Excerpted From: Anna Welch and Emily Gorrivan, Ethno-nationalism and Asylum Law, 74 Maine Law Review 187 (2022) (161 Footnotes) (Full Document)


WelchGorrivan“The New Colossus,” a sonnet affixed to the Statue of Liberty, is often viewed as a symbol of American values, and yet the historical context of this poem is often overlooked. Written in 1883, Emma Lazarus's sonnet came at the pinnacle of racially charged immigration controversies in the United States. Just one year before Lazarus wrote the sonnet, the Chinese Exclusion Act became federal law. Indeed, in the midst of the xenophobic development of the U.S. immigration system, Lazarus's words were an anomaly--although Lazarus herself was a refugee advocate, her words, both then and now, stand in stark contrast to the ethno-nationalist structure woven into the DNA of U.S. immigration laws and policies.

Ethno-nationalism, a term used throughout this Essay, is the phrase the authors use to describe the ideological approach that shaped U.S. immigration law. For the purpose of this Essay, ethno-nationalism refers to the view that one's nation is “defined in terms of assumed blood ties and ethnicity.” Indeed, “[t]here have always been ... two strands of nationalism in the United States: one holds that the distinctiveness of America depends on conceptions of human rights and democracy; and the other strand of nationalism is a kind of ethno-nationalism that is more hostile to immigration, more linked to race.”

While racism permeates the entire U.S. immigration system, this Essay primarily concerns the racism that plagues U.S. asylum laws and policies. Reforming the asylum system must begin with an acknowledgement of the system's racist origins. As detailed below, the U.S. asylum system was designed to disadvantage people of color, and the system continues to perpetuate discrimination, although the racism embedded in today's purportedly race-neutral processes is more insidious. Moreover, although former President Trump's reference to Haiti, El Salvador, and African nations as “shithole countries” while advocating for immigration from “countries like Norway” exacerbated existing systemic challenges, racism has been deeply ingrained in the U.S. asylum system since its inception.

This Essay proceeds as follows: Part I delineates the ethno-nationalist roots of the U.S. asylum system. Because asylum law is a subset of U.S. immigration law, this Part describes the history and formation of U.S. immigration law more generally (emphasizing some instances in which xenophobic and nationalist views have shaped the system), before turning to the origins of our U.S. asylum system. Part II discusses the adverse effects of the U.S. asylum system on Haitians--the Haitian case study is perhaps the most notable and blatant example of historic and lingering animus within our asylum system toward people of color. In its conclusion, this Essay explains that a necessary first step in reforming our asylum system is acknowledging the root cause of injustice.

[. . .]

The first step in reforming our asylum system requires recognition that racial animus motivates much of U.S. immigration laws and policies. Indeed, not only do U.S. laws and policies have a disparate impact on black asylum seekers as discussed above, but when placed in their historical context, one would be hard pressed to argue that these laws are neutral. The pervasive foreign policy and national security concerns continually invoked by the U.S. government to justify this discrimination ring hollow in light of this injustice. Without an acknowledgement of this troubling history, reform will remain elusive. And, ultimately, reform is the next critical step. Judges must follow U.S. District Court Judge Du's lead in examining the historical evidence of racial animus deeply embedded in our immigration laws and find that these laws are simply too racist to remain in place. Teasing out the racism embedded within many of our immigration laws would, as one journalist recently put it, “require holding even basic immigration restrictions unconstitutional and essentially starting over.”

Anna Welch, Clinical Professor and Founding Director of the Refugee and Human Rights Clinic at the University of Maine School of Law. </p

Emily Gorrivan, University of Maine School of Law Class of 2022.