The Volokh Conspiracy

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Joe Biden

Biden is Right to Grant Temporary Refuge to Palestinian Migrants Already in US, but Should go Further

It's the right thing to do. But Western and Arab nations should also open doors to those currently trapped in Gaza.


A lone person walks atop rubble in the wake of the war in Israel and Palestine
Rubble in Gaza. October 2023. (Apaimages/SIPA/Newscom)


Yesterday, the Biden administration granted temporary refuge to Palestinian migrants currently in the United States, who might otherwise be subject to deportation. The grant of Deferred Enforced Departure status (known as DED) allows about 6000 Palestinians to remain in the US for an additional 18 months, and the Department of Homeland Security will allow these people to work in the US during that time, as well.

The justification for this measure is obvious. As the White House statement on the subject puts it, because of the ongoing war between Israel and Hamas, "humanitarian conditions in the Palestinian territories, and primarily Gaza, have significantly deteriorated." That surely understates the point: thousands of people have been killed, and much of Gaza leveled. There is less extensive, but still significant, violence on the West Bank. In addition, Gaza Palestinians are subject to Hamas's brutal tyranny, which is awful, even aside from the war.

In my view, the primary blame for this situation falls on Hamas for using Gaza as a base for its horrific terrorist attacks, and then using the civilian population as human shields. But, regardless of the blame, it would be wrong to force Palestinian migrants (or anyone) to return to a deadly war zone—or to live under a system of quasi-medieval oppression.

There is, however, a contradiction in the Biden Administration's position here. The same reasoning that justifies the grant of DED status to Palestinians currently in the US also justifies opening the door to civilians trying to flee Gaza. After all, they too are suffering from the "deterioriation" in "humanitarian conditions." Yet both Western and Arab nations have largely refused entry to Palestinian refugees fleeing the violence.

In a previous post, I explained why opening the door to Gaza refugees is the right thing to do on both moral and strategic grounds: it can save thousands of people from needless suffering and death, while also making it easier for Israel to defeat Hamas.  I also addressed various possible counterarguments, such as claims that Gaza Palestinians are collectively responsible for Hamas atrocities, and arguments that they pose a security risk (the risk is actually extremely small).

Since I wrote my piece, related arguments have been advanced by my co-blogger and George Mason University colleague Eugene Kontorovich, in a January 21 Wall Street Journal op ed:

Gaza is unique among modern war zones. Despite being the center of a conflict fought in dense urban areas, it hasn't produced waves of refugees leaving for neutral countries. This has been deliberate, the result of policies by Hamas and Egypt tacitly supported by the U.S….

Fleeing a war zone and seeking asylum in a neutral country is a human right enshrined in the 1951 United Nations Refugee Convention. If civilians hadn't been allowed to flee past conflicts, their death tolls would have been even higher.

Yet three months after Oct. 7, fewer than 1,000 people—either foreign nationals or wounded—have been allowed by Egypt and Hamas to leave Gaza. In Israel this month, Secretary of State Antony Blinken rejected the possibility of Israel helping Gazans who wish to escape the conflict to do so. But he also complained that the war's toll on Gaza civilians was "far too high" and echoed earlier demands that Israel "do more" to reduce the collateral damage caused by Hamas's hiding behind its population….

Why would anyone other than Hamas—especially the U.S.—support locking Gazans in like North Korea does? Since 1948, Arab states and the U.N. have refused to treat Palestinians like ordinary refugees, keeping them in a unique intergenerational limbo to provide a reservoir of resentment against Israel. The U.S. hasn't opposed the flight of refugees in other conflicts. The Biden administration continues to treat Gazans not as people, but as serfs indentured to the land.

Letting Gazans leave not only would reduce human suffering; it would provide a test and incentive for postwar governance. Refugees often return to their home countries when governance stabilizes after a conflict. For this to happen, the new civilian administration would have to make it a place where Gazans want to live, not where they are prevented from leaving.

Eugene and I  differ over many issues. But I think he is absolutely right here. For a combination of moral, legal, and practical reasons, it's wrong to trap Palestinian refugees in Gaza, as if they were Hamas's serfs. Eugene is also right to suggest the US use its large-scale aid to Egypt as leverage to pressure the Egyptian government to let Gaza refugees leave (a policy I advocated in my October piece). I am not sure Eugene would take the additional step of urging the US and other Western nations (as well as Egypt) to accept Gaza refugees. But this too is justified for reasons I outlined in my earlier post.