On March 23, the US government began temporarily barring “nonessential” travel to the United States from Mexico and Canada, which raises the question of what makes one traveler’s need to move essential and another’s not?
In making the announcement, Acting Department of Homeland Security (DHS) Secretary Chad Wolf said that essential travel included travel for medical purposes, education, and trade: “We want to make sure cargo continues, trade continues, health care workers continue to traverse that border.” While allowing cargo and certain travelers, anyone crossing the border irregularly, including those who might be seeking asylum, is being “expeditiously expelled” without processing.
Neither Acting Secretary Wolf nor a related DHS fact sheet said anything about refugees, people fleeing threats to their lives, or those fearing torture or persecution, but only about summarily returning “illegal individuals,” people who cross the border without documents. DHS said it “will immediately return these aliens to the country they entered from … or … to their country of origin.”
But consider what it means to be a refugee. I met a 39-year-old woman from El Salvador in Mexico in 2015. A month before we talked, she said, she found her 11-year-old son injured, beaten, and asked him what happened. He told her he saw five gang members trying to rape his 15-year-old sister and tried to fight them with a stick. After beating him they told him he would have to sell drugs for them and that if he refused, they would kill him.
She took him to the police station to report what the gang members had done. “The police just told him to keep out of trouble,” she told me. “They told him, ‘You should have let them rape your sister.’” She took her children and fled the country. Upon arrival in Mexico, they were robbed and put in a migrant detention center in conditions she said were “awful,” where members of the same Salvadoran gang she had fled threatened her and her children again.
DHS’s sweeping order potentially impacts people such as this woman, who did not have the luxury — or frankly, the possibility — of procuring proper travel documents. If she had not fled immediately, her son might be dead and her daughter sexually assaulted and under the physical control of a gang.
Is the need of travel to seek protection any less essential than that of a student seeking educational opportunity or of a business looking for profit? With her family members’ lives on the line, this woman’s travel actually is of the highest priority — and international law makes that clear.
The DHS decision to turn away asylum seekers violates the cornerstone of the refugee protection regime that has been in place since World War II and to which the United States has formally bound itself by international treaty and domestic law — not to return anyone to a place where their life or freedom would be threatened, and the necessary corollary to that, a fair determination of their claim to see if they qualify for international protection.
In times of emergency, some rights can be suspended temporarily, if strictly necessary for public health. But as serious as the COVID-19 pandemic is, President Trump’s own words suggest that his administration is using containment of the virus as a pretext for his longstanding anti-immigrant and anti-refugee agenda. “Every week, border agents encounter thousands of unscreened, unvetted and unauthorized entries from dozens of countries, and we’ve had this problem for decades,” Trump said. “Now it’s a national emergency and …we can actually do something about it.”
But even in an emergency, binding treaty law forbids the United States from suspending certain rights at all, such as the right to life and the right not to be tortured or subjected to inhuman and degrading treatment, or to be forcibly returned to face such threats.
Certainly, not everyone crossing the southern border will qualify for asylum, and the US government, like all governments, is entitled to reject those who don’t have valid claims. But it can’t just ignore those claims. It must examine them, fully and fairly. Of course, this presents a risk to those on the front lines of immigration enforcement and asylum processing, but it is a risk that relevant institutions can and should manage. Why? Because it is essential.
