Restoring the Humanitarian Character of U.S. Refugee Law Lessons from the International Community

Abstract

Professor Fitzpatrick's essay on "The International Dimension of U.S. Refugee Law" identifies three areas in which U.S. asylum jurisprudence diverges, in her view, from the governing principles of international refugee law on which it is based.1 Her essay begins with an examination of the Supreme Court's progressively narrow application of the international norm of non-refoulement, "whereby no refugee should be forcibly returned to a country where he [or she] fears persecution."2 She then analyzes a number of lower court decisions which severely constrict the concept of persecution as it is understood under international human rights law. Finally, the author presents a solid critique of the Supreme Court's requirement in Elias-Zacarias 3 that the asylum seeker provide proof of the specific motivation of her persecutor as a basis for refugee status. Additionally, Professor Fitzpatrick, in a well-reasoned analysis of four seminal Supreme Court cases and numerous lower court decisions, concludes that a deeper appreciation of human rights norms,4 and greater deference to the United Nations High Commissioner for Refugees' (UNHCR's) interpretation of state