On July 2, 1951, delegates from 26 countries entered a room in Geneva, Switzerland. There, in the gloomy aftermath of World War II, the men spent 23 days debating a word that had, until that point, held a common colloquial definition but not a precise legal one.
This gathering, officially called the 1951 Convention Relating to the Status of Refugees, helped to establish the role of the newly established United Nations High Commission on Refugees by defining who exactly would be protected as a refugee.
By the end of the month, 19 of the delegates would agree to this definition, committing their countries to a shared understanding of what it means to be a refugee. Yet despite being a loud presence in the deliberations, the United States was not one of them. Instead, it opted to create its own definition, and it would take decades before it came into alignment with the one set at the convention.
The definition of a refugee in the United States has changed with the country’s geopolitical interests around the globe, such as its calculated actions during the Cold War encouraging and welcoming defectors. This changing definition has affected the lives of millions; the words we use to describe people who have left their homes — from migrant to refugee to asylum-seeker to humanitarian parolee — have major legal consequences for those to whom they are assigned and major influence on how they are perceived and welcomed.
In June 2023, U.S. President Joe Biden announced his plan to welcome 125,000 refugees to the country that year, many more than had been admitted in a single year for decades. At the end of his statement, he said, “Welcoming refugees is part of who we are as Americans — our nation was founded by those fleeing religious persecution.”
But were the settlers Biden referred to actually refugees? Such a classification did not, at the time, exist. While he, and other politicians before him, have focused on the early colonists of America and their quest to practice their religion openly and freely, they often neglect to mention that in their search for refuge, the colonists displaced countless others. Did their actions actually make Native Americans refugees? (Now, at a time when legislators on both sides of the aisle are consumed by counting, precisely, the number of newcomers, it seems telling that no numbers exist for the number of people displaced in the settling of the United States.)
Furthermore, for those arriving on the continent the idea of state sovereignty did not apply to lands occupied by Native American communities, so there wasn’t a sense of receiving “refuge” from a state, the modern basis of the meaning. These ideas would take shape slowly over time as the United States formed, separated from the British Empire, and eventually began managing, tracking and restricting the flow of immigrants. The first American legal definition of a refugee was created with dissidents in mind, especially those who could prove personal persecution by the Soviet Union. But as migration changes, so too does the way people feel the need to group and define those who are on the move. American immigration policy in the 20th and 21st centuries has been defined by calculated exclusion.
Today’s internationally accepted definition of a refugee relies on the common understanding of sovereignty, that countries have a right to keep certain people outside their borders at their discretion. The refugee is the exception to that rule, a key principle of the 1951 Convention being “non-refoulement,” the right not to be removed. The refugee definition, then, serves as an important classification that not only tells countries who they must allow in but who, in turn, they may exclude.
America’s Naturalization Act of 1790 limited citizenship to free white persons, in practice meaning those from Western Europe. This marked the beginning of a policy of official exclusion; the Alien and Sedition Acts eight years later continued the approach by enacting the new country’s first deportation laws. From there, exclusion took different forms. In 1803, Congress banned the immigration of free Black people in the hope of quieting antislavery sentiments following the Haitian revolution, though the Naturalization Act of 1870 would extend the right to naturalize to “aliens of African nativity and to persons of African descent.” In 1882, the U.S. moved further toward a restrictionist stance with the aptly named Chinese Exclusion Act.
Congress took other measures to restrict immigration too, from banning illiterate newcomers to targeting anarchists and radicals. But race was, without a doubt, the most important and obvious method of exclusion. Nothing would make this clearer than the 1921 Emergency Quota Act and the 1924 Immigration Act, commonly called the Johnson-Reed Act, which together established numerical quotas for entrants based on their nationality. Under this new system, prospective immigrants were required to apply for visas before making their way to the United States.
The quota system was introduced in the 1921 act as a way of upholding immigration from desired countries, amid rising concern about immigration from Eastern and Southern Europe. The initial quotas, intended as a temporary measure, limited immigration to 3% of any given nationality’s numbers in the U.S. in the 1910 census. Yet the principle of quotas stuck. The 1924 act capped immigration at 2% of the number of each nationality recorded in the 1890 census until 1927, when the quotas were recalculated using the 1920 census and each nationality was limited to a proportion of an overall 150,000 tota capl. The effect of the legislation’s details was not only to reduce overall immigration significantly but also to severely limit the entry of Africans and Asians.
Up until this point, restrictions were based on a person’s country of origin, rather than the purpose of their immigration. There was no separate system for people fleeing persecution — those we often call refugees today. Immigrants were immigrants, regardless of their motive. While the word refugee was certainly used, with a meaning similar to today, it had no legal meaning and conferred no additional benefits. But that system would be called into question during World War II and the following years, when the federal government would look for a way to sidestep the quotas to advance their geopolitical interests abroad. Race would soon be superseded by ideology as the defining point around which refugee policy revolved.
From Oct. 23 to Nov. 4, 1956, Molotov cocktails, tanks and corpses littered the streets of Budapest. For 12 days, Hungarians rebelled against the Soviet Union, but in the end they were stifled. Thousands had died, and tens of thousands were beginning to flee, mostly on foot, across the border to Austria.
There the Hungarians were recognized as refugees. Unlike the United States, Austria had been party to the 1951 convention. But Austrians needed help. As they appealed to the U.N. and countries around the world for assistance, President Dwight D. Eisenhower saw an opportunity.
As long as the quotas had been in place, politicians and advocates had tried to find ways around them, furthering their geopolitical interests by allowing in more of the kind of migrants they wanted. In 1940, President Franklin D. Roosevelt created a program separate from the immigration quotas to admit 2,000 “political and intellectual” refugees from Germany, though these refugees were likely handpicked by the Roosevelt administration. The refugee demands of World War II were immense, but so too was the fear in the United States that immigrants could threaten national security. Politicians played on this fear of subversion from within. Even Roosevelt, at a press conference in June 1940, said, “Now, of course, the refugee has got to be checked because, unfortunately, among the refugees there are some spies.” In response, the responsibility for immigration controls was moved from the Labor Department to the Justice Department, and the State Department increased bureaucratic hurdles for potential newcomers.
By the end of the war, many millions of people across Europe had been displaced. President Harry S. Truman supported a program that would become the 1948 Displaced Persons Act. He had heard the appeals of refugee advocates, but he also believed that such an act would prove beneficial in the wake of deteriorating relations with the Soviet Union. Historians Gil Loescher and John Scanlan remind us that this era of refugee policy was defined by the idea that, as State Department refugee specialist Robert S. McCollum remarked in 1958, “each refugee from the Soviet orbit represents a failure of the communist system.” Loescher and Scanlan define this postwar refugee policy as “calculated kindness,” one in which refugees were helped if and only if it also benefited U.S. foreign policy goals.
Over the following four years, under the Displaced Persons Act, the U.S. admitted more than 350,000 people, broadening the definition of a refugee to include not just those persecuted by a particular regime but also those who were displaced for “reasons of race, religion, nationality, or political opinion.” This, writes Carl Bon Tempo in “Americans at the Gate: The United States and Refugees During the Cold War,” came at a cost. While most people who entered under the Displaced Persons Act were victims of the war, some former Nazis and Nazi sympathizers were able to enter as refugees. Though their admission was organized by American intelligence hoping to turn them into anticommunist agents, refugee advocates were angered that coveted slots had been given away to such people.
While the program continued to admit refugees until 1952, opponents of the strategy were growing more vocal. Sen. Pat McCarran of Nevada led the charge for the restrictionists, pushing to tighten security and screening measures and setting the stage for a larger battle over immigration. While refugee advocates were hoping to eliminate the quota system, McCarran argued that doing so would “change the ethnic and cultural composition of this Nation.”
But if anything outranked McCarran’s distaste for immigrants, it was his hatred of communism. His 1950 Internal Security Act, writes Bon Tempo, “explicitly linked immigrants with communism and warned that the admission of newcomers invited communist subversion and espionage.” The quotas, McCarran argued, were critical for national security.
The stage was set for a battle, and in 1952, both liberal and conservative immigration proposals were introduced. Restrictionists prevailed. The House and Senate both passed McCarran’s bill, sponsored in the House by Rep. Francis Walter of Pennsylvania. But when it landed on Truman’s desk, it received a swift veto. “The idea behind this discriminatory policy was, to put it baldly, that Americans with English or Irish names make better people and American citizens than Americans with Italian or Greek or Polish names,” the president said. It was precisely refugees fleeing communism who should be prioritized, he argued. Without additional protections for refugees, Truman refused to support the bill, but Congress overrode his veto and the legislation became law.
When Eisenhower took office the next year, he responded to refugee advocates’ concerns about the McCarran-Walter Act with the 1953 Refugee Relief Act, which gave the United States its first official legal definition of who could be a refugee. The law allowed for three categories of displaced persons: refugees, escapees and German expellees. Refugees were defined as those leaving noncommunist countries, escapees were those fleeing Soviet or communist areas of Europe, and German expellees were those of “German ethnic origin” who had been removed from Soviet-controlled countries. For the first time, the definition of who could be a refugee was legally tied to America’s anticommunist goals.
The Refugee Relief Act had allotted more than 200,000 visas, but by the time the Hungarian Revolution broke out, the program had ended. Fewer than 800 Hungarians were allowed to enter the U.S. under the quota system, but if the Eisenhower administration could find a way around the quotas, it could simultaneously provide aid to Hungarians in need while also making a strong public statement against the Soviet Union, from whose grasp the Hungarians were fleeing.
The administration started searching for a legislative or administrative tool, anything that would allow them to start admitting Hungarians quickly, and they found it in an unlikely place: the McCarran-Walter Act. Most of the debate on the bill had been about upholding the quota system, and little attention was paid to what became known as the parole power. The law granted the president the right to parole, or temporarily admit, people to the United States so long as it furthered a national interest. And what could be better for the country than taking a strong stance against the Soviet Union?
Under the parole power, the Eisenhower administration admitted tens of thousands of Hungarian refugees and, in the process, set a precedent for the way that refugee admissions would be handled for decades. When the 1965 Immigration and Nationality Act was enacted, the quota system was disbanded and a new legal definition of refugees emerged, one that blended those fearing persecution on account of race, religion or political opinion with those specifically fleeing communist countries — or the Middle East, defined as “the area between and including Libya on the west, Turkey on the north, Pakistan on the east, and Saudi Arabia and Ethiopia on the south.” It remains unclear why this blanket inclusion of the region occurred. As described in 1975 in a Cleveland State Law Review article, “The legislative history is silent as to why this one area of the world was signaled out for special concern.” Perhaps, author Nicholas B. Kap wrote, it was a result of residual concern about the 1956 Suez Crisis in Egypt, though it is unclear why it was perpetuated.
In 1967, the U.N. released its Protocol Relating to the Status of Refugees, updating the 1951 convention, and the U.S. finally added its name as a signatory. Designed to address the effect of World War II, the 1951 definition had applied only to Europeans who were displaced before that year. In recognition of the ongoing crises around the world, the definition was amended to lift those restrictions. But while the U.S. had committed to admitting refugees under the Immigration and Nationality Act, there were still limits, and presidents continued to rely on the parole power to both help displaced persons and advance geopolitical interests in the name of fighting communism.
By 1980, after the parole power had been used to admit tens of thousands of refugees from Southeast Asia following the Vietnam War, legislators on both sides of the immigration debate conceded that the system needed an update. Finally, the U.S. formally adopted the U.N. definition of a refugee into law and created a new system of admission specifically for refugees. This definition, the one still used today, defines a refugee as a person outside their home country who is unable or unwilling to return because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.”
The language of anticommunism was gone, but in practice, refugees from communist-controlled countries continued to dominate refugee admissions. Eventually, though, as the Cold War ended, the idea that people fleeing communism were more worthy of admission than those fleeing other crises dissolved. What emerged was a new system in which country of origin was less important than motive. The need to prove one’s case in order to be classified as a refugee helped to bolster a system of binary thinking about migrants and refugees: those who had chosen to leave versus those who were forced to. Upholding this binary has, some believe, become the new ideological focus of the U.S. immigration system, bolstered by the omnipresent fear that newcomers are not who they claim to be.
As scholar Rebecca Hamlin writes in her 2021 book, “Crossing: How We Label and React to People on the Move,” “today, the concept of ‘the refugee’ as a figure who is distinct from other migrants looms large.” The term “migrant,” unlike the term “refugee,” has no legal definition, she explains, adding to growing confusion about what constitutes the difference between the two.
Hamlin, and others in her field of critical refugee studies, lament this binary way of thinking. She points out that while the word refugee may have once referred strictly to political dissidents from communist countries who were directly and obviously threatened in their home countries, today, that situation is less common. Most people are on the move because of myriad interconnected causes and effects.
To hold legal status as a refugee in the United States today is, in some ways, a privileged position, explains Hamlin. That status comes with certain rights and protections that others, like Temporary Protected Status, do not. Because of the politicization of the U.S.-Mexico border, the binary of refugees and asylum-seekers versus migrants continues to take center stage. Hamlin writes, “Migrant categorization is not just about ascribing legality; it is also ‘status-making’ because the act of classification confers status on people.”
To be legally classified as a refugee, one must be vetted and approved, most often by the U.N. High Commissioner for Refugees, before arriving in the United States. Refugees, by this definition, are people who have been displaced from their home country but are still seeking protection and resettlement. For many refugees, this is a complicated process that involves numerous interviews, endless paperwork and, usually, years of waiting in refugee camps. If, and only if, their refugee claim is approved can they then come into the United States legally.
Asylum-seekers, on the other hand, are people who believe themselves to qualify as refugees but who have not yet been approved as such. As Hamlin writes, “Historians of migration to the United States tend to focus either on refugees or migrants, and the asylum-seeker story frequently falls between the cracks.” Instead of applying for refugee status abroad, they come first to the United States and apply from within. Under U.S. law, the right to seek asylum is protected, whether it is sought at a port of entry or after entering without inspection. But despite the fact that asylees (the legal term given to asylum-seekers whose cases are approved) and refugees are given the same rights and protections, there are still other legal classifications for displaced persons that are not.
Despite Biden’s record-high annual refugee cap, the admissions program established in 1980 has never been able to accommodate rapidly changing situations. Nothing makes that more clear than the Taliban takeover of Afghanistan in 2021. Tens of thousands of people fled the country in the aftermath, and many were brought to the United States. On the surface, these displaced Afghans met Americans’ everyday understanding of what it means to be a refugee, and they were thus often referred to as such in the media, by politicians and often by Afghans themselves. But very few Afghans were granted the legal status of refugee, and their humanitarian parole status meant they had far less protection than refugees.
Parolees are eligible for some benefits, like health insurance, and can work and attend school, but without a permanent status. They don’t qualify for in-state tuition in many states or for federal financial aid. Nor can they apply for family reunification. Perhaps most important, they must endure the infamously backlogged asylum courts in the hope of acquiring a permanent legal status. Parole is intended to be temporary, but for Afghans who remain unable to return home, the two-year limit on their status came frighteningly quickly. Only a fraction have received asylum so far, while tens of thousands rely on the program’s two-year extension, granted in early 2023. It is unclear, however, if the program will continue past the 2025 expiration date; without permanent protection, parolees live under the sword of Damocles: able to enjoy relative protection temporarily but never without the threat of its evaporation.
Similarly, the idea of “climate refugees” is increasingly common, but nowhere in international or American legal discourse do those fleeing natural disasters qualify for legal refugee status. To many scholars, activists and politicians, these examples are fodder for the argument that the present-day definition of the word refugee is no longer adequate. Hamlin adds that perhaps it never was. The definition has always been intentionally strict, she argues, so that discussions of who to allow in are also, necessarily, discussions of who to keep out.
To ask “Who can be a refugee?” is to also ask “Who cannot?” Despite the present-day pressure to place newcomers into either the migrant category or the refugee category, Hamlin urges us to instead remember that this categorization is relatively new: that while people have, of course, always sought refuge, they have not always been forced to fit into one of these boxes.
Countries today only need to make this distinction because they continue to try to keep out newcomers. By drawing on the ever-present threat of subversion — first from communism and today from terrorism — the U.S., and indeed countries around the world, have worked to maintain this binary that forces displaced people to define, clearly, something that is inherently complicated.
As we grapple with a changing climate that has already begun to force the migration of countless people to more hospitable places around the globe, how will we interpret the language of refuge? To admit so-called climate refugees under international refugee laws would be to welcome the admissions of many more newcomers at a time when immigration is as contested as ever.
In his book “Everyone Who is Here is Gone,” Jonathan Blitzer writes that while the Refugee Act was intended to standardize the administration of asylum law by the Immigration and Naturalization Service, “paradoxically, it also supplied the government with legal pretext for issuing denials.” Generalized violence, he explains, was no longer enough — refugees needed to prove individualized persecution. He quotes an agency commissioner explaining this rationale: “Basically everyone in the world would be better off in the U.S.”
How the United States will continue to employ this language to limit who is welcome remains to be seen. With an impending election between candidates whose positions on newcomers could not vary more wildly, the future for those seeking refuge is more unclear than ever. Despite touting a high refugee cap, Biden is considering limiting access to asylum in order to secure support for aid to Ukraine and Israel. The revival of former President Donald Trump’s so-called “Remain in Mexico” program is being considered in these negotiations, bringing into question the very foundation of international refugee law: non-refoulement. If this one concept, that those needing refuge cannot be kept out, is undermined, what will be left?
Hamlin writes, “Public pronouncements that certain people ‘are refugees’ can carry tremendous symbolic meaning, even when the people are, in a technical legal sense, still unclassified. If the public imagines a group to be refugees as opposed to migrants, their willingness to accommodate arrivals shifts.” In sum, the words that we use to describe newcomers shape the way we welcome them.
When the Hungarians fled the Soviet Union, Americans — prompted by politicians and the media — commonly referred to them as “freedom fighters” to help justify their arrival. Nearly 70 years later, Trump compares refugees to snakes. During his presidency, the U.S. Citizenship and Immigration Services removed language from its mission statement that defined America as a “nation of immigrants.”
If refugee policy was, until 1980, defined by “who,” then in the 45 years since it has been defined by “why.” Now, as pressure mounts on Biden to reach a deal on immigration, refugee policy is also being defined by “how.” While the Biden administration touts an increase in refugee admissions for those applying through U.N. channels outside the U.S., it is also limiting access to those seeking asylum at the southern border.
As reporter Nadia Reiman explained recently on “This American Life,” “instead of looking at why you’re coming to the U.S. and judging that on its merits, now, we’ll block you because of how you came to the U.S.” As Reiman reports, a new rule called Circumvention of Lawful Pathways requires asylum-seekers to prove that they have already applied for asylum in a country they passed through on their way to the United States — and been denied.
But perhaps the most blatant example of the Biden administration’s push to limit asylum based on how one seeks it is the CBP1 app. Asylum-seekers can circumvent the Circumvention of Lawful Pathways rule if they apply through the app, though the use of the app has been rife with challenges. The app has such high demand that it crashes frequently, and even when asylum-seekers can get an appointment, they often need to wait months for that date to arrive.
Today’s refugee policies, and tools like the CBP1 app, would have been unfathomable to the drafters of the 1951 convention, who anticipated that the position of U.N. High Commissioner for Refugees would last for just three years. They would surely be dumbfounded by the more than 117 million displaced people worldwide 73 years later. As Hamlin writes, “They did not anticipate the degree to which humans would continue to invent and inflict horrors upon each other in the decades to come.” It remains to be seen whether contemporary policy can learn to adapt to the changing requirements of refuge.