The Regulatory Leash of the One- Year Refugee Travel Document

The Regulatory Leash of the One-

Year Refugee Travel Document

PAULINA SOSA

Asylees, refugees, and some Lawful Permanent Residents must obtain a

Refugee Travel Document (RTD) from U.S. Citizenship and Immigration

Services in order to travel abroad. These non-citizens cannot use

passports from their home country, as doing so could result in a loss of

their asylee or refugee status. RTDs are only valid for one year and must

be renewed annually until the non-citizen naturalizes, if their holders plan

to travel abroad. Because most countries require that a tourist’s travel

document have a minimum remaining validity of anywhere from three

months to one year, RTD holders are inhibited from completing their

business or personal travel for many months out of the year.

Part I of this Note introduces the problem of the one-year validity period

and discusses the relevant terms and concepts pertaining to asylum and

refugee classifications. Part II then discusses the history of refugee travel

documents before and after the enactment of the U.N. Convention Relating

to the Status of Refugees and the related 1967 Protocol Relating to the

Status of Refugees before examining how the United States and other

countries comply with their obligations under the Protocol. Part III delves

further into the processes of applying for, obtaining, and using a refugee

travel document. Part IV discusses how refugee travel documents affect

two different kinds of rights: the limited right of reentry into the United

States and the right to international travel, both of which also vary

according to immigration status. Part V argues for an increased validity

period of at least two years and outlines how the change could impact

asylees, refugees, and lawful permanent residents. Finally, Part VI

outlines the potential barriers to implementing the proposed regulatory

reform, such as national security policy and political will.

* Design and Layout Editor, Colum. J.L. & Soc. Probs., 2018–2019. J.D. Candidate

2019, Columbia Law School. The author is eternally grateful for her partner Zack Hughes

and her family for their unwavering support, and for the individuals that mentored her

career in immigration law, including Sandra Grossman and Rachel Zoghlin. Furthermore,

the author thanks her former immigration clients who not only inspired this Note, but

also entrusted her with their lives and futures. Finally, she thanks Professor Rose

Villazor-Cuison for her guidance and the staff of the Columbia Journal of Law and Social

Problems for their wonderful editorial work.

274 Columbia Journal of Law and Social Problems [52:2

I. INTRODUCTION

One of the most difficult obstacles that refugees and asylum

seekers face in rebuilding their lives is continuing to have their

movement heavily restricted for years even after obtaining

asylum or refugee status in their country of refuge. This Note

focuses on how the one-year validity period of the U.S. Refugee

Travel Document

(RTD) restricts refugees’ and asylees’ freedom

of movement.

Part I of this Note introduces the problem of the one-year

validity period and discusses the relevant terms and concepts

pertaining to asylum and refugee classifications. Part II first

discusses the history of RTDs before the enactment of the U.N.

Convention Relating to the Status of Refugees (the “1951 U.N.

Convention”) and the related 1967 Protocol Relating to the Status

of Refugees (the “1967 Refugee Protocol”). It then discusses the

travel document regime that those documents created. Part II

also examines how the United States and other countries comply

with their obligations under the Protocol. Part III delves further

into the processes of applying for, obtaining, and using an RTD,

which can vary according to one’s immigration status. Part IV

explores how RTDs affect two different kinds of rights: the

limited right of reentry into the United States and the right to

international travel, both of which also vary according to

immigration status. Part V argues for an increased validity

period of at least two years and outlines how the change could

impact asylees, refugees, and lawful permanent residents.

Finally, Part VI outlines the potential barriers to implementing

the proposed regulatory reform, such as national security policy

and political will.

Many of the terms used in this Note are used colloquially and

can have different meanings across different legal regimes. The

relevant terms are here defined, and any necessary additional

information is provided. A “refugee,” according to the 1951 U.N.

Convention, is someone who is unable or unwilling to return to

their country of origin because of a well-founded fear of being

persecuted for reasons of race, religion, nationality, membership

. See infra Part II.

2018] The Regulatory Leash of the One-Year Refugee Travel Document 275

in a particular social group, or political opinion.

Under U.S.

regulations, a refugee is someone who applies for and obtained

refugee status in a third country and is later resettled into the

United States.

An “asylee” is someone who applies for and has

obtained asylum in their country of refuge and who meets the

definition of a “refugee” under the 1951 U.N. Convention and

U.S. regulations.

This Note uses the term “asylum seeker” to

refer to a person colloquially referred to as a refugee — someone

who leaves their country to seek refuge in another country and

applies for asylum in the country of refuge. A permanent

resident or a lawful permanent resident (LPR) is an alien who is

permitted to reside permanently in the issuing country.

In the

United States, refugees and asylees must apply to U.S.

Citizenship and Immigration Services (USCIS) to change their

status (“adjust status”) to that of an LPR.

II. HISTORY

According to the U.N. High Commissioner for Refugees

(UNHCR), the ability to travel outside the country of his

. Convention Relating to the Status of Refugees, art I (A), July 28, 1951, 189

U.N.T.S. 137. See also Immigration and Nationality Act (INA) § 101(a)(42), 8 U.S.C.

§ 1101(a)(42) (2012). The United States adopted the U.N.’s definition of a “refugee” in

1980 with the passage of the Refugee Act of 1980, 8 U.S.C § 1525 (1980) (repealed 1994).

. INA § 101(a)(42), 8 U.S.C. § 1101(a)(42) (2012), declared unconstitutional by

Golicov v. Lynch, 837 F.3d 1065 (10th Cir. 2016), cert. denied sub nom. Sessions v.

Golicov, 138 S. Ct. 2018 (2018) and 8 C.F.R. §§ 207.1–207.2. The following outlines the

typical refugee application process for refugees seeking to obtain official refugee status in

the United States. Refugees express their desire to apply for refugee status to the

UNHCR, U.S. embassy, or a specifically-trained non-governmental organization (NGO).

Any of these groups will then refer the case to a Resettlement Support Center (RSC). The

RSC will then assist the refugee applicant prepare their application for refugee status in

the United States. Once the application is ready, the RSC will submit the application to

U.S. Citizenship and Immigration Services (USCIS), an agency under the U.S.

Department of Homeland Security (DHS), for adjudication. USCIS will then review the

application and conduct an in-person interview before deciding whether to approve or

deny the application. After USCIS approves a refugee application, the refugee must

undergo a health screening and obtain sponsorship from a U.S.-based resettlement agency

with experience providing assistance to new refugees. See U.S. DEP’T OF STATE, U.S.

REFUGEE ADMISSIONS PROGRAM, https://www.state.gov/j/prm/ra/admissions/

[https://perma.cc/FRJ3-C2AW] (last visited Nov. 4, 2018), for a more thorough explanation

of the refugee admissions process.

. See 8 C.F.R. § 208.13. See generally 8 C.F.R. § 208.

. See, e.g., 8 U.S.C. § 1101(a)(20) (2012).

. See generally 8 C.F.R. §§ 209.1–209.2.

276 Columbia Journal of Law and Social Problems [52:2

residence is “particularly important for a refugee.”

This kind of

travel is essential in order for a refugee to “take advantage of

opportunities for education, training, or employment, [and] may

be an essential prerequisite for a durable solution to his

problems.”

However, many refugees find it difficult to travel

abroad because they lack a passport. In the United States, under

the Immigration and Nationality Act (INA), § 208(c)(2)(D), if a

refugee or asylee uses a passport from their country of

persecution, then their asylum or refugee status could be subject

to termination.

However, refugees and asylees cannot obtain

U.S. passports, because they are not citizens.

As a result,

refugees and asylees to the United States face the implicit

requirement that they surrender their passports — and

associated freedom of movement — for the chance to make a

successful asylum claim, without any guarantee that the United

States will provide comparable travel documents should their

claims succeed. Instead, refugees and asylees must rely on RTDs

to travel abroad.

Several different travel document regimes have been

implemented over the years, two of which will be discussed in

this section: the Nansen passport and the RTD regime proposed

by the 1951 U.N. Convention and the 1967 Refugee Protocol.

This Part discusses the historical reasons for the creation of these

travel document regimes, as well as their strengths and

deficiencies. The historical background highlights why the U.S.

RTD regime — in particular the RTD’s one-year validity period —

requires reform.

While there were many different travel document regimes in

existence throughout the world before the ratification of the 1951

. U.N. High Comm’r for Refugees, Note on Travel Documents for Refugees, U.N.

Doc. EC/SCP/10 (Aug. 30, 1978).

. Id.

. “[T]he alien has voluntarily availed himself or herself of the protection of the

alien’s country of nationality or, in the case of an alien having no nationality, the alien’s

country of last habitual residence, by returning to such country with permanent resident

status or the reasonable possibility of obtaining such status with the same rights and

obligations pertaining to other permanent residents of that country.” INA § 208(c)(2)(D), 8

U.S.C. § 1158 (2012).

. “A regular passport is issued to a national of the United States.” 22 C.F.R. §

51.3(a). A passport card can also only be issued to a national of the United States on the

same basis as a regular passport. Id. at § 51.3(d). A

“national of the United States” is a U.S. citizen or a person, who is not a U.S. citizen, but

owes permanent allegiance to the United States. 8 U.S.C. § 1101(a)(22) (2012).

2018] The Regulatory Leash of the One-Year Refugee Travel Document 277

U.N. Convention,

this Part focuses on two predominant travel

document regimes after World War I and II that specifically

applied to refugees: the Nansen passport and the RTD. The U.N.

Declaration on Human Rights (UDHR) and the 1951 U.N.

Convention were both drafted and signed as a consequence of the

horrific human rights abuses perpetrated on European Jews and

other refugees during World War II. The impetus for the

inclusion of the right to freedom of movement was the “Nazi

regime’s curtailment of free movement during World War II.”

This Part explores the reasons for the post-war actions of

international and national bodies to protect refugees and the

freedom of movement.

The Nansen passport, also known as “the League of Nations

passport” was a certificate of identity in the form of a passport

used from 1921 to 1951.

It was issued by the governments of

participating countries in accordance with an arrangement with

the Nansen International Office of Refugees.

On August 22,

1921, the Inter-Governmental Conference on the Assistance to

Russian Refugees was held in Geneva to arrange the coordination

of relief work for Russian refugees who fled Russian after the

Russian Revolution of 1917 and the subsequent Russian civil

war,

to define the legal status of refugees, and to consider a

solution to employment and emigration issues plaguing Russian

refugees.

This Conference resolved to create an identity and

. For example, after the end of World War II, the United Nations created another

kind of travel document: the laissez-passer. The document was meant to be similar to the

Nansen passport and meant for refugees who were “the concern of the Inter-Governmental

Committee, other than those enjoying the benefit of earlier agreements.” For more

information on travel document regimes that existed prior to the U.N. Convention

Relating to the Status of Refugees, see Marjorie M. Whiteman, Other Travel Documents,

Etc., 8 DIG. INT’L L. 317, 330–335 (1967).

. Jane McAdam, An Intellectual History of Freedom of Movement in International

Law: The Right to Leave as a Personal Liberty, 12 MELBOURNE J. OF INT’L LAW 27, 27

(2011).

. See supra note 11, at 327.

. Id.

. James E, Hassell, Russian Refugees in France and the United States Between the

World Wars, 81 TRANSACTIONS OF THE AM. PHIL. SOC’Y 317, 327–329 (1991).

. Louise W. Holborn, The Legal Status of Political Refugees, 1920–1928, 32 AM. J.

OF INT’L LAW 680, 683 (1983). Most Russian refugees either had never had passports or

had passports that had expired. Id. Further, because the issuance of passports was

tightly controlled by the post-Revolution government, these refugees had almost no ability

to legitimately obtain new passports. Id. Without a passport serving as an identity

document, they were unable to emigrate from their original country of refuge where they

may be living in destitution to other countries whether they could work. Id. Also,

passports at that time “were necessary to enter one country from another, but also to

278 Columbia Journal of Law and Social Problems [52:2

travel document to make up for Russian refugees’ inability to

obtain a national passport from their home country

which

hindered the resettlement of refugees in a host country.

However, under any given Arrangement, the governments

granting refugee or asylum status could only issue the Nansen

passport to refugees from specified countries.

The Nansen passport was essentially a certification of refugee

status and recognition of the country of issuance’s protection over

that individual.

It permitted the bearer to travel abroad for the

period of the document’s validity, but would only permit them to

return to the country of issuance if the document included a

“return clause” so authorizing.

Therefore, while Nansen

passport-holders technically had the right to travel

internationally, refugees could not do so in practice without

risking statelessness once again, unless their passports included

a return clause.

Few countries would actually allow a Nansen

passport-holder to enter on a Nansen passport, fearing that once

a refugee entered their territory, he or she would be unable to

obtain work, to participate in the benefits of social insurance, and to obtain a permit of

sojourn.” Id. In some cases, Russian refugees who did not possess passports were subject

to imprisonment or expulsion. For more, see id. at 682–684.

. Id. at 681–82.

. See Whiteman, supra note 11, at 329 (stating that a refugee’s lack of passport was

a problem for the host country because there was nothing “on which entry or exit visas

could be affixed”).

. Id. at 327, 329–30. For example, the Arrangements of 1922, 1924, and 1926

(treaties between the League of Nations and a number of countries) which required the

signatory governments to provide identity certificates, and return visas on the identity

certificates for refugees leaving that country applied only to Russian and Armenian

refugees. Id. Further, the Arrangement of 30 June 1928 extended the Nansen Passport

only to Turkish refugees who lost their nationality under the Lausanne Protocol of 24 of

July 1923, to Assyrian and Assyro-Chaldaean refugees, and assimilated refugees of Syrian

or Kurdish origin. Id. Finally, the Arrangement of 30 July 1935 extended the Nansen

Passport only to Saar refugees. Id.

. Id.

. Id. at 327, 329.

. The danger of statelessness in this context is that a stateless person is unable to

obtain a passport from their government. See id. at 332. Without a passport, a person

cannot travel. A destination country would not be inclined to permit a stateless person

without a passport to enter their territory because there is no evidence that a government

has vetted them and given them permission to enter. Id. Furthermore, a passport serves

as proof of identity, nationality, and origin. See id. at 332. So, without a passport, the

destination country cannot verify the identity of the traveler, which poses security issues.

Also, without a passport, a stateless person cannot show that they have the ability to

enter some country other than the destination country, which increases the risk that the

stateless person may try to resettle within the destination country. Id. Finally, without a

passport, a stateless person would not have documentation showing that they are under

the protection of another government, making them vulnerable to abuses abroad. Id.

2018] The Regulatory Leash of the One-Year Refugee Travel Document 279

leave it due to a lack of a return visa to their country of refuge.

This problem was ameliorated by the Arrangement of 12 May

1926 relating to the Issue of Identity Certificates to Russian and

Armenian Refugees between the League of Nations and several

different governments, which recommended including return

visas on Nansen passports.

This issue was finally resolved

when the return clause was declared an integral part of the

passport.

The United States did not participate in this agreement with

the Nansen International Office for Refugees because the United

States believed that its immigration laws already covered

refugees entering the country.

U.S. law did not at the time

have any immigration laws singling out refugees,

and the

United States believed the immigration laws adequately covered

refugees because there was no legal distinction between aliens

(including refugees)

and U.S. citizens.

However, U.S.

immigration laws did not fully encompass all refugees. Up until

the passage of the Refugee Act of 1980 — which established a

comprehensive U.S. refugee program focused on resettling and

assisting different kinds of refugees and which adopted the U.N.

definition of “refugee” — the United States had a piecemeal

. See Whiteman, supra note 11, at 329. In this particular context, “country of

refuge” refers to the country that issued the Nansen passport to the refugee and where the

refugee has sought refuge or asylum status.

. Id.

. Id. The recommendation was only acceded to by twenty of the fifty-three

participating countries. Article 2 of the Convention of 28 October 1933 and article 15 of

the London Agreement of 15 October 1946 made the return clause an integral part of the

travel document. Id. The countries who did participate were Belgium, Bulgaria,

Denmark, Estonia, Finland, France, Greece, Hungary, India, Ireland, Luxembourg,

Norway, Poland, Sweden, and Switzerland.

. Id. at 327.

. Id. (stating that U.S. immigration laws made no distinction between refugees and

other aliens).

. The United States did not have an asylum system at this time; therefore, there

were no “asylees.”

. See Whiteman, supra note 11, at 327–28 (citing Memorandum from Director in

Charge of Technical Matters of the Passport Office Willis H. Young to Director of the

Passport Office Frances G. Knight, “Documentation of Stateless Persons” (Apr. 11, 1958)).

“On February 13, 1946, the Convention of the Privilege and Immunities of the United

Nations (CPIUN), adopted by the General Assembly, provided for the issuance and use of

the laissez-passer . . . . The CPIUN required the signing member states to recognize and

accept the laissez-passer as a valid travel document.” Id. (citing G.A. Res. 22 (I) (A),

Convention on the Privileges and Immunities of the United Nations, art. VII, § 24 (Feb.

13, 1946)).

280 Columbia Journal of Law and Social Problems [52:2

approach to resettling refugees, preferring to assist refugees from

certain countries over others.

A. U.N. CONVENTION RELATING TO THE STATUS OF REFUGEES

AND THE PROTOCOL

The U.S. RTD regime exists because of and is modeled after

the 1951 U.N. Convention and the 1967 Refugee Protocol. These

international agreements outline the required components and

benefits that an RTD must have to comply with the 1951 U.N.

Convention and the 1967 Refugee Protocol. In order to

understand the nature of the problem with the one-year validity

period of the U.S. RTD and why it is important that refugee’s

freedom of movement is limited, this Subpart discusses the

history of the 1951 U.N. Convention and the 1967 Refugee

Protocol.

In the wake of World War II, the U.N. General Assembly

adopted the U.N. Convention Relating to the Status of Refugees,

the cornerstone of international refugee protection in the world

today — and the model on which current U.S. RTDs are based.

The 1951 U.N. Convention entered into force on April 22, 1954.

In order to account for refugees not covered by the 1951 U.N.

Convention, the 1967 Protocol Relating to the Status of Refugees

amended the 1951 U.N. Convention by removing the geographic

and temporal limitations to the definition of a refugee.

The

Protocol transformed the Convention from a post-World War II

instrument into a universal instrument.”

The 1951 U.N.

. 8 U.S.C § 1525 (1988) (repealed 1994). Indochinese, Haitians, Central American,

and refugees from non-communist countries were not considered refugees, even though

they met the definition of a refugee under the 1951 U.N. Convention. In some cases, they

were simply paroled in the United States. The parole program at that time, however, did

not grant these refugees any permanent status, long-term employment authorization,

resettlement benefits, or the right to apply for permanent residency. This disparate

treatment was one of the reasons for the passage of the Refugee Act of 1980. See generally

H.R. REP. NO. 96-608 (1979) (Conf. Rep.); The Refugee Act of 1979, S.643: Hearing Before

the S, Comm. on the Judiciary, 96th Cong. (1979); and Refugee Act of 1979: Hearing on

H.R. 2618 Before Subcomm. on Immigration, Refugees, and Int’l Law of the H. Comm. on

the Judiciary, 96th Cong. (1979).

. Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150;

Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267; OFFICE OF

THE U.N. HIGH COMM’R FOR REFUGEES, Introductory Note to CONVENTION AND PROTOCOL

RELATING TO THE STATUS OF REFUGEES 2 (Dec. 2010).

. Office of the U.N. High Comm’r for Refugees, supra note 31, at 2.

. Id.

2018] The Regulatory Leash of the One-Year Refugee Travel Document 281

Convention, while only amended once, has been supplemented by

other refugee and subsidiary protection regimes in other

regions,

as well as by international human rights law.

The 1951 U.N. Convention accomplishes the following: it (1)

codifies the rights of refugees at the international level; (2)

establishes both a single definition of the term “refugee”

and

disqualifying criteria to eligibility for refugee status;

(3)

contains safeguards against the expulsion of refugees; (4)

promulgates the fundamental principles of non-discrimination,

non-penalization, and non-refoulment;

and, (5) lays down basic

minimum standards for the treatment of refugees such as access

to the courts, access to primary education, access to work, and the

access to identity documents, including an RTD in passport

form.

The state parties that helped draft the 1951 U.N. Convention

also unanimously adopted a recommendation urging

governments which are party to the Inter-Governmental

. See id. at n.3. “[T]he Organization of African Unity (now African Union)

Convention governing the Specific Aspects of Refugee Problems in Africa 1969, was

adopted in Addis Ababa, 10 September 1969; the European Union Council Directive 2004/

83/EC of 29 April 2004 adopted minimum standards for the qualification and status of

third country nationals or stateless persons as refugees or as persons who otherwise need

international protection and the content of the protection granted, Official Journal L 304 ,

30/09/2004 P. 0012–0023. The Cartagena Declaration on Refugees, adopted at a

colloquium held at Cartagena, Colombia, 19–22 November 1984, while non-binding, also

sets out regional standards for refugees in Central America, Mexico and Panama.” Id.

. Id.

. A “refugee” is “any person who (1) has been considered a refugee under the

Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October

1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the

International Refugee Organization . . . (2) [a]s a result of events occurring before 1

January 1951 and 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 his nationality and is unable or, owing to such fear, is unwilling to

avail himself of the protection of that country; or who, not having a nationality and being

outside the country of his former habitual residence as a result of such events, is unable

or, owing to such fear, is unwilling to return to it.” Convention Relating to the Status of

Refugees, art I (A), July 28, 1951, 189 U.N.T.S. 137.

. The Convention ceases to apply to any person who “has voluntarily re-availed

himself of the protection of the country of nationality,” has “acquired a new nationality,”

and “enjoys the protection of the country of his new nationality”; or has “voluntarily re-

established himself” in the country which he left or outside which he remained owing to

fear of persecution. Id. at art. I (C)(1)–(5).

. The principle of non-refoulment “provides that no one shall expel or return

(‘refouler’) a refugee against his or her will, in any manner whatsoever, to a territory

where he or she fears threats to life or freedom.” Office of the U.N. High Comm’r for

Refugees, supra note 31, at 3.

. Id.

282 Columbia Journal of Law and Social Problems [52:2

Agreement on Refugee Travel Documents

: (1) “to continue to

issue or to recognize such travel document and to extend the

issue of such documents to refugees” as defined by Article I of the

1951 U.N. Convention; or (2) “to recognize the travel documents

so issued to such persons, until they shall have undertaken the

obligations under Article 28 of the said Convention” because “the

issue and recognition of travel documents is necessary to

facilitate the movement of refugees, and in particular their

resettlement.”

Even though the 1951 U.N. Convention and the

1967 Refugee Protocol took steps to formalize and develop a body

of international law to cover the movement of refugees, U.S.

compliance has been inconsistent.

B. OBLIGATIONS UNDER THE 1967 REFUGEE PROTOCOL AND U.S.

COMPLIANCE

The 1967 Refugee Protocol obliges state parties to comply with

the substantive provisions of the 1951 U.N. Convention as to all

persons covered by the refugee definition in Article I of the 1951

U.N. Convention.

Accordingly, the United States is obligated,

as a signatory, to comply with the substantive provisions codified

in Convention Article 28, pertaining to a refugee’s right to

freedom of movement and international travel.

Article 28 requires signatories to issue travel documents for

purposes of international travel to refugees lawfully residing

within their borders and gives signatories the option of issuing

travel documents to any other refugees within their borders, if

they are unable to obtain travel documents from their country of

nationality.

Article 28, however, does not absolutely require the

. The Inter-Governmental Agreement on Refugee Travel Documents is an

international agreement signed on October 15, 1946 in London — Final Act of the

Intergovernmental Conference on the adoption of a travel document for Refugees and

Agreement relating to the issue of a travel document to refugees who are the concern of

the Intergovernmental Committee on Refugees, 15 October 1946, 11 U.N.T.S. 150. See

infra note 41.

. U.N. Conference of Plenipotentiaries on the Status of Refugees and Stateless

Persons, Final Act of the United Nations Conference of Plenipotentiaries on the Status of

Refugees and Stateless Persons, art. IV(A), U.N. Doc A/CONF.2/108/Rev.1, (July. 25, 1951).

. Protocol relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606

U.N.T.S. 267. Pursuant to Art. I (1) of the Protocol, “the States Parties to the present

Protocol undertake to apply articles 2 to 34 inclusive of the Convention to refugees as

hereinafter defined.” Id. at 606 U.N.T.S. at 268.

. Convention Relating to the Status of Refugees, art. 28 (1), July 28, 1951, 189

U.N.T.S. 137. The travel documents that were issued to refugees under previous

2018] The Regulatory Leash of the One-Year Refugee Travel Document 283

issuance of travel documents to all lawful refugees. A signatory

country may withhold issuance of a travel document to a lawful

refugee on the basis of compelling national security reasons or

public order considerations.

Finally, Article 28 mandates that

the signatory use its prescribed list of requirements for RTDs (the

“schedule”) and sample RTD

to model their own RTD regimes.

The most important requirements for purposes of this Note

are (1) that RTDs be valid for the largest possible number of

countries unless there is a special exception, which is undefined

and (2) that RTDs must be valid for one to two years, leaving

signatories the choice between one- and two-year documents.

The United States claims to have fulfilled its obligations

under the 1951 U.N. Convention and the 1967 Refugee Protocol

by issuing U.S. RTDs.

However, because the RTD is only valid

for a period of one year from the date of issuance,

this Note

argues that the United States has failed to meet its obligation to

make the travel document valid for the largest possible number of

countries. The schedule states that holders of RTDs may still

need to obtain a visa to enter other countries and are still subject

to the same visa requirements as other aliens.

The U.S. RTD’s

one-year validity period violates the geographic validity

requirement because U.S. law does not allow for extensions or

renewal of RTDs

and RTD holders are not granted visa waivers

or relaxed visa requirements to enter into other countries.

international agreements by state parties to the 1951 U.N. Convention would continue to

be recognized and would be treated as if they were issued pursuant to the 1951 U.N.

Convention. See Convention Relating to the Status of Refugees, art. 28 (2), July 28, 1951,

189 U.N.T.S. 137.

. Id.

. Id. See also id. at Schedule, par. 1. The annex is titled “Specimen Travel

Document.” The sample is written in both English and French. The French name for the

travel document is “Titre de Voyage.”

. Id.

. Id. at Schedule, par. 4.

. Id. at Schedule, par. 5.

. An RTD is also invalid if the United Nations Convention of July 28, 1951, ceases

to apply or does not apply to the person as provided in Article 1C, D, E, or F of the

convention. See 8 C.F.R. § 223.3(b).

. See 8 C.F.R. § 223.3(a)(2).

. Convention Relating to the Status of Refugees, Schedule, par. 8 and par. 9 (2),

July 28, 1951, 189 U.N.T.S. 137.

. The schedule gives state parties discretion over whether to provide extensions or

renewals of RTDs. Id. at Schedule, par. 6 (1).

. The schedule does not provide for relaxed visa requirements or visa waivers for

RTD holders. Id. at Schedule, par. 6–10.The schedule states that holders of RTDs may

284 Columbia Journal of Law and Social Problems [52:2

C. COMPLIANCE BY OTHER NATIONS

An understanding of how other similarly-situated signatories

have implemented the 1951 U.N. Convention and the 1967

Refugee Protocol elucidates the relative shortcomings of the U.S.

RTD regime. The countries chosen for comparison, like the

United States, have a history of accepting refugees, have

developed economies that can sustain larger refugee admissions,

are current members of British Commonwealth, and remain

peers on the international stage. They are the United Kingdom,

Canada, New Zealand, and Australia.

Those who have acquired refugee status in the United

Kingdom, including the derivatives

of refugees and those who

are united through the refugee family reunion process,

can

apply for a “Convention Travel Document.”

The cost of the

document is the same as the cost to obtain a national passport.

The travel document for an adult is normally valid for ten years.

However, the document may be issued for a shorter validity if the

refugee has Discretionary Leave

in the United Kingdom, which

still need to obtain a visa to enter other countries and are still subject to the same visa

requirements as other aliens. Id.

. Derivatives of refugees are typically a refugee’s spouse and minor children, which

are relationships that can be proven through civil documents. See 8 C.F.R. § 207.7(a) and

8 C.F.R. §§ 208.21(a)–(d). However, some countries more broadly define “derivatives.”

The United Kingdom — which refers to derivatives as “dependents”— considers a spouse,

civil partner, unmarried or same-sex partner, or minor children as derivatives. See HOME

OFFICE, ASYLUM POLICY INSTRUCTION: DEPENDENTS AND FORMER DEPENDENTS 6 (Version

2.0 2014), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/

attachment_data/file/314042/DependantsAndFormerDependants_External2014-05-22.pdf

[https://perma.cc/FB32-D6TA].

. UK Visas & Immigration, TD112 BRP Guidance Notes: Version 11/2018 (stating

that a refugee who has been granted asylum in the United Kingdom by being recognized

as a refugee under the terms of the 1951 U.N. Convention qualifies for the UK Convention

Travel Document, and that a person who has come to the United Kingdom on a Family

Reunion visa to join a refugee who is present in the United Kingdom may qualify for the

Convention Travel Document).

. Refugee Council, Travel Documents: United Kingdom, AIDA: ASYLUM INFO.

DATABASE, http://www.asylumineurope.org/reports/country/united-kingdom/content-pro

tection/movement-and-mobility/travel-documents [https://perma.cc/4X8T-YVKY] (last

visited Nov. 4, 2018).

. Id.

. Discretionary Leave (DL) is a form of leave to remain that is granted outside U.K.

immigration laws and cannot be applied for outside the United Kingdom. HOME OFFICE,

ASYLUM POLICY INSTRUCTION: DISCRETIONARY LEAVE 7 (Version 7.0 2015),

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_d

ata/file/658372/discretionary-leave-v7.0ext.pdf [https://perma.cc/DYK2-A45F].

Discretionary Leave is available as a mechanism to cover the few cases where it would be

2018] The Regulatory Leash of the One-Year Refugee Travel Document 285

is only valid for a limited period of time.

A child’s travel

document is typically valid for five years.

The United Kingdom

will not issue a travel document for longer than the refugee’s

permission to remain in the United Kingdom and most countries

will not accept a travel document with less than six months’

validity.

The Convention Travel Documents are normally valid

for travel to all countries except the country from which the

refugee sought asylum.

The United Kingdom loosely interprets the 1951 U.N.

Convention’s instruction

to expedite refugees’ naturalization

proceedings. Currently, refugees in the United Kingdom must

“earn their citizenship.”

The 2009 Borders, Citizenship, and

Immigration Act, in an effort to manage the amount of refugees

allowed to permanently resettle in the United Kingdom, brings

refugees within the existing points-based naturalization process

already governing the route of migrant workers to citizenship.

Instead of applying for citizenship directly after five years of

residency, refugees also need to have an additional period of

“probationary citizenship which can be accelerated through a

demonstration of active citizenship, but can be slowed down or

halted altogether by criminality.”

Therefore, the ten-year

validity period of the document is designed to provide the bearer

with enough freedom of movement to permit the refugee to travel

largely uninhibited during the duration of the five-year residency

requirement and probationary citizenship period.

Canada, in accordance with its obligations under the 1951

U.N. Convention and the 1967 Refugee Protocol, issues RTDs to

those who meet the 1951 U.N. Convention’s definition of

“unjustifiably harsh” to remove someone from the United Kingdom, is used in “exceptional

compassionate circumstances,” and applies in both asylum and non-asylum cases. Id. at

5–8. This is also used when returning a refugee to their country of nationality would

breach U.K. obligations under the European Convention on Human Rights (ECHR). Id. at

10.

. See Refugee Council, supra note 56.

. Id.

. See supra note 36, at art. 34.

. Information Centre About Refugees and Asylum in England (ICAR), Citizenship

for Refugees in the UK: Key Issues and Research 5 (February 2010).

. Id. at 4.

. Id. (internal quotations omitted).

286 Columbia Journal of Law and Social Problems [52:2

“refugee.”

A refugee who has not become a citizen and who

intends to travel outside of Canada must apply for a “Refugee

Travel Document.”

At minimum, refugees will need to use the

Refugee Travel Document for five years, because citizenship

applicants must wait five years before being able to apply.

practice, however, due to Canada’s stringent citizenship

requirements and long processing times, many refugees find

themselves using their Refugee Travel Documents for more than

six years.

The issuing office determines the validity period of

. Refugee travel document–Refugees and Protected Persons, GOV’T OF CAN. (Sep. 3,

2014), https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-

manuals/operational-bulletins-manuals/permanent-residence/protected-persons/refugee-tr

avel-document-refugees-protected-persons.html [https://perma.cc/B6TT-VSFJ].

. Id. Refugees who become citizens can travel on their Canadian passports.

. Citizenship Act of 2017, R.S.C. 1985, c. 5(1)(c) (Can.).

. Check Processing Times, GOV’T OF CAN. (Nov. 14, 2018) https://www.canada.ca/en/

immigration-refugees-citizenship/services/application/check-processing-times.html (For

the drop-down menu, choose “Citizenship” for the question “What are you applying for?”

Then, choose “Citizenship grant” for the question “Which type of citizenship application?”

Finally, choose “On or after April 1, 2015” for the question “If you have already applied,

when did you apply?”). According to current processing times, an applicant for citizenship

will need to wait an average of twelve months for Canadian immigration authorities to

adjudicate a citizenship application. Id. Therefore, a refugee would need an RTD for at

least six years (five years as a permanent resident until they can apply for citizenship and

one year while waiting for the adjudication of their citizenship application).

There are three types of refugee regimes in Canada: Privately Sponsored Refugee

Resettlement (PSRR), the Blended Visa Office-Referred program (BVOR), and asylum

where the refugee applies within Canada. A refugee who enters through the PSRR or

BVOR program becomes a permanent resident upon arrival in Canada. CITIZENSHIP AND

IMMIGR. CAN., PRIVATELY SPONSORED REFUGEE RESETTLEMENT IN CANADA: INFORMATION

BULLETIN (2014). See also CITIZENSHIP AND IMMIGR. CAN., BLENDED VISA OFFICE-

REFERRED PROGRAM REFUGEE RESETTLEMENT IN CANADA 4 (2014). The average

processing time for an asylum application is thirty months. See Check Processing Times,

GOV’T OF CAN., https://www.canada.ca/en/immigration-refugees-citizenship/services/

application/check-processing-times.html [https://perma.cc/EJJ5-DMMD] (last visited Nov.

4, 2018). A refugee who applies for asylum inside of Canada does not have permanent

resident status even after their asylum application is granted. See Immigr., Refugees, and

Citizenship Can., Claiming Asylum in Canada — What Happens?, GOV’T OF CAN., https:

//www.canada.ca/en/immigration-refugees-citizenship/news/2017/03/claiming_asylum_inca

nadawhathappens.html [https://perma.cc/S9TK-CPDF] (last visited Nov. 4, 2018). After a

refugee is granted asylum, they will need to apply for permanent resident status in

Canada. See id. In order to apply for citizenship, a refugee permanent resident must have

been physically present in Canada for at least three years during the five years leading up

to filing the citizenship application, must have met their income tax obligations in the

three tax years that are fully or partially within the five years leading up to the

citizenship application, must speak and listen in English or French at a certain level, and

must pass a civics exam. Find Out If You Are Eligible — Citizenship, GOV’T OF CAN.

https://www.canada.ca/en/immigration-refugees-citizenship/services/canadian-citizenship/

become-canadian-citizen/eligibility.html [https://perma.cc/BTY5-USC6] (last visited Nov.

4, 2018). It currently takes about one year for the Canadian government to process a

citizenship application. See Check Processing Times, supra note 71. Therefore, a refugee

in Canada will spend at least six years in permanent residence status before they become

2018] The Regulatory Leash of the One-Year Refugee Travel Document 287

the Refugee Travel Document.

The document is valid for travel

to all countries except the refugee’s country of persecution

and

the refugee must return to Canada before the document’s

expiration. If the refugee uses their home country’s passport (i.e.

the country of persecution), it could cause their refugee status to

be revoked.

Considering that the validity period of the Refugee

Travel Document is discretionary, a Canadian refugee’s ability to

travel internationally and their freedom of movement is also

relatively uninhibited.

New Zealand issues RTDs to persons with refugee status

confirmed by its immigration agency, Immigration New

Zealand.

The “Refugee Travel Document” is valid for a

maximum of five years and is valid until the date of expiration.

In New Zealand, refugees can apply to citizenship after at least

five years of residing in New Zealand if they meet all other

citizenship requirements, including demonstrating basic English

language skills.

Therefore, a refugee will need to use a Refugee

Travel Document for at least five years, which is also the

maximum validity period of the travel document. This should

leave the refugee’s ability to travel abroad, once again, relatively

uninhibited.

The Australian government issues a Convention Travel

Document, also known as a “Titre de Voyage,” to refugees

lawfully residing in Australia.

The Convention Travel

a citizen, if eligible. As such, they will require an RTD during those six years to travel.

For more information about Canadian RTDs, see Immigration and Refugee Protection

Regulations, SOR/2009-163, 151 (Can.).

. Types of Passports and Travel Documents, GOV’T OF CAN., https://www.canada.ca/

en/immigration-refugees-citizenship/services/canadian-passports/travel-documents-non-ca

nadians/document-types.html (last visited Nov. 4, 2018) [https://perma.cc/CE6G-N3RW].

. Id.

. Travel outside of Canada, CANADIAN COUNCIL FOR REFUGEES, http://ccrweb.ca/

en/psr-toolkit/other-useful-info-travel-outside-canada [https://perma.cc/2FXE-A799] (last

visited Oct. 17, 2018) .

. Certificate of Identity or Refugee Travel Document, N.Z. GOV’T (Oct. 11, 2017)

https://www.passports.govt.nz/what-you-need-to-renew-or-apply-for-a-passport/certificate-

of-identity-or-refugee-travel-document/ [https://perma.cc/W4WK-D9DU].

. Id.

. Information for Refugees Settling in New Zealand, UNHCR Mandated Refugees

Selected by INZ, N.Z. GOV’T (June 26, 2014), https://www.immigration.govt.nz/audiences/

supporting-refugees-and-asylum-seekers/information-for-refugees-settling-in-new-zealand

[https://perma.cc/3JBJ-UQ5G].

. Convention Travel Documents (CTD), AUSTRALIAN DEP’T OF FOREIGN AFF. AND

TRADE, http://dfat.gov.au/about-us/publications/corporate/passports/online-passport-

information/Policy/TravelDocuments/COICTD/ConventionTravelDocuments/index.htm [ht

tps://perma.cc/5S7Z-JZX7] (last visited Oct. 17, 2018) .

288 Columbia Journal of Law and Social Problems [52:2

Document, unlike the other travel documents discussed in this

Note, does not give the holder a right to re-enter Australia and

the bearer needs to obtain a reentry visa to reenter Australia.

The travel document is valid usually for one or two years.

refugee is unable to apply for Australian citizenship until they

complete a four-year waiting period and must have been

physically present in Australia for nine months or more in the

year preceding their citizenship application.

Therefore, a

refugee will need to use a Convention Travel Document for at

least four years before they can become a citizen and apply for a

national passport. Unfortunately, the one- to two-year validity

period does not cover the full four-year waiting period, which may

inhibit the refugee’s freedom of movement.

These are just a few examples of how different signatories to

1951 U.N. Convention and the 1967 Refugee Protocol have

complied with their obligations to issue travel documents to

refugees. The next section discusses how the length of the travel

document’s validity period can inhibit a refugee’s freedom of

movement. Freedom of movement is essential for visiting family

abroad, some of whom may be refugees in other countries. This

particular kind of liberty implicates many other human rights

and liberty interests like the right to marriage and family, the

right to public assembly, the right to work, and the right to

education; therefore, governments should be wary of limiting

freedom of movement.

III. THE COMPLEXITY OF RTD USE IN THE UNITED STATES

A. WHO NEEDS RTDS AND WHY

U.S. RTDs are used by asylees, refugees, their derivatives,

and lawful permanent residents (LPRs) who obtained such status

based on their asylum or refugee status.

Asylees and refugees

. Id.

. Travel Related Documents, AUSTRALIAN PASSPORT OFF.,

https://www.passports.gov.au/pages/travel-related-documents.aspx [https://perma.cc/QP4

W-MXXA] (last visited Oct. 17, 2018).

. Citizenship, REFUGEE COUNCIL OF AUSTL., https://www.refugeecouncil.org.au/

getfacts/settlement/citizenship/citizenship/ [https://perma.cc/YFP8-FCDJ] (last visited Oct.

17, 2018).

. See supra note 54.

. USCIS, Fact Sheet: Traveling Outside the United States as an Asylum Applicant,

an Asylee, or Lawful Permanent Resident Who Obtained Such Status Based on Asylum

2018] The Regulatory Leash of the One-Year Refugee Travel Document 289

use RTDs because, under U.S. law, a person who “holds refugee

status pursuant to section 207 of the [INA], or asylum status

pursuant to section 208 of the [INA], must have an RTD to

return

to the United States after temporary travel abroad

unless he or she is in possession of a valid advance parole

document.”

Even though an asylee or refugee has the option of

obtaining an RTD or an advance parole document to reenter the

United States, the fact that the regulation specifies “after

temporary travel abroad”

determines which document they

should obtain. The reason that LPRs who obtained their status

based on their asylum or refugee status need to use an RTD is

addressed later in this Subpart.

An RTD serves two purposes. First, it serves as a document

for international travel that other countries can affix entry and

exit visas to, much like a passport, so that the traveler can travel

legally (“purposes of international travel”).

Second, it serves as

evidence of refugee or asylee status in the United States, which

helps determine if the refugee or asylee is eligible to reenter the

United States.

An advance parole document, on the other hand,

is not a travel document to which other countries can affix entry

Status (2006). In the United States, there are various classes of immigrants who are

eligible to apply and obtain lawful permanent resident status in the United States. Two

such classes are refugee and asylees. See 8 C.F.R. § 209.1–209.2 (2018).

. Reentry is not guaranteed, however. See USCIS, INSTRUCTIONS FOR APPLICATION

FOR TRAVEL DOCUMENT (2016). This Subpart later discusses how RTDs affect a refugee’s

ability to reenter the United States.

. 8 C.F.R. § 223.1(b) (2018) (emphasis added). An “advance parole document” is a

travel document that allows certain classes of aliens to enter the United States for a

specific purpose. An individual who uses an advance parole document has not been legally

admitted into the United States and remains an “applicant for admission” even while

paroled. See USCIS, supra note 84.

. 8 C.F.R. § 223.1(b) (2018) (emphasis added).

. See Whiteman, supra note 11, at 329 (stating Dr.Nansen’s concern that the lack of

a travel document to which countries can affix entry and exit stamps affects a country’s

ability to resettle the refugee). See also 8 C.F.R. § 211.1(a)(4) (2018) (showing that an

unexpired RTD, properly endorsed to reflect admission as a lawful permanent resident, is

valid documentation that an arriving alien may show in applying for admission into the

United States for lawful permanent residence).

. See 8 C.F.R. § 223.3(d) (2018) (stating that “[u]pon arrival in the United States,

an alien who presents a valid unexpired refugee travel document, or who has been allowed

to file an application for a refugee travel document and this application has been approved

under the procedure set forth in § 223.2(b)(2)(ii), shall be examined as to his or her

admissibility under the Act. An alien shall be accorded the immigration status endorsed

in his or her refugee travel document, or (in the case of an alien discussed in

§ 223.2(b)(2)(ii)) which will be endorsed in such document, unless he or she is no longer

eligible for that status, or he or she applies for and is found eligible for some other

immigration status”).

290 Columbia Journal of Law and Social Problems [52:2

and exit visas, so it cannot replace a passport; it serves only as

evidence to a U.S. customs official at a U.S. port of entry that the

alien trying to enter the country has authorization to travel to the

United States without applying for a visa.”

Therefore, a refugee

or asylee who needs to travel abroad will almost always need to

apply for an RTD in order to travel because they do not have a

passport to which immigration officials at the destination country

may affix a visa and to which customs officials at the destination

country may affix a stamp granting entry and exit from that

country. Even asylees or refugees who do have passports issued

by their country of persecution still require an RTD to the United

States as a practical matter since, under INA Section

208(c)(2)(D), an asylee or refugee’s status could be terminated if

they use a passport from their country of persecution.

A lawful permanent resident who became eligible for such

status based on their asylum or refugee status (LPR-AR)

may

also use an RTD to travel abroad.

An LPR-AR would need an

RTD for the same reasons that a refugee or asylee would: they do

not possess nor can they obtain a passport from their country of

citizenship because that country refuses to issue a passport, it is

too dangerous to travel to that country and request a passport,

requesting a passport could expose them to new persecution, or

. USCIS, Travel Documents, DEPARTMENT OF HOMELAND SECURITY (June 26. 2017),

https://www.uscis.gov/travel-documents [https://perma.cc/Z296-NXTB].

. “The alien has voluntarily availed himself or herself of the protection of the alien’s

country of nationality or, in the case of an alien having no nationality, the alien’s country

of last habitual residence, by returning to such country with permanent resident status or

the reasonable possibility of obtaining such status with the same rights and obligations

pertaining to other permanent residents of that country.” INA § 208(c)(2)(D).

. A refugee in the United States is required to apply to change their status (adjust

status) to that of an LPR one year after being admitted as a refugee. See INA § 209(a)(1).

In order to become an LPR, a refugee must (1) have been admitted as a refugee under INA

§ 207; (2) have been physically present in the United States for at least one year; (3) not

have had their refugee status terminated; and (4) have not acquired permanent resident

status under another classification. Id. An asylee may apply to become an LPR after they

have been physically present in the United States for one year. See INA § 209(b). In order

to be eligible to adjust their status to that of an LPR, an asylee must (1) have been

physically present in the United States for at least one year; (2) continue to be a refugee

within the meaning of INA § 101(a)(42)(2); (3) not have firmly resettled in any foreign

country; and (4) be admissible as an immigrant under the Immigration and Nationality

Act. Id. A refugee or asylee would adjust their status to that of an LPR by submitting

Form I-485, proof of their asylee or refugee status, and other relevant documents to

USCIS. For more information about the application process, see USCIS, GREEN CARD FOR

ASYLEES, https://www.uscis.gov/greencard/asylees [https://perma.cc/B8A7-KPA2] (last

visited Oct. 9, 2018) .

. See also 8 C.F.R. § 211.1(a)(4) (2018).

2018] The Regulatory Leash of the One-Year Refugee Travel Document 291

requesting a passport could jeopardize their status in the United

States. Even though LPR-ARs are no longer refugees or asylees,

if they travel to the country of citizenship or obtain a passport

from their country of citizenship, USCIS may either suspect that

the LPR-AR has re-availed them self of the protections of his

country of citizenship and no longer requires U.S. protection, or

that the LPR-AR may have committed fraud when applying for

refugee or asylum status.

Either suspicion may cause USCIS to

re-open the LPR-AR’s grant of asylum or refugee status upon

learning that they have another passport or have traveled back to

their country of citizenship.

So, unlike refugees or asylees,

LPR-ARs may only need the RTD for purposes of international

travel and not for permission to re-enter the United States. A

refugee or asylee, in order to re-enter the United States after

temporary travel abroad, must show an RTD or an advance

parole document, but an LPR can show a variety of different

documents to prove their LPR status, such as a valid, unexpired

“green card,” an immigrant visa, a reentry permit, or an RTD.

All LPRs are automatically issued a green card upon acquiring

that status.

Therefore, RTDs are salient for LPRs for

international travel purposes, rather that reentry purposes.

B. THE APPLICATION PROCESS

A refugee, asylee, or LPR-AR must apply for an RTD before

they travel abroad.

In order to apply for an RTD, the applicant

must submit a completed Form I-131 to U.S. Citizenship and

Immigration Services with the designated filing fee, a copy of the

. See 31. Asylum Status, IMMIGRATION EQUALITY, https://www.immigrationequality

.org/get-legal-help/our-legal-resources/immigration-equality-asylum-manual/asylee-status/

[https://perma.cc/FH29-PRPF] (last visited Oct. 17, 2018). See also You Can Go Home

Again (Sort of): Visiting Your Home Country After a Grant of Asylum, THE ASYLUMIST

(Jan. 6, 2016), https://www.asylumist.com/2016/01/06/you-can-go-home-again-sort-of-visit

ing-your-home-country-after-a-grant-of-asylum/ [https://perma.cc/VE7X-4QZX]. See also

USCIS, Volume 7 - Adjustment of Status, Part M, Chapter 5.B in USCIS POLICY MANUAL

(last updated Sept. 26, 2018), https://www.uscis.gov/policymanual/Print/PolicyManual-

Volume7-PartM.html [https://perma.cc/C9BK-3R6X].

. See also THE ASYLUMIST, supra note 93.

. For a complete list of acceptable documents that an LPR can present to enter the

United States, see 8 C.F.R. § 211.1(a) (2018).

. See generally USCIS, After a Green Card is Granted, DEPARTMENT OF HOMELAND

SECURITY (Sept. 28, 2018), https://www.uscis.gov/green-card/after-green-card-granted

[https://perma.cc/4AJT-5CQG].

. Dep’t of Homeland Security, USCIS, Instructions for Applicant for Travel

Document 3 (Dec. 23, 2016).

292 Columbia Journal of Law and Social Problems [52:2

USCIS notice approving their refugee or asylee status, an official

photo identity document, and two passport-style photos of the

applicant.

An applicant for an RTD must also complete a

biometrics appointment where their fingerprints are taken.

USCIS runs background checks on the applicant using their

biometrics.

100

An applicant is eligible for an RTD if they have submitted the

application while in the United States and are either under valid

refugee status under INA Section 207 or valid asylum status

under INA Section 208, or if they are an LPR-AR.

101

The only

exception to these filing requirements pertains to applications

submitted by aliens who are not within the United States.

102

Also, an applicant is ineligible for an RTD if the previously issued

RTD is still valid and has not been returned to USCIS or been

demonstrated to be lost.

103

Such applicants must wait until their

RTDs are no longer valid.

104

The regulatory scheme provides that an applicant is not

guaranteed an RTD: USCIS “may approve or deny a request for a

. . . refugee travel document as an exercise of discretion.”

105

Therefore, USCIS may deny an application for an RTD if the

applicant does not meet the statutory requirements of a refugee

or asylee, or is not an LPR-AR.

106

An applicant is not in valid

refugee status if they were not in fact a refugee within the

. Id. at 8–12.

. Id. at 11.

100

. 72 Fed. Reg. 17172, 17173 (April 6, 2007).

101

. 8 C.F.R. § 223.2(b)(2)(i) (2018).

102

. USCIS has discretionary authority to accept applications for an RTD by an alien

who is not in the United States. The USCIS office which has jurisdiction over the port-of-

entry or pre-flight inspection location where the alien is seeking admission, or the

overseas office where the alien is present may accept and adjudicate the application from

an alien who has been previously admitted to United States as a refugee or who has been

granted asylum status in the United States and departed the United States before

applying for an RTD. Also, the officer may accept these applications if he feels satisfied

that the alien did not intend to abandon his refugee or asylum status at his time of

departure from the United States, that the alien did not engage in activities outside the

United States that would be inconsistent with continued refugee or asylum status, and the

alien was not outside the United States for more than one year since his departure. 8

C.F.R. § 223.2(b)(2)(ii) (2018).

103

. 8 C.F.R. § 223.2(c)(1) (2018).

104

. Id.

105

. 8 C.F.R. § 223.3(e) (2018).

106

. USCIS can also deny an application even if the applicant does meet the statutory

requirements. Id. As a practical matter, the discretionary element gives USCIS more

flexibility to deny applications if the applicant raises criminal or national security

concerns.

2018] The Regulatory Leash of the One-Year Refugee Travel Document 293

meaning of INA Section 101(a)(42) at the time of their

admission.

107

Additionally, USCIS can deny an application or

invalidate a previously issued RTD if they find that the 1951

U.N. Convention ceased to apply to the applicant “as provided in

Article 1C, D, E, or F of the convention.”

108

An applicant is not in

valid asylum status if the U.S. Attorney General determines that

the applicant no longer meets the eligibility requirements for

asylum described in INA Section 208(b)(1).

109

Reasons that an

asylee would no longer meet the eligibility requirements for

asylum include: (1) a fundamental change in circumstances in the

country of persecution such as a change in government resulting

in the neutralization of the threat of persecution against the

asylee; (2) the asylee meets a condition described in INA Section

107

. INA § 207(c)(4). See also USCIS, Chapter 53.3(a)(5) and (b)(1)–(10) in

ADJUDICATOR’S FIELD MANUAL, https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-

0-0-1/0-0-0-20165/0-0-0-20211.html [https://perma.cc/YMR2-9X5J] (last visited Oct. 17,

2018).

108

. See INA § 207(c)(4). See also Article 1C of the 1951 U.N. Convention, stating that

the convention ceases to apply if: “(1) [The applicant] has voluntarily re-availed himself of

the protection of the country of his nationality; or (2) Having lost his nationality, he has

voluntarily re-acquired it; or (3) He has acquired a new nationality, and enjoys the

protection of the country of his new nationality; or (4) He has voluntarily re-established

himself in the country which he left or outside which he remained owing to fear of

persecution; or (5) He can no longer, because the circumstances in connexion [sic] with

which he has been recognized as a refugee have ceased to exist, continue to refuse to avail

himself of the protection of the country of his nationality; Provided that this paragraph

shall not apply to a refugee falling under section A(1) of this article who is able to invoke

compelling reasons arising out of previous persecution for refusing to avail himself of the

protection of the country of nationality; and (6) Being a person who has no nationality he

is, because of the circumstances in connexion [sic] with which he has been recognized as a

refugee have ceased to exist, able to return to the country of his former habitual

residence.” Article D states that the 1951 U.N. Convention ceases to apply to persons

receiving protection or assistance from organs or agencies of the United Nations other

than UNHCR. Article E states that the 1951 U.N. Convention ceases to apply to a person

who “is recognized by the competent authorities of the country in which he has taken

residence as having the rights and obligations which are attached to the possession of the

nationality of that country.” Article F states that the 1951 U.N. Convention ceases to

apply to “any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as

defined in the international instruments drawn up to make provision in respect of such

crimes; (b) he has committed a serious non-political crime outside the country of refuge

prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary

to the purposes and principles of the United Nations.” See Convention Relating to the

Status of Refugees, art I (C)–(F), July 28, 1951, 189 U.N.T.S. 137.

109

. “The Secretary of Homeland Security or the Attorney General may grant asylum

to an alien who has applied for asylum . . . if the Secretary of Homeland Security or the

Attorney General determines that such alien is a refugee within the meaning of INA

§ 101(a)(42)(A).”

294 Columbia Journal of Law and Social Problems [52:2

208(b)(2);

110

(3) the asylee voluntarily avails himself or herself of

the protection of the country of persecution; or (4) the asylee

acquires a new nationality.

111

USCIS may also invalidate an

RTD if “it was obtained through material false representation or

concealment, of if the person is ordered excluded or deported.”

112

As demonstrated in this Part, the use of RTDs in the United

States is complicated, and the process of acquiring an RTD can be

difficult and nuanced. The following Part now examines how the

complexity of this regime is complicated by the one-year validity

period, such that RTD holders are denied freedom of movement.

IV. RTDS AND THE PROBLEM OF THE ONE-YEAR VALIDITY

PERIOD

A. THE PROBLEM

In order to understand the nature of the problem with the one-

year validity, one must look to the regulation that creates the

U.S. RTD regime: 8 C.F.R. Section 233.3(a)(2). Currently, under

8 C.F.R. Section 233.3(a)(2), the United States issues RTDs that

are “valid [for] 1 year, or to the date the refugee or asylee status

expires, whichever comes first.” Under Section 223.3(c), the

validity of the document may not be extended. At present,

processing times for an application for an RTD range from five

months to six months per office.

113

The average processing time

for RTD applications for all USCIS offices is currently four to six

months — this compares to an eighty-two-day average in fiscal

year 2016, eighty-one-day average in fiscal year 2015, and an

eighty-two-day average in fiscal year 2014.

114

Because of the extended processing times for RTDs, asylees

and refugees are forced to plan international travel unusually far

in advance. This problem is exacerbated by the fact that many

110

. This Section lists reasons why an alien may be denied asylum status, such as that

the alien committed a serious nonpolitical crime or ordered, incited, assisted or otherwise

participated in the persecution of any person on account of race, religion, nationality,

membership in a particular social group, or political opinion.

111

. INA § 208(c)(2)(A)–(E).

112

. 8 C.F.R. § 222.3(b) (2018).

113

. See USCIS, Processing Times, DEP’T OF HOMELAND SECURITY,

https://egov.uscis.gov/processing-times/ (last visited Nov. 4, 2018) [https://perma.cc/2EH5-

X7YC].

114

. See id. (in the drop-down menu, choose “I-131|Application for Travel Document,”

and “Nebraska Service Center”).

2018] The Regulatory Leash of the One-Year Refugee Travel Document 295

countries distinguish between U.S. passport holders and RTD

holders, requiring only the latter to obtain tourist visas. For

example, some countries within the Schengen Zone

115

have

changed their internal policies pertaining to visa requirements

for RTD holders, and now request that RTD holders apply for a

Schengen visa before they plan to travel.

116

Even if the refugee or

asylee were to proactively file for a new RTD while the current

one is still valid in order to have a seamless transition, USCIS

would deny the application if the current one is still valid, forcing

the asylee or refugee to apply once again and wait another

number of months for a valid document.

117

Furthermore, some countries require visitors to have at least a

three-month validity on their travel document before admission

will be granted.

118

Other countries will not allow an RTD holder

to enter if their document has less than six months of validity

remaining.

119

Therefore, a refugee or asylee applying for

admission to one of these countries may be barred from entry

115

. The Schengen Zone or the Schengen Area encompasses most European Union

(EU) states, except for Bulgaria, Croatia, Cyprus, Ireland, Romania and the United

Kingdom, and also includes some non-EU states like Iceland, Norway, Switzerland, and

Liechtenstein. Within the Schengen Zone, there are no internal customs checks at

internal borders and a common set of rules applies to people crossing the EU external

borders. European Commission, Schengen Area, MIGRATION AND HOME AFFS.,

https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-visas/schengen_en

[https://perma.cc/MWF9-SY6B] (last visited Oct. 17, 2018).

116

. Italy announced in March 2017 that Schengen visas will be required for RTD

holders upon entering. Other countries such as Turkey also require that holders of RTDs

to apply for a visa before travelling and that RTD holders must have at least one year

validity remaining on their travel document. This source also includes a table of the

countries that require visitor visas for 1951 U.N. Convention RTD holders. See Gherson,

Refugee travel documents and visa free travel, LEXOLOGY (Aug. 9, 2017), https://

www.lexology.com/library/detail.aspx?g=bda8422e-9057-47c3-973f-360c5e95fa29 [https://

perma.cc/WM9U-WMK9]. See also Ruslan Kosarenko, Travelling Abroad with Refugee

Travel Document: Visa Requirements and Restrictions, STERLING & LAW ASSOCIATES LLP

(Mar. 11, 2017), http://sterling-law.co.uk/en/travelling-abroad-refugee-travel-documents-

visa-requirements-restrictions/ [https://perma.cc/F8BC-5LE2] (including a list of countries

that currently require visitor visas for RTD holders).

117

. See 8 C.F.R. § 223.2(c)(1) (2018).

118

. The United States is one such country. A nonimmigrant visa, which does not

grant permanent residence in the issuing country, is only to be issued in passports that

are valid for at least six months beyond the initial period of contemplated stay in the

United States, except in some circumstances. See 8 U.S.C § 1101 (a)(26) (2012). See also 9

FAM 403.9-3(B)(1)(U) (2018). Some countries have arrangements or agreements with

United States whereby their passports are recognized as valid for return to the country

concerned for a period of six months beyond the expiration date specified in the passport.

Id. at (B)(2). The Foreign Affairs Manual (FAM) does not clarify whether the term

“passport” here includes RTDs. Id. at (A)(1)–(A)(2).

119

. See 9 FAM 403.9-3(B)(1)(U)(2018). See also Gherson, supra note 116.

296 Columbia Journal of Law and Social Problems [52:2

until they can obtain a new travel document with a longer

validity period. Since U.S. RTD holders can neither obtain an

extension of their travel document nor obtain a new travel

document until their current document has expired,

120

an RTD

holder that had less than three months left on the document

would have to wait at least three months to travel

internationally, even if USCIS granted a new RTD at the exact

the moment that the old RTD expires.

121

Another consequence of limiting a refugee’s freedom of

movement by issuing an RTD with a one-year validity period is

that the subsequent travel problems are reminders to the refugee

that their status in their country of residence is not that of a full

citizen, but a foreigner who has sustained substantial trauma.

122

For example, when a refugee or asylee learns that they cannot

travel to Spain for business because their RTD does not meet

Spain’s minimum validity period requirement for travel

documents, they are reminded their travel is restricted because

they were a victim of persecution. According to a clinical study

on the impact of asylum interviews on asylum seekers, “the

feeling of being ruthlessly exposed to a situation and helpless to

change it . . . has been identified as a factor determining how

traumatic a situation is perceived to be. Trauma-related stimuli

may thus lead to an increase in PTSD [Post Traumatic Stress

120

. See 8 C.F.R. § 223.3 (c) (2018).

121

. See Am. Immigr. Laws. Assoc., Comments on DHS’s Retrospective Review of

Existing Regulations, AILA Doc. NO. 16111633 (Nov. 16, 2016).

122

. “Refugees and asylum seekers are highly vulnerable to psychological disorders.”

Mina Fazel et al., Prevalence of Serious Mental Disorder in 7000 Refugees Resettled in

Western Countries: A Systematic Review, 365 THE LANCET 1309, 1309 (2005). According to

a clinical research study conducted on asylum seekers in Germany, asylum interviews

trigger posttraumatic intrusions because the experience of an asylum interview “may

evidently remind them of life-threatening experiences in their home country — and thus

may stimulate and reactivate the associated feelings of helplessness.” Katrin Schock et al.,

Impact of Asylum Interviews on the Mental Health of Traumatized Asylum Seekers, 2015

EUR. J. PSYCHOTRAUMATOLOGY 1, 6. For more information about post-traumatic stress

disorder (PTSD) in refugee populations, see Julian Gojer & Adam Ellis, Post-Traumatic

Stress Disorder and the Refugee Determination Process in Canada: Starting the Discourse,

U.N. HIGH COMM’R FOR REFUGEES (March 2014) http://www.unhcr.org/en-us/research/

working/53356b349/post-traumatic-stress-disorder-refugee-determination-process-canada-

starting.html; Nat’l Ctr. on Domestic Violence, Trauma & Mental Health, Trauma-

Informed Legal Advocacy (TILA) in Asylum & Immigration Proceedings: A Curated

Selection of Resources for Attorneys and Legal Advocates (Sept. 2016), http://www.

nationalcenterdvtraumamh.org/wp-content/uploads/2013/08/

TILA_bib_for_immigration_asylum_attorneys_final.pdf [https://perma.cc/RAJ9-T6Z8].

2018] The Regulatory Leash of the One-Year Refugee Travel Document 297

Disorder] when they are associated with life-threatening

situations.”

123

Travel restrictions can be further triggering for refugees in

ways that do not affect natural-born citizens. For example, travel

restrictions impact the ability of refugees to visit the families and

friends they left behind in their countries of citizenship, as

finding a neutral third country to which both parties can travel is

difficult. Financial constraints of settling in a new country

further complicate these difficulties. As such, making travel

arrangements for a refugee is a stressful process that can be

exacerbated by an administrative obstacle, causing re-

traumatization and hindering healing.

124

The impact of this restrictive regulatory practice is a

recognized issue. In 1978, the U.N. High Commission for

Refugees (UNHCR) issued a white paper describing some of the

problems encountered by refugees worldwide regarding the

issuance of travel documents.

125

UNHCR noted the following

regarding one-year RTDs: “Such a short period of validity could,

in certain circumstances impose an unduly heavy burden on the

refugee.”

126

Furthermore, such a short validity period, as far as

renewal is concerned, “could also involve considerable

administrative inconvenience for the authorities in the issuing

country or its diplomatic or consular representatives abroad.”

127

Accordingly, the High Commissioner recommends that

governments issue RTDs “with wide validity both geographically

and in time.”

128

While the U.S. RTD regime technically complies with

temporal validity requirements set by the 1951 U.N. Convention,

in practice, it violates the geographic validity requirement. The

123

. See Schock, supra note 122, at 6. Furthermore, another clinical study argues that

refugees only manage to escape their traumatic situation and cope with resettling in

another country by deliberately avoiding thinking about the traumatizing event. See

generally Jane Herlihy et al., Should Discrepant Accounts Given by Asylum Seekers be

Taken as Proof of Deceit?, 16 TORTURE 81 (2006).

124

. Mental disorder in refugees arises from a mix of factors, including (a) repeated

exposure to traumatic experiences in the country of origin; (b) stresses encountered in the

period of transition and asylum seeking; and (c) post-migration experiences, such as

insecure residency, fear of repatriation, and socioeconomic discrimination. Louise

Newman et al., Seeking Asylum — Trauma, Mental Health, and Human Rights — An

Australian Perspective, 14 J. TRAUMA & DISSOCIATION 213 (2013).

125

. See U.N. High Comm’r for Refugees, supra note 7.

126

. Id.

127

. Id.

128

. Id.

298 Columbia Journal of Law and Social Problems [52:2

geographic limitation and the administrative obstacles of the U.S.

RTD regime can impose a heavy burden on refugees, asylees, and

LPR-ARs’ freedom of movement and trigger memories of their

traumatic experiences as refugees. There is a simple solution for

the United States to ameliorate its violation: extend the temporal

validity period of RTDs.

V. PREVIOUSLY PROPOSED SOLUTION AND RESPONSE

The U.S. government is not blind to the problems that the one-

year validity period creates. One major attempt by the USCIS

Ombudsman to extend the validity period of RTDs (the “2005

Recommendation”) was unsuccessful. This Part reviews the 2005

Recommendation, the subsequent government response, and the

reasons for its failure.

In 2005, USCIS Ombudsman Prakash Khatri, who is charged

with “improving the quality of USCIS services by providing case

assistance and with issuing recommendations on how to improve

management of immigration benefits,”

129

recommended the

USCIS Director, Eduardo Aguirre, revise 8 CFR Section

223.3(a)(2) to extend the validity period of RTDs from one year to

ten years and establish a policy of adjudicating RTD applications

and reentry permits within six weeks.

130

Ombudsman Khatiri argued that given the cap, long

processing times for RTDs, and the number of years it takes

refugees and asylees to become U.S. citizens, most asylees would

be required to use an RTD for at least six and a half to seven

years.

131

Therefore, long delays in receiving RTDs or reentry

permits from USCIS disrupt the travel plans of not only non-

citizens, but often their U.S. citizen family members and

129

. CIS Ombudsman, DEPARTMENT OF HOMELAND SECURITY, https://www.dhs.gov/

topic/cis-ombudsman [https://perma.cc/W4VL-W25D] (last visited Oct. 10, 2018).

130

. See Prakash Khatri, Recommendation from the CIS Ombudsman to the Director

(June 10, 2005). In 2005, there was a statutory cap limiting annual asylee adjustments to

10,000 which resulted in waiting times for adjustment for asylees to exceed ten years,

which has since been eliminated. In 2005, there was a statutory cap limiting annual

asylee adjustments to 10,000 which resulted in waiting times for adjustment for asylees to

exceed ten years. This cap has since been eliminated.

131

. Id. at 2 (“In addition, refugees and asylees granted LPR status must wait another

5 years to apply for citizenship, and longer still to be naturalized, at which point they

finally are eligible to obtain a U.S. passport. So, in the best of circumstances, an asylee,

even if able to become an LPR in minimum time, is still required to use a refugee travel

document for at least 6 ½ to 7 years.”).

2018] The Regulatory Leash of the One-Year Refugee Travel Document 299

traveling companions. Extending the validity period to ten years

would alleviate the burden and cost imposed on applicants who

currently have to apply for multiple RTDs prior to becoming

LPRs and citizens, and would significantly decrease the number

of RTD applications processed by USCIS allowing it to reassign

resources to other areas.

132

The Acting Deputy Director of USCIS, Robert Divine,

responded that it would be inappropriate to extend the validity

period of RTDs to ten years because the one-year validity period

is consistent with the legal regime by which asylees and refugees

become LPRs.

133

In 2005, the statutory construct limited refugee

status to one year, at the end of which the individual had to apply

for adjustment of status to that of a permanent resident.

134

Divine argued that a ten-year travel document would run counter

to the entire statutorily-mandated process to review the status of

asylees and refuges after one year of physical presence in the

United States.

135

However, Divine failed to recognize that not all

RTD applicants are subject to the one-year statutory review:

While refugees are statutorily mandated to adjust their status

after one year,

136

asylees are not.

137

An asylee’s I-94 Arrival-

Departure Record, which is issued by DHS after granting asylum

status, shows an asylee’s status is indefinite. The drafters of 8

C.F.R. Section 223.3(a)(2) likely recognized the distinct

adjustment of status requirements of refugees and asylees, as the

regulation states that the RTD will expire after one year or when

the holder’s status expires, “whichever comes first.” So, Divine’s

argument does not carry the weight that he believes it does. He

may have even recognized the weakness, accounting for his claim

that the extension was merely “inappropriate,” instead of

“impermissible.”

Divine also claimed refugees and asylees would be confused by

the ten-year RTD validity period and think that their asylum or

refugee status would last ten years.

138

In other words, refugees

or asylees would equate the validity period on an RTD to the

132

. Id.

133

. Robert Divine, Response to CIS Ombudsman Recommendation from Acting

Deputy Director (Dec. 27, 2005).

134

. Id.

135

. Id.

136

. See 8 C.F.R. § 209.1(a) (2018).

137

. See supra note 91.

138

. See Divine, supra note 133.

300 Columbia Journal of Law and Social Problems [52:2

validity period of their immigration status and lead to failures to

file for adjustment of status on time.

139

But this reasoning is

misguided: refugees and asylees can reference myriad other

immigration documents that explicitly note the expiration of their

status, like the I-94 Arrival-Departure Card that non-immigrants

receive upon legally entering the United States, an approved

refugee application (Form I-590) with proper endorsement, an

approved refugee relative petition (Form I-730), or an order from

an immigration judge.

140

As such, the scenario that Divine

illustrates would be a rare occurrence and is not a sufficiently

strong reason to oppose Ombudsman Khatri’s recommendation.

Divine also argued a multi-year RTD would be unnecessary

because the Real ID Act of 2005 — a U.S. federal law pertaining

to security, authentication, and issuance procedures for state

driver’s licenses and identity documents, as well as some

immigration issues

141

— removed the numerical cap for asylee

adjustments, causing applications to be processed faster and

reducing backlog.

142

A refugee or asylee would not need an RTD

with a ten-year validity period, if it took less than ten years for

an asylee or refugee to become a U.S. citizen. But Divine’s

argument does not take into consideration the complexity of RTD

use in the United States. RTDs are used by refugees and asylees

for both purposes of international travel and for permission to re-

enter into the United States.

143

As discussed in Part II.A,

refugees and asylees require RTDs for international travel unless

and until they become U.S. citizens — and as neither refugees

nor asylees are required to obtain citizenship, they may require

RTDs for international travel indefinitely. Furthermore, as it

takes five years in LPR status to become eligible for citizenship

and therefore a U.S. passport, even refugees and asylees who

become LPRs as soon as they are eligible will still need to travel

on an RTD for a minimum of five years, and thus could benefit

from a multi-year RTD.

144

Therefore, faster processing of

139

. If refugees did not file an adjustment of status application before their asylum or

refugee status expired, then DHS could begin deportation proceedings against the

individual for being in the United States without valid immigration status.

140

. See USCIS, supra note 93.

141

. See generally Emergency Supplemental Appropriations Act for Defense, the

Global War on Terror, and Tsunami Relief, Pub. L. No. 109-13 (May 11, 2005).

142

. See supra note 133.

143

. See infra Part II.A.

144

. While refugees are required to adjust to LPR status within a year, asylees are

under no such obligation. For example, an asylee could spend four years in asylee status

2018] The Regulatory Leash of the One-Year Refugee Travel Document 301

applications for adjustment of status to that of an LPR does not

obviate the need for a multi-year RTD.

Accordingly, this Note does not subscribe to this solution and

presents its own in Part VI or something like that

VI. NEW PROPOSAL: REACHING A COMPROMISE BETWEEN

FREEDOM OF MOVEMENT AND SECURITY BY AMENDING THE

REGULATORY REGIME

This Note’s proposal is informed and influenced by the 2005

Recommendation, but subscribes to the belief that the current

regulatory, statutory, and political landscape calls for a more

tempered recommendation. This Note therefore proposes that

Department of Homeland Security enact an amendment to 8

C.F.R. Section 223.3, extending the validity period of U.S. RTDs

to at least two years. Such a validity period would: (1) continue to

be consistent with the United States’ obligations under the 1951

U.N. Convention and the 1967 Protocol; (2) be consistent with

UNHCR’s Guidance pertaining to 1951 U.N. Convention travel

documents; (3) decrease USCIS staffing issues and solve

efficiency issues; (4) permit longer periods for refugees and

asylees to travel without administrative hindrances; (5) match

the statutory and regulatory scheme for adjustment of status and

naturalization for refugees and asylees; and (6) conform more

with the rights of international travel and reentry accorded to

refugees and asylees.

before deciding to apply to adjust their status to that of an LPR. Also, it could also take

an asylee two or more years to accumulate the one year of physical presence in the United

States required by the INA to apply for adjustment of status to that of an LPR. See supra

note 91. See also INA § 209 (b), 8 U.S.C. § 1159. Under U.S. immigration law, an

individual must be an LPR to apply for citizenship. Once they are a citizen, they can get a

ten-year U.S. passport with visa-waiver privileges. So, if one adds those years in asylee

status to the five years that one must be in LPR status before applying for U.S.

citizenship, then it would take an asylee at least seven years to become a U.S. citizen and

no longer require an RTD. See INA § 316(a); 8 U.S.C. § 1427. The speedier processing

time does not matter because even after a refugee or asylee adjusts to LPR status, they

still need to be in LPR status (LPR-AR) for five years before they can even apply for

citizenship. So, a multi-year document may still be necessary.

302 Columbia Journal of Law and Social Problems [52:2

A. CONSISTENT WITH U.S. OBLIGATIONS UNDER 1951 U.N.

CONVENTION AND THE 1967 PROTOCOL

As previously noted, the United States is a state party to the

1967 Protocol, but not the 1951 U.N. Convention. However, the

Protocol obliges state parties to abide by two articles of the 1951

U.N. Convention: Article 26, pertaining to a refugee’s freedom of

movement, and Article 28, pertaining to the issuance of RTDs.

145

The 1951 U.N. Convention includes a schedule which explicitly

states that any travel document issued pursuant to the 1951 U.N.

Convention “shall have a validity of either one or two years, at

the discretion of the issuing authority.”

146

Some states, like the

United Kingdom, have gone above and beyond the one to two-

year mandate of the 1951 U.N. Convention, and issued travel

documents with a validity period of ten years, as the Ombudsman

suggested.

147

The United States, given its unique racially-driven

and discriminatory immigration history, especially towards

refugees,

148

will likely be hesitant to provide refugees with more

145

. Convention Relating to the Status of Refugees, art 26, 28, July 28, 1951, 189

U.N.T.S. 137.

146

. Id. at Schedule, ¶ 5.

147

. See Travel Documents: United Kingdom, supra note 56; see also Khatri, supra

note 130.

148

. It is important to note that Congress’ plenary immigration power was derived

from racially-driven, xenophobic, and discriminatory immigration cases that reached the

courts during the same time period as Plessy v. Ferguson, such as Chae Chan Ping v.

United States, Fong Yue Ting v. United States, and Wong Wing v. United States. Rigoberto

Ledesma, Comment, The Unconstitutional Application of Apprehension and Detention

Laws: Section 236(C) of The Immigration and Nationality Act, 19 ST. MARY’S L. REV. RACE

& SOC. JUST. 361, 369 (2017). Chae Chan Ping dealt with the Chinese Exclusion Act of

October 1, 1888 which prohibited Chinese laborers who had temporarily left the United

States from re-entering the country, resulting in the effective expulsion of thousands.

Chae Chan Ping v. U.S., 130 U.S. 581, 582–590 (1889). The Chinese Exclusion Act was a

direct consequence of the nativist, anti-Chinese sentiment in California, which later

spread throughout the country. Lauri Kai, Note, Embracing The Chinese Exclusion Case:

An International Law Approach to Racial Exclusions, 59 WM. & MARY L. REV. 2617, 2629–

2630 (2018). Evidence of the racial sentiment embedded in the exclusionary legislation is

by no means buried. For example, the delegates from the California Constitutional

Convention told Congress that they were concerned about the “oriental invasion” and that

they considered it a “menace to our civilization.” Id. In Chae Chan Ping, the Court

determined that Congress has complete authority to govern immigration through enacting

legislation. Chae Chan Ping established a doctrine that entry can be barred to foreigners

if there is a national security reason premised on race or nationality. Id at 2619. After

Chae Chan Ping, the Court dealt with another racially-motivated case, Fong Yue Ting v.

U.S. where the Court reiterated Congress’s right to expel foreigners. Ledesma, supra at

369. In Fong, the Court reviewed a statute that referred to the Chinese as “obnoxious”

and a “distasteful class.” Id. For more information about exclusionary and discriminatory

immigration laws directed at Chinese immigrants, see Nina Wang, Laws Harsh As Tigers:

2018] The Regulatory Leash of the One-Year Refugee Travel Document 303

Chinese Immigrants and the Shaping of Modern Immigration Law, 31 Harv. C.R.-C.L. L.

Rev. 587 (1996). Furthermore, Congress passed the Immigration Act of 1917 which

established a literacy test that all immigrants needed to pass to enter the United States.

The Immigration Act of 1924 (The Johnson-Reed Act), U.S. DEP’T OF STATE OFF. OF THE

HISTORIAN, https://history.state.gov/milestones/1921-1936/immigration-act (last visited

Nov. 6, 2017) [https://perma.cc/U4HG-2SST] [hereinafter “Johnson-Reed Act”]. According

to one of the sponsors of the Immigration Act of 1924, the purpose of the Act was to create

a visa program that favored North Europeans “whose culture Americans viewed as

superior to Southern and Eastern Europeans, who were considered non-white and

considered unable to assimilate naturally into U.S. society. Kaila C. Randolph, Executive

Order 13769 and America’s Longstanding Practice of Institutionalized Racial

Discrimination Towards Refugees and Asylum Seekers, 47 STETSON L. REV. 1, 16–17

(2017). Segregationists supported this legislation because it effectively restricted entry

from non-English-speaking immigrants like Asian, Greek, Italian, Hungarian, and Polish

immigrants. Id. at 15. In order to further restrict the number of immigrants from non-

desirable countries, Congress passed the Immigration Act of 1924 which amended the

immigration quota system, increasing the availability of visas for Western European

immigrants, but reducing the availability of visas for Southern and Eastern European

immigrants. Id. at 16. The Act also prevented Japanese immigrants and immigrants of

African descent from immigrating to the United States. Id. at 17. See also Johnson-Reed

Act. The quota system was not changed until the passage of the Immigration and

Nationality Act of 1965. Randolph, supra at 17.

The United States’ racially discriminatory immigration laws have also been directed at

refugees and asylum seekers. For example, the national origin quota system established

by the Immigration Act of 1924 made fewer visas available for Southern and Eastern

European refugees, including Jewish refugees fleeing persecution from Nazi Germany. Id.

Furthermore, American xenophobic sentiment also discouraged increased immigration

because Americans feared that immigrants would take the remaining jobs available

during the Great Depression. Id. Further, the United States denied visas to Jewish

refugees because the United States believed that these unemployed refugees whose

property was seized by the Nazi regime would become public charges and seek public

assistance in the United States. Id. at 18. See also Constitutional Rights Found., History

Lesson 5: U.S. Immigration Policy and Hitler’s Holocaust, Educating About Immigration,

http://

www.crfimmigrationed.org/index.php?option=com_content&view=article&id=144:hl5&cati

d=50:lessonsforteachers [https://perma.cc/Z434-S5FP] (last visited Nov. 6, 2017)

[hereinafter “Holocaust”]. Like present-day rhetoric about terrorists posing as refugees,

many Americans at that time believed that Nazi and Communist spies were posing as

Jewish refugees. Randolph, supra at 18. See Daniel A. Gross, The U.S. Government

Turned Away Thousands of Jewish Refugees Fearing That They Were Nazi Spies,

SMITHSONIAN (Nov. 18, 2015), http://www.smithsonianmag.com/history/us-government-

turned-away-thousands-jewish-refugees-fearing-they-were-nazi-spies-180957324/ [https://

perma.cc/2VNM-G2ES] (describing how “[g]overnment officials from the State Department

to the FBI to President Franklin Roosevelt himself argued that refugees posed a serious

threat to national security” and describing the story of Herbert Karl Friedrich Bahr, a

refugee from Germany, who sought asylum in the Unites States, but was later revealed to

be a Nazi spy). This fear was encouraged by statements made by President Franklin

Delano Roosevelt and other government officials. Id. There continues to be racially-

motivated refugee and asylum policies in the United States. For example, in the early

1980s, the United States refused to recognize Central American immigrants fleeing

government persecution and war as “refugees” or “asylees.” Randolph, supra at 20–22.

Also, the United States treated Haitian and Cuban refugees differently, granting Cuban

refugees differently, granting Cuban refugees resettlement while refusing Haitians the

ability to apply for political asylum, preferring to repatriate them to Haiti. Id. at 24–26.

304 Columbia Journal of Law and Social Problems [52:2

rights or benefits than required under a treaty.

149

As such, the

request to the USCIS Director to extend the validity period of

RTDs to ten years was likely too far-fetched an aspiration.

A more reasonable proposal, and one still consistent with the

U.S. obligations under the 1951 U.N. Convention, would have

been that the USCIS extend the validity of RTDs to two years.

The proposal would be reasonable because it does not ask the

United States to go beyond the 1951 U.N. Convention and the

1967 Refugee Protocol,

150

and the 1967 Refugee Protocol explicitly

states that a two-year validity period is adequate.

151

Also, an

incremental extension that falls closer within the language of the

Protocol would be a more practical solution politically because it

is highly unlikely that Congress will want to go beyond the

required one- to two-year validity period set out in the Protocol.

152

B. CONSISTENT WITH UNHCR GUIDANCE AND WOULD EXPAND

FREEDOM OF MOVEMENT

An RTD with a two-year validity period would be consistent

with UNHCR guidance as well. As previously stated, in 1978,

UNHCR issued guidance to state parties to the 1951 U.N.

Convention stating that countries who issue a travel document

with a validity period of one-year cause an “unduly heavy burden

on the refugee.”

153

The Commissioner suggested that countries

For more information about the racially-discriminatory history of immigration laws, see

generally Randolph, supra.

149

. Consider the legislative history of the Refugee Act of 1980, which highlights

concern for refugees, but also concern that increasing refugee admissions could take away

resources from Americans. 125 CONG. REC. H11965 (daily ed. Dec. 13, 1979) (Senator Lott

stating that the United States may not have the ability to accept unlimited amounts of

refugees and that it is foolhardy for the United States to accept refugees when there is a

domestic energy crisis, unemployment, and inflation. He believes that accepting

additional refugees will exacerbate these problems). Furthermore, consider the language

of the regulation creating the RTD: “A refugee travel document is also invalid if the

United Nations Convention of July 28, 1951, ceases to apply.” See 8 C.F.R. § 223.3(b).

Therefore, there is both legislative history and regulatory language that hints that the

United States would not expand benefits beyond its obligations under the 1951 U.N.

Convention and the 1967 Refugee Protocol.

150

. See id.

151

. See Convention Relating to the Status of Refugees, Schedule, ¶ 5, July 28, 1951,

189 U.N.T.S. 137.

152

. See 8 C.F.R. § 223.3. In fact, the language of the regulation suggests that RTDs

would not exist if the Protocol or Convention were no longer valid. “A refugee travel

document is also invalid if the United Nations Convention of July 28, 1951, ceases to apply

. . . ” See 8 C.F.R. § 223.3(b).

153

. See U.N. High Comm’r for Refugees, supra note 7.

2018] The Regulatory Leash of the One-Year Refugee Travel Document 305

issue RTDs with “wide validity both geographically and in

time.”

154

A two-year validity period falls within this guidance

because it would prove a wider temporal validity period that

would reduce many of the burdens of holders of RTDs.

A two-year validity period implicitly extends the geographic

validity of an RTD.

155

Under the current one-year validity period,

RTD holders can only travel to countries that require a six-month

validity period on travel documents for six months out of their

year. For the remaining six-month validity period, RTD holders

have to restrict their personal and business travel to countries

that do not require six months validity period. Schengen

countries, for example, are administratively “blacked out” for six

months out of the year. While RTD holders could theoretically

frontload their travel plans to these blacked out countries during

the first six months of the validity period of their RTDs, this is

both overly restrictive and requires RTD holders to predict all

international travel. Business and personal emergencies are a

natural consequence of life. Requiring RTD holders to be less

responsive to emergencies inflicts upon them a second-class

status that is not a consequence of any action of theirs, but a

consequence of their victimhood. If the validity period were

extended to two years, then RTD holders would be able to travel

to these blacked out countries for a longer period of time than

before, permitting them to lead an existence more like that of

other immigrants.

C. CONSISTENT WITH U.S. STATUTORY AND REGULATORY

SCHEME

A two-year validity period for RTDs would be more consistent

with the U.S. statutory and regulatory scheme for refugees and

asylee adjustment and citizenship. As noted in Part II, countries

that issue RTDs with validity periods longer than two years

seemingly have a statutory framework for refugee citizenship of

the same length.

156

The length of a U.S. RTD does not currently

match the statutory and regulatory path to citizenship for a

refugee or asylee.

154

. Id.

155

. See supra Part IV.A.

156

. See id. at 13–18.

306 Columbia Journal of Law and Social Problems [52:2

Recall that currently, a refugee or asylee has to wait at least

five years from the time they enter the United States in valid

refugee status or are granted asylum status to become a U.S.

citizen, and that a refugee is required to become a lawful

permanent resident after one year of physical presence in the

United States.

157

An asylee, on the other hand, is not required to

adjust their status to that of a permanent resident; if an asylee

meets the other regulatory requirements, they may adjust their

status after one year of physical presence in the United States.

158

After an asylee or refugee is granted lawful permanent residence

in the United States, they can apply for U.S. citizenship after

four years.

159

Therefore, during the five years preceding their

U.S. citizenship application, a refugee or asylee will have to

obtain at least five separate RTDs in order to travel

internationally. This is both a financial and administrative

burden.

160

While a five-year RTD would be ideal and most consistent

with the regulatory and statutory framework, the liberal

language of the regulations permitting asylees to adjust status

make it an unlikely solution. Theoretically, an asylee could

157

. See INA § 209(b), 8 U.S.C. § 1159.

158

. See 8 C.F.R. § 209.2.

159

. 8 C.F.R. § 209.1(e) states that “[i]f the applicant is found to be admissible for

permanent residence under section 209(a) of the Act, USCIS will approve the application,

admit the applicant for lawful permanent residence as of the date of the alien’s arrival in

the United States, and issue proof of such status.” This section applies to refugees

adjusting their status to that of lawful permanent resident. The implication of 8 C.F.R.

§ 209.1(e) is that a refugee will be granted permanent residence as of the date they

entered the United States as a refugee, which would be at least one year prior to the grant

of their adjustment of status application. Therefore, a refugee would only need to remain

in permanent resident status for four more years to apply for and obtain U.S. citizenship.

For example, if a person entered the United States as a refugee on December 12, 2017, she

would be eligible to adjust her status to that of a lawful permanent resident on December

12, 2018. Once USCIS granted her application for adjustment of status, she would receive

a green card showing that she has been a lawful permanent resident since December 12,

2017, not 2018. The start date of her lawful permanent residence has been “rolled back”

one year. Therefore, she would be eligible to apply for U.S. citizenship on December 12,

2022, not 2023. The one year she was in refugee status applies to the five years of lawful

permanence required for U.S. citizenship. The same is true for asylees. See 8 C.F.R.

§ 209.2(f).

160

. Each individual RTD application can cost between $105 and $220, not including

attorney’s fees. I-131, Application for Travel Document, U.S. CITIZENSHIP AND IMM.

SERVS. (Nov. 9, 2018) https://www.uscis.gov/i-131. Supra Parts II and III discuss how the

current RTD application process is an administrative burden that impacts the travel plans

and lives of both the applicants and their U.S. citizen family members.

2018] The Regulatory Leash of the One-Year Refugee Travel Document 307

remain in asylee status as long as they choose,

161

so, an asylee

could need an RTD to travel anywhere from five years after the

grant of asylum to the length of their lives. While this prospect

could have encouraged lawmakers or rule makers to issue multi-

year RTDs, the uncertainty produced the alternate effect.

Issuing a one-year RTD allows USCIS and DHS to both

periodically re-evaluate the validity of an applicant’s asylum

status and encourage asylees to apply for permanent residence

sooner.

162

While a one-year RTD allows USCIS to periodically evaluate

the validity of an asylee’s refugee status and encourage them to

take apply for permanent residence, a two-year validity period

would achieve a substantially similar result while still affording

asylees and refugees greater freedom of movement. In the ideal

situation, a refugee who naturalizes within five years of their

entry into the United States would only need to apply for a two-

year RTD a maximum of three times during their non-citizen

status. An ideal asylee would do the same. For the asylees or

refugees who do not want to immediately naturalize and postpone

naturalization for their own personal reasons, a two-year RTD

would still permit greater freedom of movement without

requiring them to incur the unnecessary administrative burden.

A two-year RTD would not have negative implications on a

refugee or asylee’s ability to adjust their status to that of a lawful

permanent resident or to eventually naturalize, and would still

impose the same limitations on the length of a refugee or asylee’s

international travel. A two-year travel document would

hypothetically just extend the amount of time for an asylee to

accumulate the required one-year of physical presence from two

years to three years. It would have no impact on the timing of a

161

. Asylees do, however, run the risk that country conditions in their home countries

could change, causing the Attorney General to revoke their asylee status because they no

longer meet the definition of a “refugee.” INA § 208(c)(2).

162

. In his response to the Ombudsman, Divine strongly implies that USCIS wants

refugees and asylees to apply for LPR status quickly and as soon as possible. See Divine,

supra note 133. His response does not provide a reason. However, the reason that

Congress created a quicker route to permanent residency for refugees and asylees may be

buried in the legislative history of the Refugee Act of 1980. In the legislative history,

Congress not only increased refugee admissions, but established resettlement benefits for

refugees. In addition, several members of Congress expressed concern about the amount

that states and the federal government spend on public assistance programs. See supra

note 149.

308 Columbia Journal of Law and Social Problems [52:2

refugee’s adjustment of status, which would still take place at the

one-year anniversary of their entry into the United States.

163

It is possible that a multi-year RTD may affect an asylee’s

incentive to adjust to LPR status, but it is not dispositive to the

value of this proposal. A longer validity period could reduce the

incentive to hurry to become a U.S. citizen and therefore an LPR

because a U.S. passport may not be as appealing. However, it

would be more detrimental to asylees to postpone their

adjustment to LPR status than it would be for the U.S.

government. Asylees would still need to meet the definition of a

“refugee” while they are in asylee status; so, changes in the

circumstance in the asylee’s home country could trigger USCIS to

begin proceedings to revoke the asylee’s status. There would not

be an additional burden on the U.S. government if asylees were

less incentivized to adjust to LPR status because the U.S.

government would retain the ability to revoke their status and

eligibility for public assistance programs remains regardless of

whether they adjust or not.

164

Finally, extending the validity period to two years would not

necessarily have negative implications on a refugee’s or asylee’s

ability to naturalize within five years of entry into the United

States or their asylum grant, respectively. In order to be eligible

for naturalization, a lawful permanent resident who acquired

that status as a result of their asylee or refugee status is required

to have been physically present

165

in the United States for at

least half of the five years.

166

So, an LPR-AR must have been

physically present in the United States for at least thirty months

163

. See USCIS, supra note 93, at Ch. 2(A) (“An asylee who travels outside the United

States as an asylee will not meet the physical presence requirement until the cumulative

amount of time spent in the United States equals one year. The officer should review the

asylee’s adjustment application and the documentation in the record to determine whether

the asylee has been absent from the United States during the previous calendar year to

ensure the asylee meets the physical presence requirement for adjustment.”).

164

. See generally INA § 412, 8 U.S.C. § 1522 for authorized government refugee

assistance programs. See also ANDORRA BRUNA, CONG. RESEARCH SERV., U.S. REFUGEE

RESETTLEMENT ASSISTANCE 6–12 (2011), https://fas.org/sgp/crs/row/R41570.pdf [https://

perma.cc/H2LA-RGUP].

165

. Physical presence refers to the number of days that the applicant must be

physically in the United States during the “statutory period up to the date of filing for

naturalization.” USCIS usually counts the day that the applicant for naturalization left

the United States and the day he returned to the United States as days of physical

presence for naturalization purposes. USCIS, USCIS POLICY MANUAL, Vol. 12, Part D,

Ch. 4(A) (2017), https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-

PartD-Chapter4.html [https://perma.cc/BYQ2-QRBJ].

166

. See INA § 316(a), 8 U.S.C. § 1427.

2018] The Regulatory Leash of the One-Year Refugee Travel Document 309

before filing their naturalization application.

167

LPR-ARs who

have RTDs can travel abroad for longer periods of time than

refugees

168

as long as they are not outside the United States for

longer than six months at a time or have applied for and possess

a reentry permit.

169

Absences longer than six months may

disrupt continuous residency requirements for naturalization and

raise the presumption that the applicant abandoned their

permanent resident status.

170

If a potential applicant for

naturalization wishes to travel abroad for any longer than six

months and less than two years, then they must apply for a

reentry permit before USCIS.

171

A two-year RTD would not

disrupt the naturalization framework for asylees and refugees

because they would have to apply for a reentry permit to preserve

their ability to naturalize just like they would under the current

legal regime.

172

Finally, Acting USCIS Director Divine’s belief that a multi-

year validity period is contrary to the statutory framework is

incorrect. Arguably, the Ombudsman’s ten-year travel document

is contrary to the statutory framework, but a two-year document

is not. It does not exceed the duration that a refugee or asylee

would potentially be a noncitizen of this country and does not

bestow refugee or asylees with rights equivalent to those of U.S.

citizens or lawful permanent residents.

D. AMELIORATIVE OF USCIS STAFFING AND EFFICIENCY ISSUES

A two-year travel document would ameliorate USCIS staffing

and efficiency issues. As previously mentioned, USCIS is

167

. See USCIS, supra note 165.

168

. Refugees need to apply to adjust their status to that of an LPR within one year of

becoming a refugee. See INA § 209(a)(1)(B)–(C). See also Refugees, U.S. CITIZENSHIP AND

IMM. SERVS. (Oct. 24, 2017) https://www.uscis.gov/humanitarian/refugees-asylum/

refugees. Given the one-year physical presence requirement for adjustment of status, a

refugee cannot be outside of the United States for long periods of time, much less six

months at a time. See USCIS Policy Manual, U.S. CITIZENSHIP AND IMM. SERVS., Vol. 7,

Ch. 2(b), (Oct. 30, 2018).

169

. See USCIS, International Travel as a Permanent Resident (Jan. 11, 2018),

https://www.uscis.gov/green-card/after-green-card-granted/international-travel-permanent

-resident [https://perma.cc/3PY7-ZXML].

170

. Id.

171

. Id.

172

. A reentry permit allows a permanent resident to apply for admission into the

United States during the permit’s validity without a need for the applicant to obtain a

returning resident visa from a U.S. embassy or consulate. One uses the same application

for a reentry permit that they do for an RTD. Id.

310 Columbia Journal of Law and Social Problems [52:2

currently processing applications for RTDs within four to six

months of the filing date.

173

From Fiscal Years 2013–2015,

processing times averaged closer to three months, but processing

times are getting progressively slower. Therefore, extending the

validity period of RTDs to two years would reduce the need for

refugees to submit yearly applications for new documents; this, in

turn, would decrease the amount of applications before USCIS

and could eventually decrease the backlog of I-131 Applications

for a Travel Document. The reduced number of yearly

applications would permit USCIS officers to staff other, more

pressing immigration applications.

174

Furthermore, reducing the

backlog of applications also allows USCIS to predict approximate

case processing times more accurately.

175

As such, applicants for

RTDs can use the more refined case processing times to track the

volume of pending applications and estimate how long it will take

for USCIS to adjudicate their applications.

176

This, in turn,

reduces the possibility that the applicants will be adversely

affected by delayed processing times and allows them make

travel plans more efficiently.

E. CONSISTENT WITH REFUGEE AND ASYLEE’S RIGHTS OF

INTERNATIONAL TRAVEL AND REENTRY

A two-year RTD would conform with the refugee and asylee’s

rights to international travel and reentry under the U.S.

regulatory and statutory regime. First of all, refugees and

asylees do not have the same benefits or rights as U.S. citizens or

lawful permanent residents. For example, U.S. citizens are

almost always guaranteed reentry to the United States, whereas

refugees and asylees traveling on RTDs are not.

177

A two-year

173

. See supra notes 113–114.

174

. According to USCIS, backlog elimination allows USCIS to approximate a more

accurate average processing time for applications. USCIS, BACKLOG ELIMINATION PLAN

UPDATE 8 (FY 2006 3d Quarter). Reducing backlogged applications also allows USCIS to

dedicate more attention to customer service and focus on national security matters. Id. at

3–5.

175

. Id. at 8.

176

. USCIS, BACKLOG ELIMINATION PLAN 5 (FY 2005, 4th Quarter update) (2006).

177

. Some federal courts have found that an American citizen’s right to return to the

United States from abroad is a substantive due process right. See Fikre v. F.B.I., 3:13-CV-

00899-BR, 2014 WL 2335343 (D. Or. May 29, 2014); Tarhuni v. Holder, 3:13-CV-00001-

BR, 2014 WL 1269655 (D. Or. May 26, 2014); see also Nguyen v. Immigration and

Naturalization Serv., 533 U.S. 53, 67 (2001) (discussing privileges of U.S. citizenship,

including “the absolute right to enter [the] borders” of the United States). Entry for

2018] The Regulatory Leash of the One-Year Refugee Travel Document 311

travel document would be consistent with the legal regime that

distinguishes between the travel and reentry benefits bestowed

on lawful permanent residents and refugees and asylees.

A potential negative consequence of a two-year RTD is that it

would increase the amount of time that a refugee, asylee, or

lawful permanent resident could travel internationally which

could, in turn, jeopardize their ability to naturalize. Currently,

the one-year RTD permits its holders to travel internationally for

six months out of the year — nine months if they travel to the few

countries that require only a three-month validity period at the

time of entry, which is one of the lowest temporal requirements

for travel documents. When an alien wants to become a U.S.

citizen, they must report every international trip they have taken

in the past five years.

178

This reporting requirement is a tool for

USCIS to check whether the applicant has met the requirement

that an applicant for naturalization has been physically present

in the United States for at least thirty months out of the five

years immediately preceding the date of filing their

naturalization application and to check whether the applicant

has continually resided in the United States for a period of five

years.

179

If an applicant was absent from the United States for

continuous periods of between six months and one year, then

USCIS can determine that the applicant’s trip disrupted their

residence in the United States.

180

A two-year travel document

would effectively allow the holder to travel for eighteen to twenty-

one months. Accordingly, RTD users will need to be careful about

any prolonged absence from the United States, because otherwise

refugees and asylees and lawful permanent residents is still discretionary. If at a port-of-

entry, a customs and border official determines that one of the inadmissibility bars to

entry apply, then the refugee/asylee/lawful permanent resident will be placed in

deportation proceedings and an immigration judge will hear their case.

178

. See USCIS, N-400, APPLICATION FOR NATURALIZATION, https://www.uscis.gov/n-

400 [https://perma.cc/XZM9-LN5M] (last visited Oct. 26, 2018); see also USCIS,

INSTRUCTIONS FOR APPLICATION FOR NATURALIZATION, https://www.uscis.gov/system/files

_force/files/form/n-400instr.pdf?download=1 [https://perma.cc/DGW8-W344] (last visited

Oct. 26, 2018).

179

. See 8 C.F.R. § 316.2(a)(3)–(4). Physical presence concerns the total number of

days someone was in the United States during the period required for their

naturalization. “Continuous residence concerns the time one resided lawfully in the

United States without an absence long enough to break that continuity for naturalization

purposes.” See USCIS, A GUIDE TO NATURALIZATION 23 (2016) (internal quotations

omitted) https://www.uscis.gov/sites/default/files/files/article/M-476.pdf [https://perma.cc/

T25X-47ZJ].

180

. See 8 C.F.R. § 316.5(c)(i)–(ii).

312 Columbia Journal of Law and Social Problems [52:2

USCIS may determine that their continuous U.S. residences have

been disrupted and deny their naturalization applications.

As this Subpart makes clear, a two-year RTD is a more

practical alternative to the one-year RTD because it not only

satisfies the United States’ obligations under the 1951 U.N.

Convention and 1967 Protocol, but conforms to international

recommendations and the U.S. statutory and regulatory

framework. Finally, the two-year RTD will not expand the rights

and benefits of refugees and asylees residing in the United

States.

Yet though USCIS is aware of the deficiencies of the one-year

travel document and advocates have attempted to convince

USCIS to increase the validity period of RTDs, the government

hesitates in amending the regulatory and statutory language.

181

The next Part evaluates the various counterarguments to and

obstacles facing USCIS’ publication of regulations extending the

validity period of RTDs to two years, such as national security

concerns and the current political climate, and what arguments

advocates can make to overcome them.

VII. SECURITY CONCERNS AND OTHER OBSTACLES TO

REFORM

In order to change the validity period of U.S. RTDs, USCIS

Director must amend the controlling regulation, 8 C.F.R. Section

233.3(a)(2), by publishing the amendment in the Federal Register

for a period of notice-and-comment rulemaking.

182

There are a

few obstacles to successfully convincing the USCIS Director to

publish a new rule for notice-and-comment rulemaking: the

national security implications of permitting RTD holders to travel

181

. During a USCIS Asylum Division Quarterly Stakeholder Meeting, stakeholders

asked USCIS to consider extending the validity period of RTDs to four or five years. They

noted that the validity period was too short for the high application fee and that RTDs are

required for emergency travel. The Asylum Division noted that USCIS was currently

undertaking a comprehensive policy review of travel documents and asylum with a

working group. They stated that they would raise the question to the working group.

USCIS, Agenda Items: USCIS Asylum Division Quarterly Stakeholder Meeting (Mar. 21,

2011), AILA InfoNet Doc. No. 11010462. See also Am. Immgr. Laws. Assoc. Letter to U.S.

Dept. of Homeland Security Re: DHS’s Retrospective Review of Existing Regulations (Nov.

10, 2016).

182

. As such, in order to change the validity period of RTDs, it is necessary to convince

the USCIS Director, who is in charge of recommending rules for publishing, to amend the

current rule.

2018] The Regulatory Leash of the One-Year Refugee Travel Document 313

for an extra year and the current political narrative from some

quarters that refugees are potential criminals and terrorists

instead of victims. The most difficult obstacle is political climate;

as such, this amendment is unlikely to succeed during the

current Trump Administration.

A. NATIONAL SECURITY CONCERNS

As this proposal only lengthens the amount of time that a

holder of a RTD can travel internationally, increasing the validity

period to two years has a minimal effect on U.S. national

security. As of 2007, applicants for RTDs are required to present

their biometrics for processing.

183

The purposes of capturing

biometric data (i.e., fingerprints and photographs) is to conduct

background checks, verify the applicant’s identity and status, and

produce the final benefit card or document.

184

USCIS’s statement

in support of its notice of information collection vaguely

185

stated

that biometric collection is required to verify foreign nationals’

status when applying for certain travel documents.

186

USCIS

also requires applicants for adjustment of status, asylum, and

refugee status to submit their biometrics for processing.

187

Changing the validity period of an RTD from one year to two

years results in USCIS directly obtaining a refugee, asylee, or

LPR’s biometrics every two years instead of every year.

This less frequent appraisal of foreign nationals’ criminal

records is relevant when there is increased anxiety about

refugees as potential terror threats. A reduction in the

government’s ability to know who they are permitting to enter

183

. 72 Fed. Reg. 17172, 17173 (Apr. 6, 2007).

184

. Id.

185

. “This statement is vague and does not explain why USCIS now believes it is

necessary to subject applicants to biometrics collection. Information on loss of permanent

resident status, or refugee or asylee status, or denial of an adjustment of status

application is easily accessible by reference to the foreign national’s record in agency

databases, and does not require submission of biometrics. Foreign nationals applying for

parole who are outside the United States either have previously submitted their

biometrics (e.g., refugee abroad who did not apply for an advance parole), or have not

previously been in the United States and thus have no status for USCIS to verify.” AILA

National Letter to DHS RE: USCIS-2007-0045-0006 (Dec. 6, 2007).

186

. USCIS, USCIS-2007-0045-0003, I-131 Supporting Statement (2007).

187

. See supra note 183, at 17174 (“CATEGORIES OF INDIVIDUALS COVERED BY

THE SYSTEM: All individuals who are applying for benefits and/or who are petitioning on

behalf of individuals applying or petitioning for benefits pursuant to the Immigration and

Nationality Act. 8 U.S.C. 1101 et seq.”).

314 Columbia Journal of Law and Social Problems [52:2

the country could be fatal.

188

However, refugees and asylees are

already individuals whose biometric data does not appear to

match those of known criminals or terrorists. By the time that

asylees and refugees are in the United States, DHS has already

investigated and screened them.

189

Additionally, if RTD holders were permitted to travel for

longer periods of time, RTD holders may be crossing international

borders and re-entering the United States more frequently.

Doing so would require the RTD holders to submit their biometric

data to border officials of different countries to gain entry into

that country. This is especially true of countries requiring RTD

holders to obtain visas, as most countries run a background check

on visa applicants.

190

Since DHS professes to “work closely with

international partners, including foreign governments, major

multilateral organizations, and global businesses, to strengthen

the security of the networks of global trade and travel,”

191

the

United States may be able to obtain additional biometrics checks

on RTD holders by means of bilateral information-sharing

agreements with destination countries.

188

. See Yeganeh Torbati & Mica Rosenberg, Under Trump Plan, Refugees From 11

Countries Face Additional U.S. Barriers, U.S. NEWS (Oct. 24, 2017),

https://www.usnews.com/news/world/articles/2017-10-24/trump-administration-to-add-

new-screening-for-refugees-document [https://perma.cc/54ZK-5QDX]; Gregg Re, Trump

Admin Orders Sharp Drawdown of U.S. Refugee Resettlement: Report, FOX NEWS (Dec. 22,

2017), http://www.foxnews.com/politics/2017/12/22/trump-admin-orders-sharp-drawdown-

us-refugee-resettlement-report.html [https://perma.cc/Q6ZY-XXQR].

189

. Written Testimony of Kelli Ann Walther, Senior Director for Screening

Coordination, Office of Policy, U.S. Department of Homeland Security Before United

States House of Representatives Committee on Homeland Security Subcommittee on

Border and Maritime Security (Sep. 11, 2012), AILA InfoNet Doc. No. 12091159.

190

. See, e.g., HOME OFFICE, CRIMINAL RECORD CERTIFICATE REQUIREMENT (2018),

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/673331/crim

inal-record-certificate-guidance-v2.0ext.pdf [https://perma.cc/FU87-5KFP].

191

. See U.S. DEP’T OF HOMELAND SEC., INTERNATIONAL ENGAGEMENT RESULTS,

https://www.dhs.gov/international-engagement-results [https://perma.cc/HZ7N-SVH3]

(last visited Oct. 20, 2018). There are information-sharing agreements with various

countries. These agreements, while not public, have been alluded to in federal court cases

like ACLU of Washington v. U.S. Dept of Justice, 2011 WL 1900140 (W.D. Wash. May 19,

2011) (the government’s attorney asserts that the information-sharing agreements with

other countries are contained in the documents requested under FOIA, but cannot be

identified to the public). Furthermore, Eric Holder, former Attorney General of the

United States, remarked in a statement that the United States not only have information-

sharing agreements with other countries to provide and share information about actual

and suspected foreign terrorists, but also about traveler information. See Attorney

General Holder Delivers Remarks at the Countering Violence Extremism Summit (Feb.

18, 2015), 2015 WL 673981 (D.O.J.).

2018] The Regulatory Leash of the One-Year Refugee Travel Document 315

Finally, upon re-entry to the United States, foreigners must

submit their biometric data into the United States Visitor and

Immigrant Status Indicator Technology system (US-VISIT).

192

US-VISIT uses the fingerprint scans and facial photographs to

confirm the identity and status of foreigners.

193

US-VISIT

information is used by various agencies to track identities of

those in the United States and of unauthorized immigrants, to

identify terror suspects by cross-referencing biometric

information collected terrorist safe houses or training camps, and

to assist state and local law enforcement during investigations.

194

Therefore, while some may argue that it is preferable to keep the

one-year RTD regime because more frequent check of biometric

data protects homeland security and exposes aliens with criminal

backgrounds, the two-year travel document may actually lead to

more biometric collection and increased security. As such, it is

highly improbable that extending the validity period to two years

would endanger national security.

B. CURRENT POLITICAL CLIMATE

The current political climate could also be detrimental to

convincing the USCIS Director to publish a regulation changing

the validity period of RTDs because the USCIS Director would

not want to act contrary to the President’s orders or to his greater

anti-refugee platform.

195

The Trump administration has

192

. See U.S. DEP’T OF HOMELAND SEC., US-VISIT, BIOMETRICS AND YOU 1 (2007),

https://www.dhs.gov/xlibrary/assets/usvisit/usvisit_edu_traveler_brochure_english.pdf [htt

ps://perma.cc/D3MB-NHS5] (describing the US-VISIT procedure and providing

information about its applicability).

193

. Id.

194

. Mark Skerry, Protect America by Being Unique: How Changes in Biometric Data

Collection Procedures Can Improve US-VISIT, 2 CASE W. RESERVE J. L. TECH. &

INTERNET 71, 82–84 (2011).

195

. Louis Jacobson, Donald Trump Says If You’re From Syria and a Christian, You

Can’t Come to the U.S. as a Refugee, POLITIFACT (July 20, 2015, 10:00 AM ET),

https://goo.gl/fucYZP [https://perma.cc/G49X-DUDM] (“If you’re from Syria and you’re a

Christian, you cannot come into this country, and they’re the ones that are being

decimated. If you are Islamic . . . it’s hard to believe, you can come in so easily.”); Ali

Vitali, Donald Trump in New Hampshire: Syrian Refugees Are Going Back, NBC NEWS

(Oct. 1, 2015, 7:33 AM ET), https://goo.gl/4XSeGX [https://perma.cc/5Y49-CXF3] (“[I]f I

win, they’re going back! . . . They could be ISIS.”); Ryan Teague Beckwith, Read Donald

Trump’s Speech on the Orlando Shooting, TIME (June 13, 2016, 4:36 PM ET),

https://goo.gl/kgHKrb [https://perma.cc/ZFG4-KACD] (President Trump stating that each

year the United States “permanently admits 100,000 immigrants from the Middle East

and many more from Muslim countries outside the Middle East.”); Transcript: Donald

Trump’s national security speech, POLITICO.COM (June 13, 2016), https://www.politico.com/

316 Columbia Journal of Law and Social Problems [52:2

expressed hostility towards refugees, notably through the two

executive orders and subsequent proclamation colloquially

referred to as the “Muslim Ban” or “Travel Ban.”

196

In January

2017, Executive Orders 13769 and 13780 suspended the program

for resettling refugees within the United States for 120 days.

197

The first Executive Order also lowered the number of refugees to

be admitted to the United States in 2017 from 80,000 to 50,000

and suspended the entry of Syrian refugees indefinitely.

198

addition, President Trump has expressed his animosity to

refugees and asylees by stating that taking in asylum seekers

and refugees makes the United States a “dumping ground”

199

and

a “migrant camp,”

200

and that accepting refugees would increase

crime.”

201

Accordingly, the Trump administration has generally

opposed policies that would make asylum and refugee

settlements practically available.

202

Therefore, in order to convince the USCIS Director to publish

the proposed regulation, it is critical to stress that (1) the new

story/2016/06/transcript-donald-trump-national-security-speech-224273 [https://perma.cc/

63PQ-4HXH] (“We have to stop the tremendous flow of Syrian refugees into the United

States.”). See Nat’l Immigration Law Ctr., All Tweets from @realDonaldTrump That

Include the Word “Refugee” or “Refugees” Since Donald Trump Declared his Candidacy for

President on June 16, 2015, NILC, https://www.nilc.org/issues/litigation/trump-tweets-

with-refugee-refugees/ [https://perma.cc/4NRU-PEYL] (last visited Oct. 20, 2018).

196

. See Executive Order 13769 (Jan. 27, 2017); Executive Order 13780 (Mar. 6, 2017);

and Proclamation 9645 (Sep. 24, 2017).

197

. See Executive Orders 13769, 13780, supra note 196.

198

. See Executive Order 13769, supra note 196.

199

. Id.

200

. On June 18, 2018, during a meeting of the National Space Council, President

Trump expressed strong anti-refugee and anti-asylee rhetoric when he said that he

refuses to let the United States become a migrant camp or a refugee holding facility like

he believes Europe has become. Tara Golshan, Trump: The US Will Not Turn Into a

“Migrant Camp” or “Refugee Holding Facility,” VOX (June 18, 2018), https://www.vox.com/

2018/6/18/17475512/trump-migrant-camp-refugee-germany [https://perma.cc/2KLE-K9JX].

201

. Jon Stone, Why Donald Trump is Wrong About Germany’s Crime Rate, THE

INDEPENDENT (June 18, 2018), https://www.independent.co.uk/news/world/europe/donald-

trump-germany-crime-rate-immigrants-migrants-refugees-a8404786.html [https://perma.

cc/9GAH-P9KW].

202

. Former Attorney General Jeff Sessions has also made it more difficult for asylum

seekers to gain entry or claim asylum in the United States. On June 11, 2018, he issued a

ruling in an immigration matter, Matter of A-B- that reversed a Board of Immigration

Appeals precedent recognizing domestic violence as a form of persecution sufficient to

support a grant of asylum under the INA. Katie Benner et al., Sessions Says Domestic and

Gang Violence are not Grounds for Asylum, N.Y. TIMES (June 11, 2018),

https://www.nytimes.com/2018/06/11/us/politics/sessions-domestic-violence-asylum.html

[https://perma.cc/U38T-XGCT]. Matter of A-B- also says that asylum claims that pertain

to gang violence will also not qualify for asylum. Id. For the former Attorney General’s

opinion in that matter, see Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).

2018] The Regulatory Leash of the One-Year Refugee Travel Document 317

proposed regulation would not present a threat to national

security because these individuals have already passed the U.S.

vetting or extreme vetting process

203

and have already been

subjected to additional background checks during the RTD

application process; (2) expanding and facilitating a refugee and

asylee’s ability to travel internationally benefits the U.S.

economy;

204

and (3) that a consequence of increasing the validity

period is that an RTD holder would travel more and be subject to

more biometrics screenings as a result of their international

travel and the results of those screenings could be accessed by the

United States through their cooperation with other intelligence

networks.

VIII. CONCLUSION

The current one-year validity period for U.S. RTDs not only

restricts holders’ freedom of movement, but it creates

administrative backlogs and inefficiencies. This Note’s proposal

to extend the validity period to two years remedies these

problems while both being consistent with the United States’

obligations under the 1951 U.N. Convention and 1967 Refugee

Protocol and reflecting the regulatory and statutory framework

for adjustment of status and naturalization for refugees and

asylees. Countries around the world issue RTDs with a validity

203

. See USCIS, Refugee Processing and Security Screening (Aug. 31, 2018),

https://www.uscis.gov/refugeescreening [https://perma.cc/NH89-D9JU].

204

. There have been a number of reports that show that refugees contribute to tax

revenue and are beneficial to the economy. For example, a 2017 draft report from the U.S.

Department of Health and Human Services finds that refugees have contributed over $63

billion more in taxes than they cost in public resettlement benefits, and even contributed

more per capita. U.S. DEP’T.HEALTH & HUM. SERVICES, THE FISCAL COST OF THE U.S.

REFUGEE ADMISSIONS PROGRAM AT THE FEDERAL, STATE, AND LOCAL LEVELS, FROM 2005–

2014, at 31 (2017), https://assets.documentcloud.org/documents/4056060/Refugee-Report-

Draft.pdf [https://perma.cc/2AAF-NSAU]. Another study by the New American Economy

Research Fund found that refugees are fifty percent more likely to become entrepreneurs

than U.S. born citizens. NEW AM. ECON., FROM STRUGGLE TO RESILIENCE: THE ECONOMIC

IMPACT OF REFUGEES IN AMERICA (2017), http://research.newamericaneconomy.org/wp-con

tent/uploads/sites/2/2017/11/NAE_Refugees_V6.pdf [https://perma.cc/VY4E-A8XN]. The

study also found that refugees make meaningful contributions to several state economies

and that 40% of Fortune 500 companies were founded by immigrants, refuges, or their

children. Id. See also NEW AM. ECON., THE “NEW AMERICAN” FORTUNE 500, at 2 (2011),

http://www.newamericaneconomy.org/sites/all/themes/pnae/img/new-american-fortune-500

-june-2011.pdf [https://perma.cc/NWQ8-HA4D]. Considering the globalized economy of the

United States, increasing the ability of entrepreneurial refugees, their children, and their

businesses may bring about more growth in various industry sectors like banking,

aerospace and defense, retail, automotive, engineering, etc. Id. at 10–11.

318 Columbia Journal of Law and Social Problems [52:2

period that reflects the number of years that a refugee or asylee

will have to wait to apply for citizenship.

205

Unfortunately, the

United States is unlikely to issue a travel document for five years

— the minimum amount of time that a refugee or asylee will

have to wait to complete their path to citizenship. The language

of the Schedule within the 1951 U.N. Convention explicitly

provides that the document must be valid for one to two years,

and it is unlikely that the USCIS Director would issue a travel

document with a validity period that goes beyond the language of

the 1951 U.N. Convention, given the Trump administration’s

concern that immigrants pose crime and terror risks. As such, a

two-year validity period is a decent compromise that both allows

the U.S. government to periodically conduct background checks

on foreign nationals, but also expands refugees and asylees’

freedom of movement and quality of life.

There are two great obstacles to obtaining this regulatory

amendment: national security and political climate. The

increasing number of terrorist attacks worldwide and the

terrorist attacks of September 11, 2001 have made governments

wary of those seeking protection within their countries.

Advocates for a two-year RTD should pivot away from the

normative and moral arguments and instead emphasize that a

two-year travel document would not create more national

security concerns, but rather can actually result in more frequent

background checks and more intelligence-sharing. If refugees

and asylees are allowed to travel internationally for longer, with

reduced processing times, then they can take advantage of more

business and education opportunities. While it would be unlikely

that any USCIS Director under the Trump administration would

publish this proposed regulation, advocates should start building

their coalitions and arguments to grow congressional support in

their favor. A strong coalition that is backed by congressional

support would be critical asset for advocates when they begin

engaging with key offices within the Department of Homeland

Security like the USCIS Ombudsman or the Office of Strategy,

Policy and Plans which serves as a central resource to the

Secretary of DHS on strategic planning and analysis.

206

Through

these engagements, advocates can lobby DHS to conduct studies

205

. See supra Part I.C.

206

. See U.S. DEP’T OF HOMELAND SEC., OFF. OF THE SEC’Y, https://www.dhs.gov/office-

secretary [https://perma.cc/F58M-Z854] (last visited Oct. 26, 2018) .

2018] The Regulatory Leash of the One-Year Refugee Travel Document 319

on the value and strength of this proposal which can then serve

as a foundation for a future administration which may or may not

be more sympathetic to them.