Fiscal Year 1999-2009 Refugee Admissions Picture. The Department of State projects that approximately 75,000 refugees will be admitted to the United States in fiscal year 2009. If that projection holds true, the number of refugee admissions in fiscal year 2009 will be significantly higher than in previous years. Indeed, it would mark the first time in nine years that the United States has admitted 70,000 or more refugees. And it would be a nearly three-fold increase over the low water mark of 26,317 refugee admissions that was set in fiscal year 2002, the year that followed the September 11, 2001, terrorist attacks on the United States.
Notwithstanding the projected refugee admissions for fiscal year 2009, when refugee admissions over the last few years are viewed in a larger historical perspective, the number of admissions is actually relatively small.
President Jimmy Carter established a refugee admissions ceiling of 91,000 in fiscal year 1998. The U.S. actually admitted 85,000 refugees that year. Since that time, the number of refugee admissions have experienced a precipitous decline. Indeed, in the nine years between fiscal year 2000 and fiscal year 2008, the U.S. refugee admissions program has fallen short of the ceiling by a total of 224,664 refugees.
President George W. Bush issued the first refugee admissions Presidential Determination of his presidency in 2001. In that PD, the President provided for a ceiling of 70,000 refugee admissions for fiscal year 2002, compared to a refugee admissions ceiling of 80,000 that had been set for fiscal year 2001. At the time, the Bush Administration contended that it was reducing the ceiling in order to improve the quality of the program, as well as improve its capacity to identify and admit a larger number of refugees in subsequent fiscal years. The Administration further stated at that time that it was its intention to grow the program by 5,000 additional refugees each year thereafter. Had the Administration followed that plan, it would have proposed a refugee ceiling of 105,000 for fiscal year 2009. The Bush Administration did not follow that plan, however. Not only did it establish a ceiling of 70,000 in each of the subsequent fiscal years, it also projected unusually large unallocated reserves during that period, further constricting the refugee admissions program.
Unfortunately, the Administration has not followed through with its stated intentions. Instead of establishing a ceiling of 75,000 for fiscal year 2003 and 80,000 in fiscal year 2004, as the Administration initially contended it would do in those years, the Administration actually reduced the ceiling to 50,000 allocated refugees in each of those years, while also planning for 20,000 unallocated refugee admissions.[8]
Even while it reduced the refugee admissions ceiling in fiscal years 2003 through 2007, the Bush Administration failed in each of those years to admit enough refugees to meet those ceilings. Security concerns relating to the September 11, 2001, terrorist attacks on the United States delayed the fiscal year 2002 Presidential Determination establishing the refugee admissions ceiling until November 21, 2002, which was almost two months into that fiscal year. Accordingly, no refugees were admitted into the United States for fiscal year 2002 until December. Security considerations dramatically slowed down refugee admissions throughout the year and in the subsequent years. For example, the United States went from 85,606 refugee admissions in fiscal year 1999 to only 26,313 admissions in fiscal year 2002, 28,422 admissions in fiscal year 2003, and numbers that have hovered in the 40,000-to-60,000 range in subsequent years.
The Fiscal Year 2010 Consultation and Presidential Determination. The Obama Administration has prepared its “Proposed Refugee Admissions for Fiscal Year 2010 Report to the Congress”, which was recently released to Congress. In the report, the Department of State, Department of Homeland Security, and Department of Health and Human Services review their collective performance in refugee admissions and resettlement over the past fiscal year and set forth their proposals for the coming one. The report reveals preliminary plans to establish a ceiling of 80,000 refugee admissions for fiscal year 2010. However, in establishing that ceiling, only 75,000 of the numbers would be allocated to the various regions of the world; the other 5,000 would comprise an “unallocated reserve.”
The following compares the Administration’s proposed ceiling for fiscal year 2010 with the ceiling that was established for fiscal year 2010:
Refugee Admissions Ceilings
FY 2009 and 2010
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Region
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‘09 Ceiling
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’09 Projected
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‘10
Ceiling
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Africa
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12,000
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9,000
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15,500
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East Asia
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20,500
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19,500
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17,000
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Europe and Central Asia
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2,500
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2,500
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2,500
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|
Latin America/Caribbean
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5,500
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5,000
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5,000
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Near East/South Asia
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39,500
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39,000
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35,000
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Regional Subtotal
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80,000
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75,000
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75,000
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|
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|
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5,000
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Total
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80,000
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75,000
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80,000
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Pro-refugee advocates are disappointed that the ceiling is being set at only 80,000. They want a ceiling of 125,000 refugee admissions, instead.
What the Refugee Community Wants. The refugee advocacy community wants:
- the President to set a ceiling for fiscal year 2010 of at least 125,000 refugee admissions;
- the Department of State to allocate all of the refugee ceiling to the various regions of the world rather than reserving some in an “unallocated reserve”;
- the Department of State to undertake aggressive and innovative efforts in fiscal year 2010 to bring in the number of refugees established in whatever ceiling that ultimately is adopted;
- the Administration to undertake efforts to build its capacity so it can consistently meet the refugee admissions ceiling established each year by the Presidential Determination, as well as ensure that the flow of refugees into the United States is more evenly distributed throughout the fiscal year;
- the Department of State to resume processing Priority 3 family reunification refugee applicants so that refugees who have close family members in the United States have a greater opportunity to be reunited with their family members in the United States;
- the Administration to take steps to identify and admit particularly vulnerable refugees, such as unaccompanied refugee minors, urban refugees, refugees who have been languishing in camps for five years or more, at-risk women, and refugees in Africa -- the world’s largest refugee-producing continent;
- the Administration to engage in more meaningful consultations with Congress on the refugee admissions program in the future;
- the Department of State to increase the grant amount provided to domestic refugee resettlement agencies from $900 per refugee to $1,800 per refugee, in order to keep up with the costs of providing those resettlement services;
- the Department of Health and Human Services to increase the number of refugees served by the Matching Grant program, as well as increase the grant amount under the program;
- the Department of Health and Human Services to implement a number of grant programs to better assist refugees who are resettling in the United States, including programs to provide emergency housing assistance, refugee integration grants, and case management services;
- Congress to appropriate a minimum of $556 MILLION in fiscal year 2010 for refugee admissions, which the community asserts would be enough to admit 125,000 refugees and increase the United States contributions to overseas refugee assistance. This would be $220 MILLION, or 72 percent, more than the Administration requested for fiscal year 2010;
- Congress to appropriate a minimum of $949 MILLION for the Department of Health and Human Services Office of Refugee Resettlement (ORR) in fiscal year 2010, which would be $208.3 MILLION, or 28.2 percent, more than the Administration requested for fiscal year 2010; and
- Congress to engage in aggressive oversight of the refugee admissions program throughout the year. ☼ ◊
[1] Section 101(a)(42) of the Immigration and Nationality Act (INA) defines a refugee. Section 207 of the INA governs the annual admission of refugees and admission of emergency situation refugees, including the consultation process. Section 208 and Section 235(b)(1) of the INA establish and govern the United States
Asylum System. Section 209 of the INA governs the adjustment of status of refugees and asylees. Section 411, Section 412, Section 413, and Section 414 of the INA establish and govern the refugee resettlement system.
[2] Section 207(a)(3) of the Immigration and Nationality Act
[3] The complete definition of a refugee is found in Section 101(a)(42) of the Immigration and Nationality Act
[4] Section 207(d)(1) of the Immigration and Nationality Act
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