Tunc tua res agitur paries cum proximus ardet.
Your own property is in peril when your neighbor’s house burns.
—Horace
Every minute that passes, twenty new people around the world are displaced. In the time it takes you to read this paragraph, twenty people have permanently left their homes. Most of them, 51 percent, are children. And though Europe is seeing the bulk of today’s asylum seekers, hundreds of thousands are also heading to different parts of Asia and the Americas. Despite these alarming figures and the havoc cried by nativists—or the soapboxer at the rally—the percentage of the global population that’s displaced had remained steady over the last seventy years until recently. According to sociologist and migration researcher Hein de Haas, refugees make up roughly 0.3 percent of the total world population, while migrants in general make up roughly 3 percent—both numbers had gone slightly down since 1960. That has changed since 2010, with an increase in the percentage of refugees and migrants: as of 2019, they now make up 3.5 percent of the total global population. In terms of gross numbers, there are by far more migrants, more refugees, and more asylum seekers today than ever before in history.
And while, before 2010, the percentage of refugees had been holding steady for decades, in the first half of the twentieth century the total number of international refugees rose sharply. The first precipitating event was the dissolution of the Ottoman Empire and the sprawling conflict in the early Soviet Union that drove millions to flee. At least 2 million people fled the Soviet Union in the late 1910s and early 1920s. As there was no international organizing body to react or receive them, the League of Nations convened a conference in 1921 and established the Office of the High Commissioner for Refugees, appointing a Norwegian polar explorer and wonderfully mustachioed scientist, Fridtjof Nansen, as its first high commissioner.
One of the high commissioner’s initial moves, besides some political leveraging to push countries into accepting more refugees, was offering the recently expelled and stateless people IDs—identification papers that became known as Nansen passports, letting their carriers legally cross international boundaries and look for work. The passports cost five gold francs apiece—a prohibitive cost for some. Michael Marrus, writing in The Unwanted: European Refugees in the Twentieth Century, explains that “for the first time [the Nansen passports] permitted determination of the juridical status of stateless persons through a specific international agreement.”
Initially, the Nansen passports were specifically intended for the Russians, Poles, and Germans fleeing the Soviet Union after, as Arendt put it, “the Soviet regime had disowned one and a half million Russians.” In the following years, the mandate of the high commissioner was extended to include Armenians, Assyrians, Assyro-Chaldeans, Syrians, Kurds, and Turks. In sum, nearly half a million Nansen passports were issued, and fifty-two countries recognized the document. Both Vladimir Nabokov and Igor Stravinsky carried the passport, which Nabokov once referred to as the “Nonsense Passport.”
Over the next decades, millions more people would continue to be driven by fear to cross international boundaries in search of safety: Italians fleeing Fascist Italy and Spaniards fleeing Francoist Spain, as well as Poles, Finns, Kosovars, Serbs, Croats, Estonians, Hungarians, and Jews fleeing the hate and slaughter campaigns of the Nazis or Nazi-collaborating governments. In Asia, too, Japanese aggression forced Koreans and Chinese to take flight. After World War II, the Japanese were expelled from Taiwan and Korea, and almost three-quarters of a million Palestinians were displaced in the 1948 Palestinian exodus.
Surely, I’m missing entire populations, skipping over millions of people. The enormous numbers reach abstraction, which is, perhaps, part of the problem. Quantity and empathy have an inverse relationship, and the sheer numbers of people crossing a border in search of safety so often provoke not empathy but its opposite—a hardening of the heart.
“In the long memory of history,” Arendt wrote, “forced migrations of individuals or whole groups of people for political or economic reasons look like everyday occurrences.” In the twentieth century, “suddenly, there was no place on earth where migrants could go without the severest restrictions, no country where they would be assimilated, no territory where they could found a new community of their own.”
In her groundbreaking work, The Origins of Totalitarianism, which traces the rise of imperialism, racism, and anti-Semitism and the unprecedented uprooting of people that resulted from these evils, Arendt notes that protections and human rights were afforded by the state and only by the state, leaving millions of stateless and refugees to existential uncertainty. With no state to protect them, refugees were left without, in Arendt’s famous phrase, “the right to have rights.” Nansen passports, and a series of international agreements, sought to fill that gap of rightlessness, but they fell short. As author Lyndsey Stonebridge, in her illuminating book Placeless People, writes, “For German and Austrian Jews access to the passports was minimal and haphazard.”
In 1933 the high commissioner for refugees drafted the Convention Relating to the International Status of Refugees, recognizing the urgent need to protect persecuted Jews. The 1933 Convention, though only ratified by nine states (the United States was not among them), laid out the legal arguments and language that would be adopted by the 1951 Convention. Importantly, the 1933 Convention established, for the first time, the principle of non-refoulement, the crux of today’s asylum law: the right not to be returned to a country where you face grave danger. As the drafters of the Convention put it, “Each of the Contracting Parties undertakes not to remove or keep from its territory by application of police measures, such as expulsions or non-admittance at the frontier (refoulement), refugees who have been authorized to reside there regularly, unless the said measures are dictated by reasons of national security or public order. It undertakes in any case not to refuse entry to refugees at the frontier of their countries of origin.”
The 1933 Convention was followed by a flurry of assemblages and convergences relating to the persecution and status of Jewish refugees leaving Germany, culminating in the Évian Conference of 1938 (in the spa town of Évian, France), where representatives met to find a way to protect Jews stripped of their citizenship by the 1935 Nuremberg Laws. Specifically, the conference was provoked by Hitler’s annexation of Austria and, just days later, the young SS officer Adolf Eichmann’s arrival in Vienna on a mission, as Michael R. Marrus and Robert O. Paxton write in Vichy France and the Jews, “to terrorize the Jews of Austria into flight.” Despite the thousands of Jews storming the American embassy in Vienna and pleading for visas, Marrus and Paxton write, President Roosevelt remained “determined not to enlarge the modest American quota for [immigrants from] Germany and Austria.” Hearing of the conference, Hitler wrote, “I can only hope that the other world, which has such deep sympathy for these criminals, will at least be generous enough to convert the sympathy into practical aid.” An obvious provocation, he wanted the global community to help rid Germany of its Jewish population.
Despite grandiose posturing, very few Jewish refugees were settled after Évian. Although he was the one who called for the conference, President Roosevelt, rather than sending an actual government official as his emissary, instead sent his pal and envelope manufacturer Myron Taylor. The bars on resettlement into the United States that Roosevelt refused to lift at the conference—highlighting how pointless international posturing could be when coupled with domestic abulia—were set by the eugenicist-inspired 1924 US Immigration Act, which limited the number of future immigrants based on the population from that country already present in the United States according to the 1890 census, thereby greatly disfavoring southern and eastern Europeans and rendering immigration from Africa practically zero. Without changing the 1924 cap, no promise of protection could possibly be met. The Dominican Republic’s Rafael Trujillo, in what Lyndsey Stonebridge notes was an unapologetic attempt to make his nation more white, was the only national leader to make a concrete offer to take in Jewish refugees. Other conference emissaries, meanwhile, considered sending European Jews to Madagascar. Famed American journalist Dorothy Thompson called the failure of the Évian Conference “the most cataclysmic event in modern history.” At that point, and if by event Thompson meant conference, the comment may not have been hyperbole.
A few months later, the sound of shattering glass rang throughout Germany, Austria, and Sudetenland, as Hitler’s youth and Nazi soldiers destroyed synagogues and rounded up thousands of Jews on Kristallnacht.
Writing an op-ed in the New York Times in 1979, Vice President Walter Mondale pointed out that if each of the thirty-two countries attending the conference had taken in a mere seventeen thousand Jews, every Jew in the Reich (just over a half a million) would have been saved. Mondale was technically correct, but 1938 was still early in the Nazi Lebensraum—before they conquered territory where millions more Jews were living, and the thirty-two “nations of asylum” hardly lived up to the sobriquet.
Despite the gestural, milquetoast stance of the Évian delegates, another important precedent was set: for the first time, as Gilbert Jaeger, former director of protection of the UNHCR, writes, “protection was extended to would-be refugees inside the country of potential departure.” That is to say, the conference established the modern political notion of the refugee, someone who needs flight as much as someone who has already taken it.
Given the lack of governmental response and unwillingness to ease immigration restrictions in the late 1930s, private organizations, mostly British, organized the Kindertransport, shuttling about ten thousand young Jewish children from Nazi-occupied Europe into the United Kingdom. In 1940, the Vichy government of France sought to transport over one hundred thousand anti-Franco Spanish refugees to Mexico, but Mexico refused.
In their defense, countries pled a lack of capacity, which seems a poor excuse when, for instance, landlocked Bolivia—having just been browbeaten in a war with neighboring Paraguay—acted the friendly outlier (and without the execrable ulterior motives of Trujillo) to the persecuted Jews and admitted over twenty thousand refugees between 1938 and 1941. Another outlier was Muslim-majority Albania, where various towns and villages hid refugees after the Nazis invaded in 1939. The Albanians were adhering to besa, a traditional honor code that includes, as Linda Rabben describes, “a moral imperative to offer one’s home to protect and shelter any guest in need.” Photographer Norman H. Gershman cites an Albanian proverb that also may have inspired the villagers: “Our home is first God’s house, second our guest’s house, and third our family’s house.”
The world’s refusal to offer refuge to critically endangered Jews came to dramatic climax when a ship, the St. Louis, departed Hamburg, Germany, for Cuba in May of 1939 with 937 passengers on board. Almost all of them were fleeing Jews; some of whom had already experienced the horrors of the camps. After a relatively placid, three-week journey—there was a band on board, the passengers dined on linen tablecloths, and the weather was calm—the Cuban government denied the ship harbor in Havana. A few passengers with connections were able to disembark, but the rest were left floating. One man threw himself into the water to try to swim to shore—he made it—and urgent appeals were sent out to the Cuban president Federico Laredo Brú, as well as US president Roosevelt. Both of the presidents dithered, deflected, and eventually refused to let the ship dock. After days of waiting, the St. Louis sailed from Havana to Miami, hoping to pressure the US government to give in. As Roger Daniels writes in Guarding the Golden Door, “For a time [the St. Louis] was so close to Miami Beach that the passengers could hear dance music being played at the resort’s luxury hotels.” They may have heard Glenn Miller’s “Moonlight Serenade,” one of the top hits in 1939: “I stand at your gate and the song that I sing is of moonlight.” The melody seems to come into its own if you imagine the St. Louis passengers listening to it—the lapping, mournful, opening bars not fit for dancing as much as witnessing a distant dance, harmonizing with the underlying power of a dark sea, and then, the trill of the clarinet as you steam back to the land you just escaped from. Rich Miami locals sailed their yachts close to the ship to take photographs of the waving Jews. At the same time, “suicide patrols,” Stonebridge writes, “monitored the decks at night to prevent passengers from throwing themselves overboard or trying to swim to shore.”
When the passengers learned they were sailing back to Europe, as Gordon Thomas and Max Morgan-Witts write in Voyage of the Damned, some of them “were shouting, a number were crying, a few prayed aloud. In the babble of sounds, a theme gradually emerged—a monotonous, frightening chant: ‘We must not sail. We must not die. We must not sail.’” They set sail.
The exact number is unknown, but at least two hundred of the passengers on the St. Louis were later killed in Europe, some of them gassed in Theresienstadt.
The legal shield the United States used to deflect the passengers back into the camps was, again, the 1924 Immigration Act. It established the quota for German immigrants at 27,370, which had been met by the time the St. Louis was within sight of Miami. Between 1929, with the onset of the Great Depression, and 1939, however, the quota for Germans was rarely filled, as US authorities relied on a strict interpretation of the “likely to become a public charge” rule to keep out immigrants. These were the “paper walls” that consigned people to their death. (Roosevelt’s refugee policy adviser, Isaiah Bowman, was also an avowed racist and eugenicist.) Admitting the St. Louis passengers would have been a politically precarious move for Roosevelt, given, according to Sarah A. Ogilvie and Scott Miller, the “powerful anti-immigrant lobby that was reaching the height of its influence.” A 1938 Gallup poll, as Tara Zahra reports in The Great Departure, found that 77 percent of Americans “opposed allowing substantial numbers of refugees into the United States.”
Another bar to entry—on top of the national origin quota—was the “public charge” rule, which was signed into law by President Herbert Hoover in the 1930s and whose spirit was recently invoked by the Trump administration as a way to prohibit low-income immigrants from entering the country. In the 1930s the rule’s cruelty was particularly evident in that most Jews who were able to leave Germany were dispossessed of their assets by the Nazis before escaping. The Nazis thus rendered them likely to become public charges and were basically giving the US government an easy excuse—which they took—to deny protections to refugees.
In his moving YA novel Refugee, Alan Gratz retells the saga of the St. Louis to compare the experience of the Jewish refugees fleeing Europe in 1939 with the Syrian child refugees of today and with Cuban refugees in 1994. In a story arc that parallels actual US policy, only one of the novel’s three young protagonists—the Cuban girl, Isabel—is allowed into the United States. Because she was fleeing a Communist-run country, merely touching a US shore was enough to permit her to remain. But while Isabel is allowed to stay, Josef, the Jewish boy, despite being in the same waters, isn’t allowed off the St. Louis and is returned to Europe where, in the novel, he is murdered in a concentration camp.
Another fictionalized voyage, involving what Hungarian author Arthur Koestler called “little death boats,” takes place in George Orwell’s Nineteen Eighty-Four. Winston, the protagonist of the frighteningly prescient novel, goes to the movies and watches a war film, one of which, a “very good one,” showed a ship full of refugees that was bombed in the Mediterranean. The audience in the cinema is “much amused” by shots of a fat man sinking, the water around him turning pink with blood. A “Jewess,” clinging to the sinking prow, holds on to her young son until a helicopter bombs the boat “to matchwood,” and the audience applauds. Stonebridge points out that at the same time Orwell was writing Nineteen Eighty-Four, in 1941–42, there was the famous case of the Struma, a small ship fleeing Europe with 769 passengers crammed onto its decks. British authorities denied the refugees visas, and then Turkey denied the boat harbor and towed it back to sea, where it was believed to have been torpedoed by a Russian submarine.
A few years earlier, the same forbidding year as the moral catastrophe of the St. Louis, New York senator Robert Wagner introduced a bill for the United States to receive an additional twenty thousand refugee children from Europe. Republican opponents in the Senate bitterly fought the bill, and, along with many of the millions clambering to get out of Europe, it died before passage.
It wasn’t all refusal, however. Albert Einstein was offered asylum—and we understand the universe better because of it. But there are few Einsteins in the universe. As Arendt writes: “The chances of the famous refugee are improved just as a dog with a name has a better chance to survive than a stray dog who is just a dog in general.”
At one point in my stay with the family, Arnovis’s mother told me, referring to Corral de Mulas, They kill people like dogs here. She might have said, Like dogs in general.
In the United States, immigration judges use the word relief to refer to what they grant or refuse asylum seekers. When I first heard the term I thought it sounded minimizing, without enough gravitas to capture the burden of fear an asylum seeker carries. But in light of what they are most desperate for, their basic human need for comfort and security, it makes sense. I remember watching a woman in court wait for a judge’s decision on her asylum case—she sat rigidly in her chair, eyes fixed, hardly even breathing, it seemed. When the judge said, For those reasons I am denying you relief, she tensed further, her spine arching backward, her breath snagging like the snap of a rope catching its weight. Another woman I watched, at the moment she heard that the judge was granting her relief, burst immediately into tears. Thank you, sir, thank you, thank you, she said, switching from Spanish to English. Thank you, sir Judge. It was as if she were, finally—after more than a year fighting her case—coming up to the surface for air.
The first major international postbellum effort to protect refugees was the 1946 establishment of the International Refugee Organization (IRO), which was given a mandate to settle all the refugees. Unsurprisingly, it failed to fulfill its charge, and the organization was subsumed into what would become the United Nations High Commissioner for Refugees, which would draft the international legal framework for the protection of refugees and asylum seekers and grow into an institution present today in 128 countries.
Two years after the creation of the IRO, the 1948 Universal Declaration of Human Rights proclaimed in its first article, “All human beings are born free … and should act towards one another in a spirit of brotherhood.” In thirty subsequent articles, equally broad promises, as well as specific protections, were made against, in sum, the concentration camp—the death and terror camps that symbolized and actualized the political reduction of human beings to “bare life,” to again quote philosopher Giorgio Agamben. Arendt called a similar state “the abstract nakedness of being human.” Being divorced from citizenship, Arendt explained, “it seems that a man who is nothing but a man has lost the very qualities which make it possible for other people to treat him as a fellow-man.” The 1948 Declaration is, in effect, politics protecting human beings from politics.
“The inclusion of bare life in the political realm,” in Agamben’s words, is how quality of life descended into the sheer biological fact of life—human beings relegated to disposable statistics or means. This led to the state of exception: the protracted crisis, life on the unending knife-edge, on which torture, indefinite detention, extrajudicial rendition, and murder are the daily bread. This is the essence of the camp, where “bare life and juridical rule enter into a threshold of indistinction,” and it’s from that indistinction that the 1948 Declaration sought to protect humanity.
The Declaration lays out not only the proscription of the camp but prescribes what life outside the camp could (or even should) entail: liberty; the recognition of a person as a person; freedom from torture; freedom of movement (with restrictions); the right to own property; the right to assemble and associate; the right to work; and even the right to rest, leisure, and paid holidays. And yet, these rights protecting us from the politics of exception, where bare life and law are indistinguishable, are only guaranteed through politics, a critical point considering that some humans—the stateless, refugees, and asylum seekers—are effectively abandoned by state protection. And the Declaration seems to—almost—recognize as much: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” All human beings, in other words, are not only free to be free, but free not to be restricted from being free. Under the current system of state and guaranteed-only-by-the-state rights, the right to asylum is the only entrance through which those abandoned by the state can enter and gain access to any rights. Sir John Hope Simpson, in his 1939 book The Refugee Problem, writes, “All refugees are for practical purposes stateless.”
International treaties like the 1948 Declaration, as Arendt notes, ironically made it harder for states to offer asylum—as they and the treaties they signed affirmed as sacrosanct the reciprocal sovereignty of other nations. The 1951 Refugee Convention, building off the 1948 Declaration, was meant to undercut this supreme deference to reciprocal sovereignty—that in certain circumstances, such as when a state persecutes, refuses to protect, or is unable to protect its citizens, other states may offer avenues of relief, which is understood as an admonishment, or an acknowledgment of another state’s lack of capacity—and yet still relied on the state to be the exclusive defender of refugees, which leaves the stateless and denied asylum seekers floating off the coast of protection. We see lasting evidence of the primacy of reciprocal sovereignty with today’s extradition laws—nations’ willingness to extradite, or threaten to extradite, someone for political points—and nations’ unwillingness to grant asylum to those fleeing their allies. As I detailed earlier, the United States succumbs to this logic in its extreme reluctance to grant asylum to Mexicans. If Canada were to offer asylum to a US citizen fleeing police brutality, for example, it would be raising an international alarm. This is the gamesmanship Russia has been playing by offering protection to Edward Snowden. “Sovereignty is,” Agamben writes, “this law beyond the law to which we are abandoned.”
The 1948 Universal Declaration of Human Rights also promised, in Article 13, that “everyone has the right to leave any country.” But, of course, in a world carved into nation-states, if you leave one country, you have to enter another: there’s no interstitial “elsewhere” or “alter parts” between the political walls of nations, as China Miéville imagines in his novel The City & the City. Neither the Universal Declaration of Human Rights nor any universal international treaty would move to grant, explicitly, the right to enter into any other country. The purgatory brought on by the “entry fiction” doctrine seems to have predestined this demi-liberty.
Furthermore, while Article 14 of the Declaration states that “everyone has the right to seek and to enjoy in other countries asylum from persecution,” to enjoy something is to already have it, and that is not the case for asylum seekers; and very few states have actually codified the right to enjoy, not to mention receive, asylum in their own domestic law—with the short-lived exceptions of Germany and France. Hersch Lauterpacht, a judge at the International Court of Justice, wrote soon after the Declaration that the paragraph about asylum was “couched in language which is calculated to mislead and which is vividly reminiscent of international instruments in which an ingenious and deceptive form of words serves the purpose of concealing the determination of states to retain full freedom of action.”
In 1948, the same year as the Declaration, the United States passed the Displaced Persons Act, which permitted the entry of two hundred thousand persons in two years. The racial origin quotas, however, remained on the books until 1964.
In the original charter of the 1951 Refugee Convention—the culmination of decades of compacts and negotiation—protections were geographically and temporally limited, and the United States, despite being fundamental in drafting the convention, didn’t sign it. Though it remains uncertain why the United States didn’t commit, nationalists at the time were wary of the country falling beholden to international agreements and treaties, and the Bricker Amendments—a series of constitutional amendments proposed by conservative Ohio senator John Bricker aiming to limit foreign influence on domestic US politics—built enough public pressure to keep President Truman from uncapping his pen. Even the American Bar Association—highlighting the contention over international treaties at the time—came out against the Universal Declaration of Human Rights, calling it a “blueprint for socialism” and worrying that it promises “a lot of the other nice things … that add up to totalitarianism.”
Today the United States maintains the stance adopted during the 1969 Vienna Convention on the Law of Treaties, that international treaties to which the United States is a party are domestically binding and part of the “supreme Law of the Land.” But treaties, like all laws, are only as binding as they are respected or enforced, and the United States often holds itself aloof from international agreements. As Trump’s former national security advisor, John Bolton, wrote in 1997, dismissing the Vienna Convention as breezily—and as dangerously—as gassing through a red light, “treaties are simply ‘political’ and not legally binding.”
Eisenhower and subsequent presidents similarly skirted around the Refugee Convention, refusing to sign but promising that they would abide. As the civil rights movement of the sixties pushed the United States closer toward actual democracy, it also had effect on immigration law—in 1965, with the Hart-Celler Immigration and Naturalization Act, the racist national origin quotas set in 1924 were finally removed. The INA is typically seen as a liberal reform, although the law kept in place a ceiling on overall immigration, with a cap, for one example, of 20,000 entries a year on Mexicans. The termination of the Bracero program the year earlier also canceled the allotment of 450,000 temporary visas for Mexicans. Mae Ngai points out that, at the time of the INA’s signing, “legal” migration from Mexico was as high as 200,000 temporary workers and 35,000 annual admissions for permanent residency, more than eleven times the INA cap. She also notes that the act “naturalized the construction of ‘illegal aliens’” as a concept, wedding the term to Mexicans and setting the legal and rhetorical groundwork for the militarization of the US-Mexico border. Officials, of course, were aware that Mexicans were migrating north—sometimes only temporarily—and illegalizing that movement for the first time became justification for a massive “security” buildup. The move was, in effect, building a fence around where somebody was living and then arresting them for trespassing.
Though the 1965 INA expanded the number of refugees who could be admitted, refugees were only allocated 6 percent of the Eastern Hemisphere quotas of 170,000 immigrants, or a little over 10,000 people a year. During the heightening anti-communist climate of the Cold War, asylum policy remained staunchly political. According to Gibney, asylum seekers’ “very desire for asylum provided much-needed ideological evidence of the superiority of Western liberal democracy.” This political bracketing of asylum protections came from both sides of the iron curtain. Otto Kirchheimer, in writing of the Soviet refugee admission policy, explains: “Far from benefitting all persecuted toilers, admission of exiles has been determined solely by the political and economic needs of the Soviet government.”
Though the 1951 Refugee Convention was meant to protect only those who had been uprooted or rendered stateless because of the recent war, the US delegate, Louis Henkin, spoke in much broader terms: “Whether it was a question of closing the frontier to a refugee who asked admittance, or of turning him back after he had crossed the frontier, or even of expelling him after he had been admitted to residence in the territory, the problem was more or less the same. Whatever the case might be, he must not be turned back to a country where his life or freedom could be threatened. No consideration of public order should be allowed to overrule that guarantee.”
And yet, public order and fear-politicking continued to justify refusing hospitality to millions. “No country knit together its definition of a refugee with escape from communism as tightly as the US,” Gibney explains. Authors Alexander Betts and Paul Collier echo Gibney in their book, Refuge: “The US was primarily motivated by a desire to control and discredit Communism.” The very definition of refugees on the basis of individualized “fear and persecution,” they argue, emerged because of the United States’ “vehement rejection of repatriation” of asylees who had been displaced from Eastern Europe back to communist countries. Before 1980, refugees from non-communist countries, unless they were from the Middle East, had no means to gain protection under US law.
The United States wasn’t unique in circumventing its obligations to accept refugees. Betts and Collier show how other signatories to the Refugee Convention adapted the same stance: soon after signing, states almost immediately started searching for “ever more elaborate ways to disregard or bypass the principle of non-refoulement, adopting a suite of deterrence or non-entrée policies that make it difficult and dangerous for refugees to access their territory: carrier sanctions, razor wire fences, interception en route.” As Agamben put it, “the figure that should have embodied human rights more than any other—namely, the refugee—marked instead the radical crisis of the concept.”
Not only were there temporal and geographic limitations for who could be protected, according to the Refugee Convention, the uprooted were only protected if they were persecuted on account of their “race, religion, nationality, membership in a particular social group or political opinion.” If you suffered economic warfare or financial terrorism, if you were dispossessed of your home or your property, or if your house was destroyed by a hurricane or earthquake, even if you were caught in the crossfire of a civil war, you were and are not necessarily considered a refugee, and you may have no legal claim to asylum. You are just another dog in general, another human ground into the dirt.
The tens of thousands fleeing the massive US bombing campaign in Korea in the early 1950s, for one potent example, did not qualify as refugees under the Refugee Convention’s guidelines: they were persecuted after January 1951. Koreans were also still barred by the Asian Exclusion Act of 1924. Some Korean orphans, however—largely children of mixed-race descent (around forty thousand children were fathered by American service members)—were permitted visas under the 1953 Refugee Relief Act.
Despite the refusal to sign the Refugee Convention it was integral in drafting, the United States still let in asylum seekers and refugees through an administrative end run. In 1957, President Eisenhower issued an executive order authorizing the attorney general to parole in up to fifteen thousand Hungarians who had risen up against their Soviet-controlled government. Eisenhower explained: “Last October the people of Hungary, spontaneously and against tremendous odds, rose in revolt against communist domination. When it became apparent that they would be faced with ruthless deportation or extinction, a mass exodus into Austria began. Fleeing for their lives, tens of thousands crossed the border into Austria seeking asylum. Austria, despite its own substantial economic problems, unselfishly and without hesitation received these destitute refugees.”
The statement, absent its anti-communism, could have applied to dozens of contemporary situations throughout the world, including the millions of Muslims fleeing post-partition India, hundreds of thousands displaced Palestinians, or even the Guatemalans beginning to flee the CIA-led overthrow of its democratically elected president, Jacobo Árbenz. Spaniards, too, continued to seek safety from fascist Generalissimo Francisco Franco, and, soon, hundreds of thousands more would begin fleeing violence erupting from decolonization fights in Africa. In following decades, millions of Mozambicans, South Africans, Rwandans, and Burundians would flee across recently imposed borders. But none of these millions of refugees fit into the anti-communist paradigm, and extremely few of them found protection.
Offering refuge to those fleeing your rivals has been used as a political jab for millennia. Hellenic scholar William Smith writes, “Those slaves who took refuge at the statue of an emperor were considered to inflict disgrace on their master … as it was reasonably supposed that no slave would take such a step, unless he had received very bad usage from his master.” Demosthenes, in On the Peace, notes, “The Thebans are, as people admit, hostile and likely to be even more so, because we offer an asylum to their exiles.”
“Offering refuge to the slave of one’s rivals became a common practice in imperial relations,” Eric Foner likewise writes in Gateway to Freedom, his book on the Underground Railroad. During the War of 1812, Vice Admiral Sir Alexander Cochrane proclaimed that American slaves who made it to British naval encampments would be further relocated to British Canada, in either Nova Scotia or New Brunswick, or Trinidad. Writing about escaped slaves seeking refuge in his moving and relevant book Blacks on the Border, Harvey Amani Whitfield undercuts any ideas that the policy was motivated by anti-slavery sentiment: “This military policy had been designed to create economic problems and a climate of fear in which white Americans would imagine blacks roaming throughout the countryside to murder them in their homes and churches”—an attitude eerily resembling today’s anti-immigrant and anti-refugee arguments. The freed slaves, some of whom were conscripted into the Merikins division of the British army and fought against the United States, were known as “Black Refugees” or “American Refugees.” The exodus continued beyond the War of 1812, too. After the passage of the 1850 Fugitive Slave Act, up to 20 percent of the free Black population fled the United States for Canada, Haiti, Britain, and Africa. As Abraham Lincoln said: “People of any color seldom run unless there be something to run from.”
In 1967, after sixteen years of impromptu paroles and political pretext, the international community convened to expand the 1951 Convention, doing away with the geographic and temporal limitations of the definition of refugees and asylum seekers, and expanding protection globally. The next year, in 1968, the United States finally signed the 1967 Protocol Relating to the Status of Refugees, which made the country party to the 1951 Convention.
In that same year that the United States finally agreed to officially acknowledge and protect refugees, it doubled down on the mass slaughter campaign in Vietnam, launching the Tet offensive and killing, in just one instance, hundreds of innocent villagers in the My Lai massacre. Throughout the war, American and American-led forces killed well over 1 million people, rendering much of Vietnam and parts of Laos and Cambodia uninhabitable, as well as forcing over 3 million people to flee. The war also prompted what is perhaps the most lauded US refugee policy of the last century, though still a relatively meager expiatory move—the acceptance of around a quarter million fleeing Vietnamese, Cambodians, and Laotians. The refugees, to their benefit, fit neatly into the ideology of the US refugee policy: they were fleeing a communist state.
The “boat people,” as they disparagingly came to be known—a term that “smacks of anthropological condescension,” as Viet Thanh Nguyen notes in his novel The Sympathizer—were also resettled in parts of Europe, Canada, and Australia. At a perfunctory glance, the admission of the Southeast Asian refugees seemed to symbolize the promise of the 1951 Convention. To rescue some of the dispossessed and to save some sort of face amid the ongoing moral calamity of the war, President Jimmy Carter ordered the US Navy’s Seventh Fleet to conduct search and rescue operations. At the same time, Carter would send boats to push back asylum seekers from non-communist countries, and subsequent administrations would do the same. Notably, Carter’s rescue operations weren’t even popular—62 percent of Americans were against increasing the number of accepted refugees, according to a 1979 poll. Nonetheless, the United States spent about a billion dollars on resettlement programs, while the total cost of the Vietnam War, from 1961 to 1975, was $141 billion (with some estimates putting the amount significantly higher). In 1979 Carter doubled the refugee ceiling, from 7,000 to 14,000 a month, or about 168,000 a year.
The United Nations–led Orderly Departure Program attempted to promise fleeing Vietnamese a means of travel that didn’t require boarding unseaworthy boats, and the program assisted over 600,000 people to depart Vietnam. Still, according to most estimates, somewhere between 200,000 and 400,000 fleeing Vietnamese and Laotians drowned at sea.
Hung Truong, in a narrative compiled in Mary Terrell Cargill and Jade Quang Huynh’s Voices of Vietnamese Boat People, recounts that after setting off from Vietnam in a small boat, they were ignored by two merchant ships unwilling to rescue him and his fellow passengers. In order to force what Itamar Mann calls a “human rights encounter,” Truong and another passenger decided to pound a hole into their own boat as they came within sight of another ship—provoking the international duty to rescue ships in distress, a long-established maritime practice codified in 1910’s Convention for the Unification of Certain Rules of Law Relating to Assistance and Salvage at Sea. “I took my big hammer,” Truong said, “and I hammered out the floor. As I hammered, I cried. I told the boat: ‘That’s my friend. That’s my heart.’ Because that boat had helped me escape from Vietnam. It had helped me get away from pirates and get away from the thunderstorm.” Truong and the other passengers were rescued, and Truong eventually resettled to Arkansas.
In Border Patrol parlance, Truong would be considered a “give-up”—a border crosser who submits themselves to apprehension in order to survive. Though many of those locked up in the archipelago of US detention centers suffer enough that they want to give up their cases—or even give up their lives, as the dozens of nooses found in cells in the Adelanto ICE Processing Center in California (to cite just one of many examples of detained immigrants’ suicide or threatened suicide) make clear—sometimes, after leaving detention, they find themselves once again in such fear they would gladly turn themselves back in rather than face their persecution. Take Ernesto, for instance, the nineteen-year-old Salvadoran orphan from Sonsonate who grew up hounded both by gangs and the police. After making it to the United States and being detained in Stewart Detention Center in Georgia for a year and a half, he told me he’d lost hope and wanted to go back to El Salvador: I couldn’t stand being locked up anymore. It was so cold, too cold inside. The cops harass you too much. They get on your back if you’re taking a shower, if you don’t keep your cell clean, if you don’t want to go to lunch.
After being deported and falling prey, again, to the gangs and to the police they collaborated with, he wanted back in detention. A life sentence up there, he told me, would be better than staying here.
The ongoing departure of refugees from Southeast Asia pushed lawmakers to write the 1980 Refugee Act, which was unanimously passed by the House (a miracle in light of today’s state of immigration politics) and signed by President Carter on March 17, 1980. The move meant to bring order to the refugee system, though the implementation of the law brings to mind Michel Foucault’s insight: “Just as people say milk or lemon, we should say law or order.” While establishing regulations by which anyone who fears returning to their country could apply for asylum, in subsequent years, the 1980 law granted asylum to Salvadorans and Guatemalans less than 3 percent of the time, deporting hundreds (at least) back to their deaths.
The 1980 act officially amended the Immigration and Nationality Act of 1952 and the Migration and Refugee Assistance Act of 1962, officially raising the annual ceiling for refugees from 17,400 to 50,000, creating a process for adjusting the refugee ceiling (which was actually set, through a grab bag of emergency provisions, at over 231,000 in 1980, and has averaged around 100,000 people per year since) and requiring annual dialogue on the ceiling between Congress and the president. The act also articulated for the first time, under US law, the definition of an asylum seeker, complying with the 1967 Protocol, and paving the way for the establishment of the Asylum Office and the corps of asylum officers to screen claims, and, in some cases, approve them. Though these changes would take years to implement, “if one thing is clear from the legislative history of the new definition of ‘refugee,’ and indeed the entire 1980 Act,” Justice John Paul Stevens wrote in the 1987 majority opinion in INS v. Cardoza-Fonseca, “it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees.”
In 1982, Deborah Anker, director of Harvard Immigration and Refugee Clinic, wrote that the 1980 Act was “a clear statement” contesting refugee and asylum policy that for forty years had “discriminated on the basis of ideology, geography, and even national origin,” and amending it “to one that was rooted in principles of humanitarianism and objectivity.” And yet, while the United States has granted asylum to over half a million refugees since 1980, a year after the passage of the Refugee Act, the US Coast Guard began intercepting boats and rafts Haitians were using to come to the United States to stake asylum claims. Over the next two decades, the United States would continue to interdict Haitians at sea, either caging them in Guantánamo Bay or refouling them right back to Haiti—hardly a humanitarian or objective interpretation of the Refugee Convention. In 2015, there was another influx of Haitians arriving overland to ports of entry at the US-Mexico border. Despite wanting to ask for asylum, they were “metered,” forced to wait weeks and even months—a practice that was replicated and expanded in 2018 with the arrival of the Central American caravans to the border. I remember seeing Haitians slumped on the ground outside the port of entry in Nogales, Sonora, where I often, and easily, crossed the border; some of them, as they waited to make their claims, had been sleeping in the cemetery.
Asylum seekers, then and now, are not merely politely denied and gamely deported—they are detained, punished, humiliated, and shackled in an elaborate show of force meant to deter other potential asylum seekers from staking their own claim. They are also accused of using their children to gain access to the United States, of lying about their fear, and of taking advantage of “lax” laws and loopholes. Or, as Matthew Gibney writes in his powerful essay “A Thousand Little Guantanamos”—a nightmarish title if there ever was one—“asylum-seekers are widely characterized as welfare cheats, competitors for jobs, security threats, abusers of host state generosity, and even as the killers of swans.” This is a reference to Eastern European asylum seekers in London who had been falsely accused of capturing and roasting swans—also donkeys—in public parks.
Guantánamo is indeed the most apposite metaphor for the denial of refugees, and it’s far from merely a metaphor. The origins of Guantánamo Bay as a prison camp trace back to one ship, the St. Joseph. In 1977, 101 passengers were fleeing by sea from Haiti to the Bahamas when the St. Joseph started taking on water, and the ship sailed toward the US Naval Base in Guantánamo Bay for assistance. They were given harbor, but then, instead of helping them repair their boat, US Navy personnel repossessed it. When American officers next tried to bus the Haitians to the airfield to fly them back to Haiti, the Haitians refused, explaining that they were refugees, and they couldn’t go back. After asking for asylum, US State Department officials flew onto the island to assess their claims, granting asylum to only 4 of the 101 passengers. The brief detention of the passengers of the St. Joseph established precedent, and as Haitians continued to take to the sea to try to make it to Miami, INS officials scrambled to keep them away. In 1978, deputy INS commissioner Mario T. Noto, as Jonathan Hansen describes in Guantánamo, sent a memo to his boss, Leonel J. Castillo, with a potential solution to the “Haitian problem”—detaining intercepted Haitians at Guantánamo Bay where, Hansen explains, they “would have few if any constitutional protections and no access to lawyers.”
The United States was guarding its shores not so much from the Haitians themselves but from their claims, using the remote detention of asylum seekers to, as Gibney put it, “obviate the need to grant them the constitutional protections”—such as due process or the freedom from cruel and unusual punishment. If the Haitians couldn’t even ask for protection, the United States wouldn’t need to betray its own domestic and international laws by refusing it to them.
In one instance in the 1980s, when Haitian refugees refused to disembark a deportation boat, US soldiers threatened, according to Hansen, “to blast them off the ship with fire hoses.” In 1986, after the passage of a law prohibiting the admission into the United States of people with HIV, guards isolated HIV-positive Haitians interned in Guantánamo Bay (Gitmo) behind barbed wire. According to Brandt Goldstein, quoting Yolande Jean, who was locked into the HIV/AIDS section of Gitmo, “There was no place to move. The latrines were brimming over. There was never any cool water to drink, to wet our lips. There was only water in a cistern, boiling in the hot sun. When you drank it, it gave you diarrhea.” When the abused detainees revolted, over three hundred marines were dispatched in Operation Take Charge.
In 2015 I reported on an uprising in a Criminal Alien Requirement prison in Raymondville, Texas. CAR facilities lock up nearly forty thousand people at a time, sometimes for years, often for nothing but immigration violations, including “illegal reentry” after a prior deportation, which is considered a felony. The prison in Raymondville was commonly referred to as “Ritmo,” as it resembled the awful conditions—overspilling sewage, weeks spent in solitary confinement, violent explosions from the guards—of Gitmo. The inmates rose up in defense of their humanity—with guards trying to quell the rising tension by setting off a “hornet’s nest,” a BB-filled grenade, inside one of the bunk rooms. Eventually, the inmates chased the guards out and burned down parts of the facility. The inmates maintained control over Ritmo for days, but, lacking food and facing the threat of the surrounding officers, they eventually relented and were transferred.
The island-like remoteness of many immigrant detention centers makes access to counsel and oversight of abuses extremely difficult—non-detained asylum seekers have a 68 percent better chance of not being deported, and even previously detained and released applicants have a harder time receiving asylum, evidence of the lasting negative effects of detention. Los Angeles–based immigration attorney Meeth Soni referred to FCI Victorville—one of the federal prisons that in 2018 began taking overflows of detained immigrants and is a two-plus-hour tramontane haul from Los Angeles—as “Guantánamo Bay for asylum seekers.” The prison, Soni said, “may as well be on a Caribbean island as far as access to representation goes.”
Throughout the 1980s, State Department officials were dispatched onto the Coast Guard cutters to hold asylum screenings. Out of twenty-five thousand intercepted Haitian “boat people,” only twenty-eight were granted asylum. Ten years later, in 1992, Bush signed Executive Order 12807, also known as the “Kennebunkport Order,” authorizing the Coast Guard to return all fleeing Haitians back to their country with no screening process at all. Many of them were sent to Guantánamo Bay.
Of course, this was before the Gitmo-orange jumpsuits, the rape, and the waterboarding of detainees that eventually brought the prison its notoriety, but perhaps this account could provide a warning about the potential future uses of immigration detention centers—there are currently over two hundred throughout the United States. Nearly one hundred thousand Haitians, including some Cubans, were detained in Guantánamo Bay detention centers in the 1980s and ’90s, long before the first “enemy combatant” was ever detained on the island. According to the indefinite “lease” signed by United States and Cuba in 1934, the US government annually cuts a check of $4,085 to Cuba, which, since the 1959 Revolution, the Cuban government declines to cash.
There was another US-run “safe haven”—which is how US officials referred to Guantánamo Bay—established to detain Cuban asylum seekers in Panama, the country the United States invaded in 1989 in the absurdly euphemistic Operation Just Cause. (The official justification for the invasion was to protect a handful of Americans in Panama City and depose the formerly CIA-funded President Manuel Noriega. Critics, however, point to Noriega’s calling George H. W. Bush “an incompetent wimp” as the final straw that invoked the wrath of the imperium.) A few years later, by 1994, when conditions in Guantánamo Bay were so hellishly crowded with Haitians and, increasingly, Cubans, the United States started sending the Cubans south to Panama—calling the move “Operation Safe Haven and Safe Passage”—where they were housed, once again, in crowded conditions without clarity as to when they would be resettled. After the Cubans rose up in protest, the US military filed an emergency order to an ax handle company to provide the soldiers with extra batons to beat the Cubans into submission. Some of the detainees tried to commit suicide, as later reported in the Washington Post, by cutting themselves with barbed wire and drinking shampoo.
As the US government refused to protect, tortured, and threatened to fire-hose Haitians back to Haiti, its stance toward Cuban asylum seekers, meanwhile, was generally welcoming (with the exception of the Panamanian fiasco)—extending protections first to Cuba’s bourgeoisie hightailing it out of there, and then to practically any Cuban who asked for it. The United States saw the Cuban refugees as a means of delegitimizing President Fidel Castro—draining the country of its people—even going so far as to institute in 1960 Operation Peter Pan, in which private Catholic organizations and US government agents seeded the lie that Castro was going to send children to Soviet reeducation camps, and subsequently flew more than fourteen thousand Cuban kids to the United States. After the floundered Bay of Pigs invasion, in 1961, the United States staged numerous “boatlifts” to bring thousands more Cubans to Florida, as well as airlifts, or “Freedom Flights”—the twice-a-day, five-times-a-week, US-funded flights between Havana and Miami that shuttled over a quarter million Cubans onto a path to permanent residency after the Cuban Adjustment Act of 1966. That act was a precursor to the famed 1995 reinterpretation, which became known as the “wet foot, dry foot” policy—if fleeing Cubans could reach dry land, they would, after a year, be allowed to apply for residency.
In 1991, a coup brought down Jean-Bertrand Aristide, the first democratically elected president in Haiti’s history (the long absence of democratic rule in large part due to successive interventions and the US backing of dictators). The post-coup conditions were dire enough for the United States to temporarily stop the Coast Guard’s pushback efforts. After a short hiatus, however, it resumed the practice, and Florida’s Haitian Refugee Center filed a lawsuit, which would work its way up to the Supreme Court and become a critical litmus test of US obligations under the 1980 Refugee Act.
In Sale v. Haitian Centers Council, lawyers representing the Haitian Refugee Center claimed that interdicting and refouling Haitians on the high seas violated Article 33 of the 1951 Convention and Section 243(h)(1) of the 1980 Refugee Act. The court ruled otherwise, voting eight to one in favor of the government: they could continue the pushbacks. Justice John Paul Stevens, writing the majority opinion, exonerated the United States of all responsibility toward asylum seekers who were still outside US territory, even if the Coast Guard cutters were blocking them from entering in the first place. The Bush administration would later make a similar argument—that the Constitution had a limited geographical reach—when claiming that, with respect to its operations in Guantánamo Bay, it didn’t need to abide by the international treaty against torture.
Writing an op-ed about the Sale v. Haitian Centers Council decision in the New York Times, Deborah Sontag asked, “If the United States, with the imprimatur of its highest court, appears to put the protection of its borders above its responsibilities under international law, will others be enticed to follow suit?” The answer is yes. Australian, Thai, and Italian governments—among others—would all, in the following years, engage in nearly identical pushbacks, guarding their shores against pleas for protection. While historically, the United States took in more refugees than all other resettlement countries combined, that changed in 2017 when Trump took office, and the US anti-refugee stance began to influence other nations. We are looking at a “domino effect that is reverberating backwards,” as researchers Molly Fee and Rawan Arar put it, with countries backing out of refugee resettlement agreements and denying hospitality. According to Hans van de Weerd, of the International Rescue Committee, “American humanitarian leadership has previously spurred a race to the top in meeting humanitarian obligations; today it leads a race to the bottom. Cruelty has replaced compassion.” In 2018, the United States was one of only two countries to vote against the UN Global Compact on Refugees, a nonbinding agreement to bolster global refugee responsibility-sharing. The other country, led by the anti-democratic, anti-immigrant, and anti-Semitic homophobe Viktor Orbán, was Hungary.
Defending the Sale v. Haitian Centers Council decision, Justice Stevens claimed that “general humanitarian intent cannot impose uncontemplated obligations on treaty signatories.” Article 33 of the Refugee Convention, however, was written not with “general humanitarian intent” but in direct response to the hard-heartedness of the United States and other countries in refusing to accept fleeing Jews who were later tortured and slaughtered in concentration camps. The article itself was inspired directly from the 1933 Convention, in which countries were forbidden from restricting asylum seekers from entering their territory “by application of police measures, such as expulsions or non-admittance at the frontier (refoulement).” Fourteen years after the Supreme Court decision, in 2007, the UN issued an advisory opinion clarifying that the principle of non-refoulement doesn’t depend on whether the asylum seeker is physically “on the State’s national territory … but rather whether or not he or she is subject to that State’s effective authority and control.” The same opinion specified that non-refoulement also applies not just in returning an asylum seeker to their country of origin “but also to any other place where a person has reason to fear threats to his or her life or freedom”—which would designate the Migrant Protection Protocols as a clear violation of the 1951 Convention.
Though Justice Blackmun would, in his dissent, call the decision “extraordinary … in disregard of the law … and that the Court would strain to sanction that conduct,” the United States would go on to take even more extreme measures. In the same years it was justifying refouling Haitians, the INS was deporting Salvadorans and Guatemalans into war zones. Article 45 of the 1949 Geneva Convention, another critical predecessor to the 1951 Refugee Convention, states that in wartime, “in no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.” Further, Article 147 specifies that deporting such people back to a state of war would be considered a “grave breach” of the Convention, which “shall be regarded as war crimes.” In 1981, only two Salvadorans were granted asylum in the United States. By 1984, the number went up to 328, while 13,045 were denied—a 2 percent grant rate. Meanwhile, 5,017 of those fleeing a state considered a foreign enemy, Iran, were granted asylum, and only 3,216 were denied—a 61 percent grant rate.
As Robert S. Kahn reports in Other People’s Blood, immigration officials in California “had arrested a Salvadoran woman who had seen her daughter raped by Salvadoran soldiers after they forced her to watch them execute her husband. To prevent her from applying for asylum, US immigration agents pushed Valium down her throat, then guided her hand to force her signature on form I-274, waiving her right to seek asylum.” Under Article 147, this conduct constitutes a war crime.
El Salvador is not officially at war today, but, for many, it may as well be. As we stood in the shade and watched a family preparing for a funeral in the Mejicanos neighborhood of San Salvador, Beto told me: Nobody wants to accept that we’re a country at war, just because there aren’t helicopters flying overhead, or rifles in the streets. But it’s true, we’re at war.
He would know—he lived through the civil war as a teenager. He was there on November 12, 1989, when Air Force helicopters strafed the Mejicanos neighborhood, killing at least 339 people. Mejicanos residents who made it to the United States, as Kahn describes, “arrived with stories of troops and death squads who had strangled with barbed wire and burned alive young men found out of uniform.” It was bad, Beto told me, of his childhood. It was everywhere.
Today, it’s still bad. An armored vehicle is often stationed just around the corner from Beto’s home. And, in the gas station where we met for coffee, a plainclothes security guard loitered by the door, a shotgun resting in the crook of his arm. He would occasionally open the door for customers and smile. It was everyday life. Violence, the potential for violence, was never far. In 2010, Barrio 18 gang members fired machine guns at a Route 47 bus in the neighborhood. They then doused the bus with gasoline and set it on fire. As frantic passengers tried to escape out the windows, gang members shot at them, killing fourteen people. One of the convicted murderers lived a few houses down from Beto. The man’s son, Jeremy, was left an orphan, and Beto and his wife have since adopted him. After lunch at his house one day, I again asked Beto about what he termed today’s war: Who’s going to win? he asked himself. Nobody. I’m not going to win. I’m going to end up poor or shot.
After receiving death threats at one point in 2018, he and his family recently had to flee Mejicanos. His wife and kids went to her mother’s house, but Beto, worried he was putting them in danger, kept his distance for a few weeks, sometimes having nowhere to sleep but on the street. He texted me one morning: he had spent the night in a small alcove, and a scorpion had stung him. During the war, he told me, it was actually better, because you hoped it would end. Now, this is just life, he said. This is just how things are.
The extraterritorial denial, the pushbacks, the fingers-in the-ears response to asylum claims in the 1980s and ’90s set a pattern for the future handling of influxes of asylum seekers. In 2014, the United States armed and funded Mexico (as well as Guatemala, and then El Salvador—with the creation of its own Border Patrol in 2019) to act as its extraterritorial border guards to prevent potential refugees from making claims of protection. Beyond maintaining a singular line of physical-barrier defense, the idea was to create a “layered” border, shifting control of it both inside and outside the actual geographic boundary: inside the border, there would be increased enforcement in the interior of the United States; outside it, there would be funding for and training of other countries to block immigrants potentially on their way to the United States. Such foreign subcontracting of border enforcement undermines a simplistic nationalist appeal: that a country doesn’t exist without a border, that the perimeter is sacrosanct and a breach is a violation of sovereignty. Borders, however, are mercurial concepts more than they are hard lines, and their scarring reaches both into the interior of the nation and outward, into neighboring nations and beyond.
Former Border Patrol chief Mike Fisher called the US-Mexico border, in 2014, the “last line of defense,” a strikingly martial approach to thinking of the nation’s boundaries in terms of immigration. As author Todd Miller reported, “In 2014 alone, the United States designated $112 million to help modernize and make more efficient Mexico’s border policing and militarization” as part of the Plan Frontera Sur, or the Southern Border Plan, initiated after the so-called unaccompanied minor crisis at the US-Mexico border. The same year, and only a week after the announcement of the Southern Border Plan, Mexican interior minister Miguel Ángel Osorio Chong sounded like a Border Patrol spokesperson when he said, “Who doesn’t have the necessary documents to enter into our territory and enter the United States, we can’t allow them to be in our territory.”
Two years earlier, in 2012, to lean again on reporting from Miller, US Department of Homeland Security official and former border czar Alan Bersin claimed that “the Guatemalan border with Chiapas, Mexico, is now our southern border.” The Trump administration would double down on such exportation of border defense beginning in 2018, threatening Mexican and Central American governments to block refugees, or even to stop their own citizens from leaving their territory, which is a clear breach of international law.
In an even more striking example of a nation redefining its borders to keep out asylum seekers, Australia excised part of its national territory to deny Iraqis and Afghanis the ability to stake asylum claims. A 2001 law territorially amputated Christmas Island, Ashmore Reef, and the Cocos Islands from Australia’s migration zone, so that asylum seekers in these territories could not appeal to Australia’s legal obligations to offer protection.
One hundred years earlier, one of the first acts of the newly established Australian government was the Immigration Restriction Act of 1901—that telling stamp of national self-proclamation: denying entrance to the other. But not just any other—specifically the black or brown other—as the 1901 Act marked the beginning of the official “White Australia” policy prioritizing white Brits over Pacific Islanders and Chinese immigrants. The official White Australia policies began to be dismantled in the 1950s, but later policy changes reveal the outrageous efforts Australia still takes to deny safe harbor and imperil the lives of non-white immigrants.
Australia’s “Pacific Solution” to asylum seekers asking for safe harbor—including the $330-million fleet of ships to patrol for and interdict asylum seekers—was inspired directly by US policy, as journalist Ben Doherty has pointed out. In the midst of Australia’s “Tampa affair,” when 433 asylum seekers were rescued at sea by a Norwegian freighter—and then subsequently refused entry into Australian waters—the government sought guidance from the country that led the world in immigration restriction. Daniel Ghezelbash reveals that “a senior US policy maker provided Australian policy makers extensive advice relating to the US experience with interdiction and extraterritorial processing in the immediate lead-up to the introduction of the Pacific Solution.” They quickly implemented hard-line US-inspired policies, including the mandatory detention of asylum seekers and their offshore “processing”—which the United States had been subjecting Haitians to for years. “We’ve entered what some have referred to as a deterrence paradigm,” Ghezelbash notes, “where states are continuing to pay lip service to their obligations under the refugee convention, but are bending over backwards to come up with new and innovative ways of keeping asylum seekers from accessing these protections.”
But Australia wasn’t only refusing entry and detaining asylum seekers, it was doing so by putting individuals in horrifying, Guantánamo-like conditions. Nobel Prize–winning author J. M. Coetzee described Australia’s approach as one of “spectacular heartlessness.” Part of the Pacific Solution was the establishment of the Nauru Regional Processing Centre on the South Pacific Island nation of Nauru, one of the smallest countries in the world: an eight-square-mile island with a population of ten thousand. The detention center, under lease by the Australian government, has a capacity of twelve hundred people, and came under fire almost as soon as it opened for its inhumane living conditions, though it’s been difficult to get a clear understanding of what the detainees have suffered on Nauru as journalists are consistently denied access.
From leaks and direct testimony—including that provided in the stunning memoir No Friend but the Mountains, by Behrouz Boochani, an Iranian journalist confined on the island since 2013 who smuggled out his book via text message on a clandestine cell phone—we know that imprisoned asylum seekers lived in small tents where indoor temperatures sometimes reached 115 degrees, the toilets were filthy, and they suffered gross medical neglect. According to a 2016 Human Rights Watch report, the detainee hospital lacked basics such as bandages and sterile gloves. “Refugees and asylum seekers interviewed said they have developed severe anxiety, inability to sleep, mood swings, prolonged depression, and short-term memory loss on the island,” the report described. Children started wetting their beds and suffering from nightmares—a similar reaction children in the United States have to being jailed in family detention centers. According to a 2016 UN study, 83 percent of asylum seekers on Nauru suffered from PTSD or depression, or both, and both adults and children spoke openly of wanting to kill themselves. An eight-year-old girl, Sajeenthana, who has been detained on Nauru since she was three, told the New York Times in 2018, “One day I will kill myself. Wait and see, when I find the knife. I don’t care about my body.” She and her family had been hoping to resettle in the United States after a previous agreement between the two countries, but the Trump administration reneged on some of the resettlements, and detention for children like Sajeenthana seems indefinite. Kids in Nauru also expressed symptoms of what is known as resignation syndrome, which includes “extreme withdrawal from reality” and the refusal to eat, drink, or talk. According to the Times, “Children now allude to suicide as if it were just another thunderstorm,” and there are a lot of thunderstorms on the island.
It’s not always clear who learned how to inflict this brutality from whom, but the United States, Mexico, Australia, and Greece, among other countries, all consign asylum seekers to prolonged or indefinite detention, solitary confinement, physical abuse, unsanitary conditions, death threats, racist, homophobic, and gender-based hate from guards, and deadly medical neglect.
Ghezelbash warns, “If Europe goes down the same path as the United States and Australia, it will be inflicting a mortal wound on the universal principle of asylum.” In 2018, the European Union piloted its “regional disembarkation platforms,” apprehending migrants crossing the Mediterranean and, instead of fielding their claims, shipping them back to “processing centers” in Morocco or Turkey. Researcher Stephanie Schwartz saw it as an attempt for EU countries to “fob off their obligations by shifting the physical duties of refugee protection and non-refoulement to less powerful countries.” Banks Miller, Linda Camp Keith, and Jennifer S. Holmes refer to states converging toward the “lowest common denominator in terms of generosity.” The slow-burn bouleversement of asylum policy—efforts to protect giving way to scrambles to deny—is often referred to as a “race to the bottom”—a race that the United States is winning.
An outlier to this charge to the depths of inhospitality was the 1984 Cartagena Declaration, in which Latin American countries, in response to the US-backed wars in Central American and the US-backed repressive regimes in South America, amplified the 1951 Convention in an unprecedented way, recognizing as refugees those fleeing “generalized violence.” The Cartagena Declaration is the most encompassing and generous refugee standard to date, but remains, in large part, unimplemented—yet another example of high promise and scarce fulfillment.
Philosopher Adam Knowles compares Article 33, the provision against refoulement, with the Kantian notion of hospitality. In his philosophical sketch “To Perpetual Peace,” Kant writes, “We are dealing here with right and not with philanthropy, and within right, hospitality (hospitable reception) means the right of a stranger to not be treated with hostility upon arriving in the territory of another. The other can turn him away, but not if it leads to his downfall.” Downfall, or Untergang in the original German, is sometimes translated as “death” or “destruction.” But Knowles posits a more capacious understanding: Untergang should be read “as the very opposite of what philosophers fondly call ‘human flourishing’ or ‘the good life.’” He goes on to define Untergang as “perdition, downfall, doom, extinction, and ruin.” We must open our doors hospitably, Knowles argues, and not return anyone to their Untergang, not consign them to whatever would oppose human flourishing. Knowles here echoes exiled former member of the Black Liberation Army Assata Shakur, who fled the United States and found asylum in Cuba. Shakur’s vision of freedom, as she explains it—quoted by rapper Common in “A Song for Assata”—is not the lack of privation, enslavement, or incarceration, but “the right to grow, the right to blossom.”
Political philosopher David Miller calls the question of refugees and asylum seekers “morally excruciating.” And while he may be right—that it is morally excruciating for the politicians, judges, and sometimes the citizens deciding between offering asylum protection or protecting the “integrity of the state”—the uprootedness, homelessness, statelessness, persecution, and lack of protection are—more than morally excruciating for the asylum seeker—exacting tolls that are both mentally and physically excruciating. The dispossessed, that is, are denied the right to grow and blossom. They are denied freedom and denied life. They are consigned to Untergang.