Let’s Not Pretend We’re Keeping Our Promises on Asylum

In this restive age of unprecedented human displacement, 100 million people have fled disaster and oppression to try their luck in a world that’s increasingly tired of dealing with them. The high-minded international agreements that were guiltily drafted after World War II to protect refugees and asylum seekers have been steadily hollowed out by the very same wealthy nations that consider themselves standard bearers of human rights. The United States has been at the vanguard of this undoing. The government is well aware of its international treaty obligations: The pleas of foreigners who arrive on our territory seeking protection from persecution are supposed to be heard. Asylum seekers should be treated as potential refugees until their cases have been decided. It is illegal for governments to force people back to countries where they have a reasonable fear of persecution. But today, along the Mexican border, guards order many asylum seekers back before their feet can touch U.S. soil. This is a deliberate exploitation of a legal loophole — the Supreme Court has ruled that obligations to asylum seekers aren’t binding outside U.S. territory — and an utter subversion of the spirit and intent of international refugee law. Migrants have been turned back for two years, ever since Stephen Miller, Donald Trump’s anti-immigrant Rasputin, used the pretext of the pandemic and a rarely used health ordinance known as Title 42 to bar asylum seekers. The United States has also expelled hundreds of thousands of asylum seekers to join crowds of migrants clustered along the northern edge of Mexico in surreal legal limbo. They are casualties of the latest U.S. contribution to an ignominious international system — an array of legal machinations and shady deals quietly hatched to block asylum seekers from reaching the most economically and politically advanced nations. Americans tend to imagine the southern frontier as a unique line that holds us apart from forces we fear. But in fact, our border is quite like other sea, air and land crossings into lands of outsize opportunity where, against a global backdrop of rising nationalism, governments experiment with quasi-legal methods to repel asylum seekers. Did you know you can share 10 gift articles a month, even with nonsubscribers? Share this article. “These policies are very much a race to the bottom,” said David FitzGerald, co-director of the Center for Comparative Immigration Studies at the University of California, San Diego. “The governments are all keenly aware of what other governments are doing to keep out asylum seekers. They copy each other. They’re clearly inspired by each other.” Maybe you’re thinking, So what? The United States is overwhelmed with domestic problems; the world is full of people trying to eke out a life; technology has rendered us all highly mobile. Maybe you consider it impractical, or even existentially dangerous, to hear every sorrowful story from every migrant who makes it to our border and expresses fear of going back. Maybe you intuit, correctly, that the distinction between political or religious persecution as opposed to generalized violence, poverty or disaster has gotten blurred, and feel that this muddying renders the whole system, somehow, suspect. But we’re not having that discussion, neither as a country nor as an international community. The world’s most powerful countries decided that people were entitled to seek asylum and pledged to uphold this commitment. Now the governments undermine those promises without consequence. Just last week, Moroccan forces set upon a crowd of migrants that had rushed to scale a fence into Spain, killing at least 23 people, according to human rights groups monitoring the Moroccan-Spanish border. A scathing statement from N.G.O.s in both countries blamed the deaths on a security deal between the two governments and “European policies to externalize the E.U.’s borders, with the complicity of a southern country, Morocco.” “Nobody is going to call out anybody else, because they’re all doing it,” said David Owen, a British political philosopher and the author of “What Do We Owe to Refugees?” “At some point this has to crack. Either we decide that human rights just don’t matter, or at least the human rights of some people don’t matter, or the international community will start taking this more seriously.” We imagine a planet of nations and borders, but a growing chunk of humanity lives in camps. Most displaced people are likely to die in limbo, without ever being resettled. Refugee camps and transitional shelters have turned, increasingly, into long-term, even lifelong, homes. And that burden is unfairly distributed: Eighty-three percent of the world’s refugees are hosted by low- and middle-income countries. In the meantime, the inhabitants of the world’s more comfortable places exist obliviously behind governments that do the dirty work. President Donald Trump fantasized aloud about electrified walls and a trench of alligators, but perhaps our most impenetrable border protection is the psychological insulation that separates the things we do from the way we prefer to think about ourselves. A Supreme Court decision handed down on Thursday could chip away at a backlog of people waiting in Mexico, allowing a limited number of asylum seekers to enter the United States while they wait for cases to be resolved. But the effect will be modest, experts warned, as long as Title 42’s overarching ban of asylum seekers stays in force. “The real issue on the border is Title 42,” an A.C.L.U. lawyer, Lee Gelernt, said. “This won’t change anything on the ground.” (In fact, he added, the ruling could take the pressure off the government by deflecting criticism of Title 42.) In the concrete realm of borders and checkpoints, certain patterns reappear from one place to the next. Many governments make a show of punishment and deprivation, for example, turning asylum-seeking into a de facto crime in their eagerness to scare off potential arrivals. Migrants are locked up, families get separated, and asylum seekers are held in far-flung locations, creating the sensation of abandonment and exile. Governments leery of spoiling their international reputations generally seek to tamp down migration flows without doing anything unsavory themselves, or look for offshore locations offering flexible laws and plausible deniability. This impulse has led to a boom in high-profile extraterritorial immigration centers and outsourcing to poorer countries. It will come as no surprise to anybody who remembers the war on terror that the United States is a pioneer in offshore activities. Guantánamo is the most notorious extralegal site used by the United States, first in the 1990s to process Cuban and Haitian migrants and asylum seekers and more recently to imprison and torture people identified (sometimes incorrectly) as terrorists. Less famously, in 1999, the United States held Chinese asylum seekers on Tinian in the unincorporated Northern Mariana Islands, outside the jurisdiction of federal immigration laws, to prevent them from reaching Guam. The United States also made deals in the 1990s to process Haitian asylum seekers in Turks and Caicos and aboard a Navy vessel anchored in Jamaican waters. Australia paid millions to Papua New Guinea and Nauru to host detention centers that became an international human rights scandal. (The former deal ended in December, after Papua New Guinea’s Supreme Court declared the arrangement unconstitutional.) As for Europeans, in 2016 they gave Ankara six billion euros and allowed visa-free travel of Turkish nationals to Europe to induce Turkey to crack down harshly on migration to Greece and accept migrants pushed back from Europe. Europe has also outsourced Mediterranean Sea patrols to the Libyan Coast Guard, which has resulted in tens of thousands of people being hauled back to Libya — a record-setting 32,000 last year — to face what Amnesty International called “hellish conditions” — torture, rape, arbitrary detention and forced labor. As this draconian deal went into force, fewer migrants tried to cross the Mediterranean, but more of them died at sea. The United States pioneered this maritime practice when President George H.W. Bush ordered the Coast Guard to repel boats trying to reach the United States from Haiti. The Supreme Court later upheld Mr. Bush’s order, ruling that U.S. obligations to asylum seekers don’t apply outside the United States itself. The sea pushbacks were then adopted by Australia, where overcrowded boats are regularly invoked in domestic politics with the same panic-infused distaste surrounding “migrant caravans” in the United States. There is scant public understanding of Australia’s boat turnbacks, though: Since 2013, Australia has covered any activities at sea in official secrecy. “The complete lack of transparency and oversight is a red flag,” an Australian refugee lawyer, Madeline Gleeson, who wrote “Offshore: Behind the Wire on Manus and Nauru,” told me. “Why the resistance, if there’s nothing to fear about the way they’re doing it?” (The policy has not changed since we spoke, but Ms. Gleeson recently told me she hopes for improvement under Australia’s newly elected government.) Despite scorching criticism, the trend of outsourcing is only accelerating. As I write this, the fate of a handful of migrants is being haggled over in court by the British government. For the non-crime of fleeing countries as far-flung as Vietnam, Iran and Iraq, and eventually reaching British shores by boat, the asylum seekers face what politicians euphemistically call “removal.” The government plans to force them onto planes and send them against their will to Rwanda. They would be the first asylum seekers transferred to Rwanda under a human outsourcing scheme denounced as illegal and “all wrong” by the United Nations and an “immoral policy” that “shames Britain” by top bishops of the Church of England. Rwanda has been criticized for human rights abuses, including the police shooting of unarmed refugees during a protest. The British government is undaunted, however, insisting that the spectacle will dissuade others from crossing the English Channel. The suggestion of such a scheme has been wafting through London ever since Tony Blair’s government floated similar suggestions that were inspired, according to British reports, from Australia, which was, in turn, borrowing the model of U.S. detentions in Guantánamo. People in British detention are described as despondent and shocked. One of them predicted he’d be hunted down by Iranian agents in Rwanda. Another warned reporters he would kill himself if forcibly removed. I believe he meant it. I’ve interviewed survivors detained by Australia in a hardscrabble camp in Papua New Guinea under the same justifications now being offered by British politicians: the need to prevent people from being smuggled or dying at sea. Dehumanized, locked away without trial and isolated from everything they knew, the people sent to Papua New Guinea engaged in rampant self-harm that provided, as I wrote then, “a much-craved airing of dark emotion. People swallowed razor blades; sliced their wrists; hanged themselves; sewed their lips together. Detainees hurt themselves in reaction to even minor shifts or suggestions: a dawn inspection, a change in Australian politics, a rumor.” Giorgio Licini, an Italian priest in Papua New Guinea who worked with the survivors of Manus Island, told me he’d been deeply shaken by the damage inflicted on their bodies and minds, and condemned Australia’s actions: “You don’t destroy people. You don’t spend billions to destroy a few hundred people. We cannot close our eyes.” Can the British government go through with its scheme? A private company won a contract (such contracts are often a part of these stories) to manage the journey to Rwanda. The first group was about to be ferried away when the European Court of Human Rights intervened and legal arguments resumed. How many innovations can a country devise in its drive to repel asylum seekers? Even the seemingly unremarkable preflight screenings in which passengers must show private airline employees visas and other travel documents in order to get on the plane are a form of border outsourcing dating to the 1980s. That was when the British Immigration (Carriers’ Liability) Act first held airlines liable for bringing passengers to the United Kingdom without proper paperwork. Title 42 is another legal loophole, and, to Stephen Miller’s credit, it was inventive. He lifted it from a 1944 act granting health officials the right to prevent travelers from entering the United States from countries suffering outbreaks of communicable diseases. This provision originated in a 19th-century restriction crafted during cholera epidemics and had been largely forgotten until Mr. Miller resurrected it. The Biden administration tried to lift Title 42 changes to migrant processing this spring, only to be blocked by a federal judge. The resulting court battle is expected to last months; in the meantime, Mr. Miller’s legal innovation will keep the border closed It’s not as if the system was ever particularly good. It wasn’t — it never worked properly and it failed countless times. It was always biased in favor of European Christians and people fleeing governments we wanted to shame, like Cuba and the Soviet Union. It was manipulated all through the Cold War (and now during the war in Ukraine) as a method of diplomatic indictment. Even people lucky enough to score an asylum hearing from a judge in the hopelessly backlogged U.S. immigration courts face wildly varying chances of success. Their fates depend upon their country of origin, the judge who gets their case and the city in which their plea is heard, according to a wide-ranging 2007 case analysis by law professors at Temple and Georgetown Universities. (Haitians were nearly twice as likely to get asylum in New York as in Miami, for example, and Chinese asylum seekers, with a 76 percent success rate in Orlando, Fla., had only a 7 percent chance in Atlanta.) So, true, there was no heyday for refugees, but we used to try. There was a spasm of guilt and horror and a kind of temporary moral clarity when the earliest photographs of the Nazis’ death camps starkly illustrated the cost of inaction. Ancient ideas of sanctuary and refuge were moved into international law with a sense of collective responsibility for oppressed and endangered people who needed to escape. In political deference to antisemitic voters, the Displaced Persons Act of 1948 was so stingy that President Harry Truman condemned it as “begrudging” and “flagrantly discriminatory” even as he signed it into law. He was signing it, he said, only because lawmakers were headed off on summer holiday. But he asked them to come back and do better. And gradually, they did. The quotas were expanded. The asylum system opened up to people who were fleeing from continents that weren’t Europe. Generations of schoolkids learned the words of Emma Lazarus: “Give me your tired, your poor … The wretched refuse of your teeming shore.” It was a demand, not a leery acceptance. She did not write, Oh, OK, if we must, but just a few. We told ourselves that story, and maybe it made us a little better, even if it wasn’t true. What we’re really talking about — beyond the laws and boats, the checkpoints and caravans — is the collapse of an idealism that has grown steadily less realistic. At some point, it seems, demand grew so fast it outpaced our good intentions, and we stopped trying. Let’s at least stop being disingenuous. Let’s admit that our asylum process has become a myth and that we are the most flagrant undoers of our own ideals. We should expand legal pathways to immigration, raise the ceilings, accept our fair share of refugees, hear the cases, keep our word. We should go back to trying, which was ugly and imperfect but still gave some people a fair shake. Or, if we can’t, we should state frankly our reasons for dismantling the asylum system and withdraw our promises. That would crush a lot of hopes, including mine, but at least we’d know who we are. For more information, contact us at: http://www.beverlyhillsimmigrationlaw.com/index.html