Refuge Seeking in North America

By Jakob Kelly, Oxana Pilenko, and Chitta Chowdhury

Historical/geographical context 

In light of its existence as the product of colonial enterprise, the United States has historically created the conditions for mass displacement of people. Chattel slavery, militarized expansion, and neoliberal economic development all relied on the forceful displacement of people across continents. The official establishment of the U.S.-Mexico border had implications of population displacement in itself, as the 1848 Treaty of Guadalupe Hidalgo had transferred 55% of Mexico’s territory to the US and with it carried the expulsion of many Indigenous tribes from the newly acquired American territory. Today, the area surrounding the US-Mexico borderlands is a site of the cultural and linguistic blend, where cities such as Juárez in Mexico and El Paso in the US, or Nogales in Arizona and Nogales in Sonora had been split by a militarized border wall. Not only is the militarization of the border disruptive to the lives of Indigenous populations whose traditional territories have been divided as well as the people living the cities divided by the border, but it also creates a precedent to perceiving any act of border crossing as a threat to U.S. national security. Even in the direst situations complicates the situation of refuge seekers arriving at North American borders as they are subjected to increased scrutiny upon entry into the country.

Before immigrants, U.S. forces policed the border for escaped slaves trying to get across to Mexico. Following the Mexican Revolution of 1910, the armed force known as the Texas Rangers was established to that monitored border for an invasion of ‘violent revolutionaries’. This initiative created a precedent for the official establishment of the Border Patrol in 1924. Its first operations targeted Asian “illegal” immigrants, starting with the Chinese Exclusion Act of 1882 and the Immigration Act of 1917. However, in the early 20th century, crossing the US border without authorization was not considered a crime. Though authorities could still deport immigrants who hadn’t gone through an official entry point, they couldn’t be detained and prosecuted for a federal crime. That all changed in 1929 when the U.S. passed a bill to restrict a group of immigrants it hadn’t really focused on before: people who crossed the U.S.-Mexican border (How Border-Crossing Became a Crime in the United States). The Border Patrol agents largely handled unauthorized entry as a civil rather than criminal offence throughout the 20th century; however, over the last few decades, federal immigration laws have turned to “zero-tolerance” measures which made “immigration offences into punishable crimes as well as expanded immigration consequences for criminal convictions” (Macias-Rojas 4-5).

The U.S. has one of the most selective processes for immigration, including extensive background checks, medical assessment, etc. The period of the Cold War brought about modern waves of refugees, with peak numbers observed from Vietnam and Cambodia in the 1970s. The U.S. Refugee Act, which raised overall refugee quotas and provided a provision to deal with special humanitarian concerns in response, led to more than 200,000 immigrants (largely from Southeast Asia) being given refugee status the year it was signed into law. This trend in migration continued into the modern-day as, since 1980, 55% of refugees have come from Asia, a far higher share than from Europe (28%), Africa (13%) or Latin America (4%) (Key facts about refugees to the US). The 1990s saw a higher number of refugees from Europe, driven by those fleeing political turmoil in the former Soviet Union and the genocide in Kosovo. 

The history of U.S. interventionism in the affairs of Latin American countries, particularly in the context of the Cold War, has created the conditions for masses of people fleeing the extreme levels of violence in their communities to seek refuge at the American border. US-led destabilization of Central America is marked by calamity caused by the overthrow of the elected Guatemalan government of President Jacobo Arbenz in a CIA engineered coup which laid the foundation for decades of government instability and eventually a civil war that would claim more than 200,000 lives by the 1980s. Murder, kidnappings, threats, recruitment by non-state armed actors, extortion, sexual violence, and forced disappearance – these are the realities of war and conflicts also faced by people in many regions of Central America. Economic exploitation of tax loopholes and cheap labour caused wage gap, security disparity, and uncontrollable violence in many Latin American countries. (What Would an Open-Borders World Actually Look Like?) The stranglehold on the local populations in Latin American countries is particularly intensified with the neoliberal policies projected by the U.S.-installed dictatorship, such as the extensive freedoms granted for transnational corporations to recruit massive numbers of nearly starvation-wage workers as well as the US illicit-drug demand constant over the years. Finally, a militarized border makes trafficking and smuggling initiated by paramilitary cartels and the corrupt state agencies they work with, which promotes further violence in the regions – particularly near the border – and pushes families to flee in pursuit of safety.

Despite having one of the most politicized asylum systems in the Western world, the U.S. still uses the spectre of refugeedom to justify further militarization of its borders through the expansion of privatized detention facilities (The Violent History of the U.S.-Mexico Border). These migrant prisons are overseen by U.S. Immigration and Customs Enforcement (ICE) and operated by for-profit corrections corporation such as CoreCivic. While migrant detention centres are not a recent innovation with regards to the U.S. treatment of migrants, these facilities deploy predatory schemes upon Latin American asylum seekers as they are motivated by a profit motive. Texas (15,852), California (6,527), Arizona (3,869), Georgia (3,717), and Louisiana (3,143) are the top five states with the largest number of people in U.S. immigration detention per day, with over 60% of those people being held in privately-run immigrant prisons (Detention Statistics). As these detention facilities inspire a series of legal reforms in regards to marking new classifications and procedures, new funding streams, new institutional arrangements between the criminal justice and immigration systems, and ultimately a new enforcement terrain, those sites criminalize asylum-seeking (Macias-Rojas, 10).

International Law

         As E.M. Feuerherm and V. Ramanathan write, being a refugee is “not a matter of personal choice but of government decision based on a combination of legal guidelines and political expediency” (Feuerherm and Ramanathan, 37); law is thus key to understanding North American border-crossing. In particular, the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees offer a basic definition of who is a refugee and the basic responsibilities of states toward refuge-seekers (“What is a Refugee?”, USA for UNHCR). Although the scope of the 1951 Convention was limited to events that took place before 1951 in Europe, its key principles were reaffirmed in the 1967 Protocol, to which both Canada and the United States are signatories (UNHCR). Clauses against refoulement in the documents also prevent the sending back of refuge-seekers to countries where their lives or liberty would be jeopardized. These documents give the U.S. and Canada significant latitude, as “in the absence of an independent international body competent to interpret the Refugee Convention, each contracting party is free to adopt its own interpretation” (Lambert, 346). 

U.S. Law and Practices

Firstly, the right to apply for asylum is found in section 1158 of the Immigration and Nationality Act (Leutert et al, 1). Applying to be a refugee and applying for asylum is not the same process, however. As Carl J. Bon Tempo writes, “foreign nationals in the United States claiming fear of persecution in their homelands sought asylum, while stateless foreign nationals outside the United States with fears of persecution sought refugee status” (Bon Tempo, 181). Secondly, U.S. law also offers the possibility for cancellation of removal in cases where one has maintained a continuous presence in the country for ten years, among other conditions (“Application for Cancellation of Removal”). Thirdly, U.S. immigration law has also offered, since 1990, Temporary Protected Status (TPS). This status offers nationals of countries undergoing extraordinary circumstances such as an armed conflict a temporary protected status in the U.S. (“Temporary Protected Status: An Overview”). Finally, in regards to border-crossing, Section 1325 criminalizes those who cross the U.S. border through an unofficial entry point (Little). Recently, the Trump administration implemented a ‘zero-tolerance’ policy on Section 1325 (Mark). 

Canadian Law 

Just as the U.S. has enacted policies listing specific countries as safe third countries (Casraik), Canada has signed a treaty recognizing the U.S. as a safe third country. According to the Safe Third Country Agreement, “refugee claimants are required to request refugee protection in the first safe country they arrive in” (“Canada-U.S. Safe Third Country Agreement”). This agreement, however, only applies to asylum-seekers entering via official land border crossings, by train, or by plane (“Canada-U.S. Safe Third Country Agreement”). The rise in border-crossing in Canada is linked to events occurring in the US, as after the Trump administration announced the end of TPS for 58,000 Haitians, many Haitians turned to Canada as an option for resettlement (Perreaux). 

Activism and Law 

      As Gatrell writes, refugees “are habitually portrayed as if they are without agency, like corks bobbing along on the surface on an unstoppable wave of displacement” (Gatrell, 9); contestation, however, has allowed refuge-seekers and advocates play a role in shaping the laws that frame the refugee experience. In the U.S., the American Civil Liberties Union challenged the Trump administration’s asylum agreements with the Central American countries of Guatemala, El Salvador and Honduras (Silva). Similarly, in August 2019, four states and the District of Columbia launched a challenge against the Trump administration’s rules preventing many immigrants from accessing green cards (Folley). Contestation is not limited to the U.S.; in November 2019, advocates challenged Canada’s Safe Third Country Agreement, arguing that Canada is violating the Charter rights of asylum-seekers by turning them away at the border (Carbert). 

Salvadoran immigrants and activists impacted immigration policy in the late 20th century.  An estimated 1 million Salvadorans were living in the U.S in the 1980s, many of whom escaping civil war (Coutin, 1998). With only 2.8% of Salvadorans granted asylum of those that applied, Salvadoran communities and activists strategized for legalization. Refugee committees lobbied for federal legislation that would grant extended voluntary departure status to Salvadorans on the grounds that they were refugees (Coutin, 1998). In addition to preventing deportations, activists hoped that “if the U.S. government formally recognized Salvadorans as refugees, the U.S. government would be unable to continue sending military aid to the Salvadoran government, which would, in turn, promote either a guerrilla victory or a negotiated settlement”(Coutin, 1998).  Not only did they aim to reinterpret policy in their favour, but they also had a broader political goal of shaping their own nation. As a result of advocates consistent advocacy, a provision was made to Temporary Protected Status Act (TPS) allowing for Salvadorans who had been in the United States since September 19, 1990, to apply for eighteen months of TPS5 affording blanket protection for most Salvadorans (Coutin, 1998).   

Humanitarian Response/Activism 

Modelled after Occupy Wallstreet, the Occupy ICE movement is a series of protests across the U.S. with the goal of disrupting, and ultimately shutting down, Immigration and Customs Enforcement (ICE) locations. The very first demonstration in Portland was unplanned and organic. Following a couple of days since the beginning of the first occupation, the detention centre temporarily shut down, with protesters calling for the abolishment of ICE. The movement has since expanded across the country. Similar actions have taken place in Canada though with fewer numbers. In August 2018, 20 migrant justice activists shut down a border services building in Montreal. Activists took this action in response to the death of Bolante Idowu Alo, a Nigerian migrant who died while being deported from Canada, while in the custody of Canadian Border Services (CBSA) (Submedia, 2018). 

Beyond organized efforts by activists, often communities come together to prevent the deportation of their neighbours. In a case that took place in Tennessee, neighbours formed a human chain around their neighbour’s car who ICE was following. ICE officers decided to leave to “ ‘deescalate the situation’ “(Shoichet, 2019). 

U.S. immigration policy has broader, global, implications. With this, activism that takes place in response to these policies takes place beyond U.S borders. In response to threats of tariffs from the U.S., the Mexican government pushed stricter immigration policy resulting in an unprecedented number of migrants being held in detention centres. This past spring 1300 people escaped from a Mexican detention centre in Tapachula, Chiapas Mexico (Trapped Between Borders, 2020). Migrants were demanding shorter wait times, space to lie down and edible food to eat. In response to increasingly oppressive conditions and the complete halt of document processing, migrants came together and set up a protest camp (Trapped Between Borders, 2020). The protest camp held thousands of families and the group organized the African Assembly, with a representative from each African country (Trapped Between Borders, 2020). This assembly played a significant role in organizing protests which were met with severe violence from federal police and the national guard. Groups of grassroots organizers with Mexican and/or U.S. citizenship travelled to Tapuchula working closely with migrants and helping them find work as well as building communal living spaces and kitchens (Trapped Between Borders, 2020). In the Zapatista controlled territory of Chiapa’s, organizers of the Tapachula camps met with hundreds of other activists from around the world who are “committed to building a global network of refugees, migrants, and accomplices that will centre the survival and leadership of migrant femmes.”(Trapped Between Borders, 2020) 

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