Asylum and the Rule of Law

The rule of law occupies a central position in our public discourse concerning the problems at our southern border.  The right cheers the harsh (not to say savage) enforcement practices adopted by the Trump administration as restoring the rule of law to US immigration policies.  But it is not at all clear that this position is sustainable.  Indeed, perhaps current practices are the real insult to the rule of law.

     It is important to recognize that people enter the US “illegally” in a number of ways.  Some sneak across the Rio Grande or some other border with no intention of seeking any sort of legal status; certainly, this is “illegal.”  Others come in on temporary visas but plan to request asylum once they are in the country.  And some come through official ports of entry where they present themselves to officials and request asylum; they are not doing anything illegal at all, and neither are those who enter with temporary visas but later request asylum.  

     US Citizenship and Immigration Services (USCIS) makes it very clear that you must be physically present in the United States to request asylum.  And seeking asylum is exactly what many of the people who are being so harshly treated at our border are doing.  These people are not criminals, and USCIS says that “asylum applicants are rarely detained by U.S. Immigration and Customs Enforcement (ICE).”  

     But now, it seems, they are detained, and worse.  Children are seized and sent off to child concentration camps or to parts unknown.  People are deported without any sort of due process, and even without their children.  Camps designed for long-term detentions are being built.  People who are committing no crime—indeed, people fleeing horrific violence, who have come seeking our help—are treated like dangerous criminals and subjected to the harshest punishments.  This is certainly an assault on the rule of law.  And Donald Trump’s constant howling and screeching that these are dangerous criminals—murderers and rapists—come to prey on the people of the United States is just Newspeak, propaganda designed to hide the reality of what is being done.

     But even if there were some merit to the right’s concern about the rule of law, it would not justify what is actually going on at the border.  I know of no legal or moral reasoning that would compel us to behave like savages toward those who break the law.  Many of the people appearing at our southern border seeking help are fleeing starvation, oppression, and horrific violence.  We could be a refuge for these desperate refugees.  We could reform our immigration laws to reduce incentives for illegal entry.  We could acknowledge our complicity in much of the misery the people at the border are fleeing, and seek better political and economic relations with nations to the south.

     Or we can build camps and incarcerate people under the cruelest of conditions.  And when this doesn’t stop the flood, which it most likely will not, we can start shooting people at the border.  Perhaps you think this is ridiculous or hysterical; surely we will never sink to that level.  Or perhaps you think this is precisely what is called for.  We have gone a long way down the path of dehumanizing the desperate people at our border.  Perhaps we have already gone too far.