Professor Michael McConnell’s op-ed piece (“Yes, We Should Consider Refugees’ Religion”) contends that U.S. refugee policy should take religion into account in admitting refugees from Syria and Iraq, because the Islamic State is systematically targeting Christians and Yazidis for persecution. Professor McConnell is right in saying that religious affiliation may be relevant to one’s ability to establish a well-founded fear of persecution under U.S. refugee law, and that most Christians and Yazidis fleeing ISIS should easily qualify. But he is wrong to assert that, based on the law and the facts on the ground, Christians are “entitled by law to preferred consideration for asylum.”
In fact, under an accurate understanding of U.S. law and the facts, many – perhaps most – Muslims fleeing Syria and Iraq would easily meet the test for refugee status. This is so for several reasons. First, refugee law protects groups facing persecution not only on the basis of religion, but also on the basis of one’s “political opinion” or “membership in a particular social group.” Numerous Muslims fleeing ISIS are eligible for refugee status on the basis of political opinion or membership in disfavored social groups, if not religion itself: ISIS systematically targets not only Christians and Yazidis, but also Muslims of any sect who disagree with its ideology or practices. Second, even if one were to focus on ISIS’ persecution of religious minority communities, the group also targets Muslim minorities, particularly Shia Muslims (who constitute a majority of Iraq’s population) as well as the Alawites in Syria. And third, Syrians are not only seeking to escape ISIS: those who have been, or would be, persecuted for their opposition to President Assad’s rule also qualify as refugees. The Assad regime has bombarded (and gassed) civilian populations perceived as resisting his regime, and according to human rights groups has killed many times more people than has ISIS.
Undoubtedly, ISIS has persecuted Christians and Yazidis, and perhaps even engaged in attempts at genocide against the latter; members of those groups fleeing persecution should absolutely receive refugee protection. But other bona fide refugees are also entitled to the protection of the law, and religious affiliation does not offer a sensible dividing line among deserving and undeserving applicants.
Shirin Sinnar is an Assistant Professor of Law and the John A. Wilson Distinguished Faculty Scholar at Stanford Law School. Her scholarship focuses on the role of institutions, including courts and executive branch agencies, in protecting individual rights and democratic values in the national security context.