The prolonged political showdown over an unpopular border wall is unlikely to end with a green light from Congress for concrete or steel-slatted construction. But the media shenanigans and xenophobic rhetoric associated with this conflict have come close to completing the decades-long collapse of a crucial linguistic distinction: that between refugees and migrants.
Refugees are entitled to broad protections under both domestic and international law, protections the Trump administration does not want to afford to caravans of asylum seekers arriving at the U.S.-Mexico border. Under U.S. law, asylum seekers who enter the country and claim a “credible fear” of persecution if returned to their nations of origin are entitled to a hearing in immigration court. Those who cannot claim asylum are treated as undocumented migrants, often deported or turned back at the border.
What is at stake in the manufactured crisis about the caravans is nothing less than an international system by which refugees and asylum seekers are granted safe harbor.
As the Trump administration increasingly treats asylum seekers as undocumented migrants, it disregards international conventions governing the treatment of refugees and asylum seekers. Increasingly, all those arriving at borders and ports of entry are treated as “illegal aliens,” with little recourse or access to rights. As the refugee regime that has developed over the past 75 years collapses, people fleeing horrific conditions are met by punitive, zero-tolerance immigration enforcement, leaving them with no good option.
In 1951, the United Nations High Commission for Refugees Convention in Geneva defined the term “refugee” and stipulated both refugee rights and the obligations of signatory nations toward them. A central principle of the “Convention and Protocol Related to the Status of Refugees” was the idea of non-refoulement: Someone claiming persecution in their nation of origin was not to be returned there. The convention endorsed the rights of families to remain together and the protection of minor children traveling alone in the “Contracting States” that signed the document.
While this regime offered up new protections for refugees, there was a catch. The narrow definition of refugee only applied to a small percentage of migrants. In fact, the ascendance of this refugee regime left other migrants with far fewer claims and protections. The UNHCR also hesitated to fully define the rights of asylum seekers, or those who enter a country without official refugee status and claim a “credible fear of persecution” if forced to return to their nations of origin. Moreover, because of perceived conflicts between national sovereignty and international law, the high aspirations articulated by the UNHCR were not widely enforced and still aren’t today.
Initially, the United States did not sign on to UNHCR refugee protocols. In fact, American policy remained inhospitable toward all migrants, except those fleeing political persecution in communist countries.
In the 1950s, at President Dwight D. Eisenhower’s request, the Immigration and Naturalization Service (INS) initiated “Operation Wetback”: a vast, militarized exercise intended to “clean up” the U.S.-Mexico border. The operation fomented deportation sweeps far from the border, ultimately deporting between 2 and 3 million people and terrorizing Mexican American communities in the Southwest and California. While it failed in stopping undocumented migration, the deportation operation succeeded in widely publicizing the racialized term “illegal alien,” conflating it specifically with Mexican unauthorized migrants.
At the same historical moment that the United States granted refugee admissions for those fleeing communist regimes in Eastern Europe, the INS demonized Mexican migrants as unwanted “aliens.”
These two linguistic poles have defined the debate over migrants in the United States ever since. The term “refugee,” allowing harbor for some migrants, afforded protections denied to those referred to by the racialized term “illegal alien,” which authorized ongoing campaigns against the presence of others.
The Refugee Act of 1980 created a process by which those already in the country could seek asylum and gain recognition as refugees. It also established 50,000 as a “normal” annual flow of refugees, with the option for admitting additional numbers by presidential request. By placing a cap on the number of refugees, this law incentivized defining refugee narrowly, and branding others fleeing bad situations as illegal immigrants.
An influx of asylum seekers from Central America and Haiti in the 1980s exposed the contradictions of the refugee regime implemented by the 1980 law. Thousands fled the brutal, U.S.-backed Duvalier regimes in Haiti and the bloody civil wars fomented in part by the CIA in Central America, but few were granted asylum. The Reagan administration saw these people as undocumented migrants and worked to interdict boatloads of would-be asylum seekers at sea, returning them to Haiti regardless of their stated fears. Others were interned at Guantanamo Bay, Cuba.
If the United States couldn’t keep these asylum seekers out, it would incarcerate them, treating them as criminals because they ventured to seek safe harbor. In 1983, a Mass Immigration Emergency Plan required that 10,000 beds be available to detain migrants. The impulse toward detention grew ever more intense, in part because of the rise of private detention companies like Corrections Corporation of America with vast lobbying power. The Illegal Immigration Reform and Individual Responsibility Act (IIRIRA) of 1996 institutionalized the detention of all asylum seekers while they await their appearance in immigration court.
In the 21st century, the association of refugees with “terror” has expedited the collapse of the post-1951 refugee regime. The Trump administration’s implementation of Executive Order 13769, a controversial ban on travelers, refugees and migrants from seven mostly Muslim nations, continues this collapse, equating migrants and refugees as equally threatening and undesirable and upending prior distinctions between these two terms. To the Trump administration, almost all migrants belong in the “illegal alien” basket, no matter what their reasons for migrating.
The collective organization of successive, multinational caravans since 2016 indicates that the Trump administration’s conflation of asylum seekers with undocumented migrants may be creating new grounds for solidarity among those seeking to enter the United States. This humanitarian crisis emanates from the violence and immiseration wrought by decades of U.S. intervention and trade policy. Caravans of Central American, African, European and Caribbean asylum seekers have walked together, across Central American and Mexico, to the U.S. border. Describing themselves as refugees and migrants, caravan members defy legal distinctions to claim their human rights to migration and safe harbor.
The current demonization of asylum seekers undermines an international refugee regime that is over a half-century old. As the terms used to define their status shift, the lives of thousands of people hang in the balance.
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