Carly Goodman wrote “Between Foreign Policy, Politics, and the Law: The United States Refugee Crises of 1980” as part of the 2015 Humanity in Action Diplomacy and Diversity Fellowship. The research essay was first published in Shifting Paradigms (Humanity in Action Press 2016). The complete book is available for purchase on Amazon.
A refugee is defined as a person outside their country who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is unable to return to their country.
In recent years, a refugee crisis of enormous proportions has unfolded in the Mediterranean Sea, as hundreds of thousands of people have fled their home countries to enter Europe. Thousands have perished along what has become the world’s deadliest border. The people risking their lives to cross into Europe come from a variety of countries for diverse reasons. Many are fleeing conflict, war, and persecution in Syria, Eritrea, and Afghanistan. Others, often from sub-Saharan Africa, likely make the journey to escape desperate poverty. Although international and national laws distinguish between migrants based on their motivations, there is a shared desperation of people risking their lives to make the crossing.
As European states and governing bodies scramble to manage the crisis, policymakers and the media have emphasized the importance of the distinction between refugees and economic migrants. States have a legal obligation to protect refugees under the 1951 Refugee Convention and the 1967 Protocol. Broadly, a refugee is defined as a person outside their country who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is unable to return to their country. Another aspect of international refugee law is the concept of non-refoulement: under customary international law, no country can forcibly return or deport a refugee to a country where their life would be threatened, including by conditions of war. In contrast to a refugee who enjoys special status under the law, an economic migrant is a person who voluntarily leaves their home in order to seek better opportunities abroad. Because border control is a key part of state sovereignty, nations have leeway in deciding how to treat economic migrants, but they must comply with international obligations when it comes to refugees.
While the international law definition of “refugee” depends upon the circumstances in a person’s country of origin, in the real world, conditions in the receiving county determine who will be welcomed as a refugee.
In some ways, the distinction between the two types of migrants matters a lot: states have special responsibilities to certain migrants. The distinction, however, between refugees and migrants can be difficult to ascertain. Political instability, violent conflicts, weak governance, and economic privation are often entwined. While the international law definition of “refugee” depends upon the circumstances in a person’s country of origin, in the real world, conditions in the receiving county determine who will be welcomed as a refugee. When a government assesses a migrant’s motivations, human rights and humanitarian concerns, foreign policy aims, and domestic, particularly anti-immigrant, political factors compete. In the real world, where political and economic problems are deeply entwined and both cause suffering, how much should the distinction between refugees and economic migrants really matter? And who should have the power to decide?
As this crisis unfolds at Europe’s edge, it is useful to remember that the United States (US), long a leader in refugee resettlement, faced large-scale refugee crises in the past. And when it did, the definition distinguishing between refugees and regular immigrants was not so tidy. Instead, the US struggled to categorize people entering the country, letting Cold War foreign policy concerns and racially charged domestic politics color who could become a refugee and who was deported or criminalized as an “illegal immigrant.”
The term “refugee” is not a universal, static category.
Taking the US refugee crisis of 1980 as a historical case study, we can see that these categories were contested, shaped by foreign relations issues, and domestic politics as much as by legal definitions. Although that situation differed from the crisis occurring in Europe today, I draw a key parallel. The term “refugee” is not a universal, static category. Different actors, with diverse motivations, negotiate and apply the term in real time, with real consequences for both the treatment migrants receive, and the way receiving countries imagine, accept, and reject migrants.
In the summer of 1980, images of refugees arriving on US shores proliferated. Three groups in particular attracted attention. Around 125,000 Cubans arrived between April and October, in what was known as the Mariel boatlift, echoing a previous Cuban exodus in the 1960s. (1) But the “Marielitos,” whom Fidel Castro maligned as “delinquents, homosexuals, gangsters, vagrants and parasites,” mostly lacked family in the US, and were shuffled into hastily set up processing centers on American military bases. (2) Haitians also landed on Florida’s shores in shaky boats in the thousands, at a rate of up to 700 per day. (3) Assumed to be economic migrants seeking opportunities rather than refugees, Haitians did not qualify for federal assistance, and lived in deplorable conditions in makeshift tent camps, awaiting clarity about their status. Salvadorans also streamed across the US-Mexico border, a risky journey made especially treacherous by a deadly summer heat wave. One July day, the US Border Patrol discovered the bodies of thirteen Salvadorans who perished in the Arizona desert. Refugees were on everybody’s minds; Tom Petty scored a hit as he toured that summer, ending with the song “Refugee” from his album Damn the Torpedoes. (4)
While the US was obligated to protect refugees’ rights, it preserved the right to deport ordinary immigrants back to their home countries.
Members of the three groups, Cubans, Haitians, and Salvadorans, claimed they were refugees fleeing persecution and political violence. While the US was obligated to protect refugees’ rights, it preserved the right to deport ordinary immigrants back to their home countries. Because political violence and persecution can produce humanitarian crises and destabilize relations between countries, the international community has agreed that refugees are entitled to certain rights and protections in the countries to which they flee. The assumption was that immigrants voluntarily left home, whereas refugees had no choice but to leave.
Racial tensions exploded in three days of violent riots in Miami.
The local, state, and federal responses to the crises in 1980, however, were improvised and chaotic. Local agencies lacked resources to handle the large influx of people. The Carter administration presumed that while Cubans were valid refugees fleeing Communism, their Haitian counterparts were simply poor people seeking better economic opportunities. The administration formulated no policy to deal with Salvadorans, whom it also considered economic migrants. The worsening US economy and a visible flood of mostly brown and black people into the US outside normal avenues of immigration sparked a backlash against the groups of refugees. In May of that year, racial tensions exploded in three days of violent riots in Miami.
Back in the 1930s, the US famously failed to resettle Jewish refugees fleeing Europe, turning away some 1,000 passengers aboard the St. Louis in 1939, many of whom perished in the Holocaust. At the end of World War II, the US could no longer turn its back on the refugee crisis, which threatened to destabilize Europe and imperil the economic recovery of the continent, the key to a peaceful and prosperous future. In 1945, millions, including Holocaust survivors, Soviet citizens, Germans, Poles and others, were displaced or on the move. A refugee crisis of unprecedented scale required a massive international response.
Granting refugee status to persecuted groups and people who fled communist states, the US both enhanced its image abroad and condemned the repressiveness of communist states.
The Universal Declaration of Human Rights guaranteed a right to seek asylum from persecution in 1948, and, in 1950, a permanent body devoted to refugees, the United Nations High Commissioner for Refugees (UNHCR), was created. The 1951 Geneva Convention on Refugees defined a refugee as someone unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. A 1967 Protocol amended the 1951 Convention, removing the geographic and temporal limits set out in the post-war instrument.
Between World War II and 1980, the US resettled some two million refugees, a significant effort that bolstered the country’s image as a beacon and sanctuary for the persecuted. (5) As the historian Carl Bon Tempo shows, however, shifting American foreign policy concerns and domestic political and cultural considerations shaped refugee admissions. (6) Successive administrations used ad hoc refugee admissions to advance Cold War foreign policies by admitting certain migrants as refugees in an era of restricted immigration. Granting refugee status to persecuted groups and people who fled communist states, the US both enhanced its image abroad and condemned the repressiveness of communist states. The executive branch repeatedly admitted refugees outside the normal immigration system, including those from Hungary in the 1950s, Cuba in the 1960s, and Indochina and the Soviet Union in the 1970s. In an era of relatively low immigration, US presidents promoted certain refugees as ideal migrants, perfect proto-Americans.
The resettlement of nearly 400,000 Vietnamese, Cambodian, and Laotian refugees between 1975 and 1980 strained this “system,” as Americans grew weary of the ability of Indochinese refugees to acclimate to American life (in contrast to earlier settlements of well-educated, mostly white Hungarians and Cubans). Simultaneously, Congress sought to curb executive power, and human rights advocates argued that US refugee policies must be brought into line with human rights norms and international obligations. Instead of defining refugees as presumptively European and anticommunist, activists in the 1970s insisted that the US adopt the ideologically and country-neutral definition set out in the United Nations Convention and Protocol on Refugees.
Under international law, asylum seekers must apply in the first safe country they enter after fleeing home.
The Refugee Act of 1980 aimed to clear up ambiguity about refugees. Congress wanted to plan and budget for admissions. Local groups and state governments, having borne the brunt of work and costs of resettlement, wanted federal funds. Human rights advocates wanted admissions to be less arbitrary and more humane. In March, Congress passed the Act, defining a refugee as any person who fled persecution in their home country on the basis of one of five grounds: race, religion, nationality, membership in a particular social group, or political opinion. Importantly, the new law promised to disentangle the admissions system from politics, rendering nationality all but invisible under the law. Instead of admitting people to serve its foreign relations aims, the US would select refugees for admission on the basis of a broadly accepted, international, and politically neutral standard.
The Refugee Act also created asylum procedures. The US had never before been a country to which refugees fled directly. Under international law, asylum seekers must apply in the first safe country they enter after fleeing home. Instead of admitting asylum seekers, the US screened refugees abroad, carefully managing its refugee flow. The expansion of commercial airlines and the new law’s asylum provision, however, diminished the US isolation. Refugees who arrived at US borders and airports now had the right to request asylum. In the summer of 1980, the inchoate procedures of the new law were put to the test.
As 1980’s heat wave unfolded, the political consensus supporting the Act melted, and the US government failed to use the law to address the crises. Instead, Cold War politics and international relations continued to shape the US response to different refugees, and domestic politics about “illegal immigration” colored the lens through which Americans viewed the people who arrived seeking refugee status.
The arrival of more than 100,000 Cubans put the law to its first test.
Furthermore, while the new refugee definition enshrined in the Act was more expansive and universal than before 1980, not everybody would benefit. The arrival of more than 100,000 Cubans put the law to its first test. The Carter administration faced political pressure to resettle Cubans, as the US always had. For Cuban-Americans and hard-core anticommunists, any Cuban who fled Castro’s regime was “voting with his feet” by choosing democracy and rejecting communism. While all Cubans qualified as refugees in the 1960s because they fled communism, Cubans in 1980 had to satisfy different criteria, demonstrating that they fled persecution or a well-founded fear of persecution.
Haitians had been entering the US since 1972, claiming to be refugees. The government repeatedly rejected their asylum requests, maintaining that Haitians were economic migrants rather than victims of political persecution. Most Haitians faced deportation, although the judge in an ongoing case temporarily stopped their deportations in 1979. (7) In 1980, as Haitians – and Cubans – increasingly streamed into Florida, communities faced considerable challenges as officials and volunteers struggled to provide shelter, food, and medical services.
In May, President Carter made a vague pronouncement offering Cubans “an open heart and open arms,” and sending the Federal Emergency Management Agency to help. Carter’s “open arms” for Cubans provided an opportunity for supporters of Haitian refugees. Cubans, they observed, were being resettled and granted some status and federal assistance, while Haitians had long been denied meaningful consideration of their asylum claims. The discrepancy in the treatment of Cubans and Haitians was not only ideological, with Cubans fleeing a communist enemy and Haitians fleeing a right-wing US ally. Haitians were also black and poor, and official policy denied them refugee status.
“When I regained consciousness, that is when they started beating me once more…”
In June, the administration announced a new policy, designating Cubans (114,000) and Haitians (15,000), who arrived that year, “Cuban/Haitian entrants.” Full refugee status afforded a person a path toward permanent residency and citizenship, and also provided resettlement funds and services. “Entrant” status just provided protection from deportation. By bypassing the Refugee Act’s provision for asylum adjudication, failing to grant refugee status to Cubans and Haitians under the Act’s normal flow numbers, and failing to work with Congress, the administration’s choice undermined the law’s aims. Questions about resettlement costs became central, and the use of “entrant” rather than refugee status left local governments to absorb costs, straining local communities, and fueling anti-immigrant politics.
In July, a Federal Judge ordered the then Immigration and Naturalization Service (INS) to re-process each of 4,000 Haitian asylum claims it had rejected unfairly in the 1970s. While the US government had long characterized Haitians as economic migrants, the judge’s ruling exposed a different story. Americans learned gruesome details about Haiti’s treatment of its political prisoners, including that their bodies were left out to be devoured by dogs. “The sinister barking of the dogs would take sleep away from all prisoners,” one man testified. Another reported that the Tonton Macoute had nearly beaten him to death: “When I regained consciousness, that is when they started beating me once more… They quit beating me when they saw I could not take any more at all, when they saw they were beating on a dead man.” (8) Despite the human rights record of “Baby Doc” Duvalier’s government, the dictator was a close Cold War ally.
The US government cast Salvadorans as “illegal” immigrants – not refugees.
Another US ally, the military junta ruling El Salvador, unleashed “a reign of terror” against peasants, students, priests, and others suspected of leftist sympathies. (9) Some 3,000 people died by assassination or random shooting in the first half of the 1980’s. (10) Others perished in the Arizona desert, having paid smugglers to escape the authoritarian regime. Recently, INS had deported thousands of Salvadorans as undocumented immigrants. By lumping them together with Mexican and Central American migrations across the border, the US government cast Salvadorans as “illegal” immigrants – not refugees.
The Carter administration characterized El Salvador’s government as the “last hope” for the country; foreign policy required it to characterize the Salvadoran situation as improving. As the year ended, however, El Salvador became an increasingly deadly place. (11) An American consular officer noted an increase in US visa requests. “So many, many applicants tell us that they’ve been threatened, that they’re going to die if they stay here,” the consul said. “When their visas were denied, they would ask, ‘How can you deny this to me? What about your human rights policy? How about my human rights?’” (12)
More than half of Soviet, Ethiopian, and Afghan asylum claims were granted in 1983, while less than four percent of Haitian, Guatemalan, or Salvadoran claims were. (14)
While Cold War considerations and precedent, the Federal Courts, and shifting public opinion shaped the administration’s policy towards Cubans and Haitians, no such incentives pushed the administration to admit Salvadorans as asylees or refugees. Because El Salvador was a US ally, and because the American public imagined that migrants across the Southern border were “illegal,” there was little motivation for the US government to consider Salvadorans victims of persecution. Moreover, as the historian Stephen Macekura argued, by shifting focus to individual asylum seekers, the Refugee Act of 1980 inadvertently permitted foreign policy concerns, in this case US support of the Salvadoran government, to dictate an exclusionary refugee policy. (13)
As legal scholar Arthur Helton highlighted, the INS continued to grant asylum overwhelmingly to individuals fleeing communist regimes and to deny it to those fleeing right-wing and US ally states. For example, more than half of Soviet, Ethiopian, and Afghan asylum claims were granted in 1983, while less than four percent of Haitian, Guatemalan, or Salvadoran claims were. (14) These figures revealed the limits of official laws and policies to produce fair outcomes.
By creating a formal opportunity for seeking asylum, the Refugee Act of 1980 changed the way Americans thought about refugees. Instead of imagining refugees as anti-communist Europeans fleeing enemy states, like Hungarians, elite Cubans, or Polish people, Americans now confronted the idea that refugees, entitled to certain rights and privileges, could come from anywhere in the world at any time, and could arrive at US borders, airports, or literal shores. That deserving refugees could arrive unauthorized blurred the category itself: potential refugees seemed “illegal” to Americans for the first time. The administration’s decisions contributed to a sense of panic that weakened the loose consensus of the 1970s that human rights should drive refugee admissions and asylum. Instead, the influx of asylum-seekers, particularly non-white aliens perceived to be “illegal,” contributed to the perception of a border control crisis. (15)
Faced with images of Cuban and Haitian masses arriving on American shores, the value of maintaining a special category of admissions based on human rights principles diminished. Election year politics stoked extreme sentiments, the worsening economy shaped the debate, and fears of a border control crisis took hold. That the Carter administration did not make a strong case for the human rights imperative to admit the refugees reinforced the idea that the new arrivals were not substantively different from economically motivated illegal aliens. A New York Times year-end review of the refugee “explosion” wondered, “Has the quality of mercy been strained to the breaking point?” (16)
The ABC case alleged that the Justice and State Departments had systematically violated the law.
As the immediate crisis subsided, as the courts clarified requirements for fair adjudication of asylum claims, and as the Cold War ended and ceased to guide foreign policy, possibilities for reform opened up. Activists kept pressure on the government, and the US gradually amended its policies to provide relief to some of these migrants. It took more than a decade, but eventually, Salvadorans got a fair hearing of their asylum claims through the sustained efforts of refugee advocates and religious groups that generated public attention to their plight through the Sanctuary Movement, and a series of court cases. The ABC case, a class action suit brought by churches, organizations, and individuals on behalf of a nationwide class of more than 500,000 Guatemalan and Salvadoran asylum applicants, alleged that the Justice and State Departments had systematically violated the law. The settlement eventually provided Salvadorans and Guatemalans in the country in 1990 a substantive hearing of their asylum claims. (17) Yet, the events of 1980 should remind policymakers, activists, and all of us, of the persistent roles played by foreign policy considerations and domestic politics in refugee and other migration policies.
As European policymakers work to manage the crisis unfolding across the Mediterranean this year, they will consider their obligations to refugees under international and domestic law. International relations, foreign policy, and domestic politics about migration more broadly will also play a role, as they did in the US in 1980.
It may be time to reevaluate the central idea enshrined in international law making a distinction between refugees and migrants. These categories are messy and interconnected in real life crises, shaped by contemporary foreign relations priorities, domestic politics, racism and preconceived notions in receiving countries. Although the Refugee Act of 1980 brought the US into line with broadly accepted, international norms for defining refugees, can any such category be truly politically neutral? Even at the level of international law, I question the salience of categories that are themselves products of a particular historical moment and unspoken cultural ideas about the role of state governments and rights.
The distinction between political refugees, who have certain rights, and economic migrants, who can be denied access to rights, evolved to address immediate crises in post-war Europe. The distinction between victims of political persecution and poor economic conditions was informed by the competing ideologies of the Cold War. For the US and other Western countries, it made sense that states must provide and protect certain individual political rights, such as freedom of speech and religion. But other ideas also present in 1948’s Universal Declaration of Human Rights such as the right to social security and the right to an adequate standard of living, are still not recognized by the US as part of a liberal framework for rights. Economic inequality is something for markets – not states – to regulate. In 2016, as it becomes increasingly obvious that both political and economic suffering can be structural and devastating, it is time for the international community to look critically at the instruments that have defined the very terms of how we speak about and address refugees and migrants. Each person is deserving of compassion, regardless of the policies and politics of the receiving countries.
• • •
Goodman, Carly. “Between Foreign Policy, Politics, and the Law: The United States Refugee Crises of 1980″ In Shifting Paradigms, edited by Johannes Lukas Gartner, 102-111. New York: Humanity in Action Press, 2016.
The author and editor thank Dr. Carl Bon Tempo for his dedicated efforts in reviewing earlier versions of this article.
- Charlotte Moore, Refugees in the United States: The Cuban Emigration Crisis Issue Brief, Issue Brief Number IB80063 (Washington, DC: Congressional Research Service, 1980).
- “Our Stake in Havana,” Wall Street Journal, April 10, 1980.
- “Haitians Continue to Arrive in Miami,” New York Times, April 16, 1980. Colman McCarthy, “Escape from Nightmare Island: Haitians Flood US but, Unlike Asia’s Boat People, Find They Are Unacceptable,” Los Angeles Times, April 22, 1980.
- Randy Miranda, “Tom Petty: Sunshine Rocker,” Daytona Beach Morning Journal, July 26, 1980.
- Charlotte Moore, Review of US Refugee Resettlement Programs and Policies: A Report Prepared at the Request of Senator Edward M. Kennedy (Washington, DC: Government Printing Office, 1980), 131.
- Carl Bon Tempo, Americans at the Gate: The United States and Refugees during the Cold War (Princeton University Press, 2008).
- Haitian Refugee Center v. Civiletti (S.D. FLA. 1980).
- Jeff Prugh, “Judge Moved By Ordeal: Horrors of Haitians Echo in Miami Court,” Los Angeles Times, July 4, 1980.
- Michael Maggio, “Shifting Sands of US Immigration Policy Trap Salvadoran Refugees,” Los Angeles Times, July 13, 1980.
- “Deserted Villages are Testimony to Salvador’s Woe,” New York Times, Dec. 22, 1980.
- Juan M. Vasquez, “Getting Out: Key to Survival for Salvadorans,” Los Angeles Times, Dec. 22, 1980.
- Stephen Macekura, “‘For Fear of Persecution’: Displaced Salvadorans and US Refugee Policy in the 1980s,” Journal of Policy History 23, no. 3 (2011).
- Arthur Helton, “Political Asylum Under the 1980 Refugee Act: An Unfulfilled Promise,” University of Michigan Journal of Law Reform 17, no. 2 (Winter 1984): 253.
- Matthew Gibney, The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Cambridge, UK and New York, NY: Cambridge University Press, 2004), 155.
- Tad Szulc, “The Refugee Explosion,” New York Times, Nov. 23, 1980.
- Trina Realmuto, “ABC v. Thornburgh: 20 Years Later,” National Immigration Project of the National Lawyers Guild, Jan. 31, 2011, accessed Jan. 31, 2016, https://nationalimmigrationproject.org/PDFs/ practitioners/practice_advisories/gen/2011_31Jan_abc-20-years.pdf.