A quarter of a millennium ago, the United States was founded. Unlike other global powers of that era, which were ruled by despotic kings wielding nearly absolute authority over their subjects, the U.S. distinguished itself as the first nation in history to establish sovereignty with its people protected by a system of separate powers among three branches of government.
Recognizing the need for stability in this novel political structure, the Founding Fathers believed that the rights and obligations of its citizens and institutions should be firmly rooted in law, rather than subject to the fluctuating perspectives of a few or the majority.
Consequently, the rule of law enshrined in the U.S. Constitution ensured that all citizens, institutions, and government officials are held accountable to the law of the land and that the law must be enforced.
The Founding Fathers were, once again, absolutely correct. If the matters of regulation and law enforcement were left to the whims of the political discourse of the day, there would be no stability or accountability, and only lawlessness would prevail.
And in today’s world, we indeed encounter numerous topics that can evoke impulsive and emotional reactions. These topics are often brought to the forefront by reporting that, in many cases, can only be described as personal opinion sharing without any consideration or explanation of the actual law and the situation at hand.
As the Founding Fathers wisely predicted, viewing any issue from a dry legal perspective can only unite the people and allow everyone to appreciate the courageous officers who diligently work to protect the U.S. by enforcing the law.
To illustrate this point, I invite you to join me in exploring the topic that has consistently dominated media coverage and sparked numerous passionate debates — illegal immigration and the law enforcement response to it.
As I always do when teaching at the university, let me begin by sharing two straightforward yet undeniable legal realities: There is no international human right to immigrate to the U.S. Moreover, the right to seek refuge under international asylum protections is extremely narrowly defined, potentially applicable only in a very few specific legal cases.
Got your attention? Good.
In 1966, the United Nations General Assembly adopted the Protocol relating to the Status of Refugees. The U.S. ratified this Protocol on Nov. 1, 1968, committing to implement certain provisions of the 1951 Convention relating to the Status of Refugees.
This 1951 Convention frequently serves as the foundation for passionate yet flawed legal arguments regarding the excessively broad human rights supposedly granted to those seeking refuge in the U.S.
Let’s begin with the fundamental question: Who could possibly seek refuge in the U.S.? The 1951 Convention adopted a stringent approach, stating that only individuals genuinely persecuted for specific reasons related to race, religion, nationality, or membership in a particular social group or political opinion can potentially apply for asylum.
In simpler terms, while extreme poverty, lack of access to essential resources such as water, food, medical care, basic infrastructure, or the absence of a stable legal and political system are certainly unfortunate circumstances, they do not grant anyone the right to seek refuge in the U.S.
Similarly, the absence of the right to seek refuge also applies to those attacked by criminal gangs or threatened for reasons unrelated to race, religion, nationality, or membership in a particular social group or political opinion. People not covered by the right of refuge, which undoubtedly constitutes the vast majority of cases, are simply regarded as migrants who must apply for an entry permit from the U.S. diplomatic service abroad.
Upon approval of their application, they must present themselves to Customs and Border Protection officers at the designated port of entry before entering the U.S. Any deviation from this procedure is considered illegal migration and may well be subject to criminal prosecution.
However, this does not imply that those relatively few individuals who may legitimately qualify for asylum can enter and reside in the U.S. as they please.
To shed some light on this topic, let’s address two specific points often misrepresented in public debates: Can a refugee enter the U.S. without going through an official port of entry?
And, can a refugee be arrested and expelled from the U.S.?
Legitimate refugees, regardless of the severity of their circumstances and the claims of persecution, must present themselves to CBP officers at an official port of entry and declare their asylum claim. There’s only one limited exception to this rule under the 1951 Convention: criminal penalties should not be imposed on refugees who entered directly from the territory where their life or freedom was threatened due to race, religion, nationality, or membership in a specific social group or political opinion, provided they present themselves to law enforcement immediately upon entry.
To clarify, this exception essentially means two things: First, if a person is currently in Canada or Mexico, as those are the only two countries the U.S. shares a land border with, and is fleeing to save his or her life from the very authorities of Canada or Mexico who are objectively persecuting that person based on race, religion, nationality, or membership in a specific social group or political opinion, then that person may directly approach the first possible U.S. law enforcement officer, even if it means crossing the border at the closest point rather than at the designated point of entry.
Second, the U.S. law enforcement officer may still detain this person and even commence criminal proceedings, but the criminal sanction for entering the U.S. outside the port of entry should not be imposed.
For all other cases, in which a person is fleeing persecution and even life-threatening circumstances originating outside Canada or Mexico, entry into the U.S. must occur through an official point of entry.
If that does not happen, criminal sanctions are appropriate and permissible.
Back to our second question, can a refugee be arrested and expelled from the U.S.? In certain circumstances, absolutely yes.
According to the 1951 Convention, expulsion from the U.S. is permitted on grounds of national security or public order to any country worldwide, provided it is done in accordance with due process of law. Expulsion can also be carried out even without the right to submit a defense if there are “compelling reasons of national security.”
Furthermore, if a refugee is involved in a particularly serious crime or poses a danger to the community of the U.S., expulsion can extend even to the very country they originally fled from.
But you have not heard this in recent media coverage, have you?
Now, we have a clear understanding of the dry law. And not just of any law, but the most human rights-friendly source of international legislation available.
The key takeaway, aside from yet another disappointment in reporting and public debates that seemed to have forgotten the importance of explaining the law before sharing opinions, is that while certain rights are granted, they are exercisable by a very few and remain subject to significant limitations.
That means that the enforcement of criminal law and the maintenance of territorial sovereignty remain of utmost importance.
Which brings me to the initial point about the significance of law enforcement. Homeland Security bears the immense responsibility of safeguarding the domestic border, protecting the U.S., and managing the substantial number of cases that can only be classified as illegal migration. Their law enforcement role is precisely what the term implies: enforcing the law, as enacted by Congress or agreed upon through international conventions that the U.S. has entered into.
And they are remarkably effective at it. The second side of the same critical border control and law enforcement medal is the more recent establishment of the Shield of the Americas.
This organization, led by former Homeland Security Secretary Kristi Noem and comprising 13 countries, coordinated essential law enforcement activities beyond the U.S. As a result, cases of illegal migration and cross-border criminal activities can be resolved even before they reach the U.S.’s borders, thereby enhancing domestic security while reducing the pressure on law enforcement officers in the U.S. and decreasing the financial burden on taxpayers.
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Instead of acknowledging and appreciating the exceptional work done by the Department of Homeland Security and the Shield of the Americas in this field, they have faced numerous unjustified attacks.
If we approached the issue of illegal immigration and the law enforcement response to it from a legal perspective, perhaps we could all unite and express genuine appreciation for law enforcement and its role in ensuring that the U.S., the beacon of democracy, remains governed by law and a living dream.
Milos Ivkovic is a professor at the University of Washington.