Could Americans Claim Refugee Status Under Trump?

US presidential candidate Donald Trump’s statements about Muslims, Mexicans, women, people with disabilities and a variety of other groups have drawn significant attention during this US election (which is about to be decided – you can watch the live results here).

Many people are nervous about the possible ramifications should Trump be elected, as he has made clear that he looks favourably upon torture and unfavourably upon certain groups. But could the situation devolve to a state where America becomes a country that produces refugees?

Note: This article was written before the US election results came through last night.

In a few hours, the United States of America will elect its 45th President. This year’s election has been characterised by strong personalities, strong rhetoric and strongly conflicting opinions, and the polls are very close. Regardless of which candidate is elected, the turmoil in the US is unlikely to abate any time soon.

Moving To Canada

It is a common joke around election time in the US that if the results aren’t to a person’s liking they will move to Canada or Australia. A satirical article from World News Daily Report recently joked that Canada is prepared to take 250,000 American refugees if Trump is elected president.

Unfortunately, despite its self-proclaimed title of “Land of the Free”, American refugees are not an impossibility and not without precedent. According to the United Nations High Commissioner for Refugees (UNHCR), three Americans have sought asylum in other countries since 2003. However, the actual number of American asylum seekers is higher, as the UNHCR’s count only includes those who have sought resettlement through them. CBC News reports a maximum of 10 US citizens are granted asylum in Canada annually.

The popular conception of asylum seekers is that they largely come from the Middle East – countries like Iraq, Iran or Afghanistan – and that they are fleeing the threat of religious violence. In actuality, refugees can and do come from all over the globe, for a variety of reasons.

The 1951 Refugee Convention And 1967 Refugee Protocol

The two key international treaties regarding refugees are the 1951 Convention Relating to the Status of Refugees (“the Refugee Convention”) and the 1967 Protocol Relating to the Status of Refugees (“the Refugee Protocol”). The 1951 Convention was in large part a reaction to WWII and the Holocaust; as originally drafted, it was restricted to Europe and only applied to persons displaced by events that took place before 1 January 1951. The 1967 Protocol updated the Convention and removed the restrictions regarding time and location.

These treaties define what a refugee is, and set out rights for asylum seekers and obligations for countries in which asylum is sought. (While Australia is a signatory to both treaties, the US is only a signatory to the 1967 Protocol and not to the 1951 Convention. Nevertheless, this does not preclude US citizens from being refugees.)

Unfortunately, there is no way to enforce these treaties. The main penalty for a country that does not adhere to these standards is international condemnation.

What Is A Refugee?

Though the terms “refugee” and “asylum seeker” are often used interchangeably, they have different meanings.

According to the 1951 Convention (as amended by the 1967 Protocol), a refugee is someone who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of [their] nationality, and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”.

In contrast, an asylum seeker is someone who is seeking protection from persecution, usually by seeking recognition as a refugee under the Refugee Convention. So one may be a refugee, but not an asylum seeker, or vice versa. A person does not have to be recognised as a refugee under the law of a country in which they are seeking protection in order to be considered a refugee under the 1951 Refugee Convention; status as a refugee flows from the Convention itself, not necessarily from a country’s recognition of that status.

Assessment Of Refugee Status

The process of seeking asylum can be long and arduous. How this process works, and how nations understand and interpret their obligations under the Refugee Convention, can differ from country to country, and this article does not aim to provide an exhaustive list. However, among other things, an asylum seeker claiming recognition as a refugee and seeking protection in Australia must satisfy the following requirements.

A Well-Founded Fear

The asylum seeker must have a well-founded fear of persecution. This fear must be both subjective (so the asylum seeker must actually be afraid of the harm they claim will occur), and objective, (so that an impartial outsider looking at their situation would believe that the applicant has a legitimate reason to fear). In Australia, the objective element is defined as meaning that an asylum seeker must face a “real chance” of persecution if returned to their country of nationality.

Over half of Americans fear a Trump presidency, and in particular, Muslim-Americans have expressed fear as to what it would mean for them. UN high commissioner for human rights Zeid Ra’ad al-Hussein has stated that if Trump is elected he would be “dangerous”, and that he has spread “humiliating racial and religious prejudice”, and various world leaders have expressed misgivings regarding a Trump presidency.

It would be easy to assume that, due to the above, a well-founded fear would be simple to establish. However, a significant difficulty is the question of whether Trump will actually carry out anything that he has declared. Trump has a tendency to change policy positions quickly and often, so a detailed picture of what a Trump presidency will look like is nearly impossible to construct.

Even if some of his policies could arguably create a well-founded fear of persecution (that is, there would be a real chance that a particular asylum seeker would face persecution if they returned to America), they would have to be put into practice. In fact, Trump’s rapidly changing policies could work to the detriment of any American asylum seeker, as it may demonstrate that he does not actually intend to follow through with any of his statements. In order to establish a well-founded fear there must be a real chance of significant harm, rather than the mere idea or personal fear of it.

Persecution

The fear must be of persecution. This is a tricky requirement, as the Convention does not supply a definition and there are differing opinions on what amounts to persecution. Discrimination is not ordinarily enough; the form of harm that the asylum seeker fears will (particularly under Australian law) need to be sufficiently serious to amount to “persecution”, for example, torture or death. Currently, if an American were to apply for asylum and be assessed immediately, they would most likely fail.

However, Trump has demonstrated that he is not averse to torture, stating that he does not think waterboarding is “tough enough” and that he “like[s] it a lot”. Waterboarding is classified as torture by the International Red Cross and prohibited by the Geneva Convention, a series of international humanitarian treaties which he has called “the problem”. If an applicant feared that they would be waterboarded or otherwise tortured, this could amount to a fear of persecution. Even so, the applicant would also need to satisfy other elements of the refugee definition.

Even if a Trump administration itself does not pose a risk of serious harm, it could also be argued that the environment which he creates would permit or even encourage such harm to flourish with impunity, as he has been accused of promoting violence. When told last year of two supporters who beat a homeless Mexican man with a metal pole because “Donald Trump was right – all these illegals need to be deported”, Trump said that his supporters were “passionate”.

He did later tweet that he “would never condone violence,” though there is significant evidence that he has encouraged it, such as by telling his followers to “knock the crap” out of protesters, and that he would “pay the legal fees. I promise. I promise. They won’t be so much, because the courts agree with us too — what’s going on in this country.” Though he also walked back on this promise, an American asylum seeker could argue that this tolerance of violence exposes them to forms of harm so severe that they would amount to “persecution”.

A Convention Reason

The persecution feared must be for a Convention reason. That is, the asylum seeker fears that they will be persecuted due to their race, religion, nationality, political opinion or membership of a particular social group. Particular social groups are defined by sharing a characteristic that distinguishes them from society at large (though it cannot be shared fear of persecution). Examples of particular social groups include women, people with a disability and LGBTQ people.

This is a comparatively simple requirement to satisfy. Trump has made many well-publicised statements targeting people for Convention reasons, and many of his followers hold the same beliefs. A majority believe that Mexican immigrants are criminals, and support banning Muslims from entering the US.

After the 2015 San Bernardio shooting, Trump delivered a speech stating his belief that Muslims “know what was going on, they knew exactly, but they used the excuse of racial profiling for not reporting it…” He then went on to say:

We need to know and we need to make sure every single last person involved in this plan, including anyone who knew something but didn’t tell us is brought to justice. So when people know what is going on and they don’t tell us and we have an attack and people die, these people have to have consequences. Big consequences.

This is an ominous statement in light of Trump’s belief that Muslim-Americans are aware of and can identify terrorists within their community, but simply choose not to, and his favourable view of torture and the killing of terrorists’ families.

It is also important to note that the asylum seeker doesn’t necessarily have to have the characteristic for which they fear they will be persecuted. If everyone believes that an applicant is a Muslim and persecutes them for it, it does not matter that they are not actually Muslim – they can still apply for asylum under this claim. Perceived characteristics can satisfy this requirement as much as actual characteristics.

State Protection

On top of fulfilling this definition, there are further tests that have to be met. It must be shown that an asylum seeker cannot relocate within their country of nationality. That is, they are unable to alleviate their fear of persecution simply by moving to another suburb or state. (If the fear of persecution is from a country’s government itself, this is generally inapplicable, as the government has a presence throughout the country). Under current Australian law, it must be shown that an asylum seeker would be at risk of harm throughout their country of nationality.

While the Refugee Convention was previously interpreted to allow for the recognition of refugees for whom relocation within their home country would merely be “unreasonable”, the Abbott government explicitly legislated to remove this requirement (and, in doing so, to change the definition of a refugee in Australia). This was part of a broader set of changes which sought to detach the definition of a refugee in Australia from how it is understood under the Refugee Convention (and hence under international law).

The asylum seeker must also have no right to enter or reside in any third country – that is, they don’t have any rights allowing them to stay in a country other than the ones that they are fleeing from and to. The expectation is that if, for example, you are a dual citizen of the US and UK fleeing the US, you will go to the UK rather than apply for asylum in Australia.

One of the most significant hurdles facing any American who wishes to seek asylum in Australia is the availability of state protection. In order to be granted asylum, the applicants’ government must be unwilling or unable to protect them. Despite heavily publicised reports of police brutality in America, particularly toward African-Americans, this has not yet given basis to a well-founded fear of serious harm or precluded Americans from availing themselves of police protection.

Last December, a black US citizen returned from Canada after unsuccessfully seeking asylum due to his fear of police brutality. Though his return does not mean that other asylum seekers are barred from succeeding on the same basis, it is a very difficult argument to make. It is possible that the installation of a new president and a new government will alter the state’s ability to protect an applicant, but currently America is considered to be relatively safe.

This is not to say that American state protection has never failed. According to Dr David Smith from the University of Sydney, author of Religious Persecution and Political Order in the United States, police in the 1940s allowed mobs to assault Jehovah’s Witnesses “in hundreds of towns” due to their refusal to salute the American flag. Further, after September 11 the US government worked to protect American Muslims from violent retaliation, but at the same time “subjected tens of thousands of Muslim foreign nationals to registration procedures, and in many cases preventative detention and deportation (this dragnet did not result in a single terrorist conviction)”. Said Dr Smith:

In a situation where state actors saw threats from both Muslim communities and mass Islamophobia, the state essentially asserted a monopoly over persecution. It would curtail the rights and freedoms of Muslims in America, but would not allow ordinary citizens to do the same.

However, though Dr Smith uses the word “persecution”, it is possible that the US government’s behaviour would only be considered severe discrimination, not persecution, or would otherwise be insufficient to give rise to a well-founded fear of persecution in other respects.

Could Hillary Clinton Seek Asylum?

There are no restrictions regarding economic status, so both wealthy and poor can seek asylum. If Clinton loses the election, she could theoretically apply for refugee status. Her application would in fact be strengthened by the fact that she is a high-profile, powerful politician, thus more likely to be targeted due to her political beliefs than the average voter.

In light of comments made by Trump supporters as well as by Trump himself referring to assassination or gaol for Clinton, she could conceivably argue a well-founded fear of persecution due to her political opinion. However, as stated above, she would face significant hurdles. In particular, she may have difficulty proving that her fear is well-founded and that her detractors actually mean her harm (rather than them simply being caught up in inflammatory rhetoric due to the heat of the election), that she cannot rely upon state protection and that she is unable to relocate somewhere within America to escape from persecution.

It currently seems unfathomable that America could produce any significant number of refugees. Many factors would have to align, and the situation in America would have to decline significantly before it became a serious issue. Further, a presidency in itself does not necessarily dictate that everything the candidate has promised will come to pass, so it may be very unlikely to happen.

But nobody thought Trump would get the nomination, either.

Thanks to Douglas McDonald-Norman for assisting the writing of this article.