The Issue of Our Generation: An Interview with Lara Finkbeiner, Deputy Legal Director, International Refugee Assistance Project

                                                                 
On July 10, 2018 RefLaw Managing Editor Kara Naseef interviewed International Refugee Assistance Project (IRAP) Deputy Legal Director, Lara Finkbeiner about recent developments in international refugee law. What follows is an edited version of that interview.

Kara N.: What areas of international refugee law do you work with most frequently?

Lara F.: Our work mostly focuses on 1951 Convention Refugees going through UNHCR processing and also the U.S. definition of a refugee. Because the Convention definition has been adopted similarly everywhere, we are also able to get involved with some foreign immigration systems.

Kara N.: How do you see the Convention definition applied in your work?

Lara F.: We’ve seen other countries take the Convention definition and, more recently, try to apply it to standards or policies that shrink the asylum space. More specifically, Matter of A-B- tried to drastically reinterpret how courts and immigration judges adjudicate asylum claims.

UNHCR is really the only entity that uses the convention definition on a day to day basis to adjudicate claims. It’s not really in UNHCR’s best interest to shrink the definition or make it more restrictive. What’s been really interesting is that just due to the numbers, which are still growing every day, there’s been less emphasis on people really articulating a complete 1951 Convention claim and greater application of UNHCR’s extended mandate, which covers people fleeing generalized violence. For example, for anyone fleeing from Syria at this point, the only thing UNHCR really screens for are exclusion issues; they are not going too in depth on the inclusion element.

It’s almost the opposite kind of effect: UNHCR is being more inclusive in who they protect and deem as refugees, whereas western states are trying to tighten the definition and make it more restrictive.

Kara N.: How has the U.S. Supreme Court’s decision to uphold the Muslim ban and other political rhetoric affected IRAP’s work?

Lara F.: The U.S. is the global leader in resettlement by far—you can add up all the other countries and they still didn’t take as many refugees as we did over the last few years. By implementing the refugee ban and redoing the security checks process and lowering the quota, it’s created this ripple effect across the world. There is something like 200,000 people in the pipeline to be resettled in the US and we’re probably on pace to resettling about 20,000 this year. That means there are a bunch of people stuck.

What IRAP has been interested in is what we call “mapping alternative pathways.” These are legal channels that exist and that are often smaller scale than the traditional refugee process. One example is family unification. There are a lot of countries in the world, including the US, where if you have a certain family tie and can prove that tie, you can qualify for permanent residence in that country.

Kara N.: Where do you see international refugee law heading?

Lara F.: I’ve always been a great defender of the Convention and the definition. The Convention was really radical for its time in terms of the scope of socio-economic rights. It’s pretty unbelievable! And the definition itself—people say that it’s not responsive anymore, it’s been eighty years since WWII, it’s too restrictive—but purely looking at some of the ways courts have interpreted the definition, you can fit everyone I would think would be a refugee into the definition.

In the 80s, 90s, and even 2000s, there was this really positive momentum where we were seeing more and more expansion interpretations of particular social groups, for example. These things generally tend to be cyclical, and now we’re seeing the backlash.

The definition is just a paragraph and States have gotten more sophisticated in trying to interpret it in a more restrictive way. UNHCR is not really able to challenge state’s interpretations. They write amicus briefs for various cases, but ultimately there’s not really a vehicle to challenge Supreme Court decisions. Of course other countries kind of influence each other and we see this snowball effect with restrictive decisions coming down all over the western world. It’s hard to know how to fight against it.

We’re talking about close to 70 million people who are displaced from their homes now and regardless of what the Trump administration and European governments decide to do, there’s a massive, massive population of people. Not all of them meet the technical definition of a refugee, but many of them do and they need resettlement because they have other vulnerabilities. That’s why you see people turning to boats, trying to cross land borders to get to other areas. Whatever the western governments do will have ripple effects that go on for generations; the problem is only going to compound itself.

The former US Ambassador to the UN, Samantha Power, said that this issue is the issue of our generation, and I truly believe that. We have to be pragmatic and realistic right now. Advocates have to be creative in the arguments they use in order to hold the status quo as much as possible and limit the damage that decisions like Matter of A-B- can do.

My hope is that people stop seeing this as a political issue so we have momentum to take back the space and start again to figure out how to push international refugee law forward.

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