Statement on H.R. 2431: The Freedom from Religious Persecution Act of 1997

By Mark Krikorian on March 24, 1998
Statement on H.R. 2431
The Freedom from Religious Persecution Act of 1997
Testimony prepared for the U.S. House of Representatives
Committee on the Judiciary
Subcommittee on Immigration, Border Security, and Claims
March 24, 1998
Good morning, Mr. Chairman. My name is Mark Krikorian and I am Executive Director of the Center for Immigration Studies, a non-profit, non-partisan research organization which examines the impact of immigration on the United States. The Center does not receive any federal funds.

I appreciate the opportunity to testify on the immigration-related sections of H.R. 2431, the Freedom from Religious Persecution Act, which are principally contained in Section 9 of the bill.

Deliberations concerning religious persecution are bound to be emotionally charged — what we are discussing, after all, relates to the arrest, torture, even martyrdom of people who simply wish to be left alone to worship our Creator after their own fashion. Human history is, in some sense, the bloody history of religious intolerance, and one of our nation's greatest achievements has been the establishment of religious toleration, not merely on paper but in the hearts and minds of our people.

Though I have never been persecuted for my faith, the ugliness of such persecution is not unfamiliar to me. I grew up in the shadow of the genocide of the Christian Armenians, including many of my ancestors, by the Ottoman Muslims in 1915 (whose anniversary will be commemorated one month from today), an event which capped centuries of carnage at the hands of those who would force the world's first Christian nation to forsake its faith. What's more, I have spent a good deal of time in Communist countries, Islamic countries, and communist Islamic countries, where I saw churches turned into barns, people arrested simply for singing together, and seminaries which were forced to teach classes in atheism.

But precisely because the issue is so profound, legislative measures which seek to combat religious persecution must be scrutinized very carefully, lest our sympathy for those who suffer for their faith overwhelm our judgment about the national interest. Lawmaking is not an exercise in psychotherapy or emotional catharsis, and embracing a proposal simply because of its supporters' commendable motives can lead to unexpected complications in the future.

Section 9 of H.R. 2431 appears likely to have such negative consequences, both principled and practical. Regarding principle, it would represent a further departure from the concept of equal treatment under the law regardless of race, religion, and ethnicity, thus reinforcing a group-rights ethic that has been widely criticized in recent years. And in practical terms, it would needlessly complicate asylum adjudication, facilitate illegal immigration and roll back some of the important achievements of the past few years in restoring integrity to asylum law.

The implicit assumption behind Section 9 is that there is a systemic bias against Christians and others claiming persecution on account of their religion in the administration of U.S. immigration law, and that this bias is so deeply rooted that only special rights spelled out in statute can ensure equal treatment of those claiming to be persecuted because of their religious beliefs.

That claims of religious persecution are sometimes taken less seriously than claims of political or racial persecution is not unimaginable; it is also plausible that claims of religious persecution by Christians have been taken less seriously than similar claims by members of other, trendier, religions. Although there are no rigorous studies of the issue, the anti-religious, and specifically anti-Christian, prejudice so evident among the elite in our country justifies some concern about equal treatment for religious claimants for asylum and refugee status.

Section 9 of this bill, however, does not seek to ensure such equal treatment; on the contrary, its provisions extend special rights to those claiming religious persecution, at the expense of those alleging other forms of persecution, and establishes a parallel asylum adjudication process for such claimants. In a sense, it is a parody of affirmative action, introducing preferential treatment and special rights in immigration law for yet another politically sympathetic group of people. Perhaps such a system of special privileges for certain asylum seekers at the expense of others is what Congress intends; if so, the legislation should make that explicit.

Let me examine in particular the two major changes in asylum law which are perhaps the most important immigration-related elements of the bill.

"Credible Fear of Persecution"
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) included a variety of provisions to ensure the efficient administration of our asylum system, including the creation of a process called "expedited exclusion." Under this practice, an alien who arrives at a port of entry with no documents or with fraudulent documents, and who requests asylum, is not permitted to pursue his claim until he demonstrates a "credible fear of persecution," defined as "a significant possibility... that the alien could establish eligibility for asylum." The "credible fear" determination is, to put it colloquially, the "first cut" in the search for asylum; a determination that a claimant has a credible fear of persecution means merely that the claim is not an obviously absurd attempt by an illegal alien to gain entry into the United States. Expedited exclusion is an important part of the bipartisan effort undertaken by Congress and the Administration to improve the functioning of the asylum system. What's more, it appears to be having the desired deterrent effect on potential illegal immigrants, since almost all those considered for expedited exclusion are admitted and allowed to continue their asylum claims.

Section 9 (a) of H.R. 2431 would carve out a special exception in the expedited exclusion procedure for those claiming religious persecution. It provides for an automatic determination of a "credible fear of persecution" to any person who can "credibly claim membership" in any community included on an official list of persecuted religious groups. Although the legislation lists specific groups that are to be included on such a list — Christians in Communist countries, non-Muslims in Islamic countries, and Tibetan Buddhists — it also provides for the inclusion of "any community within any country or region thereof that the Director [of the Office of Religious Persecution Monitoring] finds, by a preponderance of the evidence, is the target of religious persecution." By thus voiding expedited exclusion for members of an ever-growing list of groups, the United States would again send the message that its immigration law is not to be taken seriously and that the greater discipline introduced into the asylum adjudication system over the past several years will not be maintained. Our airports would again be on the way to becoming magnets for illegal aliens fraudulently claiming asylum, as portrayed in the famous 1993 60 Minutes report which contributed to enacting the reforms in the first place.

Hurdles to Denial of Asylum Claims
It has been said voiding expedited exclusion for members of preferred groups would not mean they would get asylum — it would merely enable them to pursue their asylum claims. This is true. But just as the modification of expedited exclusion would facilitate the initiation of fraudulent asylum claims, Section 9 (c) of the bill introduces a wholly novel procedure which, like the proverbial thumb on the scales, would create an institutional incentive to approve claims of religious asylum regardless of their merit.

Section 9 (c) requires any referral of a religious claim to an immigration judge, or any denial of a religious claim by a such a judge, be accompanied by a written statement containing the reasons for the denial, to be supported by extensive written documentation; the asylum officer's written assessment of the case; a list of publicly available materials the officer used as a basis for denial [or, presumably, referral]; and copies of materials used as a basis for denial which are not available to the public, with some exceptions.

What's more, if the credibility of the applicant was a basis for denial, then the INS must provide the applicant with the statements or other evidence that were found not to be credible; a statement certifying that the applicant had an opportunity to respond to the credibility question; a summary of that response, if any; and an explanation of how that credibility finding relates to the religious persecution claim.

These extra steps in the asylum adjudication process may well be advisable — it is clearly important that asylum-seekers not be subjected to arbitrary and capricious decision-making. But if Congress deems such steps to be desirable, the enormous increase in workload would have to be compensated for through significant increases in spending on asylum adjudication. Since such spending increases are unlikely, two problems would result: a) asylum officers and immigration judges will approve religious asylum claims more frequently, and with less scrutiny, than other kinds of claims, simply to avoid the paperwork nightmare; and b) asylum cases will take longer and longer to adjudicate, resulting in an increased number of cases held over for more than the six-month period during which work authorization is withheld. This important 1995 reform, which helped prevent the asylum system from spinning out of control, would thus be undone, setting the stage for future crises.

As problematic as these provisions are, their importance would be more theoretical than real if they did not affect a large number of people. Unfortunately, that would not be the case. The groups singled out the legislation for special rights total perhaps 50 or 75 million people. That in itself would be the largest grant of special immigration rights in U.S. law, but it is important to keep in mind that asylum provisions apply both to "Category 1" and "Category 2" religious persecution, as defined in Section 3 of the bill; i.e., both to people persecuted in the conventional sense, by their governments, and to those suffering "religious persecution that is not conducted with the involvement or support of government officials or its agents, or as part of official government policy, but which the government fails to undertake serious and sustained efforts to eliminate."

Given this expansive definition, it is certain that the list of groups receiving special consideration would grow rapidly. While there is no way to definitively determine the number of people overseas who might benefit, we can get a feel for the situation by looking informally at a few large countries and regions:

* India: About 14 percent of India's population is Muslim — 135 million people. This fact is perhaps more salient now than it has been for some time, given that the government of India is now led by a Hindu nationalist party, one which arose specifically in reaction to Islam. Even though formal government policies persecuting Muslims are unlikely, Category 2 persecution is so broad and imprecise that India would almost certainly have to be included in any list of persecuting countries.

* Nigeria: More than 40 million of Nigeria's 100 million-plus people are Christian, though no one really knows since the government has avoided taking a census in years so as not to inflame Muslim passions for an Islamic state. The Biafran War of the late 1960s and early 1970s started as a result of Muslim pogroms against southern Christians working in the North, and one of the most contentious political issues today pits the mainly Muslim army against the mainly Christian inhabitants of the southern oil-producing regions. It would take little imagination to fashion this as a religiously tinged conflict.

* Kazakhstan: Perhaps 7 million of Kazakhstan's 17 million people are Russian or Ukrainian, i.e., not Muslim. Though many profess no religion, they may well have to be included as victims of Category 2 persecution based, at the least, on "forced mass resettlement" as the Muslim majority incorporates a religious dimension to its developing sense of nationhood.

* Indonesia: There are perhaps 10 million Christians in Muslim Indonesia. Although Southeast Asian Islam is far less intolerant than elsewhere, the country's hottest and most violent ethnic dispute — the claims of East Timorese for independence — has a religious aspect, since East Timor was Portuguese for centuries and its people are Roman Catholics.

* Latin America: In discussing religious persecution in Latin America, discussion focuses on Cuba, the sole communist state in the region, and one of the five communist nations mentioned in the legislation. But since Category 2 persecution is so broad a concept, it's important to keep in mind that Protestantism in varying forms is sweeping across the region, especially Central America. This process has resulted in much friction, including the expulsion of people from their homes and villages; I have no doubt that Protestants from many Latin American countries would have to be added to the list of those suffering Category 2 persecution.

* Russia: Russia has already passed legislation restricting the rights of minority religions. In other words, a plausible case could be made for special asylum rights for Catholics, Pentecostals, and other non-Russian Orthodox Christians (Pentecostals already have preferred status for refugee resettlement purposes); Jews; Muslims; and others, such as Hare Krishnas.

Several of these examples illustrate a further point, one alluded to in the legislation, Section 2 (6) of which refers to Tibetan Buddhism as "inextricably linked to the Tibetan identity." In trying to assess the reach of Section 9, it is important to keep in mind that religion and ethnicity overlap in much of the world. That is to say, most ethnic and national and even political conflicts involve groups of different religions, or at least different denominations of the same religion. Thus, by placing a greater value on a claim of religious persecution than on claims of other forms of persecution, and making refusal of a religious claim more difficult than refusal of a different sort of claim, more asylum seekers, guided by their attorneys, will claim religious persecution, vastly increasing the proportion of asylum claimants covered by these special provisions. This won't necessarily increase the number of people applying for asylum, though it might, but it will certainly increase the proportion of asylum seekers using religion as the grounds for their claim, especially if the non-religious claim is weak to begin with. And this, in turn, will increase the total proportion of asylum claimants who receive asylum, now running around 20 percent.

In conclusion, I would urge the members of the subcommittee to take a second look at the immigration provisions of the Freedom from Religious Persecution Act and weigh their moral and practical consequences. I will be happy to take any questions.