The near erasure of asylum in the United States marks an end to something historically distinctive. Refugee and asylum law were born at the confluence of two twentieth-century phenomena: the rise of immigration restrictions in the US and Europe during World War I, and mass population displacements during World War II. In 1945 millions of people were left stateless at precisely the moment when cross-border movement had become nearly impossible. It was then that the “refugee” emerged as a new legal subject: a victim of war and political repression, distinct from the “ordinary” immigrant seeking economic opportunity. The recognition of a right to asylum reflected a postwar consensus that there are some people whose need is so great that their relief should not be constrained by domestic law—that the nations of the world should protect people who would face torture, imprisonment, or death if returned to their home countries.
Asylum, which Attorney General Jeff Sessions cynically referred to as a “loophole” during Trump’s first term, is thus better understood as a category of exception in a restrictive legal landscape. Every system of regulation and restriction has exceptions; in the case of immigration they include the parents of citizens, “geniuses,” people willing to pay $5 million—and those seeking protection from mortal danger, on the grounds that some policies are accountable to a higher moral code that upholds the ancient traditions of helping those in need and welcoming the stranger.
But the distinction that modern asylum law made between political and economic migrants did not map neatly onto reality. The political and the economic have always coexisted as reasons to emigrate; Americans have often used one or the other to stand in for myriad interests. Many migrants who came to the US in the nineteenth century—Germans after the failed 1848 revolution; Irish exiles from famine and British colonial oppression; Chinese displaced during the Taiping Rebellion; Jews fleeing Tsarist pogroms—were motivated by both factors. The conflation is evident in Emma Lazarus’s famous poem “The New Colossus,” engraved on a bronze plaque at the base of the Statue of Liberty. Lazarus called the statue the “Mother of Exiles,” suggesting that America was not just a land of opportunity for “your tired, your poor,” but also a land of refuge from persecution for those “yearning to breathe free.”
By lumping asylum seekers together with all other immigrants, the second Trump administration has undone the division between political and economic migrants—but for cynical ends. Trump seems to consider all immigrants undesirable, especially if they are people of color or profess political views he dislikes. He brands them as “criminal,” “illegal,” and “very bad people.” And he appears to be determined to rid the country of them—not only undocumented migrants and asylum seekers but also international students, legal permanent residents with minor criminal records, and even naturalized citizens who are allegedly “terrorists” or “frauds.”