Enforced Invisibility: Toward New Theories of Accountability for the United States’ Role in Endangering Asylum Seekers

Lori A. Nessel - Seton Hall University School of Law
Vol. 55
February 2022
Page 1513

This Article employs a historical and race-based lens to analyze the various components of the multi-faceted forced invisibility regime. As the new Administration begins to construct a more humane immigration policy going forward, it is essential that international human rights and constitutional rights are not limited to the U.S.’s physical land border. Although some of the most egregious externalization policies that were put in place during the Trump Administration may end, the U.S. has engaged in harsh immigration policies for years in an attempt to deter asylum-seekers from arriving at our borders. Moreover, as the number of migrants arriving at the southern border continues to climb, the pressure to engage in externalization policies will similarly mount. Indeed, while the Biden Administration has tried to end the MPP and other egregious border externalization policies, it continues to engage in Title 42 expulsions at the southern border, thereby repelling asylum-seekers without providing an opportunity to seek asylum protection. Thus, the need to guarantee basic rights to asylum seekers — regardless of their physical location — both preceded and will succeed this ugly chapter of American immigration policy. Extending this overdue protection and establishing U.S. accountability for the intentional harms caused by this regime is necessary to disincentivize removing asylum seekers from public sight. To this end, this Article suggests borrowing standards from international law and torts law to restrain the U.S.’s extraterritorial immigration policies and provide meaningful remedies to those who have already been intentionally harmed.

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