Fear and the state
An excerpt from The Dispossessed: A Story of Asylum at the US-Mexican Border and Beyond by John Washington.
While asylees and refugees are often lumped together in common discourse, politically, they are miles apart. Asylum seekers have more visibility because they ask for protection once inside the country or at the border, and thus are used as easy political fodder: to startle voters or, more rarely, to invoke compassion. Refugees, meanwhile, are settled from abroad, and only come into contact with those affording them protection once they have already been vetted and accepted. Danger is the principal deciding factor in qualifying as a refugee. Fear, well-founded fear, is the principal factor for asylees. So one situation deals with the present (current danger); the other, with the future (fear of return). The lines, of course, tend to twist and knot. In responding to a refugee crisis, one state will work to remove the immediate danger by granting travel to the receiving state or constructing a refuge—often cramped and squalid camps—to “protect” the refugee. Meanwhile, the protection of an asylum seeker requires less a positive act than an act of omission: don’t send them home.
Article 33 of the 1951 Refugee Convention, the cornerstone of asylum law, enshrined the principle of non-refoulement, a wonderfully vowelly French term, decreeing: “No Contracting State shall expel or return (‘refouler’) a refugee in any manner what- soever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
Though traditions of sanctuary, refuge, and welcoming the stranger go back millennia, and probably as deep into history as humans descend, it wasn’t until the twentieth century that refugee and asylum laws were internationally codified. Since then, the concept of asylum has vacillated, but even while the legal definition serves as a guide, what’s critical to those in need of protection isn’t what’s on paper, it’s whether or not we open the door. Over the years, the gap between the definition of asylum and the application of its principles has widened into a chasm. It’s why, in 2018 and 2019, as illegally denied asylum seekers piled up in Tijuana and other Mexican border cities, we began to see de facto refugee camps along the US-Mexico border; why the United States could attach the name “Migrant Protection Protocols” to a policy that dumps asylum seekers into dangerous Mexican border towns, leaving them the opposite of protected; and why the United States and Guatemala, El Salvador, and Honduras can sign what are effectively “safe third country” agreements to force asylum seekers who pass through those countries to apply there, even though the countries are themselves expelling tens of thousands of asylum seekers and are neither safe nor remotely equipped to handle asylum claims.
Another telling example of the chasm between the law on the books and its application: in 2018 the Harvard Law School Immigrant Defense Project published a report on the US govern- ment’s misinterpretation of the “particularly serious crime bar” to withholding asylum in asylum proceedings. According to the 1951 Refugee Convention, applicants who have committed “a particularly serious crime” can be denied asylum, even if they can prove a well-founded fear of persecution. The United States, however, has been barring people who have committed only minor offenses—including filing false tax returns or failing to show up for court—denying asylum claims to those who pose no threat to public security and yet are at risk of grave danger and even death if they are returned, or refouled, to their home countries.
One woman from Sierra Leone who suffered a partial forced clitoridectomy was denied asylum for a conviction of selling less than an ounce of cocaine. And she wasn’t the only woman consigned to sexual violence because of a technicality in the application of US asylum law. As Schoenholtz, Schrag, and Ramji-Nogales show, one judge found an asylum applicant credible and observed there was “a reasonable possibility” that she would undergo female genital mutilation if she were deported to Senegal, but he ordered her removed anyway because she applied for asylum after the one-year filing deadline. In 2018, Attorney General Jeff Sessions went to even greater lengths to press judges to deny asylum to nearly all women who were fleeing domestic violence. Looking to “close a loophole” and limit the number of people staking asylum claims, one could put Sessions in the “originalist” camp of refugee philosophy—trying to adhere closely to the framers’ original intent—as he claimed that asylum law was not intended to protect such women. But, much like the US Constitution, the Refugee Convention is a living document; it was dramatically updated and expanded in 1967, and some of the malleability was built in, as with the famously slippery particular social group clause: those persecuted because of their membership in a particular social group can qualify for asylum. The core of asylum is, and always has been, to protect.
“A decade ago, 1 in 100 border crossers was seeking asylum or humanitarian relief … Now it’s 1 in 3,” the Washington Post noted in 2018. Despite what today seems to be a seasonal pattern of media frenzy about border crossings in the United States, this issue is not new—Mae Ngai writes about the “crisis atmosphere” surrounding immigration debates in, for example, the 1920–21 Congress. The nation is not liable to collapse because of immigration. And, it is critical to note, today’s refugee crisis is not exclusively, or even mostly, American, though US policies play an outsized role both in sparking refugee and asylum crises and shaping and influencing global immigration politics. More migrants, refugees, and asylum seekers today are heading to Europe or toward urban centers in Asia and Africa than are descending on Arizona, Texas, or the American hinterlands. The United States is not even in the top five countries receiving the most refugees. In 2017, Turkey accepted more refugees than any other country in the world, followed by Pakistan, Lebanon, Iran, Ethiopia, Kenya, and Uganda. In the same year, Uganda—with a gross domestic product roughly equal to the gross metropolitan product of Detroit and with a landmass about the size of Wyoming—took in more refugees than the entire United States. Relative to its GDP, Ethiopia hosts the greatest number of refugees in the world, followed by Pakistan. Measured in per capita terms, as of 2018, forty-nine countries accepted more asylum seekers and refugees than the United States. And as for total immigrant population, the United States, as of 2014, ranked sixty-fifth among other countries in percentage of foreign-born immigrants.
Meanwhile, since the fall of the Berlin Wall, according to geographer Reece Jones, the number of walls or fences along international borders has risen from fifteen to seventy. The International Organization for Migration concludes that around 40,000 people died attempting to cross a border between 2005 and 2014. A 2018 Associated Press study tallied 56,800 migrants who have died or gone missing just since 2014. Taken together, that’s around 100,000 migrants dead in less than fifteen years, and those numbers may be only a fraction of the actual deaths and disappearances.
As more and more people throughout the world are finding their lives unlivable and moving across borders for an increasingly wide variety of reasons, receiving countries, including the United States, need to answer: As long as we’re continuing to set fires on distant shores, will we open our doors to those fleeing the flames?
Fear passes from man to man,
As one leaf passes its shudder
All at once the whole tree is trembling,
And there is no sign of the wind.
“The refugee crisis is something of a misnomer,” Patrick Kingsley writes in The New Odyssey, his book tracing a Syrian asylum seeker’s years-long journey to safety in Europe. “There is a crisis,” Kingsley continues, “but it’s one caused largely by our response to the refugees, rather than by the refugees them- selves.” It’s an important distinction that shifts responsibility off the refugees and onto receiving communities. And yet, it singularly re-centers the response to refugees and neglects the cause behind their forced displacement. Without addressing the cause, focusing only on the response both shirks respon- sibility and keeps us a deadly step behind any semblance of a solution.
Refugees do embody a crisis. The word itself, crisis, comes from the Greek, krinein, meaning to separate or to cut. That word’s first recorded usage dates back to Hippocrates’s reference of the breaking point in a disease, when one either begins their recovery or takes a turn toward death. Refugees and asylum seekers live at this crisis point: they are cut off from their homes, cut off from their very lives, and can either be granted a new home and new life, or be denied and pushed back toward per- secution and peril. The word critic has the same root: to cut, to separate, to discern. Politicians and judges are the ones who discern asylum claims: who gets approved and who doesn’t, who’s in and who takes the turn toward death. Interestingly, crisis and criminal have the same Indo-European root, which refers to those who are judged, cut off, and set apart. It is on this critical knife-edge that the asylum seeker balances.
Author Gloria Anzaldúa similarly locates the refugee:
This is her home
this thin edge of
Worldwide, in 2018, there were more than 70 million forcibly displaced people living on that thin edge. Most of them, over 40 million, were internally displaced, while another 26 million were refugees—people already settled or in the process of being settled in camps or receiving countries. Approximately 3.5 million were asylum seekers, with around 10 million officially stateless. How many, one might wonder, were unofficially stateless? How many had no state—no wing or roof—to protect them? How many were forcibly displaced and then rejected and deported, pushed off the knife-edge and left to fend for themselves?
“As migration worldwide soars to record highs,” Lori Hinnant and Bram Janssen report for the Associated Press, “far less visible has been its toll: The tens of thousands of people who die or simply disappear during their journeys, never to be seen again. In most cases, nobody is keeping track. Barely counted in life, these people don’t register in death, as if they never lived at all.” The refugee’s predicament is to flee to safety or to die: el norte or sos tumba.
But it is not only the refugee who’s on the move. There’s a reductive and false dichotomy that people often subscribe to when discussing international migration today: the insistent distinction between “legitimate” asylum seekers and economic migrants posing as refugees, a division sometimes reduced to either “bona fide” or “bogus” claimants. British authors Alexander Betts and Paul Collier fall into the trap: “Migrants [are] lured by hope; refugees [are] fleeing fear. Migrants hope for honeypots; refugees need havens.” The sharp distinction also appears in the German terms arbeitsmigration and fluchtmigration— “work migration” and “flight migration.” In reality, there is much blending, leapfrogging, and catalysis between the two categories. Take Arnovis: if the turtle hatchery had paid more than $180 a month, he would have had savings and could potentially have moved out of harm’s way. Living hand to mouth, however, he would have only been able to afford to move somewhere equally overrun by gangs, where he would have been quickly identified and newly targeted. Many migrants in search of “honeypots” have hardly honey at all in their home countries; that lack renders them vulnerable and pushes them into danger.
One of many such examples I came across was the story of an impoverished Salvadoran nineteen-year-old, Ernesto, who, as an orphan growing up abused and neglected by his aunt, was unable to afford rent in a safe neighborhood in the city of Sonsonate, and repeatedly fell prey to the gangs. Searching for either a haven, a honeypot, or anything at all to get him away from his persecutors, Ernesto fled to the United States, was detained for eight months, and was eventually denied asylum. After he was deported, with mere dollars to his name, he had no other recourse but to return to his old barrio where, again, he was threatened by both gangs and the police, who suspected he was a gang member because of where he lived and because he had a few tattoos. When they arrested him, without charging him of any crime—he had committed none—the gang then suspected he was collaborating with the police. Poverty thus relegated him to becoming a “bona fide” asylum seeker. He was preparing his second trip to the United States when I met him, and, knowing his chances of gaining asylum after a previous deportation were nil, was intending to cross over undetected—an increasingly deadly endeavor.
Many deportees I spoke with described facing intense discrimination after being deported: because people assumed they had gotten into trouble in the United States, it was now even harder for them to find jobs, and they were thus consigned to live in poverty-wracked neighborhoods where they were targeted as newcomers by the gangs—all sparking a (sometimes second) asylum claim.
In a violent and warming world the rich can afford to protect themselves—with gated neighborhoods, getaway homes, and walled nations—and the poor are left with few options but climbing over the barriers and sometimes cramming their life stories into a sympathetic narrative. As other doors have been slammed on migrants by successive administrations—the “line” to get in has become so long and serpentine, it effectively serves as another wall—claims of fear are increasing.
This fear—whether genuine, enhanced, or fabricated—is the only currency besides actual currency (wealth) that will buy you entrance into the United States and other so-called developed countries. And migrants know it; that fear is their ticket. And so they claim it. And yet it is also fear—even when there is no longer a “sign of the wind,” as poet Charles Simic (himself multiply displaced from his native Belgrade during World War II) puts it—that sets the “whole tree trembling,” with countries responding to claims of fear by claiming their own fear, refusing to offer refuge and targeting asylum seekers.
The first cause of the crisis is ongoing transnational corporate capitalist and neocolonial despoilment (much more on that later) that upheaves countries and unroofs their people. The second crisis is the uprootedness itself—the refusal of a state to provide shelter. As climate change bears down in coming decades, as the global population grows, as inequality continues to rise, simply making more space under the roof will not be enough. We need to address the first cause, the first crisis. We need a “deep, saving thought” as Aeschylus put it—followed by quicker action