Last week, the Supreme Court ruled on several issues related to immigration policy. While the court narrowly preserved birthright citizenship, it issued other rulings that will put an untold number of people in danger. One ruling, Mullin v Al Otro Lado, upheld the federal government’s policy of turning back asylum seekers before they can reach the US-Mexico border—a policy also known as “metering”—hollowing out the right to asylum enshrined in both domestic and international law. In her dissent, Justice Sonia Sotomayor referenced the St. Louis, the ship of Jewish refugees from Nazi Germany turned away from the US, whose passengers were mostly killed in the Holocaust: “Congress passed the Refugee Act in 1980 because it did not want this country to repeat the mistakes of its past. Yet if the refugees on the M. S. St. Louis were to walk up to a port of entry on our southern border today, the majority’s interpretation would allow immigration officers to refuse even to consider their asylum applications by physically blocking them from stepping foot onto US soil,” she said. 

In another ruling, Mullin v Doe, the Supreme Court granted the president the power to end the Temporary Protected Status program, or TPS, which has allowed vetted and eligible immigrants to live and work legally in the US if they cannot return safely to their countries. Justice Samuel Alito, in his majority opinion, said courts do not have a say in what the president and the Department of Homeland Security decide; the president can end TPS for Haitians and Syrians without judicial review. He also rejected a separate claim brought by Haitians that the move to deport them was based in racial prejudice. TPS has been in effect since 1990. There are 350,000 Haitians who have been in the US legally under TPS, and whose lives have now been thrown into chaos. 

In our spring issue, we published a prescient piece by immigration reporter Tanvi Misra about the death of asylum, and the ways that its decline is a dire portent for democracy itself. Asylum, Misra reminds us, is a “place-based right” designed to prioritize human life over national borders: As soon as an endangered person steps foot onto a country’s soil, they “are entitled to that body’s protection,” regardless of whether they crossed with permission. This is exactly the principle that has been undermined with this recent ruling, which prevents people from arriving and making an application. As this ruling suggests, for as long as asylum has existed in the US, so have efforts to weaken it. It has been issued selectively and on racial grounds—much more easily been granted to German-speaking Protestants than to Jews escaping the Holocaust; readily offered to Cubans fleeing Castro but not to Haitians fleeing the US-supported Duvalier dictatorship. 

Misra’s essay tells us that this tactic of denying landfall to migrants as a way of denying them asylum has gone into overdrive in the past decades as border agents try to intercept asylum seekers earlier and earlier in their journeys. In the process, the US border has, Misra says, “not just hardened, but expanded”—into Mexico, Guatemala, Panama, and beyond. Under Trump 2.0, the border has also spilled inward, into LA, Chicago, Minneapolis, and all the other places where border agents are chasing down asylum seekers and, increasingly, all migrants. 

In this episode of On the Nose, recorded in mid-June before the Supreme Court rulings, Misra speaks about these grievous attacks on asylum with John Washington, a staff reporter at Lookout and the author of the forthcoming book, How to Close a Camp: Dispatches from the Fight Against Immigrant Detention, as well as The Case for Open Borders and The Dispossessed: A Story of Asylum at the US-Mexico Border. 

This conversation was originally a live membership event. Become a member so you don’t miss the next one! 

Thanks to Jesse Brenneman for editing and to Nathan Salsburg for the use of his song “VIII (All That Were Calculated Have Passed).”

Media Mentioned and Further Reading

“The Death of Asylum,” Tanvi Misra, Jewish Currents

How to Close a Camp: Dispatches from the Fight Against Immigrant Detention by John Washington

The Case for Open Borders by John Washington

The Dispossessed: A Story of Asylum at the US-Mexico Border by John Washington

The Suppliants by Aeschylus

Oedipus at Colonus by Sophocles

“The principle of non-refoulement,” European Union Agency for Asylum

1951 UN Refugee Convention and its 1967 Protocol 

“A History of Haitian Discrimination by United States Immigration Policy,” US Committee for Refugees and Immigrants

“‘Metering’ of Asylum Seekers Is Bad Policy, Bad Law, and Bad for the Border,” Aaron Reichlin-Melnick, American Immigration Council

“US flight carrying deported migrants lands in Central African Republic,” France24

“What Are Third-Country Removals? Understanding Their Use In U.S. Immigration Policy,” American Immigration Council

“Broader Crises,” Tanvi Misra, The Baffler

“The Unraveling of Afghan Asylum,” Tanvi Misra, New York Review of Books

Transcript forthcoming.