Emilio Espejel/Associated Press
Jonathan Kwan (@migrationethics) is the Inclusive Excellence Postdoctoral Fellow in Immigration Ethics with the Markkula Center for Applied Ethics. Views are his own.
Since its implementation two years ago, the Trump administration’s “Remain in Mexico” program, known officially as the Migrant Protection Protocols (MPP), has forced more than 70,000 asylum seekers to wait in Mexico while their cases are processed in U.S. immigration courts. Children and adults in the program face serious harm and violations of their basic human rights. Numerous cases of kidnapping, extortion, robbery, sexual assault, and torture have been documented. Many are placed in unsanitary, makeshift encampments with inadequate access to clean water, showers, and bathrooms. Some of the cities that asylum seekers are forced to wait in have been or are currently subject to travel advisories by the U.S. State Department. Apparently, while the U.S. government considers these cities unsafe for its own citizens to travel through, it nonetheless deems these cities fit to house asylum seekers as they wait out their cases. The suspension of MPP hearings due to the COVID-19 pandemic has placed people in the program even more deeply in limbo and in jeopardy.
Though it should be more than obvious that the “Remain in Mexico” program constitutes a serious injustice against non-citizens, it is worth reflecting on what exactly are the U.S. government’s duties toward asylum seekers. Knowing what asylum seekers are owed will help us to remedy the harms of the “Remain in Mexico” program and to figure out what needs to take its place. While President Biden pledged on the campaign trail to end the “Remain in Mexico” program on his first day in office, he has since walked back that promise and has instead issued an executive order directing the Department of Homeland Security to review the program and determine whether to terminate or modify it. Asylum seekers are no longer being enrolled in the program but the fate of the program and the fate of the tens of thousands already caught up in it are still unclear.
The first point to note is that asylum seekers constitute a special class of immigrants who are seeking international protection and who may ultimately be recognized as a refugee. Although the terms “asylum seeker” and “refugee” are sometimes used interchangeably, technically an asylum seeker is applying for refugee status. Not all asylum seekers are refugees, but all refugees were once asylum seekers.
According to international refugee law (the 1951 Refugee Convention and the 1967 Protocol), a refugee is defined as someone who has fled their country of origin and is unable or unwilling to return because of a well-founded fear of being persecuted due to their race, religion, nationality, membership of a particular social group or political opinion. The U.S. is party to the 1967 Protocol (but not the 1951 Convention even though it has adopted most of the obligations spelled out in the original 1951 document). Under international law, refugees are entitled to the protection of a country that is not their own and countries have a duty of non-refoulement—that is, an obligation not to return asylum seekers or refugees to a territory where they would be at risk of persecution. Many political theorists have argued that the definition of refugee according to international law is itself too narrow and that anyone whose basic human rights are under threat, not simply those fleeing political persecution, should be considered a refugee and be granted international protection. Asylum seekers are thus distinct from other kinds of immigrants (such as economic migrants who move to a country for financial and economic reasons and not due to persecution or basic human rights violations) because they claim to be entitled to the international protection afforded to refugees.
What are asylum seekers owed insofar as they are not necessarily refugees but claim to be? First, asylum seekers are owed a fair determination as to whether their claim to refugeehood is valid. Second, asylum seekers deserve to have their basic human rights protected not only by virtue of simply being human but because basic rights to life and physical security are a part of and a pre-requisite for giving asylum seekers a fair hearing regarding their refugee status. If someone dies or is subjected to serious harms while awaiting the formal process that decides whether they are a refugee, then that process is far from fair, to say the very least. On both these counts, the “Remain in Mexico” program fails to provide asylum seekers what they are owed. In addition to having their basic rights to life and physical security violated, asylum seekers in the program have no meaningful access to due process in the U.S., which undermines their right to have a fair determination on their cases. Only 4 percent of asylum seekers in the program are represented by an attorney. Some who were granted asylum were even issued nonexistent future court date notices for unfiled appeals and have been returned to Mexico.
Obligations to asylum seekers and refugees are not simply a matter of humanitarian concern (regarding what individuals are owed by mere dint of their humanity) but also a matter that impacts the legitimacy of governments and the international nation-state system as a whole. After all, why should the world be divided among territorially bounded nation-states rather than organized according to a different jurisdictional system? One explanation is that nation-states represent an effective and capable means of protecting the rights of their citizens, with each government principally responsible for its own citizens. But what of individuals whose rights are not adequately protected by their governments? The international refugee regime was created at least in part as a response to the atrocities of Nazi Germany during World War II in order to recognize the need for governments to protect the basic rights of individuals that are under threat even if those individuals are not their citizens. The very legitimacy of the international nation-state system and of governments which are a part of that system depends, then, on the system’s capacity to protect basic human rights and on governments remedying any shortcoming in basic human rights protection that exists in the system regardless of citizenship. Political theorist David Owen usefully describes the international refugee regime along these lines as a sort of “legitimacy-repair mechanism.”
Protecting the basic human rights of asylum seekers and providing them with a fair determination of their refugee status takes resources and requires governments to develop and maintain the appropriate infrastructure and court systems needed to deliver these services to non-citizens. Of course, some asylum seekers may not be in dire need and may not end up qualifying as refugees (though perhaps many more should count as refugees than would be currently considered according to international law). But giving asylum seekers what they are due is not simply a matter of charity or generosity, in which a country can choose to help a non-citizen in need but is not morally mandated to do so. Instead, governments are required to fulfill these obligations to asylum seekers as a matter of their political legitimacy, in particular as standing members of an international order of nation-states.
What is especially pernicious about the “Remain in Mexico” program is its dishonesty and duplicity. The U.S. government is shirking its obligations to asylum seekers and refugees under the pretext that it is simply temporarily returning asylum seekers to Mexico as they await the decisions on their asylum applications. In reality, the “Remain in Mexico” program is a way for the U.S. government to avoid adjudicating the claims of asylum seekers in the first place and to keep the violations of their basic human rights out of sight and out of mind to the U.S. public. The practical policy details are of course important when it comes to dismantling the “Remain in Mexico” program and replacing it with a fair and robust system for hearing asylum claims, not to mention compensating those harmed by the program. Indeed, the “Remain in Mexico” program can be understood as a policy that itself created refugees by placing asylum seekers in such dangerous conditions that threatened their basic human rights, which would then constitute grounds for the U.S. to provide asylum to those enrolled in the MPP program as a matter of corrective or reparative justice. However, any implementation difficulties that exist cannot be used as an excuse to diminish the moral urgency of ending the “Remain in Mexico” program. Nothing less than people’s most basic human rights and the very legitimacy of the U.S. government is a stake.