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Arthur Helton on Immigration and Refugee Policy in an Age of Terrorism

Author: Arthur C. Helton
January 23, 2002
Council on Foreign Relations

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A speech on the occasion of receiving on January 23, 2002, the award for Distinction In International Law and Affairs of the New York State Bar Association

Distinguished colleagues:

There is no single animating principle that undergirds the formulation of immigration policy. High among the reasons that people move across national borders are economic and social drivers – jobs and family unity are primary motivations. The movement of people is often under-appreciated as a fundamental feature of our globalizing world – most attention is given to trade and capital. But more people are moving across borders, both pushed or pulled, with or without permission. We may well look back fifty years from now to say that these movements of humanity were a defining attribute of our time.

Each year the United States admits upwards of one million immigrants. These individuals join a society in which seven to eight million non-citizens are present, about 40 percent of whom initially entered with permission to remain temporarily but who overstay the terms of their temporary visas. This compares to a world today in which 170 million international migrants are outside of their home countries.

Refugee policy in the United States is considered a subset of immigration policy. This is because our immigration system makes provision for refugees,who can apply for asylum if they are physically present in the United States or for admission as refugees if they are abroad. Refugee movements are explicitly political –individuals must establish that they have a well-founded fear of persecution upon return on account of race, religion, nationality, membership in a particular social group, or political opinion.

Refugees have a profound meaning because they representa confrontation between the national sovereigntyof states and the human rights of individuals. Perhaps they matter most fundamentally because they are a flesh and blood manifestation of insecurity in an age that seems increasingly fearsome.We realize that but for good fortune they could be us.

Refugees send messages just by existing that can be powerful and deeply resonant. A women resisting female genital mutilation can garner the attention of vast numbers of sympathetic persons in our society. A little Cuban boy can be a pawn in an ideological chess match between the United States and Cuba. The plight of these individuals has meaning beyond these specific cases and they speak broadly to values in our society.

In the United States, approximately 30,000 individuals are granted asylum each year and upwards of 70,000 are admitted from abroad as refugees, although both totals may well diminish over time. These numbers compare to nearly 20 million refugees around the world plus another 25 million persons internally displaced by reason of armed conflict.

As we are here today celebrating the rule of law in the United States, there are over 4 million Afghan refugees,who havefled to neighboring countries.Some have been exiled for over a decade in Pakistan and Iran. In addition, about one million people are internally displaced in that ruined country, a number that has grown dramatically since the US-led air campaign began in early October. Fully 20 percent of Afghanistan’s population of 26 million persons is uprooted from their homes. How they are dealt with will surely say much about the recovery of that devastated country.

When I was in East Timor in 2000 doing researchfor a forthcoming book on refugees and humanitarian action in the new century, I spoke to Jose Ramos-Horta, a co-Nobel Laureate who is deeply involved in building the emerging nation of East Timor. When I asked Ramos-Hortawhat three things are needed most in East Timor he replied, “security, security, security.” Public security and law and order are no less a prerequisite in Afghanistan for the emergence of normal society and the return and reintegration of millions ofrefugees and internally displaced persons. This will be a central feature of the international quest to promote the evolution of a statein which terrorist networks cannot thrive and plan further attacks upon the United States or elsewhere.

The horrific terrorist attack against the United States on September 11 has made many things more vivid, including the issues of security in immigration and refugee policy. Background checking is more exacting, scrutiny upon entry is more probing, efforts are increasing to monitor stay and remove those who lose status. These measures are applied to immigrants, visitors, asylum seekers and refugees being admitted from abroad. One likely result is that fewer people will come and those who do will feel a bit less welcome in their stay.Increasingly they may be subject to measures such as detention and swift removal from the United States.

Refugee and asylum procedures are likely to be more expensive by reason of additional security measures and to that extent more vulnerable in the budgetary process in Congress. Applicants for asylum will more often be detained before they establish their identity and apply for release while they pursue their cases. These measures will produce new legal needs and the legal community and organized bar will be in a unique position to address these new problems.

Post-September 11 dynamics will also impact the United States and its neighbors. The US and Canada recently concluded an agreement to pursue harmonization of aspects of immigration and asylum policy. But this effort at creating a North American security perimeter will likely be limited. Just ask yourself, “Whose law should be changed?”At once, the difficulty of genuinely harmonizing criteria, procedures and policies relating to immigration and refugee affairs becomes evident. As to Mexico, when I ask Canadian officials about the inclusion of America’s Southern neighbor in harmonized arrangements, they recoil.

Last year, Mexico’s President Vincente Fox placed immigration reform on the US political agenda as a matter of foreign policy. This concerns a possible earned status for undocumented Mexicans in the United States. But the debate quickly devolved to questions about discrimination and whether only Mexican should benefit from such largess. The events of September 11 have overwhelmed the foreign policy agenda, and consigned to near oblivion this US-Mexico initiative. But the politics are re-emerging and Mexico is keen to reassert the question. Whether its re-emergence can be sustained depends largely on future events, includingnew acts of terrorism.

One lesson to take from these quick swings in public opinion and politics in relation to immigration and refugee issues is that these are not enduring positions. Immigration and asylum policy are often relatively cheap surrogates for other problems.Rather than fix education policy, politicians are tempted to limit access to education by undocumented people. Until very recently an underclass of non-citizen undocumented labor has been instrumental to a booming economy and efforts to enforce labor laws have suffered as a result. Sweatshops and migrant trafficking result from this policy disjuncture.

Having been involved with immigration and refuge policy for over two decades, I come to the conclusion that the intangibles matter more than the tangibles. It is essentially a question of values. Immigrants may contribute upwards of $10 billion to our$10 trillion economy, and there are specific and highly localized job displacements.We should not forget that there are winners and losers.But in a broader sense,immigration and refugee affairs have relatively marginal objective impacts in our society. Nevertheless, these are issues that people discuss with an enduring and sometimes surprising passion. Immigrants matter and refugees matter for reasons that say much more about the underlying values of our society and its people than would be possible to discern from economic or other objective indicators.

The currentsecuritization of immigration and asylum policy is a reflection of a broader effort to secure American society. There are two poles on the continuum. We are living in extraordinary times and we expect extraordinary measures from our government. We also live in a culture imbued with the rule of law. Where the balance is struck between these two poles will say much about our future. As lawyers,we must ensure that it is a future rooted in law, including fairness and equal protection for non-citizens. These times demand nothing less from our legal profession.

I am honored to receive this award.

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