Bill Barr, philosopher of language?
Years ago, when the international Refugee Convention that became the basis of our refugee law was drafted in upstate New York, the drafters struggled to create a law that would be fair and would offer protection to those who needed it most, without leading to open borders. They came up with a vague concept, persecution, which was not defined. Over time, however, judges all over the world, guided by voluminous UNHCR policy papers, have slowly hammered out a workable definition of persecution through thousands and thousands of examples.
Instead of offering international protection to everyone who was persecuted, however, the drafters took the additional step of creating five categories of people on account of which the persecution had to be done. I you weren’t being persecuted on account of one of these five categories, you couldn’t be a refugee no matter how badly you were being persecuted. These five categories reflected the pre-occupations of the 2nd World War (and the Cold War) in response to which the Convention was being drafted: race, religion, nationality and political opinion. These were the main reasons for Nazi and Communist persecution.
But the drafters knew that there may be other reasons for persecution, so they added in the category of “other social group,” creating a sort of catch all to cover possible other types of people who might need protection. “Other social group” was never defined and subsequent generations of judges have struggled, both here in the US and elsewhere, to figure out what it means.
Enter the Trump administration. For decades, the category of “other social group” has expanded to include classes of people who were not recognized as being in need of protection in 1951, but are frequently persecuted, like gay people, people at high risk of gang violence and women fleeing cultures of gender violence and control. Of course, the Nazis also persecuted gay people, but so did the US government, so including homosexuality as a protected category never entered the debate in upstate New York all those years ago. Ditto gender persecution, which many people both here and in Communist countries regarded as the normal state of affairs.
Today, these gaps in the refugee regime are increasingly filled by the “other social group” category. But defining gay people or abused women as a “social group” isn’t always easy. Under US law, groups must share at least one common characteristic. The formulation often requires that the intent on the part of the government to persecute on a group bases be inferred, rather than explicit, conduct. Such persecution often requires a showing that the government failed to act and allowed others to persecute instead. As a result, the jurisprudence around the “other social group” category is often….creative, to put it mildly. Basically, judges use a badly drafted, vague and out-dated law to achieve the right result. But this leaves these decisions especially vulnerable to retrograde thinking.
The growth of jurisprudence around “other social group,” or “particular social group” under US law, has proved to be low-hanging fruit, first for Sessions, and now for Barr. Instead of relying on judges to shape asylum law, Barr is opting for the same top-down approach as Sessions did, shrinking definitions and interpretations of refugee law by fiat so that they apply to narrower categories of people. The administration is now trying to scrape away the advances judges have made in defining “other social group.” I am not sure if this approach, overriding judges, is constitutional, but from the perspective of interpreting the Refugee Convention, it is highly problematic.
For starters, US refugee law adopts almost verbatim the definition in the 1951 Refugee Convention, meaning that we cannot look to Congress for ideas as to what the law means. Instead, we must look to the drafting process of the 1951 Convention. But the Convention was specifically written for events occurring as a result of World War II in Europe. It was drafted to be a time-limited document, not a living document like the US Constitution. Later, the time and location restrictions were removed, but the definition was not revised. To treat any term or concept in US refugee law as having one right meaning is therefore not possible. The Convention terms and concepts were never meant to be applied to any of the circumstances for which they are now being used. The best approach would be for Congress to draft a new law, or even to participate in the drafting of a new international Convention that is updated for our modern needs.
Absent this unlikely scenario, a better approach would be to continue to allow US refugee jurisprudence to develop organically over time, reflecting the common-sense approach crowd-sourced from the minds of hundreds of judges, as overseen by the US Supreme Court, and guided UNHCR policy, which attempts to impose some sort of global standardization so the US does not veer off in a wildly different direction from, say, Canada. What we definitely do not need is Bill Barr’s personal opinion on what words mean.