Volume 31
Issue 3
Spring '17

Non-Discrimination in Refugee and Asylum Law (Against Travel Ban 1.0 and 2.0)

Written By: Eunice Lee


This article explores the tension between Executive Orders No. 13,769 and No. 13,780—colloquially known as “travel ban” 1.0 and 2.0—and the deep non-discrimination norms in refugee and asylum law. I engage in a close read of the legislative history of the Refugee Act of 1980; analyze the 1951 Refugee Convention and subsequent international human rights treaties; provide a novel and in-depth analysis of U.S. statutory, regulatory, and case law interpretations of the refugee definition via the theoretical framework of non-discrimination; and examine the structural aspects and standards governing refugee admissions. The clear picture that emerges from these sources points in a single direction—the government cannot engage in invidious discrimination against refugees or asylum seekers on the basis of religion or national origin. My analysis fills a gap in the literature as the academy and the public continue to debate the permissibility of the travel ban and its iterations.

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