Our new immigration law, the Immigration Reform and Control Act of 1986, has had a number of unanticipated consequences. Among them is the creation of a gap in the protection of those foreigners who have fled to the United States to escape civil war and natural disaster in their homelands.
The employment controls of the law, which make it unlawful for an employer to hire an undocumented alien, mean that a formal policy is needed now on the issue of temporary safe haven. This was made clear by Salvadoran President Jose Napoleon Duarte's recent request that we refrain from deporting as many as 500,000 Salvadorans currently living illegally in the United States. Duarte cited the disastrous effect such an action would have on El Salvador's economy, since $350 million to $600 million is sent home each year by Salvadorans living in this country.
This is but the first of many policy dilemmas that will demonstrate the need for our law to provide temporary refuge to aliens fleeing turmoil in their homelands.
The concept of temporary refuge is not without precedent in U.S. immigration policy. Over the past 25 years, "extended voluntary departure" has been granted to 13 nationality groups, immunizing citizens of those countries against being required to leave the United States. The reason in each case was unsettled conditions in these individuals' homelands.
This administrative mechanism involves both the attorney general and the secretary of state, who consult with one another and decide which groups are to receive such protection. Currently, nationals from Afghanistan, Ethiopia and Poland are in this category.
Duarte's request, prompted by the effects of the new immigration law, reflects the need for a temporary-refuge mechanism beyond ad hoc grants of extended voluntary departure. The employment provisions of the new law that make it unlawful to hire aliens not authorized to work in the United States also make it necessary to identify those aliens who should be allowed to stay. Only in this way can such people be made employable, allowing them to subsist for the duration of their stay even if they do not qualify for political asylum under refugee law.
The strongest justification for temporary refuge comes from those fleeing civil war in their homelands -- the cause of flight for many Salvadorans and Nicaraguans. Both of these groups are the subject of proposed legislation to bar their deportation -- the Moakley-DeConcini bills -- which, if enacted, would provide a good first step toward a comprehensive policy.
In 1985 the Reagan administration granted extended voluntary departure on a case-by-case basis to Lebanese nationals, with instructions to "view sympathetically" their requests for permission to stay in view of the "continuing civil strife in Lebanon." Principles of humanitarian law, including the Geneva Convention standards relating to war, argue in favor of providing temporary protection for foreigners who have fled civil unrest -- until the danger in their home countries has subsided.
A formal temporary-refugee program would recognize both the humanitarian necessity of protecting those displaced by war and the strictures of the new immigration law. Such a mechanism would have no effect on the protection available under law to refugees, who must prove a well-founded fear of persecution on an individual basis, and who can ultimately become U.S. citizens. Rather, the refuge available to an innocent civilian caught in the cross fire would be temporary, as would the concomitant permission to work. It would end with the cessation of hostilities in the person's home country.
This program would be a compassionate response to a real need for protection that is not provided under refugee law. It could be done in a way that would be compatible with the new immigration act. Notably, one of the original sponsors of the immigration act, Rep. Romano Mazzoli (D-Ky.), has just introduced the Temporary Safe Haven Act of 1987, a bill designed to fill the gap.
Adjustments to this proposed legislation are needed, however, to fit it into a comprehensive approach to refugee policy -- which should include revision of criteria relating to situations of civil war to incorporate the Geneva Convention standards and remove any possible ambiguities about its application. It should also provide for periodic review by Congress similar to the consultations carried out under the refugee act. The legislation could then serve as the basis for a policy that would provide protection for people desperately in need of it.
The writer is director of the Political Asylum Project of the Lawyers Committee for Human Rights.