Blog post written by Professor Jaya Ramji-Nogales (Temple University) who will both chair and present on the ‘Mass Migrant Flows, International Obligation and Internal Resistance: Trump’s Executive Orders in Critical Perspective’ panel at the upcoming RLI 2nd Annual Conference. The full conference programme is available here.
In its first 100 days, the Trump administration has enacted dramatic political theater and rhetoric as well as harsh new policies targeting refugees and migrants in the United States. Immigration restrictionism was a – if not the – central plank of Trump’s campaign. Within a week of his inauguration, Trump promulgated three Executive Orders aimed at preventing the entry of asylum seekers from Central America and refugees from Syria. Though immigration has long been a controversial political issue in the United States, the protection of refugees has historically garnered bipartisan political support. How did we get here from there?
Part of the answer lies in political responses to perceived mass influxes of migrants seeking protection. The popular growth of anti-refugee sentiment in the United States began with the “surge” of Central American women and children seeking protection at the southwest border in 2014. Migrant flows from El Salvador, Honduras, and Guatemala had been growing steadily throughout the Americas since 2009, as children and families sought protection from increasingly unsustainable levels of gang violence in those countries. In 2014, the Obama administration began to engage in a harsh policy of deterrence, including detention of mothers and their children fleeing gang violence. Secretary of Homeland Security Jeh Johnson bluntly stated, “Our message is clear to those who try to illegally cross our borders: you will be sent back home.” Though the numbers of Central Americans at the southwest border increased relative to earlier years, the absolute numbers – fewer than 150,000 family units and unaccompanied children – represented approximately 0.04% of the U.S. population. In other words, the perceptions of masses of migrants at the southwest border loomed larger in the public imagination than in reality.
Under the Trump administration, the response was even more draconian, taking the form of two Executive orders promulgated on January 25. The first, on “border security,” seeks, among other horrors, to build a wall at the southwest border; to increase detention of asylum seekers; to return asylum seekers to Mexico for processing; and to expand the geographic and temporal scope of expedited processing of undocumented migrants, including asylum seekers. The second, on “interior public safety” authorizes increased prosecution of undocumented entrants, including asylum seekers.
The other mass influx that prompted irrational and disproportionate legal and policy responses did not even manifest at the U.S. border, but rather at the borders of Europe. In particular, the November 2015 terrorist attacks in Paris, inaccurately attributed to Syrian refugees, prompted then-candidate Trump’s proposal for a ban on Muslims entering the United States. Mike Pence, who was then governor of Indiana, led a charge that eventually included thirty-one governors of U.S. states aiming to prevent Syrian refugees from being resettled in their states. Legal battles ensued, but these were the first steps towards the infamous “Muslim ban”: the January 27 and March 6 Executive Orders (challenges to which continue to work their way through the courts). This chain of events demonstrates the nearly unstoppable force of the imaginary of mass influx: a group of migrants seeking protection at the borders of European countries, thousands of miles away, and wrongly blamed for a terrorist attack, became fodder to justify an effort to shut down the U.S. refugee resettlement process.
Where do we go from here? Shifting the public imaginary with respect to mass influxes of migrants will require creative local and transnational responses. Law will play a role, particularly in its expressive function, but today’s deeply turbulent political environment demands solutions that reach beyond law and across borders.
The views expressed in this article belong to the author and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.
There are not many decisions of US Supreme Court in the field of refugees’ protection that have made the task of appreciating the judicial line of argument tougher. But the US Supreme Court in an important case of Sale v. Haitian Centers Council, Inc., 509 US 155  ruled that the President’s executive order regarding all foreigners captured on the high seas could be deported and that executive order was not restricted by the Immigration and Nationality Act, 1952 or UNCSR’s Article-33. The US Supreme Court interpretation in the instant case has adversely affected the IRL system owing to its approbation of stopping and returning Haitians at Sea without verifying the antecedents and credentials of persons fleeing persecution contrary to the highest principle of non-refoulement embodied in IRL. But prior to Sale ruling, in the case of Immigration and Naturalization Service v. Predrag Stevic, 467 US 407  US Supreme Court evolved a test of “Clear Probability” whereupon a refugee has to prove that he would be persecuted if deported to his country of origin. However, in Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421 , US Supreme Court held that “Clear Probability” standard was too high to satisfy the asylum claims. Therefore, US Supreme Court preferred UN standard “well-founded fear of being persecuted” that can be met by the asylum applicants in case of the deportation to their home country. Therefore, it axiomatic that the idea of liberal internationalism has always been the touchstone of US refugee protection policy but the latest executive order of President Trump of banning refugees into the US amounts to shirking its international and humanitarian obligations under international law and refugee jurisprudence developed by the municipal legal system of United States barring few aberrations. But the question that still remains unanswered is; will Trump be a trump for refugees or he trumps them? Is Trump a trump?
President Trump will uphold the Constitution he swore to serve. Judicial activist courts, with liberal progressive socialist agendas all-to-eager to facilitate George Soros’ mass migration to the global north from the global south, as is underway in Europe, need to decide according to the rule of law under a nation’s sovereignty. Humanitarian and international obligations are not license to subvert national or Constitutional authority. Good day, sir.
The hyperlink for ‘interior public safety’ is no longer valid but the same resource can be found at https://templates.legal/13768-executive-order/.