Members Only | January 18, 2023 | Reading Time: 4 minutes

If there’s a ‘crisis at the border,’ it’s of the government’s making

No matter how you cross the border, you are not illegal. 


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The “crisis at the border” is manufactured. 

Immigrants are not “invading.” 

Demonizing people who enter this country “illegally” is bad enough. But since the Trump administration, there seems to be a complete conflation of asylum seekers, who can’t file an asylum claim until they are inside the US, and those who cross the border illegally. 

The right to apply for asylum was recognized in the Universal Declaration of Human Rights in 1948. While this was a non-binding resolution, it showed a clear change in the understanding of the importance of asylum and ushered in a new age of international law.

Asylum seekers are not entering the country “illegally” (by the very definition of asylum seeker, they can’t), but they are being targeted by federal policies aimed at curbing so-called “illegal immigration.” 

Asylum seekers are refugees. 

They apply for protected status from inside the desired country while refugees apply from outside the country. Barring asylum seekers from entering the US, or immediately deporting them for entering “illegally,” is denying any right to seek asylum in the US.

A confused mix
US immigration policy has always been a confused mix of racism and desperate need. From the inception of the country until the post-Civil War era, immigration was mostly the purview of local and state government policies with few restrictions. 

The first federal immigration laws targeted Chinese immigration in 1875 and 1882, which ushered in an era of increased immigration restrictions and bizarre eugenics-minded immigration quotas that even split Europeans into more or less “desirable” groups. 

Illegal entry,” resulting in “illegal immigration,” didn’t exist in the US until the passage of the 1921 and 1924 acts. Border control didn’t have the authority to arrest “illegal aliens” without a warrant until 1925. 

For most of US history, there was no such thing as illegal immigrants. Law enforcement couldn’t arrest or detain those suspected of entering the country illegally without oversight from the courts.

This is something that the Biden administration and other proponents of immigration restrictions should remember when recalling family members who came to the US “legal immigrants.” 

Asylum is a right
In the wake of the Holocaust, the US and much of the world opened their immigration policies to include refugees and asylum seekers. 

The concept of an individual right to claim asylum began in the 20th century. The 1933 League of Nations Convention Relating to the International Status of Refugees required participating states to allow in refugees fleeing from neighboring states. 

Prior to this period, asylum was connected more to religious sites offering sanctuary, though the recognition of the right dates back to Greek, Egyptian and Hebrew tradition. There were individual cases of countries offering political figures asylum, such as Karl Marx being accepted in the United Kingdom, in the 19th century as well. 

The right to apply for asylum was recognized in the Universal Declaration of Human Rights in 1948. While this was a non-binding resolution, it showed a clear change in the understanding of the importance of asylum and ushered in a new age of international law.

In response to the Second World War’s upheaval, the US passed the first law to allow for the resettlement of hundreds of thousands of refugees in 1948. For the next 30 years, refugee resettlement was piecemeal in response to specific international crises. 

Congress passed the Refugee Act of 1980, which standardized resettlement services and incorporated the UN definition of “refugee” from the 1967 Protocol relating to the Status of Refugees into US law. The US has a legal obligation to offer protection to those who qualify as refugees and allow people to seek asylum in the US.

The US removed obvious racial restrictions on immigration and naturalization in the 1950s (incompletely removed until 1965), but retained immigration restrictions that have gotten more draconian and implicitly (if no longer explicitly) racist over the years.

“The right way”
Unfortunately, both Democrats and Republicans have supported anti-immigrant policies. While Barack Obama began Deferred Action for Childhood Arrivals, which offered a possibility of legal status for undocumented people brought to the US as children, his administration also oversaw historic rates of deportation

Donald Trump’s anti-immigration policies were inhumane and unprecedented. While families seeking asylum had long been detained in horrible conditions, it wasn’t until the Trump administration that families were separated and little distinction was made between asylum seekers and those crossing “illegally.” 

Trump instituted a number of anti-asylum policies while in office, including forcing asylum seekers to “remain in Mexico” while awaiting hearings and treating any asylum seeker who entered in between official ports as entering “illegally” and blocked them.

Trump also used the covid pandemic as an excuse to block asylum seekers for supposed public health concerns with Title 42 immediately “removing” anyone who crosses the border “illegally.”

While the Biden administration has been fighting Title 42 in court, the DOJ appealed the decision of a DC federal court to block it. 

This is apparently an important legal strategy to support the power of the administrative state, but the administration’s recent immigration policies are also not supportive of asylum seekers. 

While Title 42 is still in effect, Joe Biden announced it would be expanded to block those seeking asylum. While the president expands pathways, his policies and rhetoric emphasize “legal” pathways for people coming the right way who get “permission” first. 

The government’s making
Once again, the entire concept of asylum presupposes that you do not need permission, but instead can apply once they are here. 

However, with the expansion of Title 42, asylum from Haiti, Nicaragua and Cuba as well as the existing Title 42 application to migrants from Mexico, Honduras, El Salvador and Guatemala, means that asylum is a tiered and racialized process by which immigration is harder for migrants from Latin America and the Caribbean. 

Seeking asylum is a human right guaranteed by both American and international law. Asylum seekers must be treated humanely and with good faith rather than lectured on coming here the “right way.”

The only thing these new policies accomplish is inhumane treatment for desperate people to substantiate political rhetoric about the “illegal immigrants” who are causing a “crisis at the border.” 

If there is a crisis, it’s of the government’s making.

Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

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