It’s true, there’s a crisis at the border. People openly disregard the laws of this country, knowing there is little chance they will ever be held accountable. One organization has become particularly brazen in this regard: the Department of Homeland Security.
The majority of people in this country have been horrified by actions like the family separation policy, which can only be described as cruel. And yet the message from the Trump administration, and the reason for the departure of former DHS secretary Kirstjen Nielsen this April, is that the government’s actions weren’t cruel enough. President Trump and his hardline immigration adviser Stephen Miller, by all accounts, wanted even harsher restrictions against people exercising their legal rights to claim asylum than Nielsen was willing to accommodate, so she had to go.
You’ll often hear these cruel measures justified because “it’s the law.” Yet the actions of DHS under this administration haven’t only been sickening. They’ve also been illegal.
This goes beyond the fact that agents working for DHS have allegedly committed violent crimes — such as Juan David Ortiz, the Customs and Border Protection officer accused of the murder of four women in Texas, or the long list of incidents of sexual violence allegedly committed by CBP agents, which predate Nielsen’s tenure.
In fact, DHS policies and institutional practices themselves are in violation of the law.
In particular, the myriad obstructions the Trump administration has laid before asylum-seekers clearly violate the Immigration and Nationality Act of 1965, which states clearly that anyone "who is physically present in the United States or who arrives in the United States, whether or not at a designated port of arrival" may apply for asylum.
The claim that asylum-seekers are doing anything illegal by entering this country — however they do so — and applying for asylum is simply wrong. Yet Trump repeatedly urged Nielsen to halt these applications altogether, something even she hesitated to do. And he reportedly promised her successor, Acting DHS Secretary Kevin McAleenan, that he’d pardon him for any crimes he committed carrying out that agenda.
The right of those “physically present” to seek asylum also speaks against the administration's practice of removing immigrants with pending applications to Mexico — which Border Patrol has done to more than 700 such people under the Trump administration’s misnamed Migrant Protection Protocols. On April 8, a federal judge in Northern California halted the program on the basis that it is, in fact, illegal. (Maybe that explains why Trump recently said “Frankly, we should get rid of judges” — not exactly something a defender of the law might say.)
The administration’s current actions also violate the government’s obligations under international agreements. The 1967 United Nations Protocol Relating to the Status of Refugees — which the United States has signed — states that "refugees shall have free access to the courts of law on the territory of all contracting states" and that they shall enjoy "the same treatment as a national in matters pertaining to access to the courts." These provisions are very obviously violated by the removal of asylum-seekers to Mexico while their cases play out, the mass detention of refugees taking place at the border, and likely by the administration’s newest plan to charge desperate asylum-seekers a fee.
The law isn’t the final word on what is right or wrong, and countless injustices committed throughout this country’s history — including ones taking place right now — have been perfectly legal. We believe freedom of movement is a human right that is higher than any country’s law.
But when a government whose main line of rhetorical attack on immigrants is about their legality, it’s worth noting who is really breaking the law. In his latest State of the Union address, Trump said, “I want people to come into our country in the largest numbers ever, but they have to come in legally.”
The notion that Trump simply opposes “illegal” migration implies the president and his government are committed to the rule of law. In practice, the Trump administration is the one disregarding our laws.
A similar disregard is evident when Trump administration officials offer up “national sovereignty” as another line of attack against refugees. Stephen Miller told Fox News in February that “a strong, secure border” is “fundamental and essential to the idea of sovereignty.” Trump's representatives routinely claim that sovereignty over their own affairs is a rightful expectation for any country.
That concern for sovereignty suddenly disappears when Trump administration officials are openly attempting to engineer a coup in Venezuela. And it wasn’t at the front of Trump’s mind when, in one of his first acts in office, he advanced the construction of the Dakota Access Pipeline, in defiance of the sovereignty of the nations of the Standing Rock Indian Reservation. It also defied the law, violating the borders of Great Sioux Nation outlined by the 1868 Treaty of Fort Laramie, which the US government signed.
The cruelty at the border isn’t about respect for the rule of law, and it isn’t about respect for the idea of sovereignty. What’s the real reason? It’s to bring back an immigration policy approach whose foundation was that people of color are not welcome in the United States.
In addition to the family separation policy and the Muslim travel ban, Miller has also proposed banning Chinese students from US universities and deporting Vietnamese refugees who’ve lived here for generations. The administration has removed protections from Haitian and Central American immigrants who’ve lived here legally for years, reduced refugee admissions to record lows, and proposed massive cuts to legal immigration. Trump famously called Haiti and African nations “shithole countries” and wondered why we can’t have more immigrants from Norway, while Miller once said, “I would be happy if not a single refugee foot ever again touched American soil.”
Young immigrants will already remember Miller as a villain. But as he guides a reshuffling of DHS, that legacy could soon grow to include even more flagrant racism, violence, and injustice. The prospect of an approach to asylum-seekers that exceeds the violence we’ve already seen is simply unbearable.
Whatever outrage there is in the public, it’s evident that the agencies that repress migrants, and the government officials that direct them, are committed to caging asylum-seekers, isolating children from their families, and building internment camps indefinitely.
But if they feel unconstrained by the law and mainstream notions of what is acceptable for immigrants, we should too — guided by a commitment to the rights of immigrants. We must confront these injustices and imagine approaches to immigration that embrace the humanity of immigrants above the limitations of any law — especially those made or enforced by people with no regard for either immigrants or the law.
Khury Petersen-Smith and Karla Molinar-Arvizo work on immigration and refugee issues at the Institute for Policy Studies.