Immigration-Related Provisions of Selected Bills on Religious Persecution

Immigration-Related Provisions of Selected Bills on Religious Persecution

97-978 A
Updated June 4, 1998
CRS Report for Congress
Received through the CRS Web
Immigration-Related Provisions of Selected Bills
on Religious Persecution
Larry M. Eig
Legislative Attorney
American Law Division
Joyce C. Vialet
Specialist in Immigration Policy
Education and Public Welfare Division
Summary
On May 14, 1998, the House passed H.R. 2431, the “Freedom From Religious
Persecution Act” by a vote of 375-41. As a result of amendments by the House
Judiciary Committee, the immigration-related provisions of the House-passed bill are
narrower than those in previous versions. The leading religious persecution bill in the
Senate appears to be S. 1868, the “International Religious Freedom Act.” A hearing was
held on it by the Senate Foreign Relations Committee on May 12.
The asylum and training provisions of H.R. 2431 now more closely resemble those
of S. 1868, but the refugee proposals in the two bills continue to differ significantly.
Unlike earlier versions of H.R. 2431, the House-passed bill would not revise procedures
for considering asylum claims made by aliens who allege membership in certain
religious minorities. Instead, the asylum proposals now focus on enhanced training
about religious persecution and on addressing potential biases and inaccuracies within
the asylum process. Unlike S. 1868, however, H.R. 2431 retains provisions intended to
ensure that members of persecuted religious groups are considered for admission as
refugees on an equal basis with members of other groups of special humanitarian
concern to the U.S. At the same time, the House-passed bill emphasizes its intent to
give persecuted religious communities parity, rather than preference, in the refugee
admission process.
Introduction. This report analyzes immigration-related provisions of H.R. 2431,
the “Freedom from Religious Persecution Act,” as passed by the House on May 14, 1998,
and S. 1868, the “International Religious Freedom Act,” as introduced in the Senate.
Both these bills in part address asylum and refugee issues, but they do so somewhat
differently. In general, H.R. 2431 would more directly affect refugee admission
priorities, while S. 1868 more narrowly focuses on upgrading the training and impartiality
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of officials who consider refugee and asylum claims. Before turning to the specific
provisions of the respective bills, this report discusses pertinent principles under current
law.
“Refugees” under the Immigration Law. The Immigration and Nationality Act
(INA) (8 U.S.C. §§ 1101 et seq.), as amended, governs the entry and stay of aliens. The
two basic types of relief under the INA for aliens who face persecution abroad are refugee
status, which applies to aliens outside the U.S., and asylum status, which applies to aliens
in the U.S. or 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.1
The standards for meeting the requisite elements of “refugee” have been established
primarily 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; P.L. 104-208, Division C), Congress deemed as persecuted on the basis of
membership in a social group those aliens who have been subjected to, have resisted, or
fear certain coercive population control policies (but capped admissions on this basis at
1,000 annually). Also, a provision of P.L. 104-208, as amended and extended by P.L.
105-174, separately designates unmarried adult children of Vietnamese who had been
interned in a reeducation camp as “refugee[s] of special humanitarian concern to the
United States,” eff
2
ective through FY1999. This special provision, known as the McCain
amendment, directs that covered Vietnamese aliens be admitted notwithstanding other
provisions of law (e.g., the restrictions on refugee admissions discussed below).
Other special provisions have addressed religious persecution. For example,
temporary provisions known as the Lautenberg amendment establish separate standards
3
and procedures for screening members of certain religious minorities in successor states
of the former Soviet Union (as well as certain East Asians).4 The Lautenberg amendment
applies only to aliens abroad who are seeking entry in refugee status. It does not apply
to aliens in the U.S. who are seeking asylum status.
1 INA, § 101(a)(42); 8 U.S.C. § 1101(a)(42).
2 The Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997,
§584 (contained in P.L. 104-208; 110 Stat. 3009-171), as amended by the 1998 Supplemental
Appropriations and Rescissions Act (P.L. 105-174, §10005).
3 The Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1990
(P.L. 101-167), §599D, as amended most recently by P.L. 105-118 which extended it until
September 30, 1998. The Administration supports a 1-year extension.

4 The classes of aliens covered by the Lautenberg amendment include: (1) nationals and residents
of a component 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
Vietnam, Laos, or Cambodia designated by the Attorney General as targets of persecution.

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Admission in “refugee” status. The number of aliens who may be admitted with
refugee status is set annually by the President after consultation with Congress. Within
this limit, the President (also after appropriate consultation) allocates admissions among
“refugees” of “special humanitarian concern to the United States,” an undefined term that
permits consideration a range of humanitarian and foreign policy factors.
Clearly, the ceiling and allocation processes prevent the immediate admission of all
aliens who qualify as “refugees.” But even though being a “refugee” is not sufficient to
assure admission, it remains necessary. Applications for refugee status may be made to
overseas offices of the Immigration and Naturalization Service (INS). Alternatively,
applicants may apply to U.S. consuls in designated foreign cities, who may accept and
screen applicants in preparation for INS interviews. Entities known as joint voluntary
agencies also may assist aliens with their refugee applications. With few exceptions,
processing is limited to aliens who are in third countries, outside their homelands.
The Attorney General implements the admission limits and allocations set by the
President by establishing waiting lists and admission priority groups.5 Priority One
refugees include refugees — that is, aliens already found to be facing persecution on
racial, religious, ethnic, social, or political grounds — who also 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 primarily include groups that
have been designated by the Administration as being of special concern. Certain religious
minorities are now included among Priority Two refugees, including religious minorities
in Iran and Cuba and religious minorities covered by the Lautenberg amendment.6
Asylum under the INA. Section 208 of the INA7 establishes procedures under
which aliens who are physically present in the U.S. or arriving at its borders may apply
for asylum. As is the case with refugee status, eligibility for asylum status is premised
upon an alien proving that he or she is a “refugee,” though relief remains discretionary.
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
proceedings as a defense against expulsion. 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 by an immigration judge, unless
5 The groups of refugees who are to receive priority in processing are set forth in, among other
places, the Administration’s annual Report to Congress on Proposed Refugee Admissions.
6 Aliens covered by the Lautenberg Amendment also have their refugee applications considered
under special evidentiary rules that allow the “well-founded fear of persecution” test for
qualifying as a refugee to be met by asserting a “credible basis” for “concern about the
possibility” of persecution. Also, each decision to deny refugee status to a covered alien must
be in writing and state, to the maximum extent feasible, the basis for the denial.
7 8 U.S.C. §1158.

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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.
Proposals under H.R. 2431. H.R. 2431 would assure that members of persecuted
religious communities are considered for admission in refugee status. However, as the
result of amendments by the House Judiciary Committee, special asylum rules for
members of those communities, which had been contained in earlier versions, are not
contained in the House-passed H.R. 2431. Instead, the Judiciary Committee provisions
8
included in the House-passed bill broaden training and oversight proposals related to the
consideration of persecution claims. Proposed authority to exclude participants in
religious persecution from admission is retained. Unlike earlier versions of H.R. 2431,
which would have made the proposed Director of the Office of Religious Persecution
Monitoring responsible for identifying inadmissible persecutors, the House-passed bill
conforms to the current practice of entrusting consular officers with sole responsibility for
ruling on visa petitions.

Refugees under H.R. 2431. H.R. 2431 requires the Secretary of State to designate
at least annually those religious communities abroad that have been subject to category
1 or category 2 persecution, as those terms are defined in the bill.9 Category 1 persecution
is religious persecution conducted with direct government involvement or support.
Category 2 persecution is religious persecution not undertaken under official policy but
which the government fails to make its best efforts to eliminate. Religious persecution
includes “widespread and ongoing persecution of persons because of their membership
in or affiliation with a religion or religious denomination . . . when such persecution
includes abduction, enslavement, killing, imprisonment, forced mass relocation, rape or
crucifixion or other forms of torture, or the systematic imposition of fines and penalties
[that destroy] the economic existence of persons on whom they are imposed.” Christians
in Sudan, Tibetan Buddhists, and religious minorities in Islamic countries are among
groups cited in the bill’s findings.
The Secretary is to designate category 1 and category 2 groups after receiving
recommendations from the Office of Religious Persecution Monitoring, a new entity to
be established within the State Department. Under some earlier religious persecution
proposals, the designation of persecuted communities was to have been the direct
responsibility of the Director of the Office of Religious Persecution Monitoring, and not
the Secretary. The designation of persecuted communities by the Secretary under H.R.
2431 is separate and apart from the usual refugee consultation process and affects trade
practice and foreign policy, as well as refugee admissions.

8 H.R. 2431 was reported by the Committee on International Relations on April 1, 1998 (H.Rept.
105-480, Part I), the Committee on Ways and Means on May 8, 1998 (H.Rept. 105-480, Part II),
and the Committee on the Judiciary, also on May 8, 1998 (H.Rept. 105-480, Part III). The version
of the bill that went to the House floor included the Judiciary Committee’s immigration -related
provisions.
9 The new categories of persecution defined under H.R. 2431 are distinct from persecution as
defined in the INA. Enactment of the bill would not preclude an alien from making a religious
persecution claim under current standards even if the alien is not a member of a group that is
being subjected to category 1 or category 2 persecution (e.g., an alien may be imprisoned because
of religious beliefs, but the persecution may not be part of a widespread pattern.)

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Many factors can enhance the prospect of a “refugee” being allowed entry in refugee
status. Among them are: (1) statutory presumptions that members of certain groups are
“refugees” and (2) priorities set for admission among classes of “refugees.” Designation
of a group by the Secretary of State as a persecuted religious community would, under
H.R. 2431, directly give its members certain admission priority status, while possibly
indirectly influencing the ability of its members to show they are “refugees.”
As stated above, section 207 of the INA calls for allocating admissions numbers to
“refugees of special humanitarian concern to the United States.” Though the President
generally determines which groups of refugee meet this standard, H.R. 2431 would, by
statute, deem members of protected religious communities to be “of special humanitarian
concern” and require that they be given “priority status [for admission] equal to” that
given to members of any other “specific group of special concern.”
“Specific group of special concern” is not now a statutory term, but rather is used
in refugee consultation documents to refer to Priority Two groups. Among the refugees
who are currently designated as Priority Two groups in the Administration’s consultation
documents are ethnic minorities and former religious or political detainees in Bosnia, pro-
democracy dissidents and certain ethnic minorities in Burma, and former political
prisoners and human rights activists in Cuba. “Lautenberg” religious minorities in the
former Soviet Union and Iranian religious minorities also are Priority Two groups.
The requirement under the House-passed bill of “equal” priority status for persecuted
religious groups designated by the Secretary of State differs from the priority status that
was required under earlier versions of H.R. 2431. Those proposals required priority status
“at least as high” as that given other groups of special concern. That standard led to
concerns that protected religious minorities might in practice be elevated above other
Priority Two refugees and that the “at least as high” requirement could limit the flexibility
of the refugee process to accommodate other foreign policy concerns and humanitarian
considerations.
An “equal to” priority status requirement also could possibly be construed as
inhibiting the admission of other Priority Two groups before protected religious
minorities are admitted. Apparently to meet such a concern, H.R. 2431 now states that
the “equal to” priority requirement “shall not be construed to require that any particular
individual or group be admitted [as refugees].” Furthermore, the bill states that refugees
admitted as a result of the procedures set forth in it “shall not displace other refugees in
need of resettlement who would otherwise have been admitted in accordance with existing
law and procedures.”
According to a State Department spokesman, it is not possible to estimate the
potential impact of H.R. 2431 on the number of applicants for refugee status. 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.

Asylum and Training under H.R. 2431. Unlike earlier versions of H.R. 2431, the
House-passed bill would not 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. The bill focuses instead

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on the integrity of the asylum process, and not on directly revising asylum procedures.
For example, the Attorney General would be required to develop guidelines to identify
and address improper biases that could affect the consideration of religious persecution
claims by asylum officers.
H.R. 2431 also would require extensive studies and reports on the expedited removal
process under § 235(b) of the INA. The Attorney General would be required to invite the
UN High Commissioner on Refugees (UNHCR) to conduct one study, alone or in
cooperation with the Comptroller General. If the UNHCR decides not to conduct a study
with the Comptroller General, the Comptroller General would conduct a separate study.
Among the potential problems with expedited removal that would be studied are coercion,
improper detention, failure to refer potential asylum applicants for further screening, and
removal to a place where an alien may be persecuted.
As a result of amendments by the House Judiciary Committee, the training
requirements of the House-passed H.R. 2431 are more extensive than those under earlier
versions, and they now more closely resemble those that would be required under S. 1868.
Proposals under S. 1868. S. 1868 addresses the knowledge and impartiality of
individuals involved in the refugee and asylum processes without proposing to amend the
applicable standards and procedures themselves. Like H.R. 2431, S. 1868 also requires
the exclusion of certain participants in religious persecution.
S. 1868 sets forth requirements for training the following individuals on religious
persecution: INS personnel who adjudicate refugee applications; individuals who are
seeking to become consular officers; immigration judges; and asylum officers. The bill
also directs the Attorney General and Secretary of State to develop guidelines to enhance
and standardize the processing of refugee applications by joint voluntary agencies.
Separately, S. 1868 states how findings of the State Department on religious persecution
are to be used in training personnel and in consulting with Congress on refugee
admissions. The bill would create within the Department an Office on International
Religious Freedom, to be headed by an Ambassador at Large on International Religious
Freedom. Among its duties, the Office would advise the Secretary on religious
persecution issues.
To assure impartiality in the consideration of persecution claims (regardless of the
claimed basis of the alleged persecution), S. 1868 would seek to eliminate the
participation of personnel with potential hostile biases. Those specifically targeted are
potentially biased personnel hired by INS abroad and potentially biased interpreters used
in the inspection and asylum processes, including personnel of airlines that are owned by
governments known to engage in persecution.
The provisions of S. 1868 on excluding participants in religious persecution from
admission into the U.S. would bar individuals who engaged in gross violations of
religious freedom while serving as a government officials. The spouses and children of
these individuals also would be barred. Inadmissibility under this provision could be
waived by the Secretary of State by making a finding that exclusion would jeopardize a
compelling foreign policy interest.