I recently interviewed Harry DeMell, an immigration lawyer since 1977 and a member of the American Immigration Lawyers Association, about the current immigration crisis.
Schupak: You've said that the Syrians fleeing the civil war there are not refugees. Please explain.
DeMell: "Refugee" is a legal term and is defined by international and American law. The definition is in the immigration law at 8 USC 1101(a)(42) and states in part that a person must show a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
Schupak: But there's a war going on in Syria and these people would be persecuted in the plain language sense.
DeMell: The way you define it we would have to take the whole country. That is not the intent of the law and is practically impossible. He intention of the law is to make individual determinations, one person at a time, as to whether they come within this definition.
Schupak: For example?
DeMell: Well. Race is not an issue here. Religion is an issue for Christians and other religious minorities but not for Muslims in general.
Schupak: Wait a minute. President Obama said that there is no religious test.
DeMell: He is wrong. It's in the statute but each individual has to show how they qualify.
Schupak: Go on.
DeMell: The part about 'membership in a particular social group' is usually interpreted broadly. If it's interpreted too broadly you can junk the whole law. If it's defined as all people fleeing war than the law would be meaningless.
Schupak: And political opinion? I would think that qualifies most of these people.
DeMell: There is case law that says that the lack of an opinion is not enough. In any event, most of these people can escape to areas where they would be accepted by one group or another.
Schupak: In Syria that is not a good option. Doesn't the president have the option of declaring them refugees anyway?
DeMell: He does only after consultation with congress. In this political climate I don't think that's likely.
Schupak: It seems that many in congress are afraid that we will import terrorists. There is a vetting process though.
DeMell: The process is very weak. Basically we send out requests on these applicants and see what comes back. Some governments will not give us the info because they want these people away from their shores but in most cases nothing comes back and we take that as enough. But that's not the reason.
Schupak: Than what's the real reason?
DeMell: The unspoken reason is that many Americans are afraid that if we take too many Muslim refugees we will experience the same problems that Europe is experiencing.
Schupak: Save that thought for another interview.