‘You can’t expect us to assume you’re a good guy seeking refuge if the very first thing you do in the United States is break its laws when you cross the border illegally!”
This is the argument that people who think of themselves as having a “moderate” position on immigration policy will often bring to the table. It is usually spoken in a reasonable tone of voice, and its self-evident logic is meant to preemptively destroy the progressive case for amnesty or any other kind of status regularization for undocumented immigrants.
Except that its logic loses much of that “self-evidence” when subjected to even a small amount of historical and legal analysis. I have written in the past (https://bit.ly/3CFOrXd) about the widespread misconception that crossing the border without authorization is a serious crime. (It’s a federal misdemeanor, on par with possession of marijuana). But an even bigger gap in many people’s knowledge about immigration concerns the obligation that the U.S. government has, under both national and international law, to allow foreigners to apply for asylum even when they entered the country without the approval of border authorities.
So if abiding by the law is a sign of moral rectitude, then, when wading into the undocumented immigration debate, one should start by demanding that the more powerful party — the U.S. government — respect the law before expecting the same of the weaker party — the asylum-seeker.
In 1951, horrified by the relatively recent memory of the Holocaust and the refusal of many countries to take in Jewish refugees, the international community signed the Convention Relating to the Status of Refugees, which enshrined the legal rights of people seeking asylum. The United States signed the Convention’s 1967 Protocol addendum, which means that it considers itself bound by the treaty. Subsequent American laws, including the 1980 Refugee Act, operate within the Convention’s framework.
The more than 100 countries that have signed onto the Convention or the Protocol recognize the right of people who have a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” to apply for refugee status. Furthermore, the signatories promise to not return asylum-seekers to countries where they will be persecuted.
And here’s the part that the “Don’t break our laws!” crowd either doesn’t know about or chooses to ignore: Article 31 of the Convention explicitly instructs countries not to punish asylum-seekers for crossing their borders illegally.
“1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened […], enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country.”
America’s own laws (Title 8 of the U.S. Code) note that a refugee’s manner of entry into the country does not compromise their asylum case:
“Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum…”
But at least since the 1980s, the U.S. government has diligently sought — and found — loopholes to both international and national law so that they could deny undesirable migrants the chance to lodge asylum cases. Presidents Carter, Bush and Clinton turned away boats carrying Cuban and Haitian refugees. President Trump criminalized unauthorized border-crossing to a previously unheard-of extent and forced many asylum-seekers to remain in Mexico in dangerous conditions while their applications were being reviewed at a glacial pace. And, no less worried about the political implications of refugee admission than his predecessors, President Biden is planning to deny many Venezuelans the chance to apply for asylum under the excuse that they might be bringing COVID-19 into the country.
No one enforces international law against the U.S., so violating its responsibilities under the 1951 Refugee Convention does not carry any practical consequences. As far as domestic law is concerned, refugee rights groups have repeatedly sued the federal government to force it to live up to its promise of asylum, but so far with mixed results.
With successive administrations constantly inventing new ways to prevent people from lodging their asylum claims at the border, coming into the country illegally and then presenting oneself to a border official — as many refugees from Central America are doing nowadays — is but a logical course of action. Our laws recognize as much. It’s time we did, too.
Razvan Sibii is a senior lecturer of Journalism at UMass Amherst. He writes a monthly column on immigration and incarceration. He can be contacted at razvan@umass.edu.