Accepting the persecuted is an American value

As we celebrate America’s Independence Day, we want to remind everyone that welcoming people who face persecution in other countries is one of our country’s core values. The U.S. asylum system is not a “loophole,” but a system that complies with U.S. and international law and provides life-saving refuge for people escaping grave danger.

As law professors with decades of experience practicing, teaching, and researching refugee law and policy, we are deeply concerned that President Joe Biden has in recent weeks implemented Trump-era measures to block access to the asylum system, despite campaign promises to the contrary. Columnists in national newspapers have been pushing claims about asylum seekers that are straight out of the playbook of xenophobic politicians. In addition to calling asylum a “loophole,” they falsely claim that Biden has pursued an open-border policy that encourages migration and claim without evidence that “many migrants apply for asylum even though they are not at risk of persecution.” In fact, the idea that asylum is a “loophole” originated with Trump’s immigration adviser Stephen Miller, who holds white nationalist views.

We know from our work with asylum seekers and our research into the human rights situation in their home countries that most migrants arriving at our southern border are fleeing severe violence and other dire dangers, ranging from government repression and censorship to starvation. The fact that they must also work to feed, clothe and house themselves and their families does not undermine the credibility of their asylum claims. In our experience, the vast majority of asylum seekers have no desire to leave their country; they have only fled because it was their last resort. To quote writer and poet Warsan Shire, “No one leaves home unless it is the mouth of a shark.”

The United States’ obligation to protect such individuals derives from international treaties that the country has committed to upholding: 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-rejectionhas been enshrined in federal law since 1980. By codifying this obligation, the U.S. Congress has wisely ensured that migrants can legally apply for asylum regardless of how they arrive at the United States borders, since asylum seekers do not carry mountains of papers and visas with them.

Yet the asylum process that adjudicates these cases is so underfunded that it has effectively stopped functioning. The Trump administration has done nearly everything in its power to block access to and dismantle the asylum process. From a barrage of policies preventing asylum seekers from entering the United States, such as the Remain in Mexico program, to major changes to the asylum standard that make it much more difficult to obtain protection, the Trump administration has wreaked chaos and uncertainty on asylum law and policy. The number of asylum seekers at the border has risen in recent years due to human rights crises around the globe, but also due to the backlog and chaos caused by Trump-era policies. Those policies included the cruel separation of families and a three-year closure of the border to asylum seekers that was falsely justified as a response to Covid-19.

To be clear, U.S. and international law offers protection to only a narrow category of people—those who suffer harm or torture at the hands of or with the condonation of their government because of their race, religion, nationality, political opinion, or membership in a particular social group. In other words, many who deserve protection from danger do not meet the refugee definition. Rejected asylum claims are not the same as fraudulent claims, and cannot be used as an argument for abolishing asylum.

Moreover, the US obligation to provide protection cannot be separated from geopolitics. Many people from Central America seek asylum because they face violence from transnational gangs formed in the US by previous generations of migrants who fled the US-backed civil wars in Central America in the 1980s. Moreover, as Trump’s own Secretary of Homeland Security acknowledged in 2017, these gangs are funded by profits from the US drug market – enabled by the US market’s appetite for drugs. Other migrants are fleeing the devastating effects of climate change, a phenomenon for which the US is largely responsible: over the past 170 years, the US has produced nearly a quarter of the world’s greenhouse gas emissions.

Not all Americans are doing well today, given the current rate of inflation. However, numerous articles have documented how much migration has benefited the economy. Moreover, the United States is still a relatively wealthy country that has produced some of the drivers of migration and should focus on solving the asylum problem rather than ending it. Our country has the means to build a viable system and just needs the political will to do so. The United States should strive to create safe conditions in neighboring countries and beyond, but also preserve and create legal pathways for migrants who need to continue to seek shelter 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 legal migration pathways sufficient to meet labor and protection needs.

The U.S. border process should emphasize humanity and efficiency, which would minimize border spectacle and cut the rug out from under politicians who seek to capitalize on chaos to gain votes. So far, for political reasons, both parties have preferred to point the finger at the other side, claiming the other party has failed to address immigration problems, rather than provide the necessary resources. Instead, the federal government should provide adequate resources for processing and reception. U.S. Customs and Border Protection admits nearly 550,000 people at the border every day, including U.S. citizens, permanent residents, and visa holders. If the government is prepared, it can simply treat asylum seekers as another category of people to be processed. Organizations are willing to integrate migrants into communities across the country if they are adequately funded and if the migrants can work.

Migration is a phenomenon that is here to stay. The goal should be to create a process that works as well as possible, not to destroy what remains. In the United States, we have a moral obligation – especially as we commemorate the founding of our nation – to protect the values ​​that make America great. That includes welcoming those who face persecution.

IMAGE: Migrants and asylum seekers demonstrate against US immigration policy in Ciudad Juarez, Mexico. (Photo by HERIKA MARTINEZ/AFP via Getty Images)