Refuge: Denied. Asylum: Pending

The new series From “Crisis” to Futurity is aimed at pushing forward our thinking and action about immigration and borders. Read series curators Geraldo Cadava, A. Naomi Paik, and Catherine S. Ramírez’s introduction here.
The United States originates in settler colonialism, slavery, empire, and a long history of giving refuge to some while refusing refuge to others.

In May 2021, President Joe Biden announced that the US would raise the cap on refugee admissions, potentially accepting up to 62,500 refugees over the course of the next fiscal year. His proclamation was a welcome relief to many after the Trump administration’s unrelenting assaults on migrants. But, at the same time that Biden distinguished his refugee policy from Trump’s, he also said it was “the sad truth” that the US would not actually be able to admit 62,500 refugees, because of logistical difficulties caused by the past four years of policy.

Biden’s administration has continued Trump’s use of Title 42—a favored statute of noted xenophobe and Trump-admin alum Stephen Miller, which weaponizes the COVID-19 pandemic by giving officials wide latitude to immediately expel asylum seekers and migrants from the border on the grounds that they are threats to public health. Biden also remained silent on the fact that, at the time of his speech, more than 20 thousand children who came to the US seeking asylum were still being held in government custody.1 Despite these constraints on border crossings, Biden described a country generous in offering refuge, referring to “America’s commitment to protect the most vulnerable, and to stand as a beacon of liberty and refuge to the world.”

Biden’s betrayal of migrants is not unique in US history. The harsh refuge and asylum policies that prevailed during the Trump years dismayed many—yet, that dismay was based on a falsehood: a widespread assumption, emblazoned on key national symbols, such as the Statue of Liberty, that the US has historically offered unconditional refuge to anyone who needed to leave their homeland.

Such lofty ideas ignore the historical reality of a nation that runs on the twin engines of dispossession and unfreedom. The US has followed two divergent paths when it comes to asylum and refuge. In select instances, the nation makes space for those refugees and asylum seekers who can ideologically and racially be made to fit reigning political agendas. But the US also routinely denies space for refugees and asylum seekers. Those who are denied often include people seeking refuge from the consequences of US actions in their homelands.

The long history of asylum and refuge in the US shows that cruelty is as commonplace as welcome. In fact, today’s campaign to discredit and deny certain kinds of asylum seekers is not a strictly contemporary phenomenon. Such closed doors are a feature rather than a flaw of the global refugee regime, which does more to protect the right of nation-states to enforce their borders than it does to protect refugees and secure their needs.2 The uniqueness of the US does not lie in its hospitality—rather, it lies in the ways that settler colonialism and the historic enslavement of Africans and their descendants have shaped the US as a place of refuge.

But that is not the whole story. While the dream that the US has always offered safe haven for migrants is a myth, displaced peoples have always asserted and created forms of sanctuary and resilience. In particular, Black and Indigenous creations of sanctuary, resilience, and asylum seeking endure as practices of resistance to empire and white supremacy.


At the same time that the Americas offered asylum to some, such practices displaced—violently—many others. Starting in the 16th century, numerous cohorts of Europeans crossed the Atlantic, seeking shelter from religious and economic conflict. Yet, in seeking asylum for themselves, these European migrants created conditions that forced others to flee and create their own forms of asylum. In 17th-century New England, members of displaced Algonquian nations sought refuge from the violence of settler colonialism among neighboring Indian nations.3 In Brazil, Jamaica, Florida, and other places, multiracial communities called quilombos sheltered maroons—runaway slaves—along with Indigenous asylum seekers on lands not conquered by Europeans.

After achieving independence, Americans offered refuge not solely out of generosity or hospitality but in ways that advanced the new nation’s settler ambitions. In July 1783, future first president George Washington wrote a letter to the Continental Congress about a group of refugees from Canada who supported the American Revolution. Washington specifically recommended that Congress grant Canadian refugees “unlocated lands in the interior parts of our Territory.” Doing so would “enable them to form a Settlement which may be beneficial to themselves,” Washington said, but it would also be “useful to the United States.”

Why would Washington have believed welcoming these refugees would be “useful”? Because early American officials hoped to populate the Northwest Territory; yet the United States only had a tenuous claim to this vast area, which was already home to many Indigenous nations. With enough white settlers—including Washington’s “useful” Canadians—the nation could turn those lands into states of the union. This foundational example of refuge was useful, in other words, because it facilitated settler aspirations of westward expansion onto Native land.

Even the violence of “Indian removal” was refashioned by the logic of US settler colonialism into what Euro-Americans could believe was a form of refuge. In the early 19th century, white settlers fervently pursued their project of westward expansion. To support their pursuits, the federal government passed the Indian Removal Act of 1830, committing itself to forcibly displacing the Cherokee, Chickasaw, Choctaw, Creek, and Seminole nations from their ancestral homelands. Advocates of removal justified these forced displacements by describing them as a humanitarian initiative. According to this warped logic, removal would spare Indigenous North Americans from the encroachment of settlers on their land.4

Removal was no refuge. It was a state-sanctioned and federally sponsored effort to dispossess Native peoples of their land and their sovereignty.

Like settler colonialism, slavery and its afterlives contradict any claim that the US is committed to being a refuge.

For example: the US banned the international slave trade in 1807, but the successful uprising of enslaved peoples in the French colony of Saint-Domingue—a revolution that led to the creation of Haiti—entangled slavery with US refuge. In 1809, the US Congress permitted slave-owning Saint-Dominguan refugees who had been exiled in Cuba since the revolution to enter the US territory of Louisiana. They arrived with their slaves in tow. In this instance, the US was a refuge, but only for the slave owners. The enslaved remained relegated to bondage, despite the fact that importing slaves was illegal.5

Domestically, the Fugitive Slave Act of 1793 had made it a criminal act to flee from slavery. A harsher version of the law passed a half century later, in 1850. Slaves that were unsuccessful in attempting to escape, according to the 1850 law, were denied the opportunity to challenge their capture in court or to present evidence about the depths of the abuse they faced in slavery. The law also carried severe penalties for those who sheltered or assisted escaped slaves—“refugees,” in the eyes of abolitionists like Benjamin Drew—in their pursuit of freedom.6 With their enhancement of police power to detain free people, the fugitive-slave laws are a clear precedent to the 20th- and 21st-century deportation machine.7

Even during the Civil War, US practices of refuge continued to mirror slavery and settler colonialism. When the Emancipation Proclamation spurred thousands of freed slaves to flee southern plantations, US officials harbored them in refugee camps operated by the Union army. In these camps, emancipated slaves found what historian Chandra Manning has described as a “troubled refuge,” where formerly enslaved people received shelter in exchange for their military service and their labor. Camp administrators, meanwhile, used refugee camps to demonstrate the North’s moral authority over the slave-owning South. They also used the camps as spaces to advance a paternalistic vision of post-slavery society, in which white Americans would oversee the freedom of African Americans.8

When the Civil War ended, the US entered into a treaty with the Creek Nation that recognized Creeks who sided with the Union and were displaced by Confederate sympathizers as “loyal refugee Indians.” The same treaty forced the Creeks to give up the western half of their land in Indian Territory, even though it had been set aside for them after they were displaced from their ancestral homeland. It also allowed the US military to occupy Creek land at the military’s discretion. The federal government’s recognition of loyal Creeks as refugees worthy of aid was complicated by these simultaneous efforts to undermine the sovereignty of the Creek Nation.9

These examples scratch the surface of how the US conceived of itself as a refuge—a refuge founded in slavery and settler colonialism, and one that continues to be possible only through the US occupation of Indigenous land.

While the dream that the U.S. has always offered safe haven for migrants is a myth, displaced peoples have always asserted and created forms of sanctuary and resilience.

The global refugee regime as we know it today was founded by a hopeful, new United Nations, at the inaugural convention of the UN Refugee Agency (UNHCR), in 1951. Responding to the postwar “displaced persons” crisis in Europe, the UNHCR certified the right of refugees to flee their home nation and be resettled in another. The convention emphasized non-refoulement: an individual’s right not to be returned to a nation where they face persecution. But this important protection was weakened by the United Nations’ obeisance to Westphalian concepts of national sovereignty, which allowed individual nations to decide the format and extent of their compliance with the salutary goals of the UNHCR.

As an international organization bound to respect the sovereignty of its individual signatories, the United Nations lacked the ability to compel its members to comply with the high-minded rhetoric set in place in 1951. Part of a postwar human rights efflorescence, the principles authored by the UNHCR have rarely been reflected in the conduct of any nation toward displaced persons.

In the US, the term refugee was immediately deployed not as an opportunity for refuge, but as a tool to further Cold War empire and Cold War goals. Federal immigration policy, for instance, recognized as refugees those fleeing communist Eastern Bloc countries—but it did not grant the same designation to those fleeing the depredations of US-backed proxy wars in Latin America, Africa, and Asia. Those migrants whom the US refused to designate as refugees faced harsh enforcement practices. These include the targeting of Mexican American communities during Operation Wetback (1951–55), through successive regimes of increasingly militarized gatekeeping.

Even in affirming refugee rights, the US created violent practices. In the Refugee Act of 1980, for example, the government recognized that US military engagement in Southeast Asia had created a refugee crisis there and asserted the importance of humanitarianism. The act committed the federal government to accepting a certain number of refugees, to be determined annually. Immediately after the act’s passage, the Reagan-era Immigration and Naturalization Service (INS) began detaining Haitian asylum seekers. In so doing, the INS began creating a vast immigration-detention system; this system, like the broader prison-industrial complex, originated in centuries-long counterinsurgency warfare against Black freedom struggles.


The story continues into the 21st century, as multinational caravans of asylum seekers walk from Central America to the US-Mexico border. Arriving at the border, asylum seekers encounter the shambles of a 20th-century refugee regime never designed to accommodate them in the first place.

Whether entering as legal immigrants or undocumented migrants, asylum seekers have the right to declare themselves, becoming entitled to legal protections under international law. But the xenophobic furor mobilized against the caravans from Central America in recent years denies the agility of asylum seekers and undermines their legal status, degrading the refugee regime by defining them as “criminal aliens.”

These caravans include Haitians fleeing the continuous repression in that country since the first successful slave uprising there, in 1804, as well as Indigenous Central Americans forced to leave their home countries by depredations arising from the extractive colonialism fostered by global corporations.

In 2016, multinational Indigenous water protectors assembled on Oceti Sakowin lands, mustering a kind of quilombo to stand against the dangerous Dakota Access Pipeline being built by Energy Transfer Partners. That same year, Lenca water protector Berta Cáceres was assassinated by forces allied with the US-backed government of Honduras. In Guatemala today, Indigenous Xinca communities confront a mine planned by the Canada-based company Pan American Silver. Throughout the Americas, Indigenous water and land protectors are displaced along with the survivors of other freedom struggles.

The displaced deploy words drawn from the ample juridical archive of national as well as international law to call themselves refugees, migrants, immigrants, and/or asylum seekers and strategically bolster their attempts to find shelter from the white-supremacist, settler-colonialist storms that continually ravage their homelands.10 Often denied entrance into the US, they perch in precarious encampments on the seams adjoining the global North and South.

The US originates in settler colonialism, slavery, empire, and a long history of giving refuge to some while refusing refuge to others. But those deeply rooted injustices do not preclude the possibility of making the US into a true refuge—one that offers unconditional welcome. The refugee regime is being, and has always been, continually refashioned by the creative and transformative acts of migrants and their advocates. Any effort to transform or even abolish the punitive regime of displacement and border enforcement would best look to the long history and current iterations of asylum practiced by those continuously displaced.

 

This article was commissioned by Geraldo Cadava. icon

  1. Biden also appealed to skeptics of refugees when he emphasized the “rigorous screening process” that “fully vetted refugees” must undergo before being admitted into the US—if they are admitted at all.
  2. David Scott FitzGerald, Refuge beyond Reach: How Rich Democracies Repel Asylum Seekers (Oxford University Press, 2019). See also the work of Yến Lê Espiritu, Mai-Linh K. Hong, Mimi Thi Nguyen, A. Naomi Paik, and other Critical Refugee Studies scholars.
  3. Practices of Indigenous sanctuary took place across the continent. See, for example, Aimee Villarreal, “Sanctuaryscapes in the North American Southwest,” Radical History Review, no. 135 (2019).
  4. Claudio Saunt, Unworthy Republic: The Dispossession of Native Americans and the Road to Indian Territory (Norton, 2020); Patrick Wolfe, “Settler Colonialism and the Elimination of the Native,” Journal of Genocide Research, vol. 8, no. 4 (2006).
  5. Ashli White, Encountering Revolution: Haiti and the Making of the Early American Republic (Johns Hopkins University Press, 2010); Rebecca J. Scott and Jean M. Hébrard, Freedom Papers: An Atlantic Odyssey in the Age of Emancipation (Harvard University Press, 2012).
  6. Benjamin Drew, A North-Side View of Slavery: The Refugee; or, The Narratives of Fugitive Slaves in Canada (John P. Jewett, 1856); and Andrew Delbanco, The War before the War: Fugitive Slaves and the Struggle for America’s Soul from the Revolution to the Civil War (Penguin, 2018).
  7. Adam Goodman, The Deportation Machine: America’s Long History of Expelling Immigrants (Princeton University Press, 2020).
  8. Chandra Manning, Troubled Refuge: Struggling for Freedom in the Civil War (Vintage, 2016); Amy Murrell Taylor, Embattled Freedom: Journeys through the Civil War’s Slave Refugee Camps (University of North Carolina Press, 2018).
  9. Evan Taparata, “‘Refugees as You Call Them’: The Politics of Refugee Recognition in the Nineteenth-Century United States,” Journal of American Ethnic History, vol. 38, no. 2 (2019).
  10. Rachel Ida Buff, “Sanctuary Everywhere: Some Key Words, 1945–Present,” Radical History Review, no. 135 (2019).
Featured image: Immigrants – Ellis Island (ca. 1907–1917). George Grantham Bain Collection / Library of Congress