Rethinking Asylum under Biden and Beyond

The change in administration slated to take place in January 2021 will bring much-needed relief to beleaguered immigrants inside the United States, potentially ending policies designed to target communities of color and limit legal immigration to the United States. The incoming administration of Joe Biden has promised to end heinous policies such as family separation at the border, but serious questions remain as to how his administration will address deeper questions related to immigration, humanitarian relief, and policies at the southern border. Perhaps no bigger question looms, not only for the Biden administration but the majority of first-world countries, than the issue of asylum and refugee resettlement.

The number of people internally displaced by disasters, conflict, or violence reached an all-time high of 50.8 million at the end of 2019. This harsh reality has been coupled with estimates that global inequality is rising for more than 70% of the global population. These factors have ushered in a global order where people and families face harsh restrictions or even internment in their quest for asylum, safety, or a better life.

The dismal situation faced by migrants and asylum seekers is not unique to the southern border of the United States. Over the last decade, the Mediterranean has become a graveyard for migrants seeking to enter Europe, fleeing conflicts in the Middle East and Northern Africa, yet even the EU has seemingly failed to find lasting and humanitarian solutions to these challenges.

The challenges related to the migration of those seeking a better life are even more dire with the looming catastrophe of climate change, with an estimated 143 million people predicted to be displaced by 2050. As a result, simply restoring Obama-era asylum policies and practices will not be enough to deal with this global challenge. Instead, advocates and policymakers should radically reimagine the concepts of asylum, refugees, and international migration.

Rethinking Asylum

Much of modern asylum law is rooted in the 1951 Refugee Convention. Article 1 of the Convention, as amended by the 1967 Protocol, defines a refugee as:

“A person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it…”

The foundation of modern asylum law requires the individual seeking protection to fall within a qualifying ground or category. The person must demonstrate that they have faced persecution on account of “race, religion, nationality, membership of a particular social group or political opinion” and establish a direct nexus between one of these grounds and the persecution they faced.

During World War II, this definition allowed for a clear path to classify persecuted groups as refugees, for example, the Jewish population, and move to immediately grant them relief. However, the complex challenges the modern world poses have complicated what was meant to be. The system has not sufficiently evolved to meet the modern-day realities persecuted individuals face.  Instead, the current framework serves to exclude specific types of migrants.

While there have been efforts over the last decade to expand the definition of who falls into a “particular social group”, for example to specifically include  LGBTQI individuals or those who have experienced gender violence, these efforts have often been met with legal and political pushback. In fact, the Trump administration and other world governments have actually used this definition to limit relief for those fleeing violence and poverty.

So, who is left out under this classical definition? The groups that Trump and others argue are excluded include:

• Individuals fleeing natural disasters

• Individuals displaced by climate change

• Individuals fleeing armed conflicts, civil wars, or gang warfare

• Individuals fleeing poverty

• Individuals fleeing the spread of a contagious disease or public health disaster.

The exclusion of such broad categories of individuals from obtaining refugee or asylee status appears woefully inadequate for the challenges that lie ahead, both in the United States and globally. So, what are some ways of rethinking this approach?

Redefining Relief 

There are alternative approaches to the issue of asylum and several inspiring models to consider. Starting with the definition of a refugee, the Organization of African Unity (OAU) adopted a unique approach in the Convention Governing the Specific Aspects of Refugee Problems in Africa in 1969.

The convention defined refugees as: “Any person compelled to leave his/her country owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality.”

This simple yet broad definition does not provide complex legal loopholes that qualify certain forms of persecution or suffering while dismissing others and allows for humanitarian relief to be granted to individuals fleeing a host of issues that may arise in a given country. This approach may prove critical in providing relief for individuals fleeing climate change, civil unrest, a foreign invasion, or other catastrophic events.

Other models can be found in the present and in history. The challenge posed by migration is rooted in issues of equity, cooperation, and justice. Under the current form of globalization, borders have been effectively abolished for capital and corporations, allowing them to effectively move money and products throughout the globe with ease, yet individuals and families remain caught in red tape or locked away in internment camps awaiting processing. Just as common markets have allowed for free travel between various countries, similar rules and regulations could be developed in order to deal with humanitarian challenges.

Border abolition is now being debated as a radical tool to solve these pressing challenges. It is important to remember that borders and travel restrictions are relatively new in both practice and application. For most of human history, migration was a natural way of life. Just as the United States was built on an influx of refugees and migrants, policies that allow for freedom of movement can, in many ways, solve global inequalities and allow countries to thrive in the long run.

Lastly, we cannot address the challenge of global migration without a discussion about global inequality and how developed countries can invest in and alleviate poverty throughout the global south, particularly in countries that have a colonial legacy and have been exploited for their material and social wealth. This should also include serious attempts to ensure that multinational corporations pay their fair share of taxes and are part of a solution to build a more equitable world.

The challenges we face as a civilized society should not be limited to the term of one presidential candidate but should be seen as collective problems all humanity faces. In order to meet these challenges, we must be ready to scrutinize all of our assumptions about the current state of affairs and be ready to radically reimagine what a just and fair future society looks like.