The End of Asylum

In Los Angeles, ICE agents descend upon day laborers in a Home Depot parking lot. In central California they chase farmworkers through a field, trampling migrants and crops alike. In Georgia they raid a Hyundai factory and detain hundreds of workers. In Chicago they storm an apartment building in the middle of the night, smashing down doors and dragging dozens of terrified residents, including children, out of their homes. Citizens and legal immigrants are caught up in the sweeps. The agents usually wear masks, often have no warrants, and sometimes conduct raids with guns drawn; their ruthless conduct has spread fear throughout immigrant communities.

Where ICE’s rampages in the streets are concerned, the spectacle is the point: arrests have averaged fewer than nine hundred a day since Trump took office, falling far short of the administration’s stated goal of three thousand. And yet some seizures are taking place not on the street but in courthouses, where immigrants are dutifully reporting for scheduled hearings. Many of those people are asylum seekers like twenty-year-old Joselyn Chipantiza-Sisalema, from Ecuador, who reported to the federal courthouse in lower Manhattan in June. The judge gave her another court date. Then, outside the courtroom, she was grabbed by masked ICE agents and detained for almost a month—first for nine days in crowded and unsanitary conditions in the federal building, and then for nearly two weeks at an ICE detention facility in Louisiana—before her lawyers were able to obtain her release. Her asylum case was still open; her arrest and detention patently violated due process. Such seizures have become commonplace. ICE does not release data on courthouse arrests, but the number since Trump took office may be more than two thousand.

These arrests are part of a larger campaign to end the right to asylum in the United States. As of July there were 2.2 million asylum seekers in the country waiting for a hearing or decision. These migrants, who declare their claims at the border or within the US, and who may ask for asylum regardless of their manner of entry, are distinct from refugees, people displaced from their home countries who are applying for resettlement from outside the US, typically from a refugee camp. The Refugee Act of 1980 authorized asylum for those who fear they would be persecuted if returned to their home country. But during the second Trump administration asylum has all but disappeared—in law, in practice, and in public discussion.

When Trump took office in January, he proclaimed that the US was closed to all immigration—what he called an “invasion”—coming from Mexico. He immediately did away with CBP-One, the phone application that the Biden administration had used to begin the asylum process, canceling 30,000 scheduled interviews and eliminating the only legal pathway for asylum at the southern border. Since then it has still technically been possible to claim asylum at the Canadian border or at an airport. But Trump has issued travel bans on nineteen countries—including Afghanistan, Burma, the Republic of the Congo, Sudan, Yemen, and Laos—denying the right to many would-be asylum seekers in practice.

Also on day one, Trump ended all refugee admissions, including for more than 12,000 people whose resettlement had been approved and who already had flight reservations in hand. (In a cruel twist, the only exception was made in May for more than one thousand Afrikaner “refugees,” descendants of the Dutch settlers in South Africa who were the architects of apartheid.) In February and March the administration announced that it would cancel Temporary Protected Status (TPS)—which applies to migrants who do not meet the conditions for asylum but who cannot safely return to their country of origin due to civil violence or natural disasters—for more than one million people from Haiti, Venezuela, Afghanistan, Cameroon, and elsewhere.

More escalations swiftly followed. In March Trump invoked the Alien Enemies Act of 1798 and, without evidence, charge, or due process, sent 250 Venezuelans—many with TPS or other legal status—whom the State Department claimed were members of the Tren de Aragua gang to a notorious prison in El Salvador. In July the Department of Justice’s Board of Immigration Appeals ruled that it would no longer consider sex a protected class in asylum cases, flouting United Nations guidelines and leaving women and queer and transgender asylum seekers without recourse against gender- or sexuality-based violence.

Meanwhile the Justice Department, which also oversees the immigration courts, has aggressively used administrative measures to deny asylum petitions. In April it instructed immigration judges to cancel asylum applications deemed “legally deficient.” It also sent letters notifying asylum seekers that their parole was terminated and that they should “immediately” leave the US. And instead of holding asylum hearings using the standard trial-like process with lawyers and witnesses, the government has put many on a fast track to “expedited removal,” with no hearing and no appeal. Asylum seekers whose cases are canceled or denied are instantly classified as “unauthorized” and deportable. Between February and July over 50,000 asylum cases—77 percent of those decided—were formally denied, an all-time high.

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The near erasure of asylum in the United States marks an end to something historically distinctive. Refugee and asylum law were born at the confluence of two twentieth-century phenomena: the rise of immigration restrictions in the US and Europe during World War I, and mass population displacements during World War II. In 1945 millions of people were left stateless at precisely the moment when cross-border movement had become nearly impossible. It was then that the “refugee” emerged as a new legal subject: a victim of war and political repression, distinct from the “ordinary” immigrant seeking economic opportunity. The recognition of a right to asylum reflected a postwar consensus that there are some people whose need is so great that their relief should not be constrained by domestic law—that the nations of the world should protect people who would face torture, imprisonment, or death if returned to their home countries.   

Asylum, which Attorney General Jeff Sessions cynically referred to as a “loophole” during Trump’s first term, is thus better understood as a category of exception in a restrictive legal landscape. Every system of regulation and restriction has exceptions; in the case of immigration they include the parents of citizens, “geniuses,” people willing to pay $5 million—and those seeking protection from mortal danger, on the grounds that some policies are accountable to a higher moral code that upholds the ancient traditions of helping those in need and welcoming the stranger.

But the distinction that modern asylum law made between political and economic migrants did not map neatly onto reality. The political and the economic have always coexisted as reasons to emigrate; Americans have often used one or the other to stand in for myriad interests. Many migrants who came to the US in the nineteenth century—Germans after the failed 1848 revolution; Irish exiles from famine and British colonial oppression; Chinese displaced during the Taiping Rebellion; Jews fleeing Tsarist pogroms—were motivated by both factors. The conflation is evident in Emma Lazarus’s famous poem “The New Colossus,” engraved on a bronze plaque at the base of the Statue of Liberty. Lazarus called the statue the “Mother of Exiles,” suggesting that America was not just a land of opportunity for “your tired, your poor,” but also a land of refuge from persecution for those “yearning to breathe free.”

By lumping asylum seekers together with all other immigrants, the second Trump administration has undone the division between political and economic migrants—but for cynical ends. Trump seems to consider all immigrants undesirable, especially if they are people of color or profess political views he dislikes. He brands them as “criminal,” “illegal,” and “very bad people.” And he appears to be determined to rid the country of them—not only undocumented migrants and asylum seekers but also international students, legal permanent residents with minor criminal records, and even naturalized citizens who are allegedly “terrorists” or “frauds.”

To confront this cruel assault, Americans might do well to ask fundamental questions about the history of immigration in their country. When and why have we valorized some forms of migration and denigrated others? And if asylum was created to carve out an exception to restrictive immigration policies, might we need to reassess those policies themselves?

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Early American settlers saw themselves as asylum seekers. During the colonial period many Europeans, among them Puritans, Huguenots, and Baptists, came to North America as religious exiles escaping oppressive state and church authorities in England and France. And yet most did not regard religious freedom as a universal right. None of the original thirteen colonies granted religious freedom for all; many had established churches, and only Pennsylvania had an explicit antiestablishment policy. Many Protestant minorities were intolerant of those who professed different faiths (the Puritans banished Quakers, whom they called “pests,” from Massachusetts and hanged those who dared return), and the colonists denied liberty altogether to both the native peoples they relentlessly dispossessed and the enslaved Africans they imported and exploited. Americans later downplayed or ignored these realities; the idea that the country was a refuge for people seeking religious freedom became a central tenet of the nation’s origin story and identity.¹

In 1794 the new US Congress authorized the first federal refugee resettlement program, allocating $15,000 ($440 million today) to assist French colonists fleeing the Haitian Revolution. These plantation owners had already received financial support from philanthropists in Philadelphia and South Carolina as well as from the Maryland legislature. George Washington, James Madison, and Thomas Jefferson expressed solidarity with the slaveowners, even as they worried that the enslaved Black people they brought with them would stoke rebellion in the US.²

Four years later Congress passed “An Act for the Relief of the Refugees from the British Provinces of Canada and Nova Scotia,” allowing Canadians who had opposed the British during the American revolution to submit petitions for land grants in the Northwest Territory. Forty-nine petitioners were deemed worthy based on their “services, sacrifices, and sufferings,” and received a total of 35,000 acres in Ohio. Nearly all were men of European descent—refugees who made ideal settlers and proto-citizens.³

In the early nineteenth century the idea of asylum continued to give a moral purpose to the project of recruiting settlers for nation building. In an era of open borders, it was easy to use the concept to justify economic immigration. It drew from the revolutionary-era ethos that America would be a democracy, different from the tyrannies of the old world; it also helped cover for democracy’s limits, chief among them slavery. In 1801, in his first annual message to Congress, Jefferson asked, “Shall oppressed humanity find no asylum on this globe?” He was famous for his commitment to religious freedom, but his primary interest was in attracting European artisans and farmers who would contribute to the nation’s development, both economically and politically. Anyone who came with the “bona fide purpose of embarking his life and fortunes permanently with us,” he believed, could learn the “character and capabilities of a citizen.”

Half a century later Abraham Lincoln was still promoting immigration for the purpose of settlement, especially to check the expansion of slavery in the west. Likely referring to German migrants who arrived after the revolution of 1848, he proclaimed that the Homestead Act of 1862, which offered land titles in the west to both citizens and noncitizens, should assist “people borne down by the weight of their shackles—the oppression of tyranny.”

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By the early twentieth century the goals of nation building had changed. After the completion of the transcontinental railroad and the last Indian wars, the US wanted immigrants not to settle the frontier but to power its industrialization and urbanization. The vast expansion of the nation’s economy attracted 25 million immigrants from Europe between 1890 and World War I; many came for both economic and political reasons, escaping tyranny or war as well as poverty.

The arrival of so many people from new regions—Italy, Russia, Hungary—sparked nativist opposition from both old-line New England WASPs and US-born skilled workers, fueling the growth of eugenics and other bogus race science. The culture warriors finally won after World War I, in part because industry leaders became less interested in encouraging immigration when increases in productivity came more from technological improvements like the assembly line than from large inputs of unskilled labor. The Immigration Act of 1924 imposed, for the first time, a ceiling on immigration—15 percent of the pre-war annual average—and a racist system of national origin quotas that favored Western and Northern Europeans over Southern and Eastern Europeans and completely excluded Asians. People who were stateless or displaced from their homelands after World War I and throughout the 1930s found no other countries to take them. The doomed voyage of the MS St. Louis—which left Germany in 1939 with more than nine hundred Jewish refugees and was refused entry to Cuba, the US, and Canada—is only the most famous example.

In the 1940s the scale of the European refugee crisis and the US’s new status as a world power softened this nativist posture. At the end of World War II there were eleven million displaced persons (DPs) in Germany, Austria, and Italy, including eight million forced laborers and prisoners of war and 700,000 concentration camp survivors. The overwhelming majority were repatriated to the Soviet Union and Eastern Bloc countries, but 1.2 million were resettled in the West.

The question of whether the US should open its doors to survivors of the war and the Holocaust generated fierce controversy. Between 1945 and 1948 the US admitted 38,000 DPs under existing immigration quotas. Yet the need was far greater, and President Harry Truman argued that the nation had both a humanitarian responsibility to accept more refugees and a political interest in doing so to establish its position of global leadership. Many Democrats agreed, as did organized labor, veterans’ organizations, and the major Protestant, Catholic, and Jewish conferences. But conservatives had no intention of easing restrictions, and remained especially opposed to admitting Jews. Among their tactics was to revive the long-standing antisemitic trope that associated Jews with communism and other “subversive” agendas. In 1948 Congressman Ed Lee Gossett of Texas claimed on the House floor that the concentration camps were “literally filled with bums, criminals, subversives, revolutionists, crackpots, and human wreckage.”

The strategy was stunningly successful. A wave of popular antisemitism put Democrats on the defensive and prompted the nonsectarian Citizens Committee on Displaced Persons to virtually erase mention of Jewish refugees from its published materials. Conservatives were more welcoming toward DPs from Estonia, Lithuania, and Latvia—including Nazi collaborators and war criminals—whom they considered to be sturdy whites and reliable anticommunists.⁴

This political climate shaped the US’s policy toward survivors of the war. The Displaced Persons Act of 1948 (amended in 1950) provided for a total of 414,000 European refugees. The Refugee Relief Act of 1953 allowed for an additional 200,000 “refugees and escapees from Communist countries,” including just a token allotment of five thousand from the “Far East,” reflecting a long-standing hostility toward Asian immigration.

The Displaced Persons Act defined a DP as someone who had entered a camp in Allied-occupied Germany, Austria, or Italy before December 22, 1945, excluding 100,000 Jews from Poland who had not entered Germany until 1946 and early 1947. It also stipulated that 30 percent of all admitted DPs had to have been “previously engaged in agricultural pursuits,” putting Jews—who were forbidden to own farmland in the Pale of Settlement—at a disadvantage. President Truman criticized the act for discriminating against Jews but signed it reluctantly in the belief that he could not negotiate anything better. (The 1950 amendment extended the eligibility date, making it easier for Jewish DPs to emigrate.)

DPs hoping to go to the US confronted not only a bureaucratic application process but the cold reality that America’s economic interests shaped its humanitarian largesse. In addition to shutting out many Jews, the first DP act gave priority to professionals, the highly skilled, and those with relatives in the US, and excluded anyone deemed “liable to become a public charge,” a provision that originated in 1882 and has remained part of US policy to this day. Insofar as some American elites embraced refugee admissions and human rights, many did so because, like the publishing mogul Henry Luce, they believed that pursuing “an open world” was critical to the fight against communism.

The US stood at a certain remove from the new system of international law that emerged in this period. The Declaration of Universal Human Rights, adopted by the UN in 1948, deemed expatriation—leaving one’s country of origin—a basic human right; it also cited rights to health care, education, and a “decent life” that exceeded American commitments. The Geneva Convention of 1951 defined a “refugee” as a person who suffered from or feared persecution by their government on the grounds of race, religion, nationality, membership in a particular social group, or political opinion. (Gender was added in 2002.) It also established the principle of non-refoulement (non-return), which guarantees that refugees and asylum seekers cannot be forcibly returned to their country of origin. The US, considering the convention a potential impediment to its own cold war interests—which involved backing right-wing dictatorships that regularly violated human rights—did not sign on until 1968. American refugee policy remained ad hoc for several decades, driven largely by geopolitics: the largest American refugee programs during the cold war, authorized by special legislation in 1966 and 1975, were for people fleeing communist governments in Cuba and Southeast Asia.

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In the 1970s human rights emerged as a new form of political engagement in the US. The movement—led by established groups like Amnesty International and new arrivals like Human Rights Watch—brought fresh attention to refugees, and President Jimmy Carter’s foreign policy bore its imprint, deemphasizing cold war realpolitik in favor of respect for individual human rights, democracy, and nuclear nonproliferation. In a 1978 speech Carter called refugees the “living, homeless casualties of the world’s failure to live by the principles of peace and human rights.”

In 1980 Congress finally passed the Refugee Act, which defined a refugee according to international standards, established the Office of Refugee Resettlement, and created a pathway for people at the border or already in the country to apply for asylum. The act was supposed to be nonideological. But the generation of neoconservatives that rose to power during the Ronald Reagan and George H. W. Bush administrations once again reserved the statuses of refugee and asylee—and their sympathy for human rights more broadly—for cases that served their geopolitical interests. In the 1980s, when people fleeing civil wars in Central America accounted for half the asylum seekers in the US, those from Nicaragua—whose government the US opposed—had a high rate of approval (84 percent), while those from El Salvador, whose regime the US supported, had a strikingly low one (between 2 and 3 percent). Meanwhile the government refused asylum to people fleeing the US-backed dictatorship in Haiti, calling them “economic migrants,” interdicting them at sea, and detaining them at Guantanamo Bay.⁵

When the Soviet Union fell in 1989, eliminating the central geopolitical concern that had shaped refugee and asylum policy since World War II, the US had to recalibrate its approach. By the 1990s and early 2000s public opinion was also changing. Americans began to view refugees and asylees less as freedom fighters against communism than as job takers and, especially after the terrorist attacks of September 11, as threats to national security. In these years the government made it harder for asylum seekers to pursue their claims. President Clinton’s Illegal Immigration Reform and Individual Responsibility Act of 1996 aimed to deter asylum seekers by expediting removal for unauthorized entry within one hundred miles of the border (with weak provisions for those making an asylum or “credible fear” claim), imposing a one-year cutoff for filing an asylum petition, and mandating detention pending an asylum hearing, reserving parole for those with a relative in the US. These restrictions were later incorporated into the Homeland Security Act of 2002.

At the same time, the US offered refuge to people in categories it had previously ignored, like those fleeing gender-based violence, and created new provisions to protect arrivals who did not meet the formal conditions for asylum, such as special visas for victims of human trafficking and TPS for people imperiled by civil violence or natural disasters. These measures, which affected relatively small numbers of people at the time, attracted little public attention. Thanks to advocacy by human rights and immigration activists, Congress enacted them with bipartisan support.⁶

Migration to the US, especially from the Global South, burgeoned in the late twentieth and early twenty-first centuries. Since 1980 the US has absorbed 35 million new legal immigrants, 10 million undocumented people, three million refugees, and 767,000 asylees. Polling today indicates that most Americans think immigration is good for the country and support legal status for undocumented migrants. But the right has succeeded at blaming economic precarity caused by automation and offshore manufacturing on immigrants in order to build support among white middle- and working-class voters who might not otherwise back conservative policies that favor corporations and the wealthy. During the Obama years nativism dovetailed with racist backlash against a Black president, and in 2016 Trump emerged as its standard-bearer.

During his first administration Trump slashed the number of refugee admissions (only 11,400 refugees came during his last year in office, the lowest number since 1975), promised to “build the wall,” imposed the so-called Muslim ban, and proclaimed that unauthorized migrants at the southern border were ineligible for asylum, a violation of both international and domestic law. The Justice Department modified asylum policy considerably, imposing fees, nullifying petitions for technical reasons, and overturning precedents that provided asylum for victims of violence by nonstate actors, including domestic abusers and gangs. Jeff Sessions and his protégé, Stephen Miller, dramatically tried to deter Central American asylum seekers by separating families at the border; images circulated of crying babies and toddlers torn from their mothers and caged in pens.

Trump’s assault on migrants, especially children, was widely condemned as cruel and extreme, and arguably helped Democrats regain the House in 2018 and win the presidency in 2020. During the Biden interregnum nearly 200,000 refugees were resettled in the US, reversing the decline during Trump’s first term. But Biden’s handling of asylum seekers and other migrants at the US–Mexico border was not exactly welcoming. Between 2021 and 2023 a new wave of unauthorized migrants from Central America and Venezuela—spurred by civil violence and climate-induced agricultural crisis—crossed the border. In response immigration authorities conducted over four million removals and paroled 3.6 million into the US pending adjudication of their asylum claims. In May 2023 the Biden administration began requiring asylum seekers to remain in Mexico and use the CBP-One app to make an appointment for an interview at the border. CBP-One had many flaws, including long wait times for appointments, frequent crashes, poorly translated materials, and concerns about the security of applicants’ personal data. Nevertheless the US paroled over 900,000 asylum seekers with the app during the last two years of Biden’s term.       

Three million is hardly an overwhelming number of people to absorb over four years in a country of 340 million with a strong economy. And the federal government had means to address the logistical and humanitarian challenges caused by the concentration of arrivals. It might have hired additional asylum officers and judges to process cases more quickly, but Congress refused to appropriate the necessary funds. It might have relocated asylum seekers to places where they had relatives or to communities seeking workers to revitalize the economy—such as the Rust Belt cities of Springfield, Ohio, and Utica, New York, both of which partnered with nonprofits and state governments to recruit refugees. But there was no such coordinated effort. Conservatives in border states, meanwhile, unceremoniously bussed migrants to New York, Washington, D.C., and California, without consultation or organization, to “punish” northern liberals.

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Today’s world is different from that of the late nineteenth century, when there were hardly any restrictions on immigration to the US (other than for Chinese migrants and paupers). But it is also different from that of the mid-twentieth century, the high-water mark of restrictions that aimed to preserve white supremacy and of asylum policies that promoted cold war interests. The American immigration system today is a legacy of historical agendas that have been overtaken by changing conditions and attitudes.

It is also a mess. Numerical limits set in 1965 punish prospective migrants from countries with large populations, generating impossibly long waits for visas, prolonged family separations, and unauthorized migration. Asylum law is woefully outdated, based on persecution of individuals by states and unable to accommodate people displaced by the catastrophes that beset millions.

Distinguishing “political” from “economic” migration has long been arbitrary and nonsensical, but it is an even greater folly today, when so much migration is the result of civil violence and climate-related disasters—problems that cannot be defined simply as one or the other. In a way, we might follow Trump in undoing the distinction between the two categories, but to the opposite end: rather than considering all immigrants undesirable, we might consider them all worthy of a place in America. If the line between the political and the economic is so blurry and invites prejudicial assumptions about character and worth, perhaps we do not need to parse the reasons that people migrate to begin with. We might try to imagine an immigration system that both supports nation building and responds to the global events that put people at risk and on the run; we might think about humanitarianism not as a paternalistic response to suffering but as a means of resisting oppression. Do those of us in the Global North want to protect ourselves from the Global South by turning inward, hoarding resources, and living in an authoritarian police state? Or could we imagine global cooperation that confronts the causes of migration?

There are signs that a broad coalition of Americans could be assembled to defend the rights of immigrants, refugees, and asylum seekers. High-profile events and cases—the detention of international students for political speech, the disappearance of Kilmar Ábrego García to El Salvador, the raids on farmworkers and day laborers—have provoked fierce criticism and in some cases large-scale public opposition. In July a Gallup poll showed that only 35 percent of Americans (roughly the size of the MAGA base) support the administration’s program of mass deportation, whereas 79 percent think immigration is good for the country and 80 percent support legalization for unauthorized migrants.

The task of the hour is to resist the end of asylum in particular and the program of mass deportation in general—to stand against the fascist deployment of masked immigration agents and military troops in our cities, the gutting of policy, and the remaking of the rules. In recent months many Americans have taken to the streets in Los Angeles, Washington, D.C., Rochester, Chicago, and elsewhere, sometimes chasing ICE out of their neighborhoods; legal advocates have repeatedly challenged the administration and have already won victories in federal district court; volunteers have accompanied immigrants to their hearings; and local community groups, labor unions, and churches have offered “know your rights” trainings and issued warnings of ICE’s presence by mass text.

The extent of solidarity in these acts is new. Throughout much of US history, immigrants faced nativist opposition on their own; not all Americans subscribed to xenophobic politics, but wariness and indifference were more common than support. In the 1920s only immigrants themselves, with their churches and a handful of lawmakers—like Congressman Emanuel Celler of Brooklyn—opposed restrictive immigration legislation. During World War II nary a peep was heard when the government put 120,000 Japanese Americans in concentration camps. Perhaps sympathy for immigrants and refugees has risen today because so many Americans are the children of those who have come since 1980, or because they know them as neighbors, coworkers, and classmates. Whatever the reason, if there is hope in our current crisis, it lies in just how many people seem to understand that, to have any chance at democratic renewal, Americans must begin by welcoming the stranger.