Column: Rule would gut U.S. role as human rights defender

For the Valley News
Published: 7/16/2020 10:20:17 PM
Modified: 7/16/2020 10:20:08 PM

Wednesday was the end of a short 30-day comment period on a proposed rule that would essentially gut the U.S. asylum system.

The Department of Justice and Department of Homeland Security, the executive agencies that masterminded the brutal separation of migrant children from their guardians in 2018, have proposed a rule that would change our national character from that of protector of international human rights to a denier of protection for all but a very few.

Despite the Trump administration’s condemnation of “activist” judges, it has no problem with activist regulation in immigration, essentially rewriting laws without the input of Congress.

The U.S. began to see its role as a protector of the human rights of others — regardless of their country of origin — in the aftermath of World War II. During the war, refugees fleeing the Holocaust were turned away when they sought safety in U.S. ports, largely out of fear of infiltration by Nazis.

A few Nazi spies may have been turned away, but along with them were thousands of Jewish refugees. One can only assume that many of those innocent men, women and children were then murdered because of their religion. They could have survived if they had been allowed on U.S. soil. The uproar over this came after the war, and it changed minds about how we should approach such violations of human rights around the world.

The U.S. became a party to the United Nations Convention on the Protection of Refugees in 1967, and is still a signatory, as are 140 other countries. More important, Congress enacted the Refugee Act in 1980, which lays out our formal system of refugee and asylum protection, including the process for seeking asylum. “The Congress declares that it is the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands. The objectives of this Act are to provide permanent and systematic procedures for the admission to this country of refugees.”

This system is not perfect. No asylum system can be, because it is a response to the most unpredictable and imperfect human behaviors — the persecution of individuals in violation of their human right to expression of political, religious or cultural beliefs.

It is very complicated to adjudicate an asylum claim, as it requires a deep understanding of human rights violations around the globe, as well as the assessment of evidence that is likely to be circumstantial. Most persecutors do not issue written explanations for torturing dissidents. Our system was challenged most intensely during the Obama administration when thousands of Central Americans fled government-condoned gangs and clogged the system — causing long delays in processing that continue today.

Congress has never acted to change this system, which is a failure in many ways. Judges have interpreted the law, as is necessary, thus limiting and expanding the protections, largely in reaction to the evolution of persecution around the globe. For example, political dissent looked different in the Cold War than it does now. Protection must reflect the tactics used by oppressors.

Importantly, the proposed regulation would eliminate asylum protection when persecution is delivered by private actors their governments do not control.

When people cannot live in their country because it is illegal to be homosexual and private vigilantes deliver suspected offenders to the police, or when a woman cannot effectively flee domestic violence without alerting police, who believe it is a man’s right to abuse his spouse, they may have no options but to die or flee.

Our protections have reflected these needs, because they are real. Congress has never acted to change this system, but has allowed it to evolve.

The fix for a challenged system that aims to protect lives is not to weaken it further, unless you believe that there are some human rights, or some humans, not worth protecting. However, the Trump administration has been dissolving this system by elimination of our protections at the southern border, unilateral action by the attorney general, and executive orders and proclamations.

It is unclear what public policy goals are being served by doing so, other than xenophobia and racism. The proposed regulations will make it nearly impossible for people to get asylum if they come over the southern border, if they are poor, or if their persecution is on account of their resistance to gangs, terrorist groups, domestic violence or other gender-based violence.

Many refugees — similar to those fleeing the Holocaust — will suffer if these regulations are adopted. Many already have suffered as a direct result of the death of American protection of international human rights.

Kate Semple Barta, of Lyme, is an immigration attorney and director of the Lebanon-based Welcoming All Nationalities Network, a program of WISE.

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