Watching the Trump administration decimate U.S. refugee and asylum programs is not only horrific; it is a mistaken return to the equally unenlightened and dangerous refugee policies of the 1930s and early 40s. In both cases, administrative actions were used to deny admission to thousands of refugees and asylum seekers. The most notorious example of the earlier era is the refusal of the U.S. to allow the German St. Louis ship to disembark its passengers prior to the Holocaust.
The St. Louis sailed from Hamburg on May 13, 1939. On board were 937 passengers—most of them German and almost all of them Jewish refugees—bound for Cuba. At least one passenger had been in Dachau, imprisoned during Kristallnacht. When Cuba refused them entry, they sought protection from the U.S.
A telegram from the State Department summarized the government’s position at the time: the passengers “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 St. Louis then headed back to Europe, where the United Kingdom, Belgium, France, and the Netherlands admitted the passengers. The Nazis occupied the latter three countries in 1940, and just over half of the passengers survived the Holocaust.
On a larger scale, the U.S. State Department took administrative actions that, on the surface, seemed reasonable in deterring refugees from entering the country. The consul in Germany instructed his staff to issue visas only to those who had funds or property of their own that would yield an income sufficient to support themselves. About 99% of applications were rejected on this basis. With the German government confiscating the financial resources of Jews, it was often impossible for them to prove their economic worth, even if they had families in the U.S. who could support them. Applicants also needed legal documentation from police authorities of their “good conduct.” For refugees, requesting such documentation was at best futile and more often dangerous. Requests that the income and testimonials of family members or organizations in the U.S. should count towards admission were routinely rejected until it became too late for Jews and other victims of Nazi persecution to escape.
The Trump administration is using its own labyrinth of administrative processes to keep refugees from gaining protection in the U.S. As of June 15, the number of refugees resettled from abroad is only 15,383; three-quarters of the way into the federal fiscal year, this number is on track to be the lowest since the passage of the Refugee Act of 1980. That’s not just because of a presidential determination to admit only 45,000 a year, but because of often unnecessary “extreme vetting” procedures that have slowed resettlement to a trickle.
Recent changes at the border aim directly at deterring asylum seekers from even trying to cross into the U.S. The so-called zero tolerance policies that put all irregular border crossers into criminal proceedings, even if they turn themselves in to the authorities to claim asylum, runs counter to one of the core elements of the refugee system—that those seeking protection should not be penalized for their mode of entry. This principle emanates from the experience of the Holocaust—refugees, unlike most migrants, do not have the luxury of waiting for visas; too often they die in the process.
These zero tolerance policies have become the basis upon which the administration has tried to justify separation of children from their families. As acknowledged by now White House Chief of Staff John Kelly when he served as secretary of the Department of Homeland Security, these separations were designed to serve as a deterrent to irregular migration, not as a mechanism to enhance protection of children under risk from their parents. The federal government takes the children away from their parents in order to convince other parents to refrain from migrating through irregular channels, even if their reason for coming to the U.S. is to seek asylum from even greater harm to their children.
Even if asylum seekers are able to apply for protection from forcible return to their home countries, Attorney General Jeff Sessions’s new ruling on domestic violence and, by extension, other persecution perpetrated by private actors, will make it vastly more difficult to prevail in their claim for refugee status. In the Matter of A-B- legal ruling, Sessions unilaterally overturned 20 years of progressively greater recognition in U.S. jurisprudence that gender-based claims to persecution are legitimate grounds for asylum if: the abuse experienced rises to the level of persecution; the persecution occurred because of the person’s race, religion, nationality, political opinion, or membership in a particular social group; and the government of the home country is unwilling or unable to protect the applicant from such abuse.
In this case, the Board of Immigration Appeals, whose decision Sessions overturned, determined that all three applied. A-B- (her anonymous name) had suffered systematic abuse by her husband, including rape and death threats; belonged to a socially recognized group of married women who could not leave their marriage; and had sought but failed to find refuge elsewhere in her country.
The State Department’s own annual Human Rights Report confirmed that El Salvador’s response to rape and other sexual violence was inadequate to protect victims, noting that “laws against domestic violence remained poorly enforced, and violence against women, including domestic violence, remained a widespread and serious problem.” It also cited rapes and sexual assault committed by police officers, which serve as further evidence that the government is unwilling and unable to protect women in such marriages from persecution. For the attorney general, these findings were insufficient.
Sessions did not take exception only to the findings in this specific case. Instead, he has attempted to put an entire class of vulnerable women and children at risk of further persecution. He has held, “Generally, claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.”
This is akin to a finding that Jews who were attacked by Nazi-inspired mobs on Kristallnacht would not qualify for asylum in the U.S. because the action was private, not public. By contrast, the British equivalent to our Supreme Court used this very example in a 1999 decision explaining the reasons that victims of domestic violence with experiences such as A-B-’s should be granted asylum in the United Kingdom. The court held that the clear animosity of the Nazi government toward Jews provided the environment in which the mob felt justified and knew they could attack Jews with impunity.
The Trump administration’s misuse of authority against refugees and asylum seekers should be of concern to all Americans, regardless of party affiliation. This country was founded by refugees fleeing their homes because of their religious and political beliefs. As we celebrate Thanksgiving each year, we recognize the welcome offered to the Pilgrims who landed at Plymouth Rock after facing persecution at home. Many of us are the descendants of refugees and others who fled violence and repression and found a safe refuge in this country. Should we not offer the same opportunity to those who will otherwise face persecution, torture, or death at home?
Susan F. Martin is the Donald G. Herzberg professor emerita of international migration at Georgetown University. She previously served as the executive director of the bipartisan, legislatively mandated U.S. Commission on Immigration Reform from 1992 to 1997.
