Despite an appeals court’s decision Thursday not to reinstate President Trump’s executive order to delay arrivals of certain refugees, the coming of refugees from Vietnam, Laos and Cambodia tells us what we need to know about how the federal courts ultimately should rule on the issue.
The first relevant fact is the status of a person under international law: No one has a right to move to any foreign country.
Legally entering a country happens only by the grace of its sovereign.
The Universal Declaration of Human Rights says only that people have a right to leave and to return to their country and a right to “seek” asylum from persecution in other countries.
The giving of asylum is within the discretion of those other countries.
Importantly, only people in fear of political persecution can qualify for refugee status. Those seeking to improve their lives by moving to another country are considered to be only economic migrants and are not to receive the privileges given to those in flight from oppression.
My learning the law of refugees happened accidentally in March 1975. As a young Wall Street lawyer, I had taken time from work to go down to Washington, D.C., to provoke a refugee program for South Vietnamese nationalists, those who had relied to their detriment on the United States during the Vietnam War and were then facing imminent communist repression and even imprisonment.
Assent from the National Security Council, including President Gerald Ford and dyspeptic Secretary of State Henry Kissinger, came quickly with the help of former colleagues with whom I had served in Vietnam. The sticking point was something called Parole Authority.
In 1975, no one had any claim to enter the U.S. as a refugee. There was no visa program for refugees. Only the Congress in its arbitrary discretion could authorize the entry into America of a fixed number of refugees in any crisis. The refugees had to give their word — their “parole” — to be good Americans, and then they would be admitted to our territory.
I was sitting in Lionel Rosenblatt’s State Department office as he spoke with the staff assistant to Sen. Edward Kennedy on how many Vietnamese Kennedy would allow into the U.S. As a ranking member of the Senate Judiciary Committee, Kennedy’s personal feelings would let them in or keep them out.
Lionel capped the phone’s mouthpiece with his right hand, turned to me and said, “Kennedy will only accept 150,000. How many Vietnamese do we need to take?”
I blurted out: “Lionel: One million fled the North in 1954, and now they have kids and grandkids. There are a million soldiers and hundreds of thousands of police, teachers, civil servants, and don’t forget their families. I’d say we should try to save a million from communist persecution.”
Lionel said: “No way. Kennedy will only allow in the same number as the Cubans whom we paroled in 1965.” He went back to his phone, accepting the maximum of 150,000.
This number, however, was better than our offer to the Cambodians. A few years later, I was told that in April 1975 we took out 17 families, leaving all the rest to the Khmer Rouge killing fields.
Some 130,000 Vietnamese nationalist men, women and children fleeing communist persecution, one way or another, came into the custody of Americans, and so were welcomed into the United States.
Other Vietnamese nationalists with similar fears of persecution but who were stuck in Vietnam without a way of reaching any American sanctuary had no legal claim to rescue and resettlement in the U.S. No American court had the power to order their admission into our country.
When the Boat People started to flee Vietnam by sea in 1978 and the Hmong started to swim across the Mekong River to enter Thailand, not one of them had a right to land on Thai soil or anywhere else for that matter. The Thai border guards shot people swimming across the river and pushed small boats back out to sea, where their passengers drowned. All legal, but morally horrific.
So to put in place a law that would permit the Boat People and the Hmong and survivors of Pol Pot’s cleansing of politically incorrect people from Cambodia, a citizens commission was formed by the International Rescue Committee under Leo Cherne. I was asked to be a member.
We visited squalid refugee holding sites in Thailand, Malaysia and the Philippines. We lobbied the Carter administration and Sen. Kennedy. With our help, the administration secured a law from Congress on the admission of refugees to replace the vague scope of the parole process. We live by that law today. It is the law that superintends President Trump’s executive order on immigration.
Later, Gen. John Vessey of Minnesota, with special authority from President Ronald Reagan, negotiated with Hanoi to release, so that we could give them asylum, political prisoners confined to concentration camps and the children of American soldiers, and their families.
Outside of our federal immigration and naturalization law, no foreign person has any claim on our courts to be admitted to this country.
And so neither do the states of Minnesota and Washington have any legal basis to stand in for foreign persons and ask on their behalf that they be admitted to the U.S. contrary to our federal law.
Stephen B. Young, of St. Paul, is global executive director of the Caux Round Table, an international network of business leaders working to promote a moral capitalism.