Diplomacy

Contrary to MEA Spin, US Lautenberg Amendment Doesn’t Help India’s Argument on CAA

While fast-tracking members of some religious groups for refugee status, the US law also says beneficiaries would include "other groups of refugee applicants for which such standard profiles would be appropriate”.

New Delhi: Indian plans to counter  US criticism of the Citizenship (Amendment) Act during President Donald Trump’s visit by referring to an American provision that fast-tracks refugee status for minorities from Russia and Iran are likely to rebound given differences in the way the two laws have been drafted, a close reading of the US statute reveals.

Modi government sources have told the Economic Times that specific amendments to US law “akin to the Citizenship Amendment Act” would be used to counter the US side, if the matter is raised by President Trump. BJP spokespersons have also been making similar arguments on television.

Indian officials told ET that they will specifically raise the Lautenberg amendment to the Foreign Operations Act of 1990 that relaxed provisions for religious minorities from the erstwhile Soviet Union and Vietnam to get refugee status. Thereafter, in 2003, the Specter Amendment brought another provision that allowed for designation of categories of Iranian nationals for whom less evidence was required to prove refugee status.

However, a close examination of the full text of the two amendments shows that they may not exactly help India’s case.

India’s Citizenship (Amendment) Act 2019 reclassifies specific “illegal immigrants” from Pakistan, Afghanistan and Bangladesh and puts them on a fast-track route to citizenship. The law contains an exclusive list of religions whose adherents would qualify for benefits, thus excluding by statute Muslim minority communities, besides Jews and Bahaiis.

In contrast, the amendment sponsored by Senator Frank Lautenberg calls upon the US Attorney General to establish a profile of applicants who would have a “strong likelihood of qualifying for admission as refugees due to well established histories of persecution, pursuant to section 207 of the Immigration and Nationality Act”. It was enacted in the FY1990 Foreign Operations Act.

The second clause of the amendment adds that these categories “shall include Soviet nationals who are Jews or Evangelical Christians or Ukrainian Catholics or Ukrainian Orthodox, and holders of Letters of Introduction in the Orderly Departure Program in Vietnam, who do not immediately qualify for immigrant visas, and may include other groups of refugee applicants for which such standard profiles would be appropriate”. (emphasis added)

In other words, the Lautenberg amendment language does two things. It requires the US attorney general to create a broad category of persecuted religious minorities who would qualify for admission to the US as refugees. While the law then lists Soviet and Vietnam nationals with certain qualifications who must be part of that category, there is no direction to limit this category only to these categories and exclude others. Indeed, the clause specifically says that these categories “may include other groups of refugee applicants for which such standard profiles would be appropriate”.

Under the US Immigration and Naturalisation Act, prospective refugees had to establish a fear of prosecution on an individual basis. But applications under the Lautenberg amendment required only a credible, but not individual, fear of prosecution, and that fear would stem from membership of the categories the US attorney general was to specify. The amendment provided an indicative but not exhaustive list of these categories.

The Indian equivalent of the Lautenberg amendment would have been for the CAA to say that “persecuted religious minorities or groups from Pakistan, Afghanistan and Bangladesh would be entitled to refugee status and expedited citizenship. These groups shall include Hindus, Sikhs, Buddhists, Jains and Christians and may include other groups of refugee applicants for which such standard profiles would be appropriate.

Thus persecuted Muslim minorities such as the Hazaras and Ahmadis, besides, atheists, would not have been excluded, the way the CAA does now.

As enacted, the CAA calls for the insertion of the following text into India’s Citizenship Act:

Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;”

There is no broad category of persecuted minorities in CAA, or as the Lautenberg amendment says, “applicants with a strong likelihood of qualifying for admission as refugees due to well established histories of persecution”. In fact, it is only the “statement of objects and reasons” to the Act which mentions that these minorities have faced persecution due to their religion.

According to a report of the Congressional Research Service dated December 2018, the Lautenberg amendment was regularly extended in Appropriation acts, but not always consecutively.

Fourteen years later, Senator Arlen Specter brought an amendment to the Lautenberg amendment, which was passed by Congress for the Appropriations Act of 2004. This  adds a category of Iranian nationals, specifically religious minorities, in the category of refugees who have “a strong likelihood of qualifying for admission as refugees due to well established histories of persecution” but again does not exclude other categories.

The Specter amendment remained in force for 14 years after it was included in the annual Consolidated Appropriations acts, but it was not enacted for 2019.

Full text of the Lautenberg Amendment, No. 367 (Senate – July 20, 1989)

Section 1. (a)(1) the Attorney General is directed to establish, in consultation with the Secretary of State, standard profiles of refugee applicants which would identify applicants with a strong likelihood of qualifying for admission as refugees due to well established histories of persecution, pursuant to section 207 of the Immigration and Nationality Act; and

(2) these categories shall include Soviet nationals who are Jews or Evangelical Christians or Ukrainian Catholics or Ukrainian Orthodox, and holders of Letters of Introduction in the Orderly Departure Program in Vietnam, who do not immediately qualify for immigrant visas, and may include other groups of refugee applicants for which such standard profiles would be appropriate.

(b) If a refugee applicant is within any of the standard profiles, he or she may qualify for refugee status by demonstrating one of the following:

(1) acts of mistreatment, or prejudicial actions against him or her personally such as, but not limited to:

(A) inability to study or practice religious beliefs or ethnic heritage, or

(B) denial of access to educational, vocational or technical institutions for which he or she is otherwise qualified, based on membership in one of the above standard profiles; or

(C) adverse treatment in the workplace stemming from prejudicial attitudes toward members of his or her standard profile, or

(2) acts of persecution committed against other persons in his or her standard profile, in his or her geographical locale, or acts, regardless of locale, which give rise to a well-founded fear of persecution, or

(3) instances of mistreatment or prejudicial actions based on his or her personal request to depart the Soviet Union or Vietnam, including, but not limited to, loss of home, job, or educational opportunity.

(c) Decisions made to deny applications for refugee status shall be made in writing and shall state, to the maximum extent feasible, the reasons why the application was denied.

(d) Aliens who fall within categories established by this Act, or by the Attorney General pursuant to this Act, and who have been denied refugee status between August 15, 1988 and the date of enactment of this Act, shall be eligible to reapply for refugee status under the terms of this Act.

(e) This section shall take effect on the date of the enactment of this Act and shall terminate on September 30, 1990.

Sec. 2. (a) The Attorney General shall, subject to the requirements in subsection (b) and (c) of this section, adjust to lawful permanent resident status those nationals of the Soviet Union or Vietnam who entered the United States on or after September 1, 1988 and before September 1, 1990, through the exercise of his public interest parole power after being denied refugee status.

(b) Soviet or Vietnamese nationals described in this section shall not be eligible for adjustment under subsection (a) unless–

(1) They have been physically present in the United States for at leat one year,

(2) they apply for adjustment within one year after the date upon which they become eligible for such adjustment, and

(3) they pay a fee to provide for the processing of their application, as determined by regulation by the Attorney General.

(c) Persons described in subsection (a) shall not be subject to the numerical limitations in section 201(a) or section 202(a) of the Immigration and Nationality Act, but shall be subject to the exclusions in section 212(a) of such Act (except for paragraphs (14) and (28)).