As the United States celebrates Independence Day, we offer an urgent reminder that welcoming people persecuted in other countries is one of the nation’s core founding values. The U.S. asylum system is not a “loophole,” but a system consistent with U.S. and international law that offers a life-saving haven for those escaping grave harms.
As law professors with decades of experience practicing, teaching, and researching refugee law and policy, we are deeply concerned that in recent weeks, President Joe Biden, despite campaign promises to the contrary, has implemented Trump-era policies to block access to the asylum system. Columnists in the pages of national newspapers have trumpeted claims about asylum seekers that are drawn from the playbook of xenophobic politicians, not only calling asylum a “loophole” but also asserting falsely that Biden has had open border policies that have encouraged migration and alleging without evidence that “many migrants claim asylum even though they are not at risk of being persecuted.” Indeed, the very idea that asylum is a “loophole” comes from Trump’s immigration advisor Stephen Miller, who has espoused white nationalist views.
From our work with asylum applicants and our research on human rights conditions in their home countries, we know that most migrants who arrive at our southern border are fleeing serious violence and other dire harms ranging from government repression and censorship to famine. The fact that they must also work to feed, clothe, and house themselves and their families does not undermine the veracity of their asylum claims. In our experience, the vast majority of asylum seekers have no desire to abandon their country; they fled only as a last option. To quote the writer and poet Warsan Shire, “no one leaves home unless home is the mouth of a shark.”
The United States’ commitment to protect such persons derives from international treaties that the country has bound itself to obey: the 1951 United Nations Refugee Convention and the 1984 United Nations Convention against Torture. The resulting obligation not to return anyone to danger, known as the principle of non-refoulement, has been enshrined in federal law since 1980. In codifying this obligation, the U.S. Congress wisely provided that migrants may legally apply for asylum regardless of how they arrive at the United States’ borders, because those seeking refuge do not carry reams of paperwork and visas.
Yet, the asylum process through which these cases are determined has been under-resourced to the point of dysfunction. The Trump administration did nearly everything within its power to block access to and dismantle the asylum adjudication system. From a flurry of policies preventing asylum seekers from entering the United States, such as the “Remain in Mexico” program, to substantive changes to the asylum standard that made it far more difficult to obtain protection, the Trump administration wreaked havoc and uncertainty on asylum law and policy. The numbers of asylum seekers at the border have increased in recent years because of human rights crises around the globe but also because of the backlog and chaos resulting from Trump-era policies. Those policies included the cruel separation of families and a three-year shutdown of the border to asylum seekers, spuriously justified as a response to Covid-19.
To be clear, U.S. and international law offer protection to a narrow category of people – those who suffer harm because of their race, religion, nationality, political opinion, or membership in a particular social group, or face torture by or with the acquiescence of their government. In other words, many who deserve protection from danger do not fit within the refugee definition. Rejected asylum claims are not the same as fraudulent claims and cannot be used to urge the end of asylum.
Moreover, the United States’ obligation to offer protection cannot be divorced from geopolitics. Many Central Americans seek asylum because of violence at the hands of transnational gangs that were formed in the United States by earlier generations of migrants who fled U.S.-backed civil wars in Central America in the 1980s. Moreover, as Trump’s own Secretary of Homeland Security acknowledged in 2017, those gangs are fueled by profits from the drug market in the United States – enabled by the U.S. market’s appetite for drugs. Other migrants are fleeing the devastating impacts of climate change, a phenomenon for which the United States bears substantial responsibility: over the past 170 years, the United States has produced nearly one quarter of the world’s greenhouse gas emissions.
Given current levels of inflation, not all Americans feel well off today. However, numerous articles have documented how migration has greatly benefited the economy. Furthermore, the United States is still a relatively wealthy nation that has produced some of the drivers of migration, and should be focused on fixing asylum, rather than ending it. Our nation has the resources to construct a viable system, and only needs the political will to do so. The United States should strive to create safe conditions in neighboring countries and beyond but should also preserve and create lawful pathways for migrants who still need to seek protection or work in this country. The solution to wage stagnation and economic hardship is not to scapegoat immigrants and close the border. Instead, the government should set and enforce a higher minimum wage for all workers and support lawful migration pathways sufficient to meet labor and protection needs.
The U.S. border process should emphasize humanity and efficiency, which would minimize the border spectacle and pull the rug out from politicians who seek to capitalize on chaos to win votes. Until now, for political reasons, both parties have preferred to point the finger across the aisle, claiming that the other party has failed to address immigration challenges rather than providing the resources needed. Instead, the federal government should provide adequate funding for processing and reception. U.S. Customs and Border Protection admits almost 550,000 people per day at the border, including U.S. citizens, permanent residents, and visa holders; with preparedness, the government can treat asylum seekers as just another category of people to process. Organizations are prepared to integrate migrants into communities throughout the country, if they receive sufficient funding and if migrants can work.
Migration is a phenomenon that is here to stay, and the goal should be to create a process that functions optimally, not to destroy what remains. In the United States, we have a moral obligation, particularly as we commemorate the founding of our nation, to protect the values that make America great, which include welcoming those who face persecution.