An estimated half million Salvadorans are currently in the United States illegally. A sizable portion have been aided or housed by a growing number of church groups in this country who are participating in a program known as “Sanctuary.” Otherwise law-abiding citizens are risking upwards of five years in jail and maximum fines of $2000 in order to provide humanitarian assistance to these Salvadorans.
The second unique aspect present in this social phenomenon is that it represents one of the few instances in U.S. history where individual citizens have carried out their own alien admission system for reasons other than economic gain. As the Supreme Court reasoned in one of the earliest immigration cases, “The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States, as a part of those sovereign powers delegated by the Constitution, the fight to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of anyone. The powers of the government are delegated in trust to the United States, and are incapable of transfer to any other parties. They cannot be abandoned or surrendered.” (Chinese Exclusion Case 130 U.S. 581, 609 (1888)). “Sanctuary” seems to be the first crack in this assumption.
What has forced so many Salvadorans, and also so many law-abiding U.S. citizens, to follow the illegal route has been the fact that the legal channels have all been closed. There are essentially two legal avenues that Salvadorans could follow in their efforts to stay in the U.S. lawfully—asylum and extended voluntary departure. Neither has offered a glimmer of hope.
With the passage of the Refugee Act of 1980 Congress made an ostensible effort to get away from the ideologically dominated refugee policies of the past. For example, the seventh preference for refugees in the 1965 Immigration Act limited its humanitarian scope to those fleeing Communist nations or countries in the Middle East. Contrary to this, the stated purpose of the Refugee Act was to look at “the plight of the refugee” herself. In accordance with this new approach, these geographical restrictions were eliminated.
The changes in legislative language, however, have not brought about any changes in policy practice. The list of refugee admissions and grants of asylum are still dominated by those from Communist countries. Individuals fleeing from non-Communist countries have not fared nearly as well. Nowhere is this clearer than in the case of Salvadorans. Last year the State Department granted asylum status to only 200 Salvadorans. Many Salvadorans do not seek asylum, with good reason. INS data show that in 1983 only 6 percent of the Salvadorans who applied for asylum were granted it. Compare this with the 67 percent acceptance rate for Afghanis. The United Nations High Commissioner for Refugees has recognized Salvadorans as a group as refugees, and so have our neighbors to the north and south, Canada and Mexico. The U.S. has not.
Salvadorans have not fared any better under what is known as “extended voluntary departure.” This program is really extended non-departure. Traditionally, under this program foreign citizens are allowed to remain in the U.S. until civil disturbances in one’s home country have subsided. In the pas two decades extended voluntary departure has been implemented fifteen times for groups such as Nicaraguans in 1979. At the present time extended voluntary departure ha been denied to Salvadorans as a group, the rationale being that conditions in El Salvador are not unsafe. The House version of the proposed Simpson-Mazzoli bill has a provision in it for granting extended voluntary departure to Salvadorans. However, at present this does little good for the hundreds of thousands of Salvadorans whose status and safety remain uncertain.
Elliot Abrams, Assistant Secretary of State for Human Rights and Humanitarian Affairs, defends the denial of relief to Salvadorans this way: “There are dozens of wars, civil wars and insurgencies in the world today, and almost all are in the third world…. Those who ask that all Salvadoran migrants be allowed to stay in the United States indefinitel must explain why the same treatment is not deserved by all other migrants from poor violent societies to our south—now and in coming years ” (N.Y. Times, August 5, 1983).
The whole tenor of Abrams’s argument totally overlooks the very close (and growing) military and economic connection between the U.S. and El Salvador. If one did not know better one would think, from Abrams’s remarks, that as far as the U.S. is concerned El Salvador is just another turbulent banana republic. The message from the Reagan administration is clear— if we allow any substantial number of Salvadorans into this country we will have to take them all in. The specter of hordes of migrants coming into this country has long been an effective tool in keeping many ethnic groups out; Abrams merely uses this age-old argument in a more subtle way.
The federal government has found that the simplest way of having to make a close scrutiny of the claims of Salvadorans is to label them as “economic migrants.” What this means is that all Salvadorans are presumed to come to this country merely for economic advancement. Illegal Mexicans are also considered economic migrants and so are Haitian boat people. No effort is made to distinguish the economic situations of these people. Seventy-seven percent of the Haitian population exists on less than $150 per year, but this label of economic migrant allows the U.S. to portray these people as wanting to take the bread off our tables. Moreover, we not only do not distinguish between economic backgrounds, but the administrative term “economic migrant” allows the U.S. to ignore the domestic setting and internal differences between each of these, and other, countries. Surely some Salvadorans are here for economic reasons, but to avoid seriously looking at the claims of those who are fleeing for political and safety reasons smacks of the worst form of insensitivity.
One of the ironies of this scorn for economic migrants is the fact that economic considerations seem to play a very large part in our legal channels of alien admissions. Empirical studies have shown that many “normal flow” immigrants come to this country solely for economic advancement. In addition, large numbers of the refugees we admit (such as Vietnamese and Cuban nationals) have stated that they have migrated to the U.S. for economic and not political reasons.
The wrong assumptions are being made and the wrong questions are being asked. The question that should be raised is whether or not the U.S. should owe a special duty of protection to the citizens of nations where the U.S. is either waging a war or materially (in the literal and figurative sense) aiding in the perpetuation of a war. My answer, it should be obvious, is yes, and I base my argument on the idea that innocents (in a war situation or otherwise) have a basic right not to be harmed or killed. If this nation’s actions threaten this basic right then it should owe a special duty to rectify this wrong. The Reagan administration has tried to buttress its argument that those coming to the U.S. are surely economic migrants because, they argue, asylum is possible (for how long and for how many is uncertain) in Canada and Mexico. What this argument completely overlooks is that the humanitarian actions of our neighbors should serve as an embarrassment to our policies, not a justification for them. If our weapons and military training kill people in El Salvador, why should we be surprised, or angered, when those lucky to survive come to this country? Canada and Mexico do not owe a special duty to the innocent citizens of El Salvador; we do.
The last question that I will address is whether the “Sanctuary” program can be morally justified or not. As a general rule we would not want individuals or groups of individuals making their own alien admission policy. Nations simply cannot function this way. What marks the “Sanctuary” program is that individual citizens are having to recognize this special duty to Salvadorans because the U.S. government will not. That is to say that what differentiates “Sanctuary” from a humanitarian program that would admit starving Haitians, for instance, is that (1.) admission to this country might be the only way of providing the needed assistance (while providing food directly to Haitians might be sufficient aid), and (2.) that because of current U.S. policies in El Salvador a special duty to provide safety exists. A special duty (as opposed to a general duty of care) is much less discernible in the Haitian situation.
To summarize, the U.S. owes a special duty of protection to Salvadorans who are fleeing the civil war in that country. This special duty arises from the fact of heavy U.S. involvement in the implementation of that war. To date, the federal govern- ment has avoided taking a serious look at the claims individual Salvadorans can present by (1.) generally treating all Salvado- rans as economic migrants, and (2.) maintaining an asylum/ refugee policy that is still mired in the East-West conflict. The church-based “Sanctuary” program simply recognizes that special duty.
MARK GIBNEY
(Mark Gibney, currently doing dissertation work on U.S. alien admission policies, is a member of the bar in Massachusetts, Pennsylvania, and the District of Columbia.)
