Since assuming office, the Trump Administration has made a number of sweeping changes to immigration policy that have been met with widespread public outcry. But perhaps the most devastating — and the most shameful — of these changes occurred quietly last week, when the U.S. Supreme Court issued an order green lighting an administration rule that bars nearly every person arriving at our southern border from applying for asylum.
Nearly three years into the Trump presidency, this ruling seemed to be treated as simply the latest injustice from an administration that thrives on cruelty and chaos. In reality, by allowing the asylum ban to move forward, the Supreme Court may have brought our nation to a point of no return.
While our president and cabinet officials frequently describe asylum as a “loophole” that is frequently abused by illegal immigrants, asylum law is no loophole. It is a bedrock principle for our country. Many of our earliest settlers came to lands that became the United States to avoid persecution at home. Yet, despite this principle and deep commitment to welcoming those fleeing persecution, our current asylum laws and international conventions exist because of a dark moment in history, the Holocaust, when we lost our way and conveniently shuttered our doors to those seeking refuge.
On July 28, 1951, less than a decade after the end of World War II, the United Nations approved the Convention Relating to the Status of Refugees. Adoption of the Convention and 1967 protocol by nearly every nation on earth served as affirmation of a worldwide commitment to never again turn our backs on those fleeing persecution and return them to a country where they would face danger.
As a signatory to the 1967 Protocol, the United States has historically honored its commitment to processing the asylum claims of those who arrive on our shores with a credible fear of persecution. While not every applicant is ultimately successful, under the law every asylum-seeker is entitled to a “day in court” to request that our country — a beacon of hope — provide protection. U.S. asylum law, when it works as intended, is a shining example of our commitment to due process under law and to welcoming huddled masses yearning to breathe free.
But with Trump’s asylum ban, this promise is turned on its head.
Under the new rule, any person who fled danger in their home country is now ineligible for asylum if they passed through a third country en route to the U.S. and did not seek protection in the first country they entered, even if they would not be safe there. This flies in the face of the core tenet of the 1951 Refugee Convention to not return people to a place where they fear harm.
In practice, any person who is not a national of Mexico or Canada or did not fly directly from their country of persecution to the U.S. is now ineligible for asylum and will likely be sent home, potentially to their death, because of our failure to protect them.
To a casual observer, the asylum ban is one of many measures by the administration aimed at eroding the legal asylum system. However, as bad as these other measures are, they do not eliminate the ability of those who fear harm from seeking asylum all together.
Nonetheless, the court did not save us, and the rule has gone into effect.
As a nation, we are in an identity crisis. We must ask ourselves who we really are and want to be.
We can decide to ignore the persecuted people who flee places like Venezuela, Honduras, El Salvador and Guatemala just as we ignored the 900 Jewish refugees on the M.S. St. Louis in 1939, or we can shout out against it.
We can accept the fallacy that underlies the Trump administration’s new asylum rule that Guatemala and Mexico are “safe” alternatives, or we can question that authority.
We can choose to repeat history and believe the rhetoric that those seeking protection from persecution and death have invalid claims of fear, or we can challenge that perception.
And we can support the elimination of asylum protections for those fleeing persecution, or we can call on our leaders to be more accountable.
If we stand by and allow this to happen in our name, eventually we will feel the shame of our cowardice.
Graham Ojala-Barbour (Ojala-Barbour Law Firm) is chair, Ana Pottratz Acosta (Mitchell Hamline School of Law) is vice chair, John Medeiros (Myers Thompson Medeiros P.A.) is secretary, Mirella Ceja Orozco (Immigrant Law Center of Minnesota) is treasurer, and George Maxwell (Borene Law Firm, P.A.) is past chair of the Executive Committee, American Immigration Lawyers Association (AILA), Minnesota/Dakotas Chapter.