Legal and Philosophical Intersections of Refugee Law: Imagining a More Just Migration

Abstract

Despite the United States’ trove of migration laws, many of which promise to adhere to the United Nation’s handbook on refugees, our migration infrastructure is weak and exclusive. By using Michel Foucault’s analytical lens, biopower, this paper will examine the discrepancies between the two dominant forms of migration: immigration and asylum law. While other scholars have conducted refugee studies and claim to use biopower as their lens, this paper will challenge their academized framework by charting the real history of refugee advocacy. To critique these modern scholars, the paper will turn to Hannah Arendt’s articulation of citizenship’s value and her early work on the stateless. In doing so, this paper will be the first to suggest that the exceptionalism that dominates refugee law—and its separation from immigration law—stems from the biopower that underscores the nation’s migration statutes. The interdisciplinary analysis will uncover three areas where the law falls short: the particular social group (PSG) requirement in refugee law, the tendency to imagine citizenship as a binary, and the border wall as a space of legalized violence against migrants. This unique form of jurisprudence, though, reveals immediate solutions to the abstract problems. PSG provisions, for one, must be read with a corrected textualist lens that respects its broad origins. Statutes like Temporary Protected Status must be protected to fill the gap between immigration and refugee law, initiating a notion of semi-citizenship. Finally, test cases must make use of the constitutional similarities between Civil Rights law and immigration law to protect migrants at the border.