During the past several weeks, many have paid tribute to the late U.S. Senator Frank Lautenberg, D-N.J., honoring his military service during World War II and accomplishments as a businessman and politician. While I do not aspire to recapitulate his life's work here, I would like to recognize one of Lautenberg's most significant and enduring achievements — the Lautenberg Amendment — which facilitated the resettlement of tens of thousands of Jewish and Christian refugees from the former Soviet Union.
I was born in the Soviet Union and emigrated with my family in 1989. Like the thousands of Soviet Jews who emigrated around that time, my family's journey to the United States included a temporary "layover" in Italy. While in Italy, we received assistance from the Hebrew Immigrant Aid Society in applying for refugee status, which was granted in August 1989. Although I have few vivid memories of my family's time in Italy, I distinctly recall the nervous look on my father's face as we waited for a charter bus in Santa Marinella that would transport us to the Leonardo da Vinci Airport in Rome, where we were scheduled to board a Trans World Airlines flight bound for New York. My father would later confide that his anxiety had less to do with any uncertainty he felt about starting a new life in the United States, and more with the possibility that our bus would break down on the way to Rome and cause us to miss our only opportunity to travel to the United States. I imagine that many Soviet Jews who sought to immigrate to the United States at the time shared my father's anxiety and paranoia about having their aspirations unexpectedly forestalled.
Although my family was fortunate to have been granted refugee status, many similarly-situated families who settled in Italy shortly after our arrival were not as lucky. Several of my relatives whose refugee applications were denied recall that confusion and despair quickly spread throughout the Soviet Jewish communities in Santa Marinella and Ladispoli, as few understood why the U.S. government abruptly ceased granting refugee status despite having previously granted almost every Soviet refugee application.
Though not readily apparent at the time, the widespread denials were the consequence of a shift in U.S. policy favoring a more restrictive approach to adjudicating Soviet refugee claims. By way of background, the United States' refugee policy prior to 1980 was largely reflective of its Cold War-era geostrategic and ideological posture. The Immigration and Nationality Act of 1965, for example, referred to refugees as persecuted individuals or groups fleeing Communist or Communist-dominated states or parts of the Middle East. Under this standard, emigrants from the Soviet Union were virtually assured refugee status.
In 1980, however, Congress sought to de-emphasize the role that geography and political ideology played in determining refugee eligibility, and to bring U.S. refugee law in conformity with international legal standards. Accordingly, Congress enacted the Refugee Act of 1980, which incorporated the definition of refugee contained in the 1951 United Nations Convention Relating to the Status of Refugees. The new (and current) definition provided that a refugee is any person who is outside his or her country of residence or nationality and who is unable or unwilling to return because of past persecution, or a well-founded fear of future persecution, on account of race, religion, nationality, membership in a particular social group, or political opinion.
While the act imposed more stringent evidentiary requirements, Soviet citizens who emigrated during the early-to-mid-1980s continued to receive refugee status almost automatically, as the U.S. immigration agencies had a de facto presumption that Soviet citizens had a well-founded fear of persecution on account of a protected ground. Beginning in mid-1988, however, U.S. policy started to gravitate away from such a wholesale presumption of refugee eligibility, and toward a policy requiring each Soviet refugee applicant to demonstrate that he or she individually met the statutory definition of refugee.
As a practical matter, the United States' change of course resulted in a dramatic decline in the approval rate of Soviet refugee applications. This effect was intimately felt by thousands of Soviet Jews living in Italy at the time of my family's departure from the country, who suddenly found themselves in limbo, with neither a home to return to nor legal status to remain where they were.
As advocacy groups and volunteers scrambled to assist Soviet emigrants in filing appeals of denials of refugee status and lobbied congressional leaders for assistance, Lautenberg worked tirelessly to create a legislative framework that would swiftly resolve the looming refugee crisis. Enacted in November 1989 as part of the Foreign Operations Appropriations Act for Fiscal Year 1990, the Lautenberg Amendment required the executive branch to establish refugee processing categories for Soviet Jews, evangelical Christians and members of the Ukrainian Catholic Church or the Ukrainian Orthodox Church. The amendment also lowered the evidentiary burden for demonstrating refugee eligibility, providing that category members would be eligible for refugee status upon showing a credible basis for concern about the possibility of persecution, rather than a well-founded fear of persecution as required under the Refugee Act of 1980. Equally significant, the Lautenberg Amendment provided for the retroactive application of the new adjudication standard to all category members who had been previously denied refugee status.
Thus, under the auspices of the Lautenberg Amendment, previously-rejected Soviet refugee applicants had their cases reopened and subsequently were granted refugee status. Overall, the Lautenberg Amendment was instrumental in facilitating the emigration of tens of thousands of Soviet Jewish and Christian refugees to the United States.
Initially set to expire in September 1990, the Lautenberg Amendment has been renewed annually as part of successive appropriations packages. With the fall of the Berlin Wall, in the early 1990s citizens of the former Soviet countries had much more freedom to travel to the United States. Some requested asylum from within the United States after they arrived. The question arose, therefore, whether the protection offered by the Lautenberg Amendment extended to individuals who were present in the United States and who sought asylum relief. While immigration practitioners had successfully argued for the amendment to be applied in some asylum cases during the early 1990s, the immigration service soon made clear that the protection the amendment offers extends only to category members outside the United States who are seeking refugee status.
The Lautenberg Amendment's continued relevance has been questioned throughout the years, particularly as the mass exodus of Jews and Christians from the former Soviet Union subsided. Notwithstanding any criticism levied against it, the Lautenberg Amendment remains a vital lifeline for those seeking refuge from persecution. Today, for example, the amendment facilitates the resettlement of Jews, Christians, Baha'is and other religious minorities fleeing persecution in Iran.
The immigration reform bill currently before Congress includes a provision that honors the spirit of the Lautenberg Amendment, authorizing the president, in consultation with the secretaries of state and Homeland Security, to designate specifically defined groups of vulnerable aliens as refugees. While the fate of the bill is uncertain, it is clear that Lautenberg's experience, passion and commitment to justice will be sorely missed during the upcoming congressional struggle. •
Walter S. Gindin is an associate attorney at Klasko, Rulon, Stock & Seltzer in Philadelphia, where he represents individuals and corporations in a variety of immigration-related legal matters. He can be reached at email@example.com.