Full text PDF available here: Bauer Final (PDF)
Persons with more than one nationality (“multiple nationals”) who flee persecution in their home country may have compelling reasons to seek asylum elsewhere rather than go to a second country of nationality where they have no ties or face serious hardships. The 1951 U.N. Convention Relating to the Status of Refugees, however, expressly makes them ineligible for refugee status unless they have a well-founded fear of being persecuted in all their countries of nationality. The U.S. Refugee Act omits this exclusionary language but nonetheless has been read by immigration agencies as if it incorporated the Convention’s approach. This Article challenges the view that multiple nationals should not be considered refugees. It argues that asylum should be denied only when it would be reasonable, under all the circumstances, to expect the person to resettle in a second country of nationality after taking into account factors such as family ties, social and cultural constraints, and any hardships the person would face.
The Refugee Act’s text and historical context establish that Congress intended to allow multiple nationals to qualify as refugees if they face persecution in any one of their countries of nationality. Drawing on archival research as well as a close examination of legislative and administrative history, this Article shows that the Refugee Act’s drafters meant to preserve a longstanding U.S. policy of accepting refugees with more than one nationality as long as they had not “firmly resettled” in another country of nationality before coming to the United States—a policy especially salient to the Act’s proponents because it allowed for the continued admission of Soviet Jews as refugees even though Israel welcomed them as citizens.
This Article also argues that other refugee-receiving countries should reconsider their stance toward multiple national asylum-seekers. The Convention’s approach to multiple nationality has become increasingly anomalous in light of the wide international acceptance of the principle that persons who could avoid persecution by going elsewhere—by relocating to a different part of their home country, or seeking asylum in some third country—should not be denied refugee status unless it is reasonable, under all the circumstances to expect them to do so. The Article concludes by discussing how the UNHCR and European Union are well-positioned to play a leading role in developing a new norm for the treatment of multiple nationals who seek refuge from persecution.