Overlooked detail in border debate: The legal right to seek asylum in the US

Much hay is being made in the national media about the large number of migrant children and families crossing the southern border to seek safety and asylum in the United States. Multiple debates have coalesced around whether this increase in asylum-seekers represents a response to President Biden’s election and his pledge to reverse some Trump-era border policies, and/or whether it is accurate or appropriate to even describe this current increase as a “crisis” in the first place.

Overlooked in much of this debate is a critical but under-appreciated detail: that those seeking asylum in the United States have a right to do so under U.S. and international law. Those who petition for asylum after crossing the border irregularly are not fundamentally in violation the law – they are, rather, attempting to appeal to the law for protection, by utilizing those processes that are available to them.  

One reason why this important detail is mostly overlooked is the steady expansion of deterrence strategy and its application under the Obama and Trump presidencies. Although it has antecedents in the origins of the country’s immigration detention system, prior to 2014, this strategy had principally been applied to those attempting unlawful and clandestine border crossing. However, after an increase that year in the arrival of unaccompanied minors, the government began to apply this strategy to asylum seekers as well. This process began in earnest with President Obama’s implementation of family detention and a high-bond policy for asylum-seekers. This policy was expanded further by President Trump’s implementation of metering (which dramatically slowed the number of individuals who could petition for asylum on any given day), the policy of family separation and the Migrant Protection Protocols (MPP), popularly known as the “remain in Mexico” policy. MPP caused tens of thousands of asylum seekers to remain stranded in squalid and dangerous conditions in Mexico while awaiting court hearings in the United States. 

Originating among 18th century criminologists (and famously applied to cold-war era U.S. nuclear strategy) the logic of deterrence relies on the assumption that as individuals we make calculative behavioral choices by continuously monitoring our environment for information about risk and reward. 

Following this logic and applying it to asylum-seekers requires, first, having a belief that appeal to existing asylum law is somehow illegitimate, and ought to be discouraged. Second, in order to be successful, it also requires that the risks, hardship and suffering that asylum-seekers are compelled to confront in the course of this appeal come to appear even more severe than those circumstances of violence, danger and persecution that a person may be fleeing in the first place. Such a policy approach is replete with moral hazard, and during the Trump era an overwhelming number of Americans rightfully rejected the extreme forms of official cruelty that resulted. 

Yet, this logic of deterrence still appears to color much of the narrative surrounding contemporary events along the border – such as Sen. Lindsey Graham’s (R-S.C.) assertion that an increase in the number of asylum seekers indicates that the Biden administration is somehow “losing control” of the border; or Rep. Michael Guest’s (R-Miss.) assertion in The Hill that Biden’s relatively minor actions on border policy reflect an “open borders” agenda that is incentivizing human trafficking; or an argument from Tim Kane at the Hoover Institution that these policy changes are really the critical factor “encouraging” asylum-seekers to leave everything behind and to seek refuge in the United States.

These kinds of arguments and the assumptions behind them present a moral and political trap. To break free of this trap, the Biden administration ought to recognize its obligations to treat with dignity and compassion those attempting to obtain international protection from violence and persecution, by allowing such individuals to access those legal mechanisms and processes already established under the law. This would require not only expanding the government’s capacity to quickly and humanely process children and families at the border, but also ending the practice of metering and the use of Title 42 public health exemptions, so that all persons seeking asylum protection can lawfully do so in a safe, rapid and orderly manner at an established port of entry. 

Geoffrey Alan Boyce, Ph.D., is academic director of the Earlham College Border Studies Program based in Tucson, Arizona.