Jonathan P. Baird

Behind the Trump Administration’s non-stop talk of a migrant invasion is an effort to redefine and restrict asylum law in an unprecedented way. The Trump Administration is trying to bar Central American immigrants who come to our southern border from almost any eligibility for asylum.

Obtaining asylum is already very hard. In 2018, on a national basis, immigration judges denied asylum in 65% of cases. This was the sixth year in a row denial rates have risen.

The new effort to restrict asylum is multi-pronged. The Department of Homeland Security proposed a new rule that would require migrants traveling from another country to prove that they had applied for and were denied asylum in that country before they could seek asylum in the United States. The rule was designed to sideline the claims of Central Americans passing through Mexico.

This new rule has already been enjoined by one federal court but I expect that fight will be ongoing.

Other practices have contributed to the exclusionary effort. These include the practice of “metering”, where the government greatly limits the number of asylum applications it will process everyday. Then there is the “remain in Mexico” rule which requires asylum seekers to stay in Mexico until the day of their immigration hearing. Also, there is the practice of making it impossible to request asylum between ports of entry.

The effort is designed to persuade asylum seekers to give up their claims and return to their home countries. Instead of being treated like desperately needy human beings exercising their legal rights, asylum seekers are being treated like criminals. Many languish in shelters in Mexico if they can get into a shelter.

Human Rights Watch prepared a report in July on the conditions faced by the migrants in Mexico. They face massive shortages of shelter, food and water. They also are a high risk of becoming crime victims, including victims of sexual assault and violence.

Mexico recorded more homicides in 2018 than it has in any year since the country started keeping records in 1997. Two of the northern states in Mexico where asylum seekers have been returned, Baja California and Chihauhua, are among the most violent in the country.

The efforts to make asylum impossible for Central Americans is contrary to well-established law. I would mention two international treaties that the U.S. has signed and ratified. The 1967 Refugee Protocol guarantees a right to seek asylum. It implements the 1951 Convention relating to the status of refugees. Also, the Convention Against Torture prohibits deporting asylum-seekers to places where they may face bodily harm.

The experience of World War II created the context for the creation of refugee rights. The dehumanization of refugees by the Nazis is a big part of the historical background of asylum law. Anyone who is unable or unwilling to return to their home country due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion or membership in a particular social group can theoretically qualify.

Article 14(1) of the Universal Declaration of Human Rights, which was adopted in 1948, guarantees the right to seek and enjoy asylum in other countries. These rights are applied without any geographic limitation. They are an aspirational goal. After German fascism, the civilized world saw the absolute need for asylum.

In considering the overall Trump Administration effort to treat asylum seekers as invaders and criminals, I am struck by the lack of awareness of history. There is zero consciousness of colonialism and imperialism and their role in making migration a necessity.

The British Empire, the French and the Americans all deserve mention. The Third World was carved up by colonial powers who profited by taking natural resources and raw materials and by using cheap labor. The exploitation took different forms. Migration became necessary when the Western colonialists and imperialists made life so impossible in home countries that native people had to leave.

The current immigration from the so-called Northern Triangle countries – El Salvador, Guatemala, and Honduras – provides a good illustration.

In 1979, the United States sponsored a coup by young Salvadoran military officers that led to a vicious civil war. The war lasted over 12 years with an estimated 70,000 to 80,000 killed. U.S.-trained death squads and the Salvadoran military carried out a scorched earth policy that resulted in indiscriminate killings and targeted assassinations.

The United States provided massive military support to the Salvadoran military. U.S. officers took over positions in the Salvadoran military and made decisions about how the counterinsurgency war was fought. During the Carter and Reagan Administrations, military aid averaged one to two million dollars a day. The civil war left El Salvador a wasteland. Criminal gangs have proliferated with 20,000 Salvadorans killed from 2014 to 2017 alone.

Guatemala had its own civil war that ran from 1960 to 1996. This came in the aftermath of a 1954 covert CIA-sponsored coup that overthrew the democratically elected government of Jacobo Arbenz. Both before and after the coup, the U.S. supported brutally repressive dictatorships. As in El Salvador, death squads terrorized and committed horrendous crimes against the civilian population. In the 1980’s the massacre of indigenous Mayan people by the Guatemalan military (which had U.S. backing) was widely considered a genocide. When the war finally ended in 1996, the nation was shattered.

Honduras escaped civil war but not a military coup. In 2009, the left-leaning president Manuel Zelaya was removed from power by a U.S.-backed coup. Since that coup ten years ago, 300 people have been killed by state security forces, including 34 members of the Honduran opposition. The homicide rate is the highest in the world.

What is missing in most conventional coverage of migrant caravans and immigration at our southern border is the role of U.S. foreign policy in the U.S.-bound migration.

The writer Suketu Mehta, author of This Land is Our Land, argues there is a case to be made for reparations to be paid by the colonialists and imperialists who have looted Third World countries. To quote him:

“They looted us for centuries. They took whatever was worth taking, and they continued taking after we became “independent” – of their governments, but not of their corporations. The numbers are indisputable; colonial countries enriched themselves at the expense of the subject nations, and there’s a case to be made for reparations to be paid. There is a giant program of reparations under way, but it’s a reverse reparations, by the poor of the world to the rich: to the oil companies, the chemical companies, the mining companies, which have figured out how to corrupt the governments of the developing countries and continue stealing.”

Eliminating asylum for Central American migrants is the height of hypocrisy. The United States played a central role in creating the circumstances that necessitated the seeking of asylum. Intellectual honesty requires a look at the whole picture. Asylum is a human right that must be maintained – not short-circuited.