Justice  /  Explainer

The Border Patrol and Asylum Exclusion

Border Patrol has abused its authority and mistreated migrants in countless ways. Yet its role as the frontline force in asylum exclusion has only grown.

For those fleeing desperate circumstances, the borders of the United States have long been imagined as sites of refuge. And yet, until recently, the nation’s immigration laws made no distinction between those migrants seeking asylum for humanitarian reasons and immigrants seeking permanent residence and citizenship. In the absence of formal refugee laws and policies, immigration officials largely admitted or excluded these de facto asylum seekers based on the narrow and often xenophobic criteria enumerated by federal immigration laws.

In 1980, with the passage of the Refugee Act, American immigration officials began to make regular distinctions between asylum seekers and immigrants. The law did recognize the right of noncitizens “physically present in the United States or at a land border or port of entry” to apply for asylum. But, at the same time, the Refugee Act also laid the legal foundations for the participation of various federal immigration agencies, including the Border Patrol, in the processing of asylum seekers.

The new law aimed to broaden the nation’s approach to refugee admissions. But from its inception, the Immigration and Naturalization Service (INS) and Border Patrol steered the development of the law in exclusionary ways. Thus, when the INS was tasked to write the federal regulations implementing the Refugee Act, it, according to law professor Denise Gilman, adopted an approach that reflected its “preoccup[ation] with the rejection of asylum claims.” As a result, the new federal regulations “created a presumption against asylum”: placing the burden of proof upon asylum seekers to demonstrate their eligibility for relief. Moreover, rather than focusing on how federal officials at the border might offer asylum, the new regulations highlighted the ways they could deny entry to asylum seekers.

When it came to the actual reception of asylum seekers at the nation’s borders, INS and Border Patrol officers engaged in the widespread physical and legal abuse of Salvadoran and Guatemalan migrants. Their asylum claims, after all, threatened to undermine the Reagan administration’s counterinsurgency campaigns in Central America. Two federal courts enjoined the INS and Border Patrol from a host of infractions, including the failure to notify Salvadoran and Guatemalan refugees of their right to apply for asylum; the use of coercion, lies, and threats to force Salvadoran asylum seekers to accept voluntary departure; the failure to advise these Central American asylum seekers of their right to counsel; and the detention of the asylum seekers in solitary confinement for the purposes of punishment. In short, as the court in Nunez v. Boldin, 537 F. Supp. 578 (S. D. Tex. 1982), concluded, immigration officials had rendered the nation’s asylum laws “virtually non-existent for the majority of persons who might claim their benefits.”