Irreconcilable Differences? Divorcing Regugee Protections from Human Rights Norms

Authors

Karen Musalo, Santa Clara University School of Law

Abstract

This article will discuss in greater detail the profound defects of the Court's Zacarias decision. Section I will discuss the interpretation of key provisions of the 1980 Refugee Act, and describe the case of Jairo Elias Zacarias. Section II will review the plain language and legislative intent of the Act, including the congressional purpose of conforming to the 1967 Protocol. Section III will consider issues of burden of proof, and will examine the substantive impact which Zacarias has had on refugee cases. Section IV will focus on religious persecution as a paradigm of the inadequacy of an intent-based requirement and will examine the adverse impact the Zacarias rule has had on asylum cases involving claims of religious persecution. Section IV will also contrast the shrinking U.S. concept of religious freedom in refugee and constitutional law with the more liberal and protective-oriented trend in international law. Section V will provide a survey of the requirement of intent in other relevant areas of law as a comparison and contrast with the rule in Zacarias. Section VI suggests an elimination of the intent requirement, and proposes a revised framework for adjudicating claims under the 1980 Refugee Act. Finally, this article will suggest that just as Congress has intervened to reverse the Supreme Court's decision in Oregon v. Smith with its passage of the Religious Freedom Restoration Act, it should act to undo the harm visited upon the 1980 Refugee Act by the Supreme Court in Zacarias.

Recommended Citation

Karen Musalo, Irreconcilable Differences? Divorcing Regugee Protections from Human Rights Norms, 15 Mich. J. Int'l L. 1179 (1994).
Available at: https://repository.law.umich.edu/mjil/vol15/iss4/3