The Asylum Crisis: What Can We Do?

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The Asylum Crisis: What Can We Do?

An NPG Forum Paper
by Greeley (Gregg) Miklashek, MD

On May 13th 1939 a boat carrying 937 Jewish refugees fleeing Nazi persecution sailed from Hamburg, Germany to Havana, Cuba. Most of the passengers had applied for U.S. visas, and planned to stay on Cuba until they could enter the United States legally. By that time, it was clear that the Nazis were gearing up their efforts to place Jews in concentration camps. Word War II and the formal implementation of The Final Solution were a few months away.

The S.S. St. Louis arrived in Havana on May 27th. The 28 people on board with valid visas were allowed to disembark. The Cuban government refused to admit the roughly 900 others. Some of them cabled President Franklin D. Roosevelt asking for admission as refugees, but he never responded. A State Department telegram warned that the asylum seekers must “…await their turns on the waiting list and qualify for and obtain immigration visas before they may be admissible into the United States.”

The ship continued north to Canada, but it was rejected there, also. “No country could open its doors wide enough to take in the hundreds of thousands of Jewish people who want to leave Europe: the line must be drawn somewhere,” Frederick Blair, Canada’s director of immigration, said at the time.
Out of options, the ship returned to Europe. Nearly half of those traveling on the ship perished in the Holocaust.

The League of Nations made no provision for the humane treatment of people facing persecution – or worse – in their homeland. Its successor, the United Nations, filled the void. The 1951 UN Convention on Refugees defined a refugee as a person outside of his or her home country who cannot return home because of a “…well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”

A subsequent convention prohibited nations from “…returning, extraditing, or refouling any person to a state where there are substantial grounds for believing that he would be in danger of being subjected to torture.”3 The UN’s Convention Against Torture (CAT) also specifies that this danger must be assessed not just for the initial receiving state, but also for states to which the person may be subsequently expelled, returned or extradited.

Had these provisions been in place, passengers on the St. Louis would have been admitted as asylees in Cuba or the U.S. They were clearly fleeing persecution on account of their religion. They would not have been shipped back to Europe from the Western Hemisphere. One of many such incidents, thousands of lives would have been saved.

NEVER AGAIN

There are a lot of things the Trump administration can do to resolve the current border crisis, but getting rid of the asylum process is not one of them. We signed the UN refugee convention. Its standards have been added to U.S. immigration law, which the President cannot change.

Genocide is never to be condoned under international law.

(As brought out below, the interpretation of UN standards by U.S. district courts has been problematic, at best, and is responsible for much of the disfunction in the current asylum system.)

The question we try to answer here, when thousands of Central American migrants are clamoring to enter the U.S. each month, is whether they meet the UN definition of “refugee.”

The answer, as we see it, is a resounding no…

The vast majority are fleeing domestic violence and abject poverty. These conditions, while unfortunate, hardly constitute persecution for reasons of “…race, religion, nationality, and membership of a particular social group or political opinion,” enshrined in both the UN Convention and U.S. immigration law. Yet – until recently – illegal aliens claiming a “well-founded fear” of persecution on these grounds were allowed to enter the country.

Furthermore, the Supreme Court defined “wellfounded fear” to include cases where there is as little as a 10% chance of persecution…

Continue reading the full Forum paper by clicking here.