On the Prudence of Borders

Advocates for open borders argue that guarded and regulated borders are signs of closed societies and ultimately a violation of the dignity and rights of persons to move wherever they wish to work, live, seek welfare assistance, and especially seek asylum from violent societies. But often overlooked in this new globalist creed is the right of every country to regulate, secure, and defend its borders and to determine who can come in and who can’t, especially when many immigrants abuse asylum and immigration laws.

At the dawn of the sovereign state system in 1648,after the bloody Thirty Years War had ended, the countries of Europe realized the necessity to establish a state’s clear right to a secure territory with internationally recognized boundaries and the political independence to rule its territory and population, and thus restore justice and order after such devastating turmoil. Prudence demanded secure and recognized borders.

More recently, during the Cold War, prudence still encompassed a country’s right to secure borders. But the collapse of communism in the early 1990s, and the gradual liberalization of much of the former communist world, led to the great hope of more open and free societies. In that growing climate of optimism, many countries relaxed their immigration laws and regulation of their borders.

But a number of sinister problems persisted, including the rise of transnational terrorism, criminal syndicalism, the drug trade and human sex trafficking. These evils and threats to national security necessitated ongoing attention to the regulation of borders. Unregulated illegal immigration was an attendant problem to the other evils, and it has now become a more visible problem in light of caravans of migrants across the world streaming from less developed to more developed countries.

 

The Modern Migration Crisis
For most of human history, migration has been largely unregulated. Even after the modern state was established after the Peace of Westphalia, government regulation of borders, though a legitimate aspect of sovereign control of territory, was nonetheless spotty and episodic. The regulation of borders expanded dramatically toward the end of the First World War, owing to rising concerns about security associated both with the war and with the rise of the Bolshevik state and communist ideology in Russia. Governments everywhere imposed the passport and visa regime. With this migrants required documentation, thereby complicating the predicament of asylum seekers and refugees who could not safely acquire legal documentation from their states of origin where they faced persecution.

Thus, international refugee agencies, laws, and policies were devised to cope with the special needs of refugees, whose security was threatened beyond that of the typical economic migrant. The Cold War illustrated the ongoing necessity for this distinction, which is still relevant even in the post-Cold War era of globalization owing to the rise of global terrorism and the persistence of persecutory regimes. Thus, the distinction is still imbedded in contemporary refugee and asylum law, and despite many efforts to blur the distinction between political refugees and other migrants, the circumstances prevailing in much of the world still justify its ongoing relevance.

During the era of globalization that began in the 1990s after the collapse of communism, documented and undocumented labor migration expanded substantially as the population decline in Europe and North America created labor shortages during a time of generally expanding economic activity. This labor migration had mixed effects. On the positive side, the relaxation of migration control enabled economic expansion both in the north and in the south, the latter substantially fueled by the remittances sent by southern migrant workers in the north to their families back home.

The expansion of trade and foreign direct investment by northern businesses also shifted capital from the north to southern countries, leading to unprecedented income transfers to the developing world. A billion people (especially in China and South Asia) who had been subject to grim poverty realized substantial improvement in quality of life. Global wealth has more than tripled since 1980, and positive effects were felt wherever countries participated in the globalization of trade, migration, and investment. Countries still mired in civil wars and governed by kleptocratic regimes fell outside of the general elimination of dire poverty. There is a lot of good news associated with globalization, including benefits derived from the ease of labor migration. However, the negative cultural, social, political and economic impacts of migration have also become more visible, as illustrated by the largely uncontrolled movement of North African and Middle Eastern migrants to Europe in 2015.

More specifically, on the negative side of the ledger, many migrants to Northern economies enrolled in social welfare programs, offsetting to some extent the positive impact in productivity of immigrant labor. Many immigrants—legal and illegal alike—still rely on one form or another of public assistance in the United States. Much of the immigrant labor pool consists of low-skill and low-wage labor. Many immigrants receiving public assistance also remit substantial sums to their home countries. These circumstances are not sustainable. Welfare states cannot also be immigration states without ultimately exhausting their fiscal capacities.

Added to the negative economic factors are the social and cultural difficulties of open immigration policies, including increased crime, terrorist threats, over-burdened social welfare systems, the lack of immigrant assimilation, and attendant social and cultural turmoil. These are significant problems that have visibly stimulated rising popular resentment to unregulated immigration and led to the election of governments more inclined to staunch the flow. The open border movement’s rosy optimism concerning unregulated migration has thus been confronted by the reality of its very mixed benefits and empirically verifiable negative repercussions.

International and Domestic Asylum Law and Practice
Since ancient times moral philosophy has recognized the special plight of those escaping from the persecution of governments and the threat of death. In the Hebrew Scriptures, Cities of Refuge were established where those involved in unintended killings could flee for sanctuary from those bent on exacting revenge against them, as they were those who had a well-founded fear of violent and unmerited death (Nm 35: 16-23 and Lev 20:1-21:45). Greek tragedies are replete with meditations on the pitiable condition of the exiled.

Throughout the history of Christianity, special consideration has been given to the political refugee; one of the clear examples Jesus cites in Matthew is that of the least of the brethren, bereft of homeland, shelter, food, and often sick. The same could be said of some economic migrants and other displaced persons who also deserve help and support, but who in the long run can also safely return home.

Modern international asylum law recognizes the right of all persons to seek asylum, but there is a catch, because the same law imposes no obligation on any country to accept asylum seekers permanently. The law only imposes on states an obligation not to return genuine asylum seekers to their country of origin or nationality if they were likely to be persecuted. Modern refugee conventions recognize this distinction. The 1951 Refugee Convention defines as a refugee any person who, having fled from or being outside their country of origin or nationality, has a well-founded fear of persecution on the grounds of political, social, ethnic or religious status and so may not be involuntarily returned. Under this universal standard, where such persecution by one’s government of citizenship is not present, a person does not have a valid claim to asylum and can be subjected to deportation to their homeland. For those who meet the standard, a government may grant them temporary asylum, or deport them to a third country, but may not return them to their country of origin.

Real political, ethnic, and religious persecution is regarded as a status worthy of special protections under international law, because such persons cannot be expected to be given the protections afforded to them by the Law of State Responsibility, whereby their country of citizenship has a right to legally intercede on their behalf against the government of their country of residence which has harmed them or failed to protect their legal rights. But governments that persecute their citizens causing them to flee and seek asylum have no interest in protecting them abroad. Therefore, such persons fall in a special zone of protection that is not needed or required by economic migrants who suffer no threat of persecution by their government.

Regional law in Africa and the Americas has a broader definition of what constitutes a refugee, which includes anyone fleeing from generalized (but not necessarily government-sponsored) violence. Of course, any country is free to define asylum law and status more broadly and generously. However, in the United States, the 1951 Refugee Convention that was more narrowly drawn is the standard incorporated in the US Refugee and Migration Act of 1960. Thus, those seeking asylum in the United States have traditionally been required to demonstrate a well-founded fear of specific government persecution directed against them, rather than a claim based on generalized violence within a country. This was the case for some time, but in 1987 the Cardoza-Fonseca case determined that the clear probability test used by the Immigration and Naturalization Service was too narrow, and a broader standard of reasonable or credible fear was established. Still, an asylum seeker was expected to demonstrate that the government itself was the author of persecution on the grounds of their political, ethnic or religious affiliation.

In 1997 (Reno v. Flores), the courts imposed a further restriction on the executive branch, indicating that any person who entered the United States seeking asylum could only be detained for a maximum of two months, after which they would be released pending the scheduling of an asylum hearing. Since only a small number of asylum claims can be successfully completed within a window of two months, most asylum seekers are released regardless of the strength of their asylum claim and sizable numbers of those who are released never appear before the court.

This loophole permits a great number of frivolous asylum claims in the United States. Added to this is the highly variable enforcement of the standards of political asylum by various US Administrations. The Obama Administration, for instance, largely ignored the political, ethnic, and religious tests for asylum and opened the gates to all those who came from countries where generalized violence, including gang violence and even domestic abuse in the household, could be shown. The social group standard of persecution often provided an interpretive loophole that lawyers could exploit to convince asylum judges of the legitimacy of their client’s claims that such non-governmental sources of violence were generating fear. But these forms of violence do not clearly qualify under the terms of the Refugee and Migration Act.

Reactions to Migration Woes
Overall asylum claims more than doubled between 2012 and 2017, mostly due to momentum gained during the Obama Administration. Asylum claims from Central America increased from under 10,000 annually to 40,000 by 2016, and to nearly 80,000 by 2017, despite the fact that civil wars and the international conflicts of the 1980s in Central America are well behind us. Facing this rapid and largely undocumented rise in asylum claims, the Trump Administration Justice Department has attempted to restore and enforce the standards imbedded in the law, but not without criticism from open border advocates and even Church leaders.

Europe has experienced similar difficulties that are aggravated by the common asylum policy attempted under the terms of the Schengen Agreement and the Dublin policy, that any person entering an EU member state’s territory and then migrating elsewhere may be sent back to the country of original entry for judicial consideration of the legitimacy of their asylum claims. The massive flow of migrants, many of whom were refugees already safely settled outside of Syria in neighboring countries and thus no longer under threat of persecution, took advantage of the situation in Europe. The intermingling of ISIS terrorists in this largely economically motivated mass migration tested the limits of European tolerance, and one country after another, for valid security reasons, began to impose border controls and regulations, as international law generally permits. Of course, open borders advocates regarded such protective measures by European governments as illegitimate.

However, it is clear that growing numbers of Europeans are opposed to the open border mentality of their political elites. Popular demand for border regulation of economic migration arose in the Visegrad group of Hungary, Poland, the Czech Republic and Slovakia, as well as in Austria, France, Britain, Italy, Holland and even Sweden. The emergence of populist nationalist parties across Europe indicates that many Europeans are concerned about their survival as nations.

This is not simply a species of xenophobia or racial prejudice, as some leftists have claimed, but a legitimate concern about the future stability, security, and even existence of national identity. The experience across Europe—including Germany’s experience with “temporary” guest workers—is that they aren’t temporary and that many never fully assimilate or acquire “European” values. Moreover, many so-called asylum seekers are actually seeking jobs or welfare assistance. The social and political problems associated with the migration crisis in Europe are well documented. Governments experiencing mass economic migration have legitimate reasons for concern that should not be passed off contemptuously as selfish or inhumane.

Under the current pressures in Europe and North America, unregulated migration is no longer an unmitigated good. The prudence of regulating borders to provide for security, order, and justice comes back into view, as does the perennial question of the integrity of nations.

Editor’s note: Pictured above, US workers construct border fencing in the banks of the Rio Grande, in Ciudad Juarez, Chihuahua state, Mexico, on October 22, 2018. (Photo credit: HERIKA MARTINEZ/AFP/Getty Images)

Robert F. Gorman

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Robert F. Gorman is University Distinguished Professor of Political Science and International Studies at Texas State University in San Marcos, Texas, and deacon in the Archdiocese of San Antonio. His most recent books include What’s Wrong with Global Governance? (2016) and Toward the Common Good: A Catholic Critique of the Discipline of Political Science (2011).

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