[Photo credit: Alejandro Tamayo / San Diego Union-Tribune]
By Daniel Melo
Asylum, on its face, would seem to be a word of welcome to those fleeing violence. In the US, its connotation within immigration law is tied to the acquisition of legal status, of the ability to remain, sheltered from the harm one is fleeing from. The oft-quoted lines of Emma Lazarus’s The New Colossus on the Statute of Liberty — “Give me your tired, your poor, Your huddled masses yearning to breathe free” —has been held out as an ode to this very idea of refuge, and of America’s greatness in the provision of it. But while both the word and its ideal may paint warm walls and windows where so many broken people can come to find safety, the US asylum system is far more like the rusted metal walls that protrude from the desert floor. The asylum system, far from being a means of protection for the many thousands displaced by capitalism’s global consequences, is but another tool of exclusion.
As is true in many other areas of immigration relief, the quantum of harm is often the starting point for any chance at success. In other words, the system creates a rather horrendous form of “incentive” if one dare call it that, where the more brutality and violence has suffered, the more compelling the case is. Asylum requires a particular brand of suffering to compel state actors to allow people some small reprieve from harm. To put it bluntly, the system considers some worthy of protection so long as it serves a particular political purpose, while others (even those that end in death) are not so fortunate. While the Trump era saw even this slim protection erode away, the asylum system has never been a boon to migrants. In fact, despite the appearance of an “impartial” judiciary that often decides asylum claims, from its very beginnings, US asylum and refugee protections were not open doors with humanitarian aims but political, exclusionary tools.
Authors Banks Miller et al. note in their work that asylum law is also rooted in material reality; i.e., capitalism shaped the contours of the law. In the US case, it was a tool to undermine the communist countries by focusing grants of asylum and refugee status on people from those nations. Far from being oriented around even vague humanitarian interests, it was instead fashioned as a political weapon. For example, during the Cold War, the US framed the vast majority of incoming Cubans as refugees but denied the same status to most Haitians who were oppressed by a series of brutal—but anti-communist—dictators. Even after the text of asylum law changed to reflect a more “egalitarian” framework, it simply painted over this reality. Reagan’s administration painted migrants from Central and South America, fleeing decades of US imperialist policy, as “economic” migrants, unworthy of asylum, while as noted above, those departing Cold War nations were far more likely to have their asylum cases approved. This is no less true today, with asylum seekers from China granted at a rate orders of magnitude greater than those from Mexico.
The misunderstood context of Lazarus’s poem itself is revealing. As Professor Walt Hunter notes, it emerged in the midst of the profoundly xenophobic and racist Chinese Exclusion Act and as the European powers were divvying up the African continent to colonize it. In that particular moment of capitalist geopolitics the lines emerged (contrary to their parroting in the mouth of neoliberal elite) that stand for something more than American exceptionalism--it is a mirror casting back the reflection of precisely the misery that such exceptionalism has wrought on so many. Lazarus’s poem is not an ode to America’s open arms but a condemnation of how it has failed to live up to its professed ideals. During our moment, the rehashing of these lines is telling--America has yet to truly face the human consequences of its role in marching capitalism around the globe and maintains its innocence to the huddled, displaced masses the world over.
The notion of asylum, however pure conceptually, is ultimately shattered into sharp pieces when set down on the ground of actual application. The political weaponization of what was supposed to be a humanitarian aim evidences a profound need to rethink the question of not just how the law is written and applied, but more fundamentally, the body of people who get to shape it. It should be no more of a surprise that asylum law ultimately fell victim to ruling class interests than the retooling of Lazarus’s poem to reflect neoliberal values and American exceptionalism. As Marx noted, the law and forms of state power that enforce it “have their roots in the material conditions of life.” So long as a choice few have the right to decide who lives and dies (albeit through the sterile and supposedly equal “rule-of-law”), we cannot achieve the aims of the solidarity that should come for those seeking asylum. Indeed, it makes it nearly impossible to look beyond the present humanitarian crises the world over to their source—capitalism itself. Justice does not stop at expanding and welcoming those fleeing harm; it looks to that which chases them.
Daniel Melo is a public sector immigration lawyer in the American Southeast who primarily works with refugees and is the son of a migrant himself. His book, Borderlines, is due out from Zer0 Books in August 2021.
