Stotas of Personas Who Emigrate ffor Ecomomnc Measomis HJmder

the Mefftmgee Actt off 12)80

Under the Refugee A ct of 1980, a “refugee” is defined as a victim of persecution on 

account of race, religion, nationality, membership in a particular social group, or 

political opinion; economic hardship by itself is not a basis for eligibility as a refugee 

under the Act.

Refugee status under the Refugee Act of 1980 should normally be considered on an 

individual basis. While the Immigration and Naturalization Service may apply commonly known circumstances to people falling within particular groups without requiring the facts necessary to determine eligiblity to be proved individually in each and 

every case, group determinations should generally be reserved for situations in which 

the need to provide assistance is extremely urgent and political reasons preclude an 

individual determination of status.

Fear of prosecution for departing a country in violation of its travel laws is not sufficient 

to entitle an individual to refugee status, unless it can be shown that such prosecution 

would be motivated by one o f the proscribed reasons. If the country treats departure as 

a political act and punishes that act in a harsh and oppressive manner, such circumstances would qualify as "persecution on account of . . . political opinion” under the 

Act.

August 24, 1981

MEMORANDUM OPINION FOR THE GENERAL COUNSEL, 

IMMIGRATION AND NATURALIZATION SERVICE

This responds to your request for our views on the memorandum 

prepared by your Office titled “Processing of Refugees of Special 

Humanitarian Concern,” dated June 25, 1981 (Memorandum). We generally agree with the conclusions set forth in that Memorandum, but 

add the following comments regarding whether persons who leave a 

country for economic reasons may be considered refugees under the 

Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (Act) because 

they are threatened with harsh treatment upon return to their country. 

The answer to this question depends on what constitutes a refugee 

under the Act.

The Act created a new category of aliens called “refugee[s].” Under 

the existing law prior to the adoption of the Act, admission was limited 

to “conditional entrants” who were fleeing from persecution “on account of race, religion, or political opinion” in the Middle East or a 

Communist country or who had been “uprooted by catastrophic natural 

calamity.” 8 U.S.C. § 1153(e)(7)(Supp. Ill 1979). Ending these geographic and ideological limits was one of the major reforms intended

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by the Act. The comments of Representative Holtzman, chairwoman of 

the House subcommittee in charge of the bill, are typical: “The new 

definition . . . will give our Government the flexibility to deal with 

crises such as the evacuation of Vietnam in 1975 and to respond as well 

to situations in countries such as Cuba or Chile today where there are 

political detainees or prisoners of conscience.” 126 Cong. Rec. 4499 

(1980).

As a result, the status of “conditional entrant” was eliminated and 

that of “refugee” was created. Section 201(a) of the Act, (to be codified 

at 8 U.S.C. § 1101(a)(42)), defines a refugee as

any person who is outside any country of such person’s 

nationality . . . and who is unable or unwilling to return 

to, and is unable or unwilling to avail himself or herself of 

the protection of, that country 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 expansion of the definition to eliminate ideological and geographical restrictions was intended to conform our law to the definition found 

in the United Nations Convention and Protocol Relating to the Status 

of Refugees (Convention), Jan. 31, 1967, 19 U.S.T. 6223, 6259 T.I.A.S. 

No. 6577.1

[T]he new definition will bring United States law into 

conformity with our international treaty obligations under 

the United Nations Protocol Relating to the Status of 

Refugees which the United States ratified in November 

1968, and the United Nations Convention Relating to the 

Status of Refugees which is incorporated by reference 

into United States law through the Protocol.

S. Rep. No. 256, 96th Cong., 1st Sess. 4 (1979). See also S. Rep. No. 

590, 96th Cong., 2d Sess. 19 (1980); H.R. Rep. No. 781, 96th Cong., 2d 

Sess. 19 (1980); H.R. Rep. No. 608, 96th Cong., 1st Sess. 9 (1979); 126 

Cong. Rec. 23,232 (1979) (remarks of Sen. Kennedy, floor manager); id.

at 4499, 4503 (1980); id. at 3757 (1980). It was not intended to require 

us to accept for admission the millions of individuals who might qualify 

as refugees. H.R. Rep. No. 608, supra, at 10; 126 Cong. Rec. 23,232 

(1979); id. at 4507 (1980). Instead, a cap of 50,000 was placed on annual 

admissions through 1982. Act, § 207(a)(1) to be codified at 8 U.S.C. 

§ 1157(a)(1).2 Further, all refugee admissions must “be allocated among

1 The exception contained in the prior law for victims of natural calamities—who are likely to 

become economic migrants—was eliminated.

2 After 1982, the President will set the limit. In an emergency situation, the President may now, 

after consultation with Congress, admit a fixed number of additional refugees. Act, § 207(b), to be 

codified at 8 U.S.C. § 1157(b).

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refugees of special humanitarian concern to the United States in accordance with a determination made by the President after appropriate 

consultation [with Congress].” Id., § 207(a)(3), to be codified at 8 

U.S.C. § 1157(a)(3). See also id., §207 (b), (c)(1) to be codified at 8 

U.S.C. §1157, (b), (c)(1).

There are three aids that can be used to determine whether Congress 

intended to allow purely economic migrants to claim refugee status 

under the Act.3 First is the legislative history of the Protocol when it 

was ratified by the Senate in 1968, thereby automatically adopting the 

Convention. Second is the U.N.’s interpretation of the Convention. 

Third is the courts’ interpretations over the years of 8 U.S.C. § 1253(h).

A basic rule of statutory construction is that a statute based upon 

another statute, even that of a foreign state, “generally is presumed to 

be adopted with the construction which it has received.” James v. 

Appel, 192 U.S. 129, 135 (1904).4 In 1979, the United Nations High 

Commissioner for Refugees (UNHCR) issued a nonbinding guide to aid 

the Convention’s signatory states in determining whether someone was 

a refugee. Handbook on Procedures and Criteria for Determining Refugee Status Under the Convention and Protocol (Handbook). We assume 

that Congress was aware of the criteria articulated in the Handbook 

when it passed the Act in 1980, and that it is appropriate to consider 

the guidelines in the Handbook as an aid to the construction of the 

Act.5

A second relevant rule of statutory construction is that provisions of 

a statute that are repeated in an amendment to the statute, either in the 

same or equivalent words, are considered a continuation of the original 

law. 1A Sands, Sutherland on Statutory Construction § 22.33 (4th ed. 

1972) (Sands). “[WJhere, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to 

have had knowledge of the interpretation given to the incorporated 

law, at least insofar as it affects the new statute.” Lorillard v. Pons, 434 

U.S. 575, 581 (1978).

Prior to its amendment in 1980, 8 U.S.C. § 1253(h) authorized the 

Attorney General to suspend the deportation of any alien who “would 

be subject to persecution on account of race, religion or political 

opinion.” 6 Numerous cases have discussed the meaning of “persecution 

on account of . . . political opinion.” Section 203(e) of the Act added 

“nationality” and “membership in a particular social group,” so that

3 The legislative history of the A ct contains no aid to interpretation beyond repeated statements 

that it is adopting the Convention’s definition of “refugee/’

4 See also Willis v. Eastern Trust & Banking Co., 169 U.S. 295, 307-08 (1898); Cathcart v. Robinson,

30 U.S. (5 Pet.) 264, 280 (1831); Roberto v. Aguon, 519 F.2d 754, 755 (9th Cir. 1975); Chauffeurs, Local

Union No. 364 v. Ruan Transport Corp., 473 F. Supp. 298, 302-03 (N.D. Ind. 1979).

5 T he guidelines from the Handbook are just that—guidelines. They may be accepted or rejected 

with respect to a signatory state’s interpretation of the Convention, and, more importantly, with 

respect to your interpretation of the Act.

* Prior to 1965, the section referred only to “physical persecution.” 8 U.S.C. § 1253(h) (1964).

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§ 1253(h) now tracks the definition of "refugee” found in § 1101(a)(42). 

These two provisions should be construed together. 2A Sands, supra,

§ 51.02. The earlier cases remain relevant, therefore, for a discussion of 

persecution based on political opinion.

We believe that the definition of “refugee” is limited by both its plain 

language and these interpretive aids to those who are victims of persecution based on one of the five bases named: race, religion, nationality, 

membership in a particular social group, or political opinion. Political 

persecution may take the form of economic reprisals, such as denying 

individuals the opportunity to work.7 Likewise, an individual suffering 

economic hardship may also become the victim of political persecution 

because of political upheavals. Economic hardship itself, however, is 

not a basis for eligibility as a refugee under the Act. This interpretation 

is supported by all the sources consulted. See, e.g., S. Ex. Rep. No. 14, 

90th Cong., 2d Sess. 13 (1968). Economic migrants, who are moved 

“exclusively” by economic conditions, are not refugees. Handbook, H 

62. See also Cheng Kai Fu v. INS, 386 F.2d 750, 753 (2d Cir. 1967), cert,

denied, 390 U.S. 1003 (1968) (“[PJhysical hardship or economic difficulties . . . shared by many others . . . do not amount to . . . particularized persecution.”)

The Bureau for Refugee Programs has argued that all persons who 

leave Laos, Kampuchea, and Vietnam are, regardless of their motivation for leaving, treated as political opponents on their return and will 

probably suffer political persecution.8 The Bureau “contends that there 

is no need to examine individual cases, as blanket refugee status for all 

these [refugees] is mandated. . . . The act of leaving will be all that is 

necessary to become a refugee.” Memorandum, at 6. You have expressed disagreement with this position, on both legal and policy 

grounds. Memorandum, at 5-9. We agree with you that applications for 

refugee status should be considered on an individual basis, but suggest 

that the law allows considerable discretion in means by which these 

determinations are made and certainly does not foreclose your application of commonly known circumstances to people falling within particular groups. For example, where it has been shown to your satisfaction that a particular country persecutes all individuals with particular 

political views, it would not seem necessary for you to require that fact 

to be proved individually in each and every case.

We also concur with you that the “act of leaving” in and of itself is 

not alone sufficient to entitle an individual to refugee status. Nor do we 

feel that the fact of prosecution for the violation of a nation’s travel

7 “The denial of an opportunity to earn a livelihood in a country such as the one involved here is 

the equivalent of a sentence to death by means of slow starvation and none the less final because it is 

gradual." Dunat v. Hurney, 297 F.2d 744, 746 (3d Cir. 1961) See also Soric v Flagg, 303 F 2d 289, 290 

(7th Cir. 1962); Handbook, 63

8 Letter from the Acting Director, Bureau for Refugee Programs, to the Acting Commissioner, 

Immigration and Naturalization Service, Feb. 27, 1981.

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laws rises to the level o f “persecution on account of . . . political 

opinion.” However, systematic and harsh punishment for the act of 

leaving a country may, in some circumstances, meet this standard. 

Whether a particular situation meets this standard is largely a factual 

matter which must be determined in individual situations depending 

upon the extent to which a country punishes those who attempt to 

leave.

This latter conclusion is reflected in the source material. Our courts, 

the U.N., and the Immigration and Naturalization Service (INS) have 

recognized that the threat of prosecution for violations of travel laws 

does not in itself constitute persecution.9 It is when the prosecution is 

politically motivated that the courts have said they will intervene. 

Berdo v. INS, 432 F.2d 824, 845-47 (6th Cir. 1970); Kovac v. INS, 407 

F.2d 102, 104-05 (9th Cir. 1969); Kalatjis v. Rosenberg, 305 F.2d 249, 

252 (9th Cir. 1962); In re Nagy, 11 I. & N. Dec. 888, 891-92 (1966); 

Handbook, H 61.10 If individuals leave a country for economic reasons, 

their behavior may be condemned by their country, but their disagreement with the state is presumably based on economics, not politics. 

Prosecution for violation of the state’s travel laws when they return is 

not persecution unless the laws are applied for one of the proscribed 

reasons. In re Chumpitazi, 16 I. & N. Dec. 629, 633-34 (1978); In re

Janus and Janek, 12 I. & N. Dec. 866, 876 (1968); Handbook, “[I 61. 

Once the alien has proved that the laws are being applied for a proscribed reason, however, he is eligible to be recognized as a refugee. If 

the country treats the departure as a political act and punishes that act 

in a harsh and oppressive manner, we believe that such circumstances 

fall within the definition of the Act. Henry v. INS, 552 F.2d 130, 131 

(5th Cir. 1977) (Petitioners alleged that “anyone who had fled the 

regime [in Haiti], would be received with hostility by the present 

government. If proved, such an allegation might form a sound basis for 

fear of persecution regardless of the placidity of an individual’s political 

past.”)

You have questioned whether this is a proper interpretation because 

“a foreign government could in effect create ‘political’ opponents for 

opportunistic reasons” by simply declaring that citizens who leave will 

be deemed to be political opponents. However, we believe that such a 

declaration would not be sufficient proof that an individual had a well9 West Germany and Austria have adopted a somewhat broader interpretation. Prosecution for 

leaving certain countries will be deemed to be persecution if the alien left because of his political 

opinions. Memorandum to UNHCR Branch Office for the United States, from Director of Protection, 

Jan. 21, 1981, UK 27-29, 32.

10 In Sovich v. Esperdy, 319 F 2d 21, 28-29 (2d Cir. 1963), the court stated that imprisonment for 

illegal departure was punishment and only became persecution if it was excessive. “However repugnant to our own concept of justice, a brief confinement for illegal departure or for political opposition 

to a totalitarian regime would not necessarily fall within the ambit of [§ 243(h)]. We are unwilling to 

believe, however, that Congress has precluded from relief under § 243(h) an alien threatened with long 

years o f imprisonment, perhaps even life imprisonment. . . .” Accord, In re Dunar, 14 I. & N. Dec. 

310, 324 (1973).

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founded fear that he would be persecuted on his return. Issues of fact 

cannot be resolved in the absence of information about factors such as 

whether the government is really enforcing the policy, whether the 

policy is being applied against all returnees or just some, whether the 

policy involves application of longstanding domestic travel laws or new 

restrictions, and whether it is likely that the alien’s departure and 

subsequent return will be noticed by his country. Compare Fleurinor v. 

INS, 585 F.2d 129, 132-33 (5th Cir. 1978) with Coriolan v. INS, 559 

F.2d 993, 1002-04 (5th Cir. 1977). As the drafters of the Convention 

said, the definition of refugee is meant to cover a person who “has 

either been actually a victim of persecution or can show good reason 

why he fears persecution,” U.N. Doc. E/1618 and Corr. 1, at 11 (1950), 

and the signatory state is the ultimate judge of the validity of that fear. 

Moreover, as noted earlier, the law does not require the United States 

to accept an individual even if he does qualify as a refugee. Act, 

§ 207(a)(3), (b), (c)(1).11

Furthermore, your concern that a foreign government could “create 

‘political’ opponents for opportunistic reasons” arises from the language 

of the Act itself. A foreign nation may do so whenever it determines to 

persecute particular groups and may single out virtually any social 

group or political view to implement its “opportunistic reasons.” If this 

possibility is to be eliminated, Congress has the means at its disposal to 

do so.

As noted above, an application for refugee status should normally be 

reviewed on an individual basis. One of the major purposes of the Act 

was to allow the President to select those refugees for admission who 

were of “special humanitarian concern to the United States.” Act, 

§ 207(a)(3), to be codified at 8 U.S.C. § 1157(a)(3). Individual interviews 

would seem to be the easiest and best way to identify those who have 

an especially strong claim on us as well as to determine how “wellfounded” the fear is in differently situated individuals. See Handbook, 

HU 44-45. A country may produce political refugees as well as economic migrants and the Act requires that the two groups be distinguished. In re Williams, 16 I. & N. Dec. 697, 703 (1979) (Haiti). Group 

determinations are usually reserved for situations in which the need to 

provide assistance is extremely urgent and political reasons preclude an 

individual determination of status.

We are not in a position to evaluate the situation that now exists in 

Southeast Asia with regard to whether Laos, Kampuchea, and Vietnam 

are persecuting those who leave because departure is viewed as a 

political act.12 We do believe, as the courts have recognized, that an

11 You have expressed concern that the government will be swamped with asylees, 8 U.S.C. 

§ 1253(h), if a country close to the United States adopts such a policy. Memorandum, at 8-9. We 

believe that a solution to such a problem, to the extent it exists, must come from the Legislative 

Branch.

12 Letter from the Acting Director, Bureau for Refugee Programs, to the Acting Commissioner, 

Immigration and Naturalization Service, Feb. 27, 1981, at 3

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alien outside his country may have a well-founded fear of persecution if 

his country is persecuting departure as a political act. Henry, supra.

Whether the fear exists should, except in exceptional circumstances, be 

evaluated on an individual basis.

T h e o d o r e B. O lso n

Assistant Attorney General

Office o f Legal Counsel

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