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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.

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.

ICE Ruling and Universities’ Autonomy

photograph of Princeton University's campus

Educational groups across the country are releasing statements that denounce the ICE policy requiring international students to leave the US if their classes are fully online. These statements focus on the cruelty of it, the complexity and lack of clarity, and even the economic devastation.

Harvard and MIT are suing to block the rule claiming that it violates the Administrative Procedures Act which requires administrative agencies like ICE to offer a reasonable basis justifying the policy and give public notice to provide opportunity to comment on it.

But beyond these complaints there is another deeply pernicious aspect to this ruling. ICE’s policy represents a significant encroachment on universities’ autonomy to determine how best to educate their students. The federal government has made two false assumptions about education that no college likely accepts:

  1. Education at colleges only happens in the classroom
  2. When courses happen online, the students can be anywhere in the world and still get an education that is as effective.

Both of these are false. There is all sorts of learning that happens on a college campus outside of class time that might still happen face-to-face even when instruction takes place online. For example, professors might meet one-on-one outdoors with students and they might even prioritize meeting with international students who could face cultural or linguistic barriers. I, for instance, tend to hold extra office hours for students who might need extra assistance or guidance with respect to their coursework, and my international students are often the students who take me up on that.

Even if a student takes their classes online, there will likely be a wide-range of face-to-face activities that provide opportunity to meet an institution’s educational goals. Co-curricular activities could happen in socially-distanced settings. Students might be organized into smaller bubbles that could meet face-to-face for the purposes of study or group projects. Students might also join student clubs and organizations where genuine learning happens in safe, manageable settings.

Another part of the educational experience that ICE ignores is the value of studying in another country/cultural setting. Most liberal arts colleges boast on how big their study abroad programs are. Last year, DePauw ranked 4th among four-year baccalaureate institutions for affording its students the opportunity to study abroad. Why is this boastworthy? Because it is widely agreed that there is significant educational value in academic experiences in other environments (and that this value goes beyond what you learn in the classroom). That’s what international students come here for. A 21st-century liberal arts education basically requires that students learn about other countries and cultures, and international students see significant value in learning more about America and participating in that culture. Even without face-to-face instruction, students can still realize many of their educational goals by residing in America when they take their classes online.

The ICE decision is an affront to the autonomy and rights of educational institutions to determine what their learning goals are and what the best methods are at their disposal to deliver on their promise to help students achieve them. We should be appalled by the cruelty and harm of this ruling for international students. We should also be appalled at this assault on the freedom of institutions of higher education. ICE has no business deciding what constitutes genuine learning. That is a decision that should be left up to the institutions of learning.

No Country for Indigenous Men?

close-up photograph of Australia on globe

What does it take to be a natural citizen of a country? Does a person only have to be born within the borders; do they need only to have some sort of ancestral connection to it; or is there some other criterion that a person must satisfy? The High Court of Australia is poised to decide the answer to these questions as far as it pertains to Australian citizenship. The relevant cases both involve people who were born outside of the country to an Aboriginal parent, and who relocated to Australia as children. However as neither man ever obtained Australian citizenship, and are in the country on visas, Australian immigration authorities want to subject them to deportation. Both men have been convicted of crimes for which Australian law allows the government to revoke immigration visas. Those defending the two men, Daniel Love and Brendon Thoms, argue that it is absurd to claim that any Aboriginal person could count as an immigrant who needs a visa in the first place.

The defense of the Aboriginal men depends on the idea that they have some sort of automatic—or nearly automatic—citizenship or at least resident status. (For brevity, we’ll just use ‘citizenship’ to refer to both statuses.) Automatic citizenship is often referred to as birthright citizenship. To have birthright citizenship is to count as a citizen of a country simply by being born. But there are two ways to think of when someone has such a birthright. The first is jus soli (literally, “law of the soil”), which confers citizenship on any person born within the territorial borders of a country. This is the idea of birthright citizenship at issue in immigration debates in the United States, and which President Donald Trump infamously said that he could revoke. However given that neither Love nor Thoms were born in Australia, this can’t be the sense of birthright citizenship at issue.

The second conception of birthright citizenship is jus sanguinis (literally, “law of blood”), which confers citizenship on any person born to one or more parents who were themselves citizens. Jus sanguinis is not commonly referred to as birthright citizenship, but it is helpful and appropriate to think of it as such because it is a mechanism of conferring citizenship status to someone automatically at birth. Moreover this is the mechanism by which it is possible to claim that Love and Thoms have birthright citizenship. Both of them have one parent who is an Australian Aboriginal.

However, Australian law no longer has any birthright citizenship mechanisms. Australian law does not contain a simple jus soli provision anymore, as of the 1986 Australian Citizenship Amendment Act. Children automatically receive citizenship when born within Australian territorial borders only if born to at least one parent who themselves had Australian citizenship or resident status at the time of the child’s birth. Neither does Australian law provide for automatic citizenship by a jus sanguinis mechanism. Instead it is allowed for the parents of a child born outside of Australian borders to apply for the child’s citizenship, provided that the parents are themselves Australian citizens at the time of the child’s birth. Neither Love nor Thoms, nor their respective parents, ever applied for citizenship.

In lieu of a mechanism of birthright citizenship, Love’s and Thom’s representatives are appealing to the idea that as Aboriginal people the two men have a significant connection to the Australian land that confers on them some sort of significant legal standing. This defense invokes an alternative to birthright citizenship called jus nexi (literally, “law of linkage”), which confers citizenship on any person who has an immediate stake in the laws and operations of a country. Jus nexi does not function automatically but confers citizenship on the basis on the contingent fact of a person’s being a “stakeholder” in a country. In the case of Love and Thoms it is specifically their Aboriginal heritage that is taken to make them stakeholders. (This makes the issue a bit confusing, but in general jus nexi is not an automatic mechanism: it does not confer citizenship on the basis of being born to certain parents, or in a certain place.)

Immigration is an increasingly complex problem for governments as refugees and those seeking new opportunities move from one country to another. The social tension and financial pressure that attends such migration has drawn anti-migration reactions not only from people, but from the governments themselves. (The permanent furor over immigration in the United States attests to that.) The invention of jus nexi is one way in which theorists have tried to update the conceptions of the mechanics of citizenship in response to increased migration, and to avoid travesties like the one Australia’s government aims to perpetrate.

Patriotism Run Awry

With the 2016 presidential election looming, we’re inundated with a number of messages from both major political parties. Many of these messages invoke patriotism as a reason to support one particular party or candidate over another. Republican candidate Ted Cruz, for instance, refers to “faith, family, patriotism” as fundamentally conservative values. Lest one think that only Republicans appeal to patriotism, in a Veterans’ Day speech, Democratic candidate Bernie Sanders said: “If patriotism means anything, it means that we do not turn our backs on those who defended us, on those who were prepared to give their all.” It’s no surprise that both the DNC and the RNC have adopted the colors of the American flag for their logos and websites. After all, who would object to patriotism—love for and pride in one’s country?

I think it’s important to keep in mind that while patriotism can be a political virtue, it can also go wrong. One need not conjure up images of Nazi rallies in the 1940s or pro-Taliban demonstrations in Afghanistan to see instances of patriotism that many in our current political climate would take to be problematic. Our own political history should teach us that we ought to be cautious about patriotism given the opportunity for it to run awry. As just one of many instances, consider how claims of patriotism have been used in the US to justify discrimination against individuals with disabilities, particularly disabled immigrants. At numerous times in our nation’s history, immigration law has been used to keep out individuals that we think would ‘pollute’ or ‘dilute’ our country. Loving our country, it was thought, requires us to protect it. And protecting it requires us to keep the wrong kind of people out. The ‘Red Scare’ following World War I led to tightened controls on immigration as a way of keeping out those who had different political views.

But it’s not just suspicions of anarchism or socialism that led to restrictions on immigration. The US has a long history of using disability to the same end. The Immigration Acts of 1882 and 1924, for example, allowed for government officials to restrict the immigration of those who were either disabled or even likely to become so. In the early 20th century, immigration officials were told that “any mental abnormality whatever … justifies the statement that the alien is mentally defective” (Nielsen, 103), a judgment that could be used to prevent an individual’s immigration into the US. (Perhaps not surprisingly, such laws resulted in a higher deportation rate for individuals from Asia than from Europe.) These, and other laws, were used to exclude people from immigrating or to push them underground once they were in the country. In the late 19th and first few decades of the 20th centuries, numerous cities—from San Francisco to Chicago—enacted laws that prohibited those with disabilities or other ‘mutilated or deformed bodies’ from being in public.

The use of ‘disability’ as a way of marginalizing or discriminating against individuals in US history does not just apply to the disabled. It was also used to justify slavery in the 19th century. For instance, Samuel Cartwright, a medical doctor and proponent of scientific racism, argued that “blacks’ physical and mental defects made it impossible for them to survive without white supervision and care” (Nielsen, 57). In the 1870s, influential educational leaders argued that attempting to educate women led to their becoming disabled. And as late as the 1940s, the claim that Native Americans were particularly prone to disability was used to justify failing to extend full rights to indigenous population.

Finally, the US has a long history of using appeals to patriotism as a reason to forcibly sterilize the disabled. Supreme Court Justice Oliver Wendell Holmes’ claim that in the service of the “public welfare … three generations of imbeciles is enough” defended the constitutionality of such a practice, which is not only legal but still practiced in numerous states. The reason for such sterilization, presumably, is for the good of the American people.

So, this coming election, feel free to be patriotic. But make sure that the vision of our country that you’re supporting and working to enact is one that is worthy of your love and pride. For not all patriotism is worth it.

Quotations from Kim E. Nielsen’s A Disability History of the United States (Boston: Beacon Press, 2012). For a discussion of how eugenics influenced US perceptions of disability and contributed to immigration restrictions, see Daniel J. Kelves’ In the Name of Eugenics (Cambridge, MA: Harvard University Press: 1985).