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Restorative Duties to Asylum Seekers

image of immigrants in silhoutte

In a previous article on the Post, Evan Arnett considers whether the U.S. might be morally obligated to admit more asylum seekers. This follows recent Biden administration policies which place greater restrictions on who can be granted asylum. Ultimately, Arnett concludes that the human rights of asylum seekers deserve priority in our decision making, so our policies cannot merely rely on cost-benefit analysis.

Arnett’s argument raises an important consideration which public discussions often overlook. Morally speaking, we may often owe someone aid even if providing this aid ultimately comes at some cost to ourselves. Doing the right thing may often require a sacrifice.

When considering the morality of our immigration policies, however, we should probe even deeper. We ought to consider the human rights of asylum seekers, yes. But we should also consider the historical context of how their plight arose. This investigation may dramatically shift our answers to both who owes aid and how much aid is owed.

Consider this example. A friend and I, driving separate cars, come across a stranded driver on the roadside. Unfortunately, she blew out a tire and lacks a spare. Further, there is no cell phone service, so we cannot call a tow truck. Fortunately, my friend and I are able to tow her vehicle. Who should help the stranded driver? One of us should but it is unclear who. Perhaps we should flip a coin.

But let’s change some details. Suppose that I was hauling several pieces of furniture down this road yesterday. One fell out during my trip, but I only realized this after reaching my destination. The stranded driver mentions that her tire blew out when she hit a piece of furniture she could not avoid. Presumably, it was the piece that fell from my car.

It seems like the history of this situation changes who should help the driver. Since I caused her problem, I should be the one to help her, or at least make a bigger sacrifice than my friend in helping her.

It is a basic principle of justice that when someone creates a problem, one has a greater duty to resolve it. If one cannot resolve the problem themselves, they ought to contribute more than others who did not play the same causal role. This principle often emerges in the context of climate justice debates under the name the “polluter pays principle.” For our purposes, let us call it the “restoration principle” – the idea that when your actions play a contributory role to harming someone, you have an obligation to aid them even if this comes at some cost.

Why does the restoration principle matter to immigration and asylum seeking? To demonstrate this, we must first consider the nations from which those seeking asylum in the U.S. flee. According to the U.S. Department of Homeland Security, of the five most common points of origin for refugees who entered the U.S. between 2020 and 2022, 24.2% arrived from the Congo, 17.8% from Burma, 16.3% from Ukraine and 5.1% from Afghanistan. But an important distinction is necessary here. A refugee is someone who has been legally approved for entry, while an asylum seeker is still seeking approval. When we consider asylum seekers, a different pattern emerges. The five most common points of origin from 2020-2022 were as follows: 24.2% from Venezuela, 9% from Guatemala, 6.5% from Honduras, 5.8% from El Salvador and 5.4% from Haiti. The difference is striking. Of the five most common points of origin for asylum seekers, only El Salvador and Guatemala are in the top ten for most common points of origin for refugees. Thus, although asylum seekers from these nations are most common, they are rarely admitted.

Do we have moral reason to change these policies? As the stranded driver example suggests, the history of one’s relationship to the harmed individual shapes one’s duty to aid. We should thus consider the (at least recent) history between the U.S. and nations from which asylum seekers most frequently originate.

I can’t recount the history of the U.S.’s relationships with all five of these nations in a single article. Instead, let us investigate a bit about recent history between the U.S. and Venezuela – currently the most common origin point of asylum seekers arriving. (I do, however, strongly encourage you to look further into the U.S.’s foreign policy towards Guatemala, Honduras, El Salvador and Haiti.)

Following the death of long-time leader Hugo Chávez, Nicholas Maduro was narrowly elected president of Venezuela in 2013. But in 2014 Venezuela rapidly fell into an economic crisis. Chávez maintained popularity during his presidency through numerous social welfare programs funded by the nation’s publicly owned massive oil reserves. But when the price of oil plummeted in 2014, the Venezuelan government’s refusal to reduce their budget deficit led to hyperinflation – inflation has at least doubled every year since 2014. In 2015, Maduro was granted the power to rule via decree, purportedly to enable him to take swift measures to address the economy. Maduro has held this power ever since. In 2017, Maduro called for an election to determine who would serve as members of the constituent assembly tasked with rewriting the Venezuelan constitution. But at least one company involved in administering the election claims the results were falsified. Since then, Maduro has solidified his base of power within the government and maintained tight control over Venezuela.

Today, the Venezuelan people live in crisis. According to Human Rights Watch, as of 2023, over 72% of the population are unable to access public health services, and 65% have lost their means of livelihood. Leaders of opposition groups are often declared ineligible to run for office, and the Supreme Court has appointed those amenable to Maduro as leaders of formally-recognized opposition parties. Further, political opponents are routinely jailed, and pro-government groups have been accused of torturing, and even executing, dissidents. Additionally, Maduro’s government has begun to encroach territory controlled by neighboring Guyana, sparking fears of armed conflict.

In an effort to oust Maduro, the U.S. government began to exercise significant economic pressure under the Trump administration, implementing a set of economic sanctions against the Venezuelan government and those who do business with it. Although the Biden administration lifted some sanctions in hopes of encouraging free elections, they reimposed sanctions on the state mining company in January and the state oil company in April. These sanctions, however, may have exacerbated the present crisis. Although the sanctions included humanitarian exceptions, the damage done to the Venezuelan economy likely made it more difficult for the most vulnerable citizens to meet their basic needs. Michelle Bachelet, the UN Human Rights Chief, spoke out against the sanctions, claiming that they worsened the human rights situation in Venezuela. Historian Marc Becker argues that the sanctions imposed by the Trump administration were intentionally designed to create desperation in the populace, in order to spark revolution. So, there’s a plausible case to be made that U.S. actions harmed the citizens of Venezuela by contributing to the situation from which many are fleeing. While these policies did not create their plight, they very well may have worsened it.

Of course, my claim here is not that these sanctions were unjustified or inappropriate. One might think that the sanctions were, in fact, justified but nonetheless failed to achieve their goal and, as a result, produced worse outcomes. To use an old adage, the road to hell is paved with good intentions.

So, what does this relationship between Venezuela and the U.S. imply for asylum seekers? As argued earlier, the restoration principle holds that when your actions contribute to harm that another is experiencing, you have a greater duty to aid them. Given the restoration principle, and the contributions U.S. policy has made to the plight of Venezuelan citizens, we have powerful reason to believe that current U.S. policy regarding asylum seekers falls short of the standard we ought to meet. According to the DHS data cited earlier, over 80 thousand Venezuelans sought asylum in the U.S. in 2022 alone; fewer than 500 were admitted. The principle of restoration implies that we should be doing far more to aid those fleeing Venezuela than we currently are, even if doing so comes at some sacrifice to us.

Yet this argument need not imply that every asylum seeker must be admitted. Indeed, there are many practical factors to consider – what resources we have available, how these asylum seekers can be best integrated into their local communities, and how they can be enabled to flourish in the U.S. – that may determine how many seekers can be admitted. Regardless, the moral calculus ought not be limited to just these facts. We should also aim to fulfill the duties of restoration that we have towards asylum seekers, given the historical role of American policy in contributing to their plight. What we owe to others depends, in part, on how our choices have affected them in the past.

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Biden’s New Border Policy and the Rights of Asylum Seekers

photograph of large group crossing field

Illegal immigration is shaping up to be a major issue in the 2024 election. 48% of people say they care about it a “great deal” according to a recent Gallup poll. It is, however, far from clear how to address the issue or to even identify what the issue specifically is. A planned bipartisan immigration deal was scuttled earlier this year when Republicans withdrew support following Trump’s attack on the proposed legislation. If successful, it would have been the first major congressional action on immigration since Ronald Reagan was in the White House. Following this failure, and with immigration still forefront in the minds of many American voters, on Wednesday, June 5th, President Biden implemented a controversial executive order, which placed restrictions on the asylum process.

Asylum seekers make up only a fraction of total immigrants, but there are currently over a million asylum applicants on the U.S. waitlist – a few 10,000 are approved every year. These asylum seekers request refuge in the United States to avoid (potential) persecution on the basis of things like race, religion, or political affiliation. Because of these additional considerations, the asylum process raises a unique set of ethical questions. While immigration, generally, is discussed in consequentialist terms — comparing the harms and benefits of different immigration policies — asylum suggests a fixed, uncompromising duty to rescue those in need.

Where might this obligation come from? One line of arguments involves human rights or internationally guaranteed rights. If we accept that humans, either by their nature or by their membership in a global community, are owed certain protections and powers unjustly denied them in their country, then other nations may be on the hook for ensuring their delivery. Just as we typically believe that a passerby has an obligation to assist an injured stranger, we might similarly assert that well-positioned nations are similarly obligated. Countries owe refuge to those that arrive at their doorstep fleeing persecution.

But which country is responsible for making up this deficit? Skeptics are quick to point out that just because someone is owed these goods somewhere, does not mean they are owed asylum in whichever country they choose. And indeed, the United States has increasingly refused entry to asylum seekers who have traveled through a safe country to get there. But surely it cannot be that every state is permitted to pass the buck, or else asylum seekers might forever be denied what they are owed. Is there a way to resolve this tension?

Like the Trump administration before it, the Biden administration has been placing restrictions on just who can apply for asylum, due to both spiking asylum claims amid political violence in Central America as well as fears of immigrants abusing the asylum system. June 5th’s executive order allows for the suspension of asylum claims at border regions outside of ports of entry as long as the threshold number (2,500 of average immigration stops per day) is reached. As average daily immigration stops are almost always above this number, the executive order nearly functions as a de facto ban on asylum claims outside of ports of entry. (A port of entry is a designated lawful entry point into the country staffed by customs and border patrol personnel, such as an airport.) This dovetails with other Biden administration policies to mitigate asylum seeking and to steer immigrants towards lawful ports of entry.

But as ethicists we should ask: does this shift in policy interfere with the rights of asylum seekers? A possible reply is that, like any good Samaritan, the United States should not be expected to help if there is an extensive risk to itself. However, evidence indicates that at least the long-term economic impact of refugees and asylum seekers is positive. This does not deny the possibility of other kinds of harms or more local economic harms, but especially given the small number of asylum seekers compared to the population of the United States, contending they pose an extensive risk is dubious.

Another thought is that asylum seekers should simply enter at a port of entry instead of illegally across the border to ensure the protection of their rights. The adequacy of this response will depend on the effective function of legal ports of entry. Additionally, almost by definition, asylum seekers will have some of the least control over the circumstances of their entry and their ability to navigate the U.S. immigration system. If we are serious about granting asylum to those fleeing persecution, then there needs to be a relatively low barrier to enter the system to ensure it does not miss people with the greatest need. To be clear though, exploitation of the system need not follow from this fact. An effective well-staffed asylum system could quickly and rigorously make determinations about asylum status even if applying for asylum is made easier.

The alternative is difficult to stomach; stripping the opportunity of asylum for someone who had to flee their country is a devastating punishment. Is the erosion of asylum seekers’ rights an acceptable byproduct of an illegal immigration crackdown? If we accept the rights of asylum seekers as something foundational – something crucial to protect as long as it does not seriously burden the host country – then they likely need to be prioritized and protected as opposed to lost among general cost-benefit analysis of immigration or the vicissitudes of electoral politics.

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Racism, Refugees, and the Ripple Effect

photograph of barbed wire fence with camp in the distance

Trump has been embroiled in discussions about walking back or defending his latest racist behavior this past week. After saying that four congresswomen should “go back” to their countries of origin and presiding over chants of “send her back!” at a campaign rally, he tweeted Sunday that the congresswomen were “not capable of loving our Country.” 

As part of his “go back” rhetoric, Trump articulated his view that if the congresswomen didn’t like living in the US, they should leave and attempt to improve conditions in their supposedly broken countries. (Multiple late-night hosts noted the irony involved in Trump’s statements, as the congresswomen’s country is the US, which at the moment can feel broken and in need of fixing, and which, as members of congress, seems to be what these women are attempting to do.)

At the same time as he encouraged some Americans to leave, Trump rolled out new policy making it more difficult for others to leave their own dangerous countries. His administration has implemented a policy that requires refugees who have traveled through another country to have applied for asylum in that country as well. The ACLU quickly announced their intention to challenge the policy in court, and the administration instructed the southern border agents to implement it as quickly as possible before it may be blocked.

The so-called third-country asylum rule is incredibly restrictive, especially against asylum seekers at the US’s southern border. Such restrictive policies towards people seeking safety brings obvious ethical questions to the fore. There is, perhaps, a tension between a purported sovereign right to autonomy for nations to determine who will reside or travel within their borders and the rights of humans to be free from violence and persecution. These human rights can be seen to ground the right to freedom of movement between nation-states. Though international law recognizes that immigration and citizenship policies are, and should be, left up to each state, the UN has exceptions for refugees, whose basic human rights are in dire need of protection and overrule states’ right to make such policies.

Importantly, the freedom to make immigration and citizenship policies does not mean that all such policies are created equal, from a moral point of view. From a moral perspective, immigration policies that are transparent and ensure migrants have access to basic human goods are preferable to an opaque and unpredictable set of policies that makes navigating the systems that provide basic goods difficult, though both are legally acceptable.

But, beyond the legal space to determine immigration and citizenship policies is the commitment to accept refugees. This commitment is based in the idea that humans should not be condemned to suffer, when there is a place they could live without being persecuted. Many nations, including the US, have agreed to policies that commit them to accepting asylum-seekers: countries cannot force migrants who have entered their territory to return to places where their safety is under threat. This is the “non-refoulement” principle from the United Nations 1951 Convention of Refugees, and even countries that are not participants in the convention have endorsed the spirit of the principle.

Trump’s policy builds off of a crucial exception to this principle, which concerns migrants who have come through a country considered to be “safe.” Countries are deemed “safe” according to the Immigration and Nationality Act, which governs asylum law, pursuant to a bilateral or multilateral agreement. Currently the US only has such an agreement with Canada. Trump attempted to sign such an accord with Guatemala, but the president cancelled the trip to sign the third country agreement in order to see what Guatemalan courts ruled regarding the treaty.

In the US, asylum rates have been declining over the past six years, and this trend is on track to continue. Six years ago the denial rate was just 42.0 percent, but last fiscal year saw 70 percent of applications denied. In 2018, a particularly high spike in denials was the result of a policy shift made by Attorney General Jeff Sessions. Sessions banned asylum requests on the basis of domestic violence and gang violence, though this ban was later struck down in the courts. The new third-country policy would “effectively end” asylum on the southern border.

The decline in granting asylum and other relief to refugees does not just affect the groups at our border, however. This trend in US policy has been reflected in the policies of other large and wealthy nations. For instance, the EU currently attempts to prevent asylum-seekers from reaching their shores – supporting border agents in countries like Libya that catch migrants attempting to cross the Mediterranean Sea and detain them in Africa in deplorable conditions in detention centers.

This is leading to worldwide declines in aid to those seeking relief: “It’s called a ripple effect,” says Jeff Crisp, a research associate at the Refugee Studies Centre at Oxford University. “When the largest and wealthiest nations get away with breaking international human-rights laws, then other countries wonder, why can’t we?”

India, a country with a long history of hosting asylum-seekers, currently has 40,000 refugees from Myanmar, and now is treating them as illegal migrants. It has begun sending Rohingya refugees back to Myanmar, the site of a 2017 genocide sponsored by the current government.

Similarly, Trinidad and Tobago sent 80 Venezuelans back to their devastated homeland last year, while Peru returned 40 Venezuelans for “allegedly being part of criminal gangs or for not having legal papers.”

Refugee policies are just one part of a racist and exclusionary nationalist landscape. The rhetoric that the US has engaged in bolsters other countries with similar constituencies. Hungary has explicitly praised the US’ nationalist tendencies and cited the “America First” anti-immigration policies as providing them with the support they need to enact similar attitudes within their own country. (Hungary closed its borders during the height of the Syrian refugee crisis and has rejected humanitarian pleas to take part in the effort.)

The import of human rights is being subjugated in national dialectic to the sovereign rights of a nation-state that endorses a racist identity. That isn’t the priority of international law or humane moral systems.

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Crisis in Sweden: A Struggle with Mass Migration

Photograph of buildings in Stockholm, Sweden

In 2015, the year of the Syrian refugee crisis, Sweden accepted over 160,000 refugees, more refugees per capita than any other European nation. The sparsely-populated country prides itself on its generosity towards newcomers, and Sweden’s foreign minister even declared the country to be a “humanitarian superpower.” Years later, Sweden continues to be one of two European nations (the other being Germany) to have opened its borders to such a drastic extent, having accepted approximately three out of every four asylum seekers in 2015. Continue reading “Crisis in Sweden: A Struggle with Mass Migration”

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Some Normative Perspectives on Borders and Asylum Seekers

In recent weeks, President Trump’s administration has shocked both Americans and the international community by separating families of migrants and asylum seekers at the southern border. Two-thirds of Americans objected to these practices, many noting the likeness of forced separations and internment camps to the Third Reich. On June 20th, Trump reversed the policy with an executive order. The administration was subsequently mandated by federal judge Dana Sabraw to reunite families it separated within 30 days. However, reunification efforts will be a complex process.

The detainment and separation of young children from their families struck a chord. Many people recognized egregious moral violations in this practice. Among the protests and national outcry, a movement to abolish ICE has gained traction with support from such public figures as Samantha Bee and recent Senate candidate Chelsea Manning. Manning’s platform went so far as to propose an open border policy. While her Senate bid failed, Manning’s proposal is not so radical as it may appear. Philosophers like Michael Sandel are leading public debates on open borders.

The most common justification for selective borders come from political realism and arguments for state sovereignty. As political realism is less concerned with ethics than political theory, I will focus on other more recent normative — or how one should act — justifications for national borders (and the national interests they presumably protect).

The first normative perspective is communitarianism. Communitarian philosophy arose in critique of liberalism’s abstract individualism. Communitarians emphasize the role of particular societies in which individuals live. They argue, with some plausibility, the Hegelian insight that communities accord individuals meaning, identity, relationships and spheres of action. This philosophical perspective has a political cousin in local patriotism, grassroots movements, community organizing, and can also provide justifications for multicultural theory and policy. Collectivities, including nations, can shape and guarantee spheres of freedom for its inhabitants.

At the same time, there exist debased versions of communitarian discourses which communitarian philosophers would not endorse. The most notorious example of such was the Nazi ”Volksgemeinschaft” or ideal of a unified German national community united by race. Part of Trump’s base appears to have adopted a Nazi-lite version of Völkisch theory, articulated by alt-right spokesperson Richard Spencer’s ”white nationalism”. Trump’s well-documented racialization and criminalization of “illegal aliens” resonated strongly Spencer’s white nationalist following.

Charles Mills argued that, in fact, much of modern Western political philosophy is built on a contract for the creation and maintenance of whiteness. He identified in writers such as Kant evidence of a “racial contract”, designed to shape notions of citizenship and statehood exclusively for white access and in defense of white interests, while constructing the domain of the non-white (slaves, First Nations, and other colonized groups). Here in particular we can note the shaky foundations of colonial states’ claims to border sovereignty.

A second explicitly ethical tradition that can be used in defense of selective borders is utilitarianism: promoting the greatest happiness for the greatest number. A utilitarian could argue that a privileged nation should welcome as many refugees or asylum seekers as could be sustained with the quality of life maintained by the privileged state. Or, alternatively, a utilitarian could argue that the previous suffering or risk of the refugee is so extreme as to be necessarily improved by taking up residence in the new country. In either case, there would generally be an upper limit for the amount of happiness that the utilitarian is able to distribute in a welfare state.

An illustration of the challenge of limited resources appears in the ”Lifeboat Ethics” of ecologist Garrett Hardin. Hardin provides a simplified but cogent model of resource-conscious moral reasoning. Picture a lifeboat with capacity for sixty persons. A nautical disaster has occurred, leaving fifty people on board. One hundred more hapless souls struggle nearby to stay afloat on the ocean’s surface. Should (some of) these hapless souls be taken aboard? If so, why and under what conditions? How do we decide? Do the ones in the boat have a prior claim to the ones outside of the boat? Hardin’s example is illustrates a particular “hard choice” version of ethics in a world that is becoming an ecological catastrophe– not everyone can be saved. This approach was questioned in a later work by Diane Brzozowski (2003) which illustrated with real case studies that, on some occasions at least, it is possible to save many or all concerned.

Thus far, these defenses might arguably be used to limit immigration to some extent. But are they sufficient to limit havens for refugees and asylum seekers? What about when “Lifeboat Ethics” becomes more than a metaphor, and people’s lives or fundamental freedoms are at stake?

From some major ethical traditions, turning away people who face harm or risk in their home countries are never defensible. In the wake of World War II, the principle of non-refoulement (international law against the repatriation of refugees and asylum seekers) was established (though not strictly observed by Western states). Non-refoulement derives from the UN Declaration on human rights, enjoining state parties to commit to the dignity of individual lives and fundamental freedoms. ”Human rights’ discourses are examples of pure deontological ethics, i.e. universalizable laws that cannot be chipped away by expedience. Another example of an entitlements theory (though one more based in measurement of human welfare rather than in a legal notion of “right”) is the capabilities approach. Initially formulated by Amartya Sen, the capabilities approach was adapted by Martha Nussbaum specifically in response to limitations of Rawlsian liberal theory which limited states’ responsibilities within their own borders.

Other ethical perspectives which mandate taking responsibility for refugees and asylum seekers are humanitarian grounds. These include the cosmopolitan approach, named from an early Stoic conception of human beings as ”citizens of the world” rather than of individual states. Arguably, thinkers like Peter Singer (who discounts geopolitical difference as a ethically relevant factor in deciding whom to help) represent contemporary cosmopolitan ethics. Cosmopolitanism dictates that our obligations to others in need are not restricted to narrow local circles of concern. Another ethical tradition that is likely to include needy others outside one’s borders is “care ethics”. Carol Gilligan, the founder of care ethics, observed that that women exhibit a unique approach to responsibilities for others and selves in a relational model, an alternative to both deontological and consequentialist ethics narrowly conceived.

One of the most parsimonious ethical theories lies in one simple principle: the harm limitation. While best known under John Stuart Mill’s articulation that one’s range of freedoms is limited by ensuring a like freedoms for others, it also appears in thinkers such as Pufendorf. A more stringent version of the harm principle is seen in the “negative duty” argument taken up by some ethical philosophers. We have an obligation not to harm others by our actions or our negligence. Thus, for example, Thomas Pogge would argue that we have a negative duty to not cause global poverty by our participation in an unjust international economic order. Taken in this broad perspective, there can be many circumstances in which Western countries are directly or indirectly responsible for the harms that refugees and asylum seekers face, as Matthew Gibney points out in his book, “The Ethics and Politics of Asylum” (Cambridge 2004). Thus, if a country has an outsized portion of responsibility for global warming by causing the most carbon emissions, they are responsible for the consequences that are borne by more geographically vulnerable states and the consequent surge of refugees. Similarly, if one nation covertly installed a dictator or encouraged armed conflict, there is a direct causal relationship of harm in those who seek refuge from conflict or persecution. Gibney also argues that partial responsibility can occur (Pogge’s example of participating in an unjust economic order that creates victims and winners could be one example).

But let us imagine us a case in which the privileged destination state is assumed to be wholly uninvolved in the miseries faced by the refugee or asylum seeker. Are they responsible for the ensuing harm if they dismiss the harassed individual or family at the border? By definition, a refugee and an asylum seeker have little options. It appears that President Trump’s administration’s confessed policy of family separation as deterrence is explicitly intended harm: deter asylum seekers by making their arrival in the US as horrific as the situation they left behind. In this case, they are obviously introducing more harm into the lives of these individuals and families seeking refuge, and have justly raised international outcry. But what are genuinely ethical ways to respond to refugees and asylum seekers, supposing there to be a limited lifeboat? Is it time to abandon both the narrowly nationalist and lifeboat perspectives to realize that we are all in this together?

This question will only become more serious as Western states contend with the rapidly changing global climate and the effects of the international economic order, with all the political and ecological ramifications of a vastly unequal neoliberal globalism. It’s clear that we need forward-thinking, ethical leadership. Instead of turning the clock back to 1939, we need to confront the challenges of the 21st century critically and openly.