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Asylum as a Human Right

In the past year the Trump administration has been applying increasingly restrictive policies to block asylum seekers from pursuing their claims in the U.S. The most recent measure, now temporarily barred by a federal judge’s injunction, would have required migrants traveling through another country such as Mexico to show proof that they had applied for, and were denied, asylum in that country. That policy would most likely have barred almost all migrants from Central America, as well as many Africans, Haitians, and Cubans traveling through Mexico. This policy comes on top of other restrictive measures, including a practice called “metering,” which limits the number of asylum applications processed each day, as well as “Remain in Mexico,” which requires asylum seekers to stay in Mexico until the day of their hearing.

The results of these policies have forced thousands of people to languish in shelters and camps in Mexico, while thousands who have managed to cross the border are detained in overcrowded, squalid facilities that were cited in a recent report by the Department of Homeland Security’s own Office of Inspector General. News about these conditions, along with the family separations dominating headlines last year, have brought asylum, the right to safe haven from persecution, to public consciousness in a way that it never has been before.

Yet the importance of asylum to the migration crisis facing our country has not been fully understood for a variety of reasons, including Donald Trump’s constant harping on his political opponents’ advocacy of “open borders.” This claim, of course, is a canard. U.S. borders have not been “open” in any meaningful sense for 100 years, nor is it likely that candidates for Trump’s job would advocate such a change, any more than they would advocate eliminating TSA screenings or customs inspections at U.S. airports.

Yet the phrase “open borders” still resonates for many people who fear the influx of thousands of people into the country. To a large extent, Julian Castro and other Democratic presidential candidates have sought to address these fears by calling for a decriminalization of illegal entry and making such an entry a civil, rather than a criminal, violation.

But this position fails to address the critical significance of asylum itself as the underlying issue in the debates over immigration. On a practical level, as a number of immigration experts have pointed out, the closing off of access to asylum processing only magnifies people’s motivation to enter the U.S. illegally, increasing the number of illegal crossings and putting thousands of adults and children at risk of serious injury and death. As many observers have reported, individuals are willing to take these risks because the alternatives available to them and their children in their home countries – fates involving destitution, violence, or death – have left them little choice.

This is why a human rights perspective, centered on asylum as articulated in the 1948 Universal Declaration of Human Rights and in U.S. federal law, is critical to any discussions of the border and to immigration in general. Human rights are grounded in a recognition of human dignity – the intrinsic worth of every human being – no matter what his or her background or identity may be. This recognition, allied closely to empathy and compassion, helps undergird a responsibility to protect the rights of others, not just one’s own. From a human rights perspective, democracy itself is sustained by understanding our interdependence, our mutual ties to one another: ties that cross borders and boundaries.

And contrary to Trump’s claims, the U.S. needs immigrants; demographers and economists have pointed to a falling birth rate and to the aging of our population, trends that threaten economic growth and the vitality of our cities and rural areas. Our economy and our communities need workers, and the communities that have welcomed immigrants have tended to thrive economically.

This is one reason why, if asylum is to be fully recognized along with the other rights we value as Americans, we need to disentangle the asylum process from the institutions and political culture of mass incarceration. Today people undergo harrowing journeys and present themselves at our border, only to find themselves degraded and dehumanized in prison conditions. We need to abolish detention altogether and substitute for it community-based, alternative-to-detention programs that are humane and cost-effective.

Making this change will involve many obstacles, but a number of Democratic presidential candidates have made proposals, including the proposal to end for-profit detention facilities, that point in the right direction. These moves constitute a meaningful start. But considering the magnitude and urgency of human suffering involved, the larger task ahead will be to foster a rights awareness that will lead to genuine, substantive change in the foreseeable future.

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