Asylum - The post–world war ii years




The interwar years had shown no sign of the adaptation of the immigration laws to cope with asylum-seekers en masse: such is the message authoritatively recorded in the 1945 analysis by Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States. The legacy of national quotas in U.S. immigration law lasted beyond the weakening of the anti-Asian nativism that had been at work since the 1880s, the latter hostility mitigated and overlapping in the short term with more overtly political criteria for exclusion.

The Immigration and Nationality (McCarran-Walter) Act of 1952 exemplified this more recent mixture in a tense Cold War context, as did the earlier Internal Security (McCarran) Act of 1950, which also dealt, inter alia, with alien exclusion. Yet there was a wartime hint of the remaking of U.S. immigration policy by different criteria from the national-origins ideals of the 1920s, when in 1943 the total prohibition against Chinese immigration was minutely but significantly eased as part of the American conciliation of Nationalist China, one of the Big Five in the wartime anti-Axis alliance. Two years later President Truman by executive order gave priority to "displaced persons" in the allocation of European quotas—though within the existing national totals. Only with such measures as the Displaced Persons Acts of 1948 and 1951 and the Refugee Relief Act of 1953 were the annual quotas actually increased, at first simply by amortizing initial excesses against correspondingly reduced later totals. (An exception was made for the entry of non-quota wives, husbands, and orphans.) From 1945 until 1960 some 700,000 people were admitted to the United States under various "refugee-escapee" exemptions and programs—the beneficiaries of a deliberate Cold War policy directed against the Soviet bloc and communism in general by encouraging disaffected emigrants.

It required the more liberal, 1960s civil rights atmosphere to eliminate (via the landmark 1965 Hart-Celler Immigration Act) the ethnically coded national-origins system as the basis for the selection of immigrants. Yet quotas remained under the 1965 act, as they had under McCarran-Walter. But now they were absolute, limited to 20,000 for any one country, while for the first time immigration from within the Western Hemisphere was restricted to 120,000, effective in mid-1968, within a global maximum set initially at 290,000. (The 20,000 per country limit was extended to the Americas in 1976, and in 1978 the hemispheric subtotals were aggregated to 290,000 worldwide.) Within this changing ideological and numerical framework exceptions would be made for refugees, who under the new seven-category "preference" system of the Hart-Celler Act would technically occupy the last and smallest category at a maximum of 6 percent of the total for extrahemi-spheric entrants: an estimated 10,200, who would also include victims of natural disasters. (The refugees were expected to come from the Soviet bloc and the Middle East.) Finally, an unspecified number of refugees could be "paroled" into the United States by the attorney general—in other words, given a conditional right to reside despite their irregular status. This latter provision gave statutory form to the situation after the Hungarian uprising, when the great majority of the 38,000 refugees were initially admitted through the attorney general's parole power.

Edward P. Hutchinson, concluding his classic account Legislative History of American Immigration Policy with an analysis of the Hart-Celler Act, emphasizes the interconnection of legislation since the formative post–Civil War Immigration Act of 1875 with both the older tradition of political and religious asylum and the development of a post–World War II refugee regime by the U.S. government. He then blends all these factors together under the rubric "refugee asylum" as an "element of immigration law and policy." Indeed, at least half a dozen legal instruments between 1875 and the consolidating Immigration Act of 1917 contained provisions protecting political and religious freedoms—what we would call offering "political asylum"—while simultaneously barring racial undesirables. Thus, like other authorities Hutchinson endorses the argument that "asylum" in its more technical sense has to be understood within the wider context of the roads and obstacles to would-be migrants to the United States. As Colin Harvey perceptively writes, "Law is Janus-faced, it both coerces and enables. Refugee law … both excludes and includes."

The mutation of the quota system from its 1920s ethnic bias and the introduction of an allotment for refugees were two innovations in the Hart-Celler Act. (For all its ideological importance, the law was technically an amendment to the 1952 Immigration and Nationality Act.) Conversely, a more recent tradition was continued outside the provisions of Hart-Celler, with asylum privileges extended ad hoc sometimes by formal legislation and at other times by presidential action. This twin-track approach has characterized federal policy since the 1940s, despite at least six major general laws passed by Congress in the succeeding decades. Yet other factors have also been involved, the practical force of which is difficult to quantify but which have been important at a rhetorical, symbolic level.

One example is the role of the United States as the most powerful country within the United Nations and, therefore, inescapably identified with exhortatory UN pronouncements, even when the United States has either opposed or not signed the relevant multilateral treaties, later failed to ratify such binding instruments, or qualified ratification with terms seriously limiting the resultant obligations—a three-way method of American conduct traced by scholars such as David Forsythe, Louis Henkin, and Natalie Kaufman. (The Genocide Convention, which provided for extradition and voided pleas of "political crimes," was signed by the U.S. government in 1948, submitted to the Senate in June 1949, and finally received conditional consent from the Senate almost four decades later, in 1986.) Thus, the years since World War II show a pattern of complicated adjustments to U.S. immigration policy (which ultimately determines the legal entry for refugees and asylum-seekers) alongside an international rhetoric and the growth of a legal regime governing refugees and asylum-seekers, both of which are significantly shaped by the United States but not necessarily put into practice within its own borders.

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