Asylum - Pre–world war ii barriers to asylum and refuge




Diplomatic and territorial asylum (the latter term employable even in an interstate context) are concepts with a largely nineteenth-century resonance, privileges understood as benefiting individuals. Since the early part of the twentieth century, however, asylum has become linked with the fate of groups. Thus, to understand U.S. asylum law as currently practiced and debated, three different chronologies or narratives must be brought together. The first is the pattern of formal U.S. immigration legislation and executive action since the 1870s, the second is the contemporaneous and related history of international migration, and the third is the development of an international regime governing refugees and asylum-seekers, particularly in the years since World War II.

Whatever the proper interpretation of the discretionary power or mandatory obligations of the individual states in interstate rendition, the exclusive power of Congress over the admission and deportation of aliens is beyond dispute. Such was the import of two groups of cases the Supreme Court adjudicated in line with article 1, section 8, of the Constitution: the so-called Passenger Cases of 1849 and 1876, followed by the notorious half dozen Chinese Exclusion Cases from 1884 to 1893. This was the jurisprudential context in which Congress drafted immigration policy along explicitly racial lines and thus set in place for eight decades one of the three basic categories of inclusion and exclusion of aliens (and ultimately their safe refuge and asylum). In the first phase, from the Chinese Exclusion Act of 1882 until the Immigration Act of 1917, Asian immigration was severely restricted. Meanwhile, as increasing numbers of immigrants came from southern and eastern Europe, Congress reacted in the 1920s with two laws, the (Temporary) Quota Act of 1921 and the (Johnson-Reed) Immigration Act of 1924. Together these two laws placed for the first time a descending ceiling over the annual number of immigrants, so that the aggregate of permitted immigrants dropped from a pre–World War I average of just under one million down first to approximately 360,000 and then to 150,000. Within this shrinking total the ratio of new to old immigrants was also drastically reduced, with the countries of the old immigration being eventually awarded more than four-fifths of the final quotas: Germany, for example, was allocated some 26,000 visas, versus Italy's 6,000. The unprecedented "national-origins" or "quota" system, which required entry visas to be issued in the country of application, came fully into operation in 1929. These basic formulas set American immigration policy until the 1960s, not least in excluding from the calculations those born in the Western Hemisphere, mainly Mexico and Canada, who would form a growing number relatively and absolutely of the "non-quota" immigrants.

As immigration into the United States from Europe was severely limited under the legislation of the 1920s, migration within Europe and Asia Minor took on a new importance during and immediately after World War I. Hundreds of thousands of Armenians, Bulgarians, Greeks, Russians, and Turks were displaced as so-called nation-states succeeded former multinational empires in eastern Europe and the Near East. Under the new League of Nations regime, negotiated population transfers (notably between Greece and Turkey), the protection of remaining minorities (in Poland and Romania), and the relief of indigent refugees (Bulgaria, Czechoslovakia, and Yugoslavia) became international responsibilities, with League of Nations bodies such as the High Commission for Refugees and the International Labor Office (predecessors of today's Office of the United Nations High Commissioner for Refugees and the International Labor Organization, respectively), individual countries (France particularly), and nongovernmental agencies such as the Red Cross supplying various kinds of help. The legacy of these different responses would be most clearly seen during and shortly after World War II, when the United Nations, with the United States in the leading role, assumed a comparable role in meeting the needs of the latest generation of refugees.

If the 1920s was the decade of a new international responsibility for displaced persons, then the 1930s and the first half of the 1940s produced forced migrations and displacement on a scale not seen for centuries in Europe and Asia. (Events in China had no effect upon U.S. refugee policy; but experts calculate that the onset of all-out war by the Japanese in 1937 led to the flight of tens of millions of Chinese inland from the coastal regions toward the north and west.) Figures capture the horror rather than express precisely the enormity of the human suffering: an estimated minimum of 40 million Europeans were displaced in two main stages, first under the Nazis and their allies until the failure of Operation Barbarossa, the German invasion of the Soviet Union, in 1942–1943. The war was followed by a decade of "ethnic Germans" ( Volksdeutsche ) removing to the defeated fatherland and Slavs migrating mainly eastward and within the enlarged Soviet Union and its satellites (especially the Ukraine and Poland). Despite calling an intergovernmental conference at Evian, France, in July 1938 on the refugee crisis, President Franklin D. Roosevelt provided no leadership at home to effect changes in immigration policy to permit extra-quota places for victims of Nazi persecution.

After the net emigration that characterized the first (Great Depression) half of the 1930s came a net immigration in the second half of the decade and early war years that saw a maximum of 250,000 refugees enter the United States within quota. The end result was the lowest absolute decennial total admission of immigrants into the country since the census period 1820–1830, when 143,000 persons had arrived on U.S. shores. (The period 1831–1840 saw 600,000 immigrants, while in 1931–1940 it was just 528,000.) Thus, despite the arrival of some famous asylum-seekers (Hannah Arendt, Albert Einstein, Thomas Mann) into the United States from the Europe of the impending Holocaust, numerically the impact of such refugees was minimal. Indeed, Eichmann argued in his own defense that the "final solution to the Jewish question" was facilitated by the general resistance to Jewish immigration—a claim corroborated by contemporary American opinion polls.

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