Can French Jews claim refugee status in the United States?

Would the recent atrocities in Paris with seventeen fatalities have generated such feelings and demonstrations of outrage and solidarity if the attack by the Kouachi brothers had not been directed at a bastion of free speech? What if the policewoman had not been killed, but instead Amedy Coulibaly had, as believed by many, directed his murderous intent at a Jewish school and synagogue near to where he lived? In other words, what if all the attacks had been against Jewish targets?

France is home to half a million Jews, yet French Jews have much to fear from day to day living in their homeland. In March 2012 Mohammed Merah shot dead a Jewish teacher and three Jewish children in Toulouse, and since then hundreds of anti-semitic incidents have occurred in France, many involving acts of violence directed at people and property. These events reached what was then regarded as a peak in July 2014, when increased opposition to Israel sparked by the Gaza conflict became conflated with anti-Semitism and produced a spate of particularly vicious and terrifying incidents. None of those attacks generated an outpouring of solidarity and support for the Jews comparable to that seen in the last few days.

Many Jews have been questioning whether France can still be their home. In 2014 seven thousand French Jews emigrated to Israel, and the Jewish Agency for Israel predicts that up to fifteen thousand may emigrate this year.

Will other countries open their doors to French Jews? Many French Jews have moved to London, which is fairly easy to accomplish given the fundamental freedom of movement guaranteed by European law. However, anti-semitism is on the increase in the United Kingdom too, with a recent report estimating that 45% of Britons hold at least one anti-semitic view.

Emigration to the United States is rather more complicated, and is dependent on eligibility for various types of visa, such as in the student, trainee, skilled worker or investment categories. But could the growing and seemingly uncontrollable anti-semitism be a ground for French Jews to claim refugee status in the United States?

What is a refugee? United States law defines this as a person outside the United States, who is either inside or outside their country of nationality, and who is persecuted, or has a well-founded fear of persecution on account of race, religion, membership in a particular social group, or political opinion.

So are French Jews persons who are persecuted or have a well-founded fear of being persecuted on account of their race or religion? At first sight it would appear that they are. But is persecution something that has to be done by a government or can it by done by a group within the country? Does the group have to be organized? Must the group be of a certain size? What if the home government pledges to take steps to stop the persecuting group? What steps are sufficient? These are all difficult questions.

Some might argue that only a small group of people are carrying out overt anti-semitic acts, so this cannot amount to persecution. But when Jews are warned by rabbis to refrain from attending Sabbath services because it is not safe to visit a synagogue, as happened in Paris, when parents are afraid to send their children to school and people are scared to visit Jewish shops, when Jewish graves are desecrated, and when an Anti-Defamation League poll in 2014 shows that 37% of the French population harbor anti-semitic feelings, what word other than persecution can be used to describe what they are suffering?

If French Jews are able to cross the definitional hurdle of refugee status, what is next? A potential refugee must be referred to the U.S. Refugee Admissions Program by the United Nations High Commissioner for Refugees, a United States Embassy, or a designated non-governmental organization, or as part of a group of special humanitarian concern. There are three priority groups, and Jews, along with certain other religious groups fall into Priority Group 2. The Lautenberg Amendment, which is renewed annually, imposes a lower evidential standard for establishing a well-founded fear of persecution.

However, the United States does not admit unlimited numbers of refugees. Each year the President consults with Congress and sets a global refugee ceiling with quotas for certain geographical regions. In 2014, the ceiling was 70,000, out of which 1,000 were allocated for Europe and Central Asia. The same ceiling has been authorized for 2015. A further 2,000 persons could be admitted from an unallocated pool.

Thus even if French Jews qualify as persecuted persons, and satisfy all the other requirements for refugee status, it is likely that only a very small number would be admitted to the United States because of the refugee ceiling.

About the Author
Diane Webber is a British solicitor who recently earned a doctorate in law (S.J.D.) at Georgetown University in Washington D.C. Her thesis was entitled Extraordinary Measures: A Comparative Approach to Crafting a New Legal Framework for the Preventive Detention of Terror Suspects.
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