123. Memorandum From the President’s Assistant for National Security Affairs (Brzezinski) and the President’s Assistant for Domestic Affairs and Policy (Eizenstat) to President Carter 1

SUBJECT

  • Refugee Policy

On February 27 you asked us to develop a comprehensive refugee policy.2 Since then, NSC, the Domestic Policy Staff, State, Justice, OMB and HEW staffs have met, and this memorandum presents decisions based on three agreed-upon assumptions.

• New legislation is needed to regularize and make more efficient the process by which refugees are admitted into the United States.

• The U.S. has a continuing obligation within limits to assist refugees escaping from Indochina.

• The provision of Federal assistance to refugees is appropriate to help in their absorption into American society.

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I. A Comprehensive Policy and Legislation

A. Policy Elements. There is general agreement among the agencies on the basic policy. It could be implemented through testimony on and proposed amendments to the Eilberg and just-introduced Kennedy bills3 or, if necessary, through an Administration legislative initiative.

Definition—The definition of refugee should be broadened to more closely conform to the UN definition,4 thereby freeing our acceptance of refugees from geographic or ideological limitations. The current law limits conditional entry just to refugees fleeing Communist regimes or Middle East countries.5 Actual admittance of refugees into the United States would be limited to those of special concern to the U.S.

Refugee Acceptance—Legislation should provide for the acceptance of refugees whose entry into the United States can be foreseen (normal flow) and for the acceptance of refugees whose entry cannot be foreseen (emergent conditions). If we continue to assist those Indochinese refugees we have helped in the past, the normal flow for all refugees of special concern to the United States could be as high as 50,000 per year.6 This increase of 30,000 in foreseen admissions over what is provided for in current law would raise total authorized annual immigration from 290,000 to 320,000, but would be offset by elimination of the present procedure of using the parole to accommodate foreseen refugee flows.

Consultations—The Administration would be prepared on a voluntary basis to report to the Congress on the allocation of the normal flow authority and to provide updates on progress during the year. Consultations with the Congress would be mandatory before unforeseen group admissions could be undertaken. This posture would give up some of the authority vested in the President by the current law; however, the agencies, particularly Justice, feel that the admission of groups of refugees requires the early involvement of Congress.

Retention of Parole—Parole authority should be retained for the unlikely event of an emergency evacuation direct from a country in crisis to the United States, for the individual admission of political “persecutees” who do not meet the definition of refugee because they are in their own country of nationality, and for individuals.

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Joint Commission—The most recent draft of the Eilberg bill also proposed a mixed Executive/Legislative Commission to study all aspects of U.S. immigration and refugee policy and to make recommendations for changes.7 In the past, Congress has tended to pass immigration legislation with little reference to the Executive Branch; thus the establishment of such a commission by the Congress is viewed by all agencies as a positive step. In your consideration of the undocumented alien8 policy, you rejected such a commission and requested that an Interagency Task Force9 be established, instead. We request that you reconsider your previous decision. The Interagency Task Force is still in the formative stage10 and could easily be assimilated by such a commission.

We recommend that you approve this policy framework.11

B. Invoking Unforeseen Group Admission Procedures. The principal unresolved issue concerning U.S. acceptance limits is the conditions under which unforeseen group admission procedures previously embodied in the parole power could be invoked. We need your guidance to prepare Administration testimony and to establish a clear legislative history on this issue. There are two basic options:

1. Retain the power to invoke such procedures whenever the allocation of normal flow authorizations becomes insufficient and a build-up of refugees of concern to the U.S. results. (Supported by State and NSC.) This option recognizes that the U.S. stance on human rights precludes a less forthcoming posture. Kennedy would probably attempt to block legislation which greatly restricted what he views as Executive flexibility in this regard. This option would permit a continued flexible policy of responding to refugee flows exceeding normal flow provisions of the law when deemed in the public interest. (This has been done in the past with Cuban, Soviet and Indochinese refugees through the parole authority.)

2. Invoke such procedures only in emergency situations for refugee flows which cannot be foreseen. (Supported by the Domestic Policy Staff and OMB.) This option would place a ceiling on normal flow refugees accepted by the U.S. Any group admissions over the ceiling, would have to be the result of new unforeseen emergency conditions. For example, if the normal flow ceiling is reached and Indochinese [Page 429] refugees continue to accumulate at the present rate in Thailand, we would not accept any more until the next year. However, if the accumulation was caused by an unforeseen circumstance, they could be admitted under this emergent group procedure. This option is in accordance with the views of Senator Eastland and Congressman Eilberg. It clearly states what the U.S. is willing to do under normal circumstances, and thus encourages the International agencies and other countries to assist those in excess of our limit, but permits us to act swiftly when an emergency arises.

YOUR DECISION12

II. Indochinese Refugees

A. Whom to Accept. All agencies agree that the United States should limit its future acceptance to the same two classes of Indochinese refugees that we have accepted in the past—boat cases without offer of resettlement and land refugees closely associated with the U.S. If we were to accept all such cases, State estimates that about 25,000 refugees per year over the next several years would qualify. Such a program would have broad public support confirmed in recent editorials and letters to you.

State Department resettlement costs are based on $1,000 per refugee (Transportation—$500, Administration—$100, Resettlement Grant—$400). The HEW domestic assistance costs are based on an extension of the current program until 1981 when the Administration’s welfare reform proposal is to be implemented. The Indochinese refugees arriving in each of the next three years would constitute a cohort whose special assistance would be provided on the same four-year phase-out schedule as the current program. The States would identify the refugees in each year to determine the reimbursement base.

The estimated additional costs of such an acceptance program for Indochinese are summarized in the following table.

Costs Additive to Current Budget Estimates (millions of dollars)

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1979 1980 1981 Totals
State Resettlement Costs for Indochinese Refugees (25,000/year) 25.0 25.0 25.0 75.0
HEW Indochinese Refugee Assistance Program (25,000/year) 15.0 25.0 40.0 80.0
TOTALS 40.0 50.0 65.0 155.0

We recommend that you approve a continuing commitment to these two classes of Indochinese refugees.13

B. Authority to Accept Additional Indochinese and Other Refugees. Until new legislation is passed, the only authority available to admit Indochinese and other refugees for which normal entry numbers are not available is the parole. Legislation could pass by the end of this session; however, most estimates place passage at least a year away. The following factors bear on your consideration of whether and how to use the parole authority until legislation is passed.

• The Indochinese flow is estimated at 25,000 per year, and up to 5,000 additional parole numbers will be needed for Eastern European and Russian Jews before the end of the year.

• Congressional sentiment is mixed; Eastland and Eilberg oppose use of the parole for foreseen refugee flows, particularly Indochinese, while Kennedy, Cranston and Jackson all support a forthcoming policy toward Indochinese and other refugees, including use of the parole authority. The acceptability of any parole you propose will be enhanced since it will be presented in conjunction with support for new legislation.

• The Attorney General feels strongly that the continued admission of normal flow refugees should be expressly authorized by statute, or perhaps as time and need dictate, by Congressional resolution expressing the sense of Congress for an additional interim group admission of some number.

The options for the interim period include:

1. Request a parole which accepts Indochinese refugees limited to those who fit into the two classes identified above on a continuing basis until new legislation is in place. (Supported by State and the NSC.) This option has the advantage of providing long-term guaranteed acceptance to those whom we want to help. It avoids the problems with the Congress, encountered when it becomes necessary to go back for repeated uses of the parole authorty when numbers in each ad hoc parole are exhausted. Additional parole numbers to accommodate Eastern European and Russian Jews would also be requested.

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2. Request a parole of 3,000 per month (roughly 2,000 for Indochinese and 1,000 for Eastern European and Russian Jews) beginning in April on a cumulative basis to accommodate all refugees for which normal entry numbers are not available until new legislative authority is available. (Offered as a compromise proposal. No Agency’s first choice.) This option would establish a limit and regularize the acceptance of refugees as an interim measure. It should allow the U.S. to accommodate all refugees of concern unless escape rates from the Soviet Union or Indochina were to increase dramatically.

3. Request a parole of a fixed number of Indochinese over a stated period, say 25,000 over the next 12 months (State’s estimate of one year’s expected flow), to provide for an orderly program until legislation passes. A separate parole of 5,000 numbers would be requested for Eastern European and Russian Jews. (Supported by the Domestic Policy Staff and OMB.) By paroling a specific number, this option is similar to the form legislation is likely to take, a specific number with consultations required should the number prove inadequate. If legislation does not pass before these numbers are exhausted, subsequent paroles would be necessary; if legislation passes quickly, any unused numbers would lapse.

4. No further use of the Attorney General’s discretionary parole authority for the admission of anticipated Indochinese or other refugees. (Supported by Justice.) This option is consistent with the view that the statutory parole authority expressly applies only to “emergent” situations or for reasons deemed strictly in the public interest. And its continued ad hoc use for group admissions of refugees whose flow is anticipated and predictable is in the view of several key members of Congress (most notably Senator Eastland) an encroachment on the Constitutional Article 1 plenary power of Congress to regulate immigration. Continued acceptance of normal flow refugees would be a matter to be worked out with the Congress.

YOUR DECISION14

C. A Possible Initiative for the Vice President’s Trip. Over 100,000 land refugees have accumulated in Thailand. They are being kept in deplorable conditions in camps there. The long-term solution to that build-up must include acceptance of a considerable number of those refugees by the international community, and financial assistance to the Thais to resettle the remainder in Thailand permanently. All agencies concur in requesting your authorization to review this question as a possible initiative for the Vice President’s trip to East Asia in April. [Page 432] His trip presents a unique opportunity to move the Thais toward a more forthcoming position on resettlement. If you approve, we will begin urgent staffing and raise the issue with the Vice President.15

  1. Source: Carter Library, Donated Historical Material, Mondale Papers, Box 83, National Security Issues—Indochinese Refugees [2/24–12/31/78]. Confidential. Sent for action.
  2. See Document 121.
  3. Reference is to S. 2751 (95th Congress), introduced by Kennedy on March 15, which proposed to increase the number of refugees and displaced persons admitted to the United States each year.
  4. For the UN definition of refugees, see the 1951 Convention Relating to the Status of Refugees in Yearbook of the United Nations, 1951, pp. 520–522.
  5. Reference is to the Immigration and Nationality Act of 1965 (P.L. 89–236).
  6. Carter underlined “50,000 per year” and wrote in the adjacent left-hand margin next to the sentence, “seems higher than this memo later indicates.”
  7. Carter wrote and underscored “ok” in the left-hand margin adjacent to this sentence.
  8. Carter underlined “undocumented alien.”
  9. Carter underlined “Interagency Task Force.”
  10. Carter underlined “still” and “formative stage” in this sentence. In the left-hand margin next to this sentence, he wrote, “Why still in the formative stage after all these months? If we can’t act, maybe we should let Congress do it.”
  11. Carter checked the approve option and initialed “J” in the right-hand margin.
  12. Carter checked Option 2 and initialed “J” in the right-hand margin.
  13. Carter checked the approve option and initialed “J” in the right-hand margin.
  14. Carter checked Option 1 and wrote beside it, “with maximum as in option 3.”
  15. Carter underlined “staffing,” checked the approve option, and wrote beneath it, “no decision yet.”