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Asylum Is Not an Open Question

Pundits and policymakers treat international law like a mere suggestion

For weeks now, panels of pundits and teams of talking heads have vigorously debated whether permitting access to the United States’ asylum system is the right political choice for President Joe Biden; if it’s sensible to let desperate migrants fleeing the specter of death to be allowed to so much as apply for protections; if perhaps allowing asylum to effectively exist at all is just not smart. Mainstream journalists have for the most part nodded along, concurring implicitly or explicitly with the premise that these are difficult questions worth asking.

In a representative example, Bush-era war fetishist and current Atlantic editor David Frum uncritically tweeted out “research” from the SPLC-designated hate group Center for Immigration Studies, claiming that asylum had “evolved into an immigration system for those the US would ordinarily refuse,” a statement so absurdly fatuous that it may be one of Frum’s greatest hits, along with his Iraq-WMD filth. He lamented that asylum provided a path for “ultra-low-skilled immigrants from Central American and Caribbean,” as if the purpose of humanitarian protections was economic gain, not to mention that many of these arrivals are literal children and that the U.S. economy would collapse overnight without supposedly low-skilled immigration.

Discussions of asylum are often littered with such basic factual errors—Biden did not, for example, begin allowing unaccompanied minors to avoid expulsion; a court order mandated it with Trump still in office, and the new administration decided to voluntarily continue to observe that policy—but their purpose has never really been to inform. Instead, it’s to build and latch on to cyclical narratives, and the narrative du jour is one of crisis, how to “solve” the problem of non-citizens asking for help.

This has been a bizarre conversation on a number of levels, not least because many interlocutors proceed from the assumption that permitting humanitarian migration is even a choice that the president gets to make. It is not: U.S. law lays out that any “alien . . . who arrives in the United States . . .  irrespective of such alien’s status, may apply for asylum.” The statute enumerates certain exceptions, such as adults applying more than one year after entry and the existence of specific “safe third country” agreements (which formed another front in Trump’s efforts to gut asylum).

Many seem to think that the president still has the option, the duty, to violate domestic and international law and shut down asylum.

There are no exceptions, however, pertaining to considerations of the domestic political climate, or whether accommodating asylum seekers is deemed just too hard or, god forbid, conducive to others subsequently seeking help. Internationally, the principle of “non-refoulement” (literally non-return) holds that a state cannot “expel or return a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened,” as obligated by the United Nations’ 1967 protocol on refugees, of which the United States is a signatory. While the refugee definition itself is woefully outdated, the requirement to verify whether people fit the rubric before sending them away is absolute. These aren’t open questions, no matter how assertively they’re raised by political strategy hucksters and TV news hosts.

Biden has leaned on what is known as Title 42, a supposed pandemic-response measure signed by the CDC under direct pressure from the Trump White House, as his vehicle for blocking asylum applications. Per the Title, the CDC, in cases where there is “serious danger of the introduction of [communicable] disease into the United States,” has the power to “prohibit, in whole or in part, the introduction of persons and property from such countries or places as [the CDC] shall designate.” It is not an immigration statute, but has been used by both administrations to block entry to and expel anyone without entry documentation, regardless of their legally protected intent to seek asylum. (Citizens, notably, have not faced any restrictions or even widespread screening at the border upon their return, as apparently the coronavirus is expected to check immigration status before it infects a host.)

In last year’s injunction against the expulsions of children, federal judge Emmet Sullivan wrote that the law likely did not permit expulsions at all, noting “expelling persons, as a matter of ordinary language, is entirely different from interrupting, intercepting, or halting the process of introduction,” and that the government hadn’t even tried to harmonize its interpretation of this public health law with the existing and conflicting demands of immigration law.

Still, to the talking heads, the specifics of the legal methodology for keeping people out is neither here nor there. To them, statutory constraints are more like general guidelines when it comes to noncitizen people, especially brown ones and recent arrivals. Many seem to think that, even without Title 42, the president still has the option, the duty, to violate domestic and international law and shut down asylum. Notably, their ranks include those who expressed disgust mere months ago at Trump’s restrictionist policies, who decried the flashy abuses of the zero-tolerance policy and “kids in cages” but have remained eerily quiet about the fact that the current policy continues to give families incentives to split up and send their kids alone to what is often prolonged Border Patrol custody.

But today, the past is unimportant. What’s important is the story of the moment, and that story is that Biden’s permissiveness and message of fundamental humanity is driving migrants to the southern border, and it needs to stop. Biden and his team have surrendered to this narrative, performing the odd mix of stated empathy and policy heavy-handedness on enforcement and border militarization that has become a hallmark of moderate Democrats terrified of being painted as open-borders or soft on crime.

In an interview with ABC’s George Stephanopoulos that aired on March 16, the president himself was quite clear: “Don’t come over,” he said (a declaration that was translated into Creole and affixed next to his headshot in an odd tweet sent by the U.S. embassy in Haiti). The sentiment was repeated last week during Biden’s first press conference as president, apparently prompting the ACLU to consider resuming its lawsuit against the Title 42 policy; it had been paused in the hope that the new administration would strike it down voluntarily. It doesn’t seem to matter to the president or the punditocracy that there has never been any evidence that administration rhetoric affects migration flows in any measurable way; in early-to-mid 2019, as Trump railed against asylum, apprehensions were at higher levels than they are today.

This raises the point that the language of crisis itself is a framing decision. The situation at the border is serious but by no means unprecedented. While the chronicle being woven is of a new leader’s bleeding-heart excesses triggering avoidable calamity, this is to an extent the opposite of the reality on the ground. In truth, anyone who was subject to an expulsion on January 19 could be equally subject to it now. Yes, border officials have used discretion to allow increasing numbers of people to access the asylum system, to the point that most families are being reluctantly let in, but it seems like that’s more a function of Mexico’s government increasingly refusing to take expelled families than Biden’s supposed benevolence.

As far as U.S. policy goes, the only group newly permitted to enter are those who’d already applied for asylum months or years ago and had been sent back to Mexico under Trump’s ludicrously named Migrant Protection Protocols. Biden has maintained the bulk of the most indiscriminately draconian border policy in the history of the United States, and it is this decision that has led children to come alone, that has artificially inflated border apprehension numbers as adults and families have tried again and again to seek safety, only to be expelled each time.

Few commentators seem to have bothered to ask what migrants themselves might have to say about all this, or even to consider the simple fact that these migrants’ decision-making is prompted by factors that are unimaginable to them. It’s probably fair to assume that no panelists on the endless TV border “surge” roundtables have had the experience of contemplating their rape or murder at the hands of a criminal organization from which the government has no interest or ability to protect them. If they had, it might become clearer to them why the executive should not—and legally cannot—suspend and restart these processes as if they were a military exercise or a federal infrastructure project.

Biden has maintained the bulk of the most indiscriminately draconian border policy in the history of the United States.

Insofar as there’s any crisis at the border, it’s mainly one of poor advance planning, logistical failures, and bad policy that have created the situation forcing thousands of people to leave their countries of origin in the first place, leaving vulnerable children languishing in horrid conditions and anguished families in an extended limbo with no notion of when they’ll get to apply—merely apply—for humanitarian protections. Migrants are not themselves, nor have they ever been, the crisis.

As an immigration beat reporter, it’s frustrating to be forced to watch political operatives and other journalists yet again discuss, clumsily but assuredly, life-and-death issues on which they have a tenuous grasp and in which they evince no real interest beyond its short-term political implications. But the damage here will not be short-term. These narratives seep into the public consciousness in a way that’s difficult to excise. And as a result, the link between “basic humanitarian protections” and “crisis” will be further cemented. So will the notion that our humanitarian obligations can be jettisoned at will, adding to the thicket of misconceptions that we have to cut through each and every time immigration becomes a national story.

Even when the furor dies down—as after the wildly overstated significance of the migrant “caravans” over several news cycles—the warped understandings remain, influencing how people vote, how they view their country’s responsibility toward suffering people asking only to survive, and fundamentally the extent to which they see migrants as people at all.