But why? Why is a serial rape victim and a woman fleeing domestic violence not refugees, but a woman fleeing FGM is? The answers are multifaceted and require some understanding of refugee law and practice, a basis I will lay out for you in the following chapters.

Does it feel utterly unfair? Did you believe each of these stories? Did it ever cross your mind the stories, or at least pieces of them could be entirely fabricated? Does it feel arbitrary? Perhaps you feel a little fire rising in your belly. Bewildered at the decisions? Well, if you want to be able to understand what went into these decisions a little more, keep reading. I hope to elucidate the seemingly arbitrary contours of how the United States and other countries as well, determine who is a refugee. You may find the depths of these points of law bewildering and vast, as I do. I will do my best to keep it simple and understandable.

First, let us begin with an overview of the ten-thousand foot view of refugee law. You should know multiple, massive treatises have been written on this topic, so what I have the space to explain here will certainly not be a detailed report on every issues and aspect of refugee law (that would be very dull in any event), but instead give you a sense of the major issues at play in the discussion of refugee issues. I will give a cursory overview of the international system and the United States’ system, but do not that other nations have varying obligations to refugees. Inhale, exhale, let’s go.
The global refugee system is incredibly complex with endless legal issues intersecting with figuring out who gets to stay in the host country with refugee status. To simplify things, let’s break down this complex topic into categories. There are two pairs of boxes we can organize the refugee system into: location — international and domestic — and issue: definition and determination.

Let’s start with the first: international and domestic. This is simple enough to grasp. There is international refugee law and domestic refugee law. The second pair of categories is the refugee definition and refugee status determination.[1] This will be easy to remember since they both start with the letter “D”. You can think of these pairs of categories as a matrix, leaving us with four main subcategories of refugee law.
The combinations we end up with are: international determination law; domestic determination law; international definition law; domestic definition law. Any combination and you find yourself in a whole world of process and interpretation significantly different than the other boxes. However these combinations all connect in the global refugee system as it exists today. This is a foundational grid to keep in mind. When you find yourself getting lost in the discussion, come back to this grid to find out where you are. The categories are actually quite intuitive.

Location wise, we only have two options: here or there: domestic or international. And with topic, there are only two categories(1) definition: how we figure out who qualified as a refugees; and (2) determination: the process of determining who fits into that category. There are other refugee issue we wil not deal with in this book pertaining to how refugees are treated and what rights the obtain at different stages in the process of gaining refugee status. For example, at what point is a country obligated to allow them to attend public school, access the legal labor market, or access to courts. All important questions, just not ones we will be exploring here.

Here is the roadmap for the next few chapters: Chapter X “Refugee Defined” will discuss the international refugee definition and the domestic refugee definition derived from the international definition. Since the international refugee definition is found in a treaty which the United States is a party, it will be worth dedicating a chapter to discuss treaty law and how treaties gets implemented into our domestic system. The international definition is important to understand since it gives great context to how and why the United States began to admit ‘refugees’ in the first place. It situates the United States in a larger, global system which manages providing humanitarian assistance by opening countries to those who are not safe in their own homes. Each nation has signed onto various treaty obligations and has implemented them differently–this should make more sense after I explain more about treaty implementation.

After laying the foundational concepts of international and domestic law, we will dive into the refugee definition. By understanding some basic legal concepts, you’ll be able to understand the legal forces at play for who a state (courty, not individual state of the United States) deems a refugee.

Once the international definition is interpreted, brought into the domestic system, interpreted, litigated, etc., there still remains the million dollar question of determining who fits this definition. So when a person shows up in the United States, how does our government figure out whether this individual meets the complicated criteria laid out in numerous statute provisions and federal regulations. The process is heavily influenced by the executive branch, this is why for this particular issue, who the president is, really can make a difference.

Determination is separate from the definition itself and yet it is a tightly interconnected issue which impacts those seeking refugee status just as much as the definition itself. If a certain group of people meet the refugee definition, but there is not discernible way for the nation to figure that out, it renders the refugee definition pretty useless. And on the flip side, if it is too easy for a judicial body to determine that someone is a refugee, then it leaves the system susceptible to abuse, diluting and jeopardizing the benefits for those who truly do meet the definition and are deserving of the state’s protection. And as we will come to learn in this book, legitimacy lends to efficacy and respect for the system as a whole.

Credibility and Trauma

I would be amiss if I did not mention credibility determination in a book about refugee status. Credibility is a subcategory of determination. However, it is not part of the determination process itself, but it is an important finding that the adjudicator must make in order to grant someone refugee status. A person must make a credible case that they are a refugee. This determination is blurred by trauma and cultural interpretation issues. We will spend a chapter of trauma and credibility interpretation because in my opinion is one of the most crucial aspects of the refugee system and one area where we do not find many practical answers. When exposed to the same event, one person could walk away traumatized for life and the other may simply feel stressed. Traumatic impacts impact us differently, but when an adjudicator brings her or his own ideas into the mix of how they think someone should be acting while testifying about their story, things can go south fast and really defeat the entire credibility exercise in the first place.

There you have it. The refugee system in a nutshell.

These refugee law concepts all impact the reasons why Fauziya was found to be a refugee while Sara and Emilia and Sara were not. Let’s tease out the refugee system by applying it to these women’s cases, starting with Sara.

Sara’s refugee status determination process occurred in Egypt. Egypt has an agreement with UNHCR which essentially contracts out its refugee processing. Egypt does not have its own refugee definition or its own domestic system, so UNHCR is center stage in refugee processing in Egypt. UNHCR follows the international refugee definition but produces its own guidelines for interpreting the definition. It also makes its own rules as to how it processes people. Unlike a domestic refugee system, UNHCR does not apply a nation’s legislation or regulations and it does not have precedential decisions (meaning you cannot rely on the reasoning in its decisions), although decisions and legislation in other countries may be considered in its refugee status determination process.

UNHCR establishes its own local offices where it performs refugee registration, first instance interviews, and appeal interviews. If someone does not get status after your appeal interview, they’re toast, unless they can meet the very stringent and high standard for reopening.[2] The people adjudicating Sara’s case were not judges or lawyers, but what UNHCR calls Eligibility Officers (EOs).[3] UNHCR makes it clear that each field office is accountable for itself. So there is no formal accountability for the actions of the field office. UNHCR applied international law to Sara’s case in an international law (i.e., UNHCR guidelines) setting.

Emilia and Fauziya’s cases were both adjudicated in the United States, applying U.S. domestic law in U.S. courts. In the United States, refugee cases start out in administrative courts before an immigration judge (IJ). Immigration law is administrative in the United States. Remember the three branches of government we learned in grade school: executive, legislative, judicial. Most people think of the legislative branch when they think of law-making: senators and members of the house gathered together presenting bills, voting, and discussing. This is how some of immigration law is created, but the majority of it actually occurs in the executive branch, the law made by the president’s administration is called administrative law (get it, because it’s made by his administration). The immgration law promulgated through the administration are called “regulations”.

You are likely more aware of administrative law than you think. For example, when you get on an airplane and buckle your seatbelt, you hear a reminder that federal aviation regulations prohibit smoking on board an aircraft. This rule is the law of the land and it is created by the Federal Aviation Administration[4] and is therefore administrative law. These regulation have the force of law, but they are promulgated (a fancy legal word for made) through a different process than the typical process you learned about in Schoolhouse Rock’s “I’m Just a Bill.”

Not only is there administrative law, but there are also administrative courts where administrative law-based cases are heard. This situates refugee cases in these administrative law courts. The court of first instance is called Immigration Court, which operates under the auspices of the Executive Office of Immigration Review, which is under the Department of Justice. Immigration court decisions may be appealed to the Board of Immigration Appeals (BIA). And from the BIA, decisions may be appealed to federal appellate courts (not district courts). At no stage does an immigration case come into a state court. The entity bringing the immigration case, the government attorney, is from the Department of Homeland Security (DHS). Asylum applications are submitted to USCIS, which is under DHS. Don’t worry if you’re getting lost, it is confusing. There is a simple chart for you below.

You can already see from this short description that the United State’s system is exceedingly more complicated and offers many more opportunities for appeal. It is also very subject to change since each administration has the power to change the rules ( there is law governing this process as well.).

The three women in these stories were all fleeing something terrible, be is FGM, domestic violence, or rape and torture. Only Fauziya’s claim survived. I hope you are beginning to see the legal machine these three women and their stories enter and the numerous forces impacting the outcome of each of their cases. First, the country in which they made their claim, the rules of each system, the administration under which the claim was made, etc..

Fauziya and Emilia’s cases were decided in the United States within this more complex system with more chances to appeal and a more sophisticated and developed set of laws and interpretations. Emilia’s case was decided under the Trump administration. Love him or hate him, there is no denying immigration dramatically altered in those four years to the detriment of asylum-seekers — not by his attitude and rhetoric but through black letter law promulgated by his administration. Fauziya’s case was decided many years before 2016. The nature of these injuries, FGM versus domestic violence, also played a role in the outcomes. Sadly, domestic violence is not unheard of in the United States, far from it. It is not a foreign problem. In contrast, FGM is not familiar to Americans and only takes place in the United States within immigrant communities from cultures that already practice this. As such, it is possible the decision-makers see FGM as a unique kind of injury and not simply general crime. If FGM was a common occurance in the United States or sanctioned by our laws, it is possible Fauziya’s situation would have been viewed as a common place problem, instead of persecution, and protection would not have been extended to her. We will talk in greater detail in later chapters why the decision-makers decided against these ladies.

UNHCR decided Sara’s case after a two-hour interview and no review of written submissions. Sara had no representation in her first instance interview. She is illiterate and could not have submitted an appeal on her own, or read her rejection letter, which was written in English anyways. Sara has one shot at an appeal. UNHCR will not give reasons for rejecting an appeal claim. She can try and reopen her case, but only for very specific reasons. Sara received a 2-page boilerplate language rejection letter with some facts plugged in.

These are only two of the refugee systems of the world. Each country has its own law and procedures, whether they outsource refugee status determination to UNHCR, undertake it themselves, or choose not to participate in providing this form of relief at all. Each system is flawed. Perhaps one question you haven’t bothered to ask yourself is whether you believe these women. This is an issue the decision-maker must evaluate: is the applicant credible. This is the topic of Chapter X. It’s important to not give status to people who do not, in-fact, meet the definition since this would tarnish the entire refugee system and end up hurting everyone seeking asylum in the end. Yet equally important is ensuring individuals are not sent back to persecution or death. This gets pretty tricky.

Before we dive into the technicalities of each of these issues in the next chapters, I want to give you a disclaimer that I never received in law school, or at least no one stressed this too me enough in school. The refugee system operates in a messy, broken, human error-ridden world. Lawyers make mistakes, refugee claimants lie, and judges error. I wonder what has a stronger impact on refugee claimants, the black letter law or the hangriness of an immigration judge. This is why the ability to get reasons from the decision-maker for his or her decision is so crucial — it’s a check on the decision-maker. And if they do not give good enough reasons, there is a chance to appeal. The less of an opportunity to respond to decisions, the more a decision-maker’s feelings, prejudice, and lack of care can influence outcomes, unchecked.

This very harsh reality hit me when I started practicing in Egypt. And it still shocks and terrifies me to this day. I will try and teach you the basics of the law, but I cannot promise that I am teaching you the basics of the law as applied. I can tell you my experiences and what I learned from reading a cornucopia of statute, regulations, guidelines, cases, and more. But I would not doubt if another lawyer has had very different experiences than myself.

If you walk away from this book with anything, I hope it is this: it’s not easy and we must keep talking. What? Talking? I thought we are supposed to get pants on fire angry at injustice and do something. I thought about asking you to do that. But then I had to be honest with myself and say I did not really know what to tell someone to do, at least big pictures wise, to change things.

I am not primarily writing this book to refugee lawyers, judges, and law-makers, though they are certainly welcome to read this book. I am writing it to regular people who care but are not about to drop their day job and go to law school to be a refugee advocate. (though I would not discourage you from doing that either). I am writing to the wonderers and lovers and to those who want a little more peace in this world. I am going to slip some knowledge in your thinking toolbelt and, in doing so, hopefully further the conversation in our nation and world about this refugee issue. Respect the complexity of the system, stop mindlessly calling everyone who disagrees with you racists, and let’s think together, discuss together, cry together. I want us to come to a place where our stories do not threaten each other — where the truth sets us free.

One more note before we move on. There is another difference in the stories in the previous chapter. The biggest difference in my little world was that I met Sara. In fact, I spent hours across a little wooden table with an Oromo interpreter. I still wonder about her children now and again. Did she find them? Did she win her appeal? Is she safe? Countless issues, cups or water, deep breathes all brought about the telling of the story you read in the last chapter. Of course, I changed details for her privacy and confidentiality. But her story is not wholly unique. Stories of immense suffering that boggle the mind are not all that rare, sadly. Whether in Ethiopia or in our neighbor’s homes, this world is deluged in suffering. In an unbelievably short time, I was deluged in pain — secondarily trauma is the technical term. Months, jobless, I did my best to drag myself to the bathroom, fill up the tub, sprinkle in some lavender epsom salt, and let the salt pull the trauma out of my body. My mom’s cooking — especially the honey ginger chicken — also worked its magic to nourish myself back to life.

Sara’s story, your story, your clients’, neighbor’s, fill-in-the-blank’s story is real. These stories impact us to our core. It is reality, it is life. It is not a controlled narrative. It is true. And only you know your own pain.

[1] Notice that I am not mentioning refugee resettlement, a process by which UNHCR refers refugees to other countries for resettlement. Here, UNHCR is the actor deciding whether someone is a refugee or not and the host country, the United States for example, resettles the refugee within its borders without doing a separate refugee status determination procedure, though it does vet them very thoroughly. I encourage you to explore the United States State Department website which discusses refugee resettlement. You can start here: How many refugees are resettled in the United States?, Refugee Admission, The United States Department of State, available at: https://www.state.gov/refugee-admissions/
[2] Reopening guidlines
[3] https://www.unhcr.org/5a8aa9dc7.pdf EO job qualifications.
[4] https://www.faa.gov/