When You Come Upon A Drowning Man: A Modest Proposal On The Refugee Crisis

Photo by Ian Espinosa on Unsplash

In 1992, I was a Haitian American law student at New York University when the call came. A bloody coup in Haiti had led thousands to risk their lives on the open water in vessels not worthy of the name boat. Most were caught by the “floating Berlin Wall” the U.S. Coast Guard mounted in the Caribbean Sea; they were warehoused on Guantanamo. A relative few miraculously landed on Florida’s shores. I rushed to South Florida to help process hundreds of asylum applications. There, in an old high school gymnasium that smelled of wet socks and fear, I learned of the vast divide between “classroom law” and the law as applied to Haitian asylum seekers.

These days, I am a law professor watching a new generation of law students learn a similar lesson. The arrival of the so-called immigrant caravan gives us an opportunity to teach and do differently. It is a test we are likely to fail. The Trump Administration’s attempts to dismantle the scaffolding of laws meant to protect the most vulnerable will bring to an end the world as we have known it. Asylum seekers will suffer — and so will the soul of this nation.

Almost every article on this subject begins with the Voyage of the Damned — the ill-fated journey of the MS. St. Louis from Hitler’s Germany to the Americas in 1939. When the ship arrived in Cuban waters with 937 German Jews, they were turned away. In the name of the American people, President Franklin D. Roosevelt also denied refuge (as did the Canadians). With nowhere else to go, the ship returned to Europe where 254 people perished in Nazi concentration camps.

We owe a debt to these lost souls. Their senseless slaughter pushed the international community to adopt laws, including the 1951 Refugee Convention, to ensure “never again” was more than an empty promise. To the women, men, and children of the MS St. Louis, and to the countless, nameless others who have perished seeking refuge, I say mournfully and with deep gratitude: I am not forgetting you. But perhaps the immigration debate would look different if our collective memories went back a bit further — 526 years to be exact.

In December 1492, Christopher Columbus’s ship, the Santa Maria, ran aground off the coast of northern Haiti. The Tainos — Haiti’s First People, whose name means “the good people” — rushed to save Columbus’s men before the ship sank, never to be seen again. The Tainos built a fort to house the New World’s first migrants.

“We can’t take everybody who shows up to our border.” So goes the modern refrain, as if refugees hold no special status under the law. They do. But anyone with even a cursory understanding of our immigration system knows how difficult it is to be granted that status. I learned just how difficult back in 1992. Most Haitians who fled the coup were deemed “economic migrants” and shipped back to Haiti — despite the military tanks that rolled down their streets. We should not confuse “everybody who shows up to our border” with asylum seekers. We offer special protection to those who can demonstrate a well-founded fear of persecution because we remember what the world looked like when we did not. Never again.

President Trump has tried to turn a caravan of Central Americans fleeing for their lives into a national security threat. He has militarized our southern border and shown the world how willing he is to flout the law — especially when it comes to those who hail from “shithole countries.” But he didn’t kill our immigration system — that has been decades in the making — he merely profits off its rotting corpse. He profits in the adulation of those who make no secret of their affinity to Hitler (Mr. Trump’s “good people”). He profits in the vitriol that makes it hard for some to acknowledge a simple truth: When you come upon a drowning man, you pull him out of the water. If you don’t, the man will lose his life — and you will lose your humanity.

Classes have ended at my university. Law students are buried in their casebooks studying for exams. When they graduate, I hope the divide between the law they have learned in the classroom, and the law as applied in the real world, is not an unbridgeable chasm.

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