If Trump Becomes President, Could Americans Claim Refugee Status?

Saint Louis, MO, USA - 11 March 2016: Donald Trump talks to supporters at the Peabody Opera House in Downtown Saint Louis. Image: ginosphotos / iStockphoto

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. 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 less than 24 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.

Everett, USA - 30 August 2016: A heated exchange between a Hillary and Trump supporter at the Donald Trump rally outside the Xfinity Arena in Everett late in the day. Image: 400tmax / iStockphoto

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.

San Diego, California, USA - 27 May 2016: Huge groups of protesters clash with Trump supporters in a verbal exchange outside a Trump rally at the San Diego Convention Center. Image: shakzu / iStockphoto

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.

WATCH MORE: Tech News


Comments

    I hate that orange-faced, bigoted toad.

      Me too, but I also hate that skin suited, devious lizard :)

    The only people who don't hate him are either insane rednecks or just impossibly stupid. That much is pretty well confirmed, despite occasional bleats to the contrary.

      My friend is living in the states and said he's spoken to people who "felt dirty after voting for Trump", but did so out of fear of a "socialist society under Hilary".

      I mean, seriously... what the fuck.

      That remark indicates that you are a condescending and self centred individual.

      I believe that the majority of Americans have just given themselves hope for the future.

      You're saying that the majority of American voters are (relative to you) impossibly stupid or rednecks. It has just been proven that the majority of Americans prefer a Trump fronted Republican party to the other alternatives. You are in, or are supporting, the minority. Might the numbers suggest, therefore, that you are wrong? If not the numbers, how about the logic, in that your own post is nothing but insults against everyone with whom you might disagree. Doesn't that suggest that you might be a hateful, nasty, belligerent person?

        Actually 48% of voters voted for Clinton while 47% voted for Donald. So the majority of voters did NOT want Trump.

          you cant judge the real popular vote by the vote in a state electoral system. come on youre smarter then that. people dont vote in states they feel they can swing anyway. so its just a poll of people who responded and we know how accurate they are.

            In response to the previous post, he's got a point. Assuming the numbers are right (I'm over it, not going to go look), then of those that voted, the majority voted for Clinton. Captain Obvious stated that the majority of voters voted for Trump, which is what was disagreed with. 47 isnt more than 48.

            Outside of that, its a different argument.

      Wow, that's quite a statement to make regarding over 55 million people, just because they disagree with you. Its over, so lets suck it up and see how it goes.

    At this point, it's looking a bit more like when Trump becomes President instead of if.

      Depressing, isn't it?

        It is, but I guess if a nation voted him in, then it's what they want. It'll turn out like Brexit.
        "Trump won"
        'Good god what have we done?!'

          Yep..

          Now they(and we?) have to hope that he back flips on most of his election promises...

          Trump will announce the start of the first Hunger Games... for visas

          Trump won due to electoral vote majority, not popular vote majority. The electoral college is outdated and the worst thing this country can do for its people. The electoral college does not have to vote with the majority. The people voted, but their votes meant nothing. Welcome to the American Democracy.

            Actually he won the popular vote too. Trump and the Republicans won everything.

              No, he got 47% whereas Clinton got 48%.

              Nope, currently 59,796,311 votes to Clinton and 59,589,821 votes to Trump but I believe counting is still on ongoing.

            Its only bad when you lose right. If Hillary won, then its all good right?

    I feel genuinely nauseous that this lunatic may actually win. If so this could have such far reaching global implications. I hope im just stressing about unlikely worst case scenarios. For fuck's sake America, why would you do this? I know Hillary ain't much chop either, but him? Really? Y'know Hitler started out with intensions of "making Germany great again" right? What have you silly cnuts done?

    ha ha This is awesome watching all the lefties heads explode!! Oh no it's the "World is collapsing before our eyes" FMD get a grip! It's called democracy and yes it works both ways. Not just when your side wins.

      For me (and I think many, including some high ranking Republicans) this isn't about the politics of a particular party, it's specifically about Donald Trump. He is someone I would never want to run and to represent a country. But it's not my country and I have no say so ultimately I don't care.

    I am in shock and I am afraid. I blame US cooperate Media and the sensationalized yellow journalism they spew to the undereducated populations for this horrible nightmare becoming a reality. I stayed awake and watched with shock as Brexit unfolded. I lay awake now in direct fear of what the morning will bring in my own Country now.

    Last edited 09/11/16 6:15 pm

      Brexit happened because a bunch of people didn't vote by choice. That was entirely their own fault. You can't whinge that democracy doesn't work because you didn't participate when you had the option to. Part of democracy is that everyone gets their say, otherwise we go back to a ruling class of elites that will invariably vote in their own best interests.

      It's a similar sort of thing here - Trump won because the people voted for him, and it isn't the media's fault. Trump has been persistently portrayed as a corporate boogeyman, a caricature of corporate absurdity and greed. And yet he still won! Why? Because the Democrats decided to choose Hillary Clinton, who represents the typical hated US politician, assuming everyone would vote for her because she's female and she's not Trump. And then they failed to patch up that politician public image.

      I'm dismayed at the result too, this is the worst possible outcome, but this was democracy in action, and Clinton dropped the ball.

    Awesome, go Trump. I find it strange that Australians hate Trump and think Americans are stupid for voting for him. Obviously they are out of touch with the US psyche. They wanted someone anti authority and good on them for wanting that. I wish Australians had enough brains to vote in someone like that here but oh no, they only vote Labor or liberal. What's the definition of insane... Doing the same thing and expecting a different outcome. Australians are insane and no wonder they can't work out the Americans.

      Trump anti authority? His entire platform is built apon being more authoritian. He's not anti authority he's anti socialism.

      Trump anti authority? His entire platform is built apon being more authoritian. He's not anti authority he's anti socialism.

      I know right?
      I just wish they'd do some research before opening their yaps about Trump and thinking they know what's best for other people

      Everything they say is recycled 2nd or 3rd hand media sanitised propaganda, tonight's victory speech is probably the first time they've heard him speak for longer than 5 seconds

      Its because our media is so far left, and they are constantly pushing their agenda on Australians.

        Agenda of reporting the truth? Are you implying the right wing medias agenda is to report half baked truths and lies to support their political ideals?

      No. Voting for someone who has no experience in politics aside from a popularity contest (complete with freakish tweets) is insane.

      And, sure, Australians can complain about lots of things, but despite our gripes, we're just not *that* desperate.

    Obama was going to make the USA a better place and he didn't, Trump is going to make it a worse place, but he won't. Everyone needs to chill out and realise the world isn't going to end because one lunatic gets voted into office. Politics is measured in such small increments that the influence of any figurehead in a democratic country is minimal. What worries me is the people who are convinced the world will end if Trump/Clinton/Shorten/Turnbull/RuddAbbott etc. get elected. It won't.

    I'd be curious to know how many of the commenters live in the United States. I do. I was born here and, in fact, am part Native American. I also am a woman. I also am a senior citizen of an age subject to the "involuntary euthanasia" protocol as my only income is from Social Security benefits. In other words, I am "no longer a member of the subject productive workforce" according to the local agency and am not eligible for any kind of protection. Someone joked about the Hunger Games. At my age you don't get that opportunity. You get the three little white pills that were voted into law the first of June.

    I doubt that Trump will make the people what we call "immigrants" as "refugees". Stop fearing... If you are American national, born and raised over there, then why would you be subjected to leave the country forcefully? However, if Trump did force anyone for becoming a refugee, then I guess, he will face immense protests for doing that.

    Should be interesting to see how it plays out. As some have alluded too, with any lucky this will be a relatively uneventful event even if the media is likely to latch into every other thing that happens this term.

    As for him being a bad candidate, sure I agree but I had no time for Hilary either. The best thing she seemed to have going for her, and mistakenly sat on, was she wasn't Trump. While I'm seeing a lot of Australians up in arms, I'm not sure Australia has had a good run these past six or so years either. I mean, Australia voted in Gillard and Abbott who both proved to be divisive or generally unpopular in their own way, and while Turnball doesn't seem as polarising he's plainly turning out to be an ineffective leader due to the compromises he made to get into the position. Not saying they are the same as Trump in terms of style, but we seem to have a knack for getting ineffective or severely disliked leaders in, often due to spite due to a dislike of the former leader.

    Really wish Bernie Sanders had won the primaries early in the year.

    I am amused by all the lefties (both in the UK after the Brexit vote and the USA after the Trump win) who are protesting because "It's only democracy IF MY TEAM WINS!"

      A lot of the protesting I have seen is people taking issue specifically with Donald Trump and not a Republican win generally.

      Like how trump said he wouldnt protest the result only if he won? "ITS ONLY A TRUE ELECTION IF I WIN!" - Donald drumpf

    Please stop with the Trump News! We are in Australia - WE DON'T CARE! The Americans voted for him - Fix your own shit!

      We do care because we have agreements with the U.S., so his ideas and actions can affect us. The reason this result is so difficult for the rest of the world to accept is that it seems like half of the U.S. can't see past its own borders to realise the rest of the world exists. What they've voted on is their own domestic issues. ... Or, at least, that's how I see it.

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