Immigration Reform Memo
It seems as though immigration can bring out the worst in a country. It is a bipartisan agreement that the U.S has a broken immigration system that is dangerous and harmful- we are not only causing unnecessary harm to those who cross our borders, but we lack an understanding of the intersectional factors that contribute to the system- all while other nations across the globe watch and take notice. Among many things, we can agree that under the Trump administration we have seen some of the most inhumane and cruel policies take shape, however, this is not where our cruelty starts. It doesn’t even start with Obama, Clinton, or Bush who one after the other, continually failed our immigrant community. Our system failed at the start of its creation. How is it possible that we expect the same nation who got its start in forced kidnapping and genocide, be trusted to grant citizenship? How do we expect a country that still can’t grant the basic “birthright” of minorities to grant any rights to foreigners? To say this system needs reforming is an understatement.
The challenge has always been bringing something to the table that works on a bipartisan level. While it has historically been the power of Congress to dictate this system, they have not passed comprehensive and competent legislation since 1986. The four landmark Supreme Court cases involving Chinese immigrants highlighted the fact that every nation has the right to admit and refuse a foreigner to its borders. It is the inherent and inalienable right of every independent and sovereign nation. But what about the rights of every independent and sovereign being? While it isn’t realistic for our country— I believe it is in the best interest of our immigration system to be non-partisan. Our lawmakers get to choose their political ideology and hide behind their party interests to make decisions. But where you are born is not a choice you get to make. We need a system that has a more evidence-based humanitarian approach that is up to date with 21st-century issues.
If it was up to me, we would be having a philosophical conversation about why the concept of ‘borders’ is problematic in a country that doesn’t respect the borders of other nations. But instead, we will focus on rebuilding the system as we know it. We can’t change history, but we can make decisions going forward, that is in everyone’s best interest. We will start by restructuring the immigration legal system— who holds the power, how different bodies communicate, etc. We will talk about terminology, rewrite some statutes, dive into foreign policy, enforcement of all levels, and talk about what is going on currently under Trump’s administration. And of course, we will be talking about the asylum process.
Do you want to get rid of the number of undocumented immigrants living in our country? The short answer is simple: create more paths for legal citizenship. You can watch the numbers cut in half overnight. If you want a longer answer, you’ll have to keep reading.
important notes: this version does not include my footnotes and sources so if you want them, reach out to me!
the photo above taken from the balcony of Cape Coast Castle, in Cape Coast—-about a few hours outside of Winneba
Federal Agencies and Courts: A Rebranding
The Department of Homeland Security is the primary agency in the U.S. government whose mission is to prevent terrorist attacks on American soil. Homeland Security is a Cabinet-level department that has its origins in the nation's response to the attacks of Sept. 11, 2001. It fell under scrutiny almost immediately after its creation. DHS absorbed 22 federal departments and agencies ranging from Plum Island Animal Disease Center to Secret Service. Do Americans feel safer knowing that the flu epidemic, natural disasters, and airport security are all under one agency? The first order of business should be to send almost every agency back to where it came from. This way we can abolish ICE and send deportation powers back to the Justice Department. If the problem at our border is criminal activity then treat it as such. When Bush decided to fuse together agencies, maybe he wanted a centralized bureaucracy for events that needed a rapid response- mainly terrorism. However, whatever the mission of DHS originally was, it has steered off course dramatically under the Trump administration that sees immigration as a higher threat.
But DHS wasn’t created for this type of chaos:
“SEC. 101. EXECUTIVE DEPARTMENT; MISSION.
(a) ESTABLISHMENT.—There is established a Department of Homeland Security, as an executive department of the United States within the meaning of title 5, United States Code.
(b) MISSION.—
(1) IN GENERAL.—The primary mission of the Department is to—
(A) prevent terrorist attacks within the United States;
(B) reduce the vulnerability of the United States to terrorism;
(C) minimize the damage, and assist in the recovery, from terrorist attacks that do occur within the United States;
(D) carry out all functions of entities transferred to the Department, including by acting as a focal point regarding natural and manmade crises and emergency planning;
(E) ensure that the functions of the agencies and subdivisions within the Department that are not related directly to securing the homeland are not diminished or neglected except by a specific explicit Act of Congress;
(F) ensure that the overall economic security of the United States is not diminished by efforts, activities, and programs aimed at securing the homeland; and
(G) monitor connections between illegal drug trafficking and terrorism, coordinate efforts to sever such connections, and otherwise contribute to efforts to interdict illegal drug trafficking.”
The first item listed as a priority in the department's $47.5 billion budget request for 2020 is ‘securing our borders.’ The second priority listed is ‘Enforcing our immigration laws.’ If this is the new direction DHS will be focusing on their efforts, who is going to efficiently and powerfully secure us from more prevalent threats such as cyber warfare and domestic terrorism? While it is clear that DHS officials need to address the situation at the border (after all three bureaus of immigration responsibility sit under them— Customs and Border Protection, Immigration and Customs Enforcement, and Citizenship and Immigration Services), the problem is not the existence of people from Honduras or Guatemala crossing over for desperate reasons. We forget that we have a history to look back on— we don’t have to come up with new ways to figure out new problems, because we have done this before as a country. The United States accepted more than 500,000 refugees from Vietnam after the Vietnam War ended. They entered the U.S. through a legal refugee process or were paroled into the United States. Today, the median income of households headed by Vietnamese immigrants is higher than U.S.-born-headed households.
So what needs to happen to DHS? It needs to be dismantled. According to Matt Ford in an article in The New Republic, “The Department of Homeland Security’s first problem is its name. Mainstream American political thought long celebrated the United States as a multicultural nation, one that forged a common civic identity among people from disparate cultures. Except for the Indigenous, this country is no one’s “homeland,” a word that evokes the blood-and-soil ethnonationalism of the Old World.”
Under my administration, it would be my plan within the first 100 days to undo the 2002 and 2003 legislation, but what happens if keeping DHS in place is non-negotiable? Can we at least make it make sense for the 21st century America we live in? We do not have to choose between harsh policies that stop migration and humane policies that encourage it — we can remain a secure and compassionate nation, with enforcement that focuses on actual threats and does not compromise our humanity. DHS should work with the U.S government to conduct a public information campaign— available in a multitude of languages- for migrants in Mexico and the Northern Triangle countries as well as Central American, (El Salvador, Honduras, and Guatemala, etc), in order to dispel misinformation from smugglers (coyotes) and help migrants understand who would — and who would not — be eligible for asylum. This campaign should not deter migrants from coming to our country, but give them a better understanding of how they should safely arrive. This campaign should also inform applicants about every possible path of citizenship one can take. It is true that if someone is in danger then the law is the last thing they are worried about. But having that information available levels the playing field. In addition, we need to re-establish in-country processing to permit those in danger an option to apply for asylum in their home countries. This leads to the second rebranding:
Customs and Border Protection
What and who comes inside and goes out of our country is important and needs screening at the highest levels. It’s an agency that in theory deserves a lot of our respect-- yet just last year they had a class-action lawsuit filed against them for violating U.S law and binding international human rights law by refusing to allow those who present themselves at ports of entry to apply or seek asylum.
According to the Customs and Border Protection Inspector’s Field Manual, “If the alien indicates in any fashion or at any time during the inspections process, that he or she has a fear of persecution, or that he or she has suffered or may suffer torture, you are required to refer the alien to an asylum officer for a credible fear determination…. Inspectors should consider verbal as well as non-verbal cues given by the alien.”
If there is a crisis at our Southern border- the very organizations that are set up to dispel it- are the ones creating it. There are other things wrong with CBP. It is essentially a paramilitary organization— it spends more than $13 billion annually and has very little oversight and it permeates with corruption. Since 2004, 80 Border Patrol agents and 127 CBP officers have been arrested ranging on charges of human trafficking to money laundering. If it’s important that what comes into our country is screened...shouldn’t the people who get to make those decisions also get screened at the highest levels?
We need to add personnel and resources to expand capacity at ports of entry so that we can handle intake and process asylum claims more expeditiously. We also must ensure that agencies integral to the processing of certain migrants have adequate authority, capacity, and resources. We need more nonpartisan immigration judges and asylum officers— not more CBP officers. They are allowed to be reckless in a way that is dangerous to both immigrants and Americans. For example, you don’t have to live on the Mexican border to experience the danger of the Border Zone. That’s because CBP has free rein over 100 miles inland of any border or coastline in America. In this zone, which includes approximately 200 million people, 4th Amendment protections against unreasonable search and seizure do not apply. Here, agents can stop and search anyone as long as they suspect a violation of immigration law. Whether you are in Montana, Florida, Maine, or South Carolina- no one is safe.
ICE
We have to talk about ICE, the practice of homestead, and detention. The popular answer is to abolish it entirely. ICE spends way too much and is counterproductive. Private companies are allowed to give financial incentives for organizations such as ICE and CBP to use a criminal and militarized approach. Why is private interest allowed to intermix with governmental organizations whose nature is simply protection? Abolishing ICE has turned into a mantra for the progressive left, but the right should be angry as well. For a party that is known for fiscally responsible spending— no one seems to be upset that since the creation of DHS, we have spent over 700 billion dollars to do the bare minimum. Our airports are arguably safer yet inefficient, natural disasters aren’t responded with the tenor they deserve, and immigration continues to be on the docket for every president and presidential candidate we’ve ever had after 9/11. For all that money-- money that could have been used to rebuild the entire infrastructure of our country and provide more jobs from coast to coast- what do we have to show for it? However, saying that an organization like ICE that employs tens of thousands of people needs to be abolished, is not something to take lightly. The process in itself would be time-consuming and meticulous:
“If signed into law, the bill would set a one-year window before ICE is shut down, while also establishing a commission to undertake a 90-day review that would identify ICE’s essential responsibilities and the agencies that could take over those roles. A second act of Congress would then be needed to establish where its former powers should go. Commission members would also be charged with accounting for any constitutional infringements and abuses of power committed by ICE agents and officials during its existence.”
It might not be a question of the agency and its people, but a question of enforcement and how you go about it. ICE was formed by the 2003 merger of the investigative divisions of the INS and the Treasury Department’s Customs Service. Its agents investigate crimes that often cross international borders: customs violations, human trafficking, child exploitation, cyber-related offenses, smuggling firearms or drugs, and more. While they’re structurally separate, HSI and Enforcement Removal Operations, cooperate closely on day-to-day affairs. It seems that by separating ERO and HSI physically that would get rid of ICE on its own- making a systemic and cultural division between what the offices do and stand for. Under this administration, more than ever ICE chooses to focus on immigrants who have already stitched themselves tightly within the quilts of their community- to focus energy and resources on people who have been living in our country for 10 years plus, have business and families, stakes of all levels is cruel, unnecessary, and a waste of money. If ICE has to exist, it should do so with stringent accountability mechanisms and the desire to protect Americans from true threats. Families, children, and business owners are not threats.
Courts
Lastly, within the scope of structure, there needs to be a change within immigration court and how immigration lawyers work. Because deportation is classified as a civil sanction, immigrants are not provided with legal representation that is normally guaranteed under the Sixth amendment. The lack of counsel creates more harm than good— those without representation can face injustice and an unfair trial at every level at relief. No lawyer in most cases could mean automatic deportation or removal. It should be reformed that all immigrants are granted access to counsel. This is not a radical idea because it exists in the International Covenant on Civil and Political Rights:
Article 9(3): Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should the occasion arise, for execution of the judgment.
Article 14(3): In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it
(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court
It is not enough to just have access to counsel— it should be quality, well-informed and accessible counsel, distributed evenly amongst the country. According to the American Immigration Council, immigrants with court hearings in smaller cities were four times less likely to obtain counsel than in larger cities. We need to find a baseline in which counsel is appropriate and upstanding for all immigrants. There also needs to be a way for immigration courts and judges to have independent discretion from the Department of Justice. Many judges may act on within the popular opinion of whatever administration is in power, rather than looking at the context of a particular case. There is no doubt that political interference can negatively impact an immigrant’s life- like having judges complete quotas that are tied to judge’s employee evaluations. Immigration either needs to become a nonpartisan system or be given more independence from underneath the DOJ.
What happens when you allow judges with a partisan stance on immigration to make decisions? You get the Charlotte Immigration Court. Its four judges are some of the strictest in the country where 88% of asylum cases from 2013 through 2018 were denied. On average, judges nationwide denied immigration asylum in 56% of cases in that same period. Denial rates ranged from 95.8% in Chaparral, New Mexico to 20% in New York. But what makes Charlotte so unique is that there is variation within the four federal judges themselves: Judge Couch has a 92% denial rate while Judge Holmes-Simmons is at 80%. This cannot be the new normal. The fate of an immigrant or an asylum seeker should not depend on which state they are residing in, or which judge they see— especially since those are things they might not be able to choose.
Other things considering the structure that should be looked at: I propose we bring back and normalize the ability to administratively close cases, prohibit the chance for any child under the age of 18 to represent themselves in court, and to put more effort into increasing the flexibility and effectiveness of the visa bulletin.
2. Terminology
How we reform the system and the culture surrounding immigration is deeply dependent on how we talk about it. The language we use in our daily lives and on a federal level when discussing such a vulnerable population impacts the societal treatment of immigrants, our opinions, and what we tolerate or turn a blind eye to. We need to remove harmful terminology from our statutes. This expands to news coverage as well. Using terms like ‘illegal’, on land that was stolen from the start, is not only disrespectful but tone-deaf. Calling someone an ‘alien’ is dehumanizing, to say the least. Some news outlets like USA Today and the LA Times have pledged to stop using the i- word, while others choose to paraphrase to create distance. Using the term ‘illegal’ also conflates two different populations. If the opposite of illegal is legal, then shouldn’t ‘illegal immigrants’ refer to those who legally cross and then overstay their time? And those who don’t go by legal pathways at all, be referred to as ‘unlawfully present? Possible alternatives could also include ‘applicant’, ‘migrant’, or ‘immigrant’.
The language we have heard under the Trump administration is also historically genocidal in nature. ‘Flood’, ‘influx’, ‘wave’, ‘invading’, ‘infestation’, ‘taking over’. These words have incited, inspired, and initiated violence and we have so many examples to prove it. Rwanda, Darfur, Bosnia/Kosovo, The Khmer Rouge, and of course the Holocaust— all started with language as a weapon to otherize and create division— which steepens hatred. And because genocides don’t happen without warning, these patterns have been categorized into ten stages by Genocide Watch so that we can combat them in real-time, instead of when it’s too late. In case we are wondering, what America is doing to populations at our Southern border classifies us at the sixth stage: Polarization. To be fair, America isn’t the only country with an inherent nationalist attitude towards foreigners— in Denmark, the minister of immigration Inger Stolberg in 2018, wrote on Facebook that certain migrants "are unwanted and they will feel it”, and mentioned isolating them on a remote island. In April of 2018, Hungary elected a Prime Minister who is known for jailing human rights lawyers who assist asylum seekers. In June of 2108, Italy’s populist right-wing government blocked 629 immigrants from docking its shores.
How can we combat such vile language? The most egregious of comments ‘go back where you come from’, may prove that there needs to be a legal consequence to the words we use. These comments should be treated as a hate crime because these comments tilt towards violence. And there is a database to prove it. Documenting Hate is a resource created by ProPublica to provide data on the nature and prevalence of hate crimes and bias incidents. In 49 states and D.C, of 800 documented crimes, three resulted in murder, and 93 involved some form of physical assault— and this doesn’t even begin to factor how many of these crimes go unreported. No matter one’s opinion about how or why a person is in our country, to take it upon oneself to give a ‘consequence’ is unacceptable. If no one is above the law, then that should be dealt with most heavily to those who hold citizenship, since they are more familiar with the ‘rules’. This includes what is stated in the Universal Declaration of Human Rights:
Article I: ……..act towards one another in a spirit of brotherhood.
Article 2: ……no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 5: No one shall be subjected to …degrading treatment or punishment.
Article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law.
Lastly, there should be a change in terminology regarding gender and relationships within our statutes: there seems to be discrimination between mothers and fathers, which should be changed, and we should include gender-neutral/nonbinary pronouns in our statutes as well. This isn’t about being ‘politically correct’ but instead respecting ever-expanding identities.
3. Rewriting of Statutes
The caps we have placed on the different categorical groups that migrants can choose from are arbitrary and incompetent to me. We should either find evidence-based ways to prove why such numerical caps need to exist or we get rid of them altogether. The United States is not in the hotel industry, nor is it a college campus. These caps— if not backed up by data— can endanger innocent lives. Our definitions need to change as well. How do we define family? Should a receiving country apply its predominant cultural perceptions of a family in deciding who should receive immigration benefits? In many cultures, for example, it is very common for grandparents to predominantly raise children—who are we to say that a grandparent isn’t an immediate relative? How do we define relationships? Here I have provided edited versions of certain statutes, with explanations as to why, which can be wrapped up here: do not complicate what is to be simple, and do not simplify complicated things. It might help if you have the original statutes beside you to compare.
201: Worldwide Level of Immigration
No applicant should be subjected to a numerical limitation, but might find their case highly prioritized if they are:
Family-Based
A citizen should be able to sponsor or bring over up to 10 of their closest/immediate relatives with proof of closeness (substitute or supplemental parenting, leaving them behind would be a hardship or burden, etc.) and marital status should not matter.
Employment-Based
There are no preferences- if you find yourself willing and able to want to invest or contribute to our workforce and economy, there should be no reason why your application is not approved.
Humanitarian
Asylum - no cap/statutory ceiling (will dive into a separate section)
Refugees- no cap/statutory ceiling (will dive into a separate section)
You will notice two things in the changes of 201 (three if you count that it is much shorter than the original): first, there is no diversity category. While it can be argued that this category ensures that every applicant from any country has a fair shot of coming to the U.S— the reality should be that we take every application as it is in the individual context. What does it matter that many of our immigrants are coming to the U.S from one specific country over another if their reasons for doing so are sound?
Trump is right in saying that we have an immigration crisis- but it’s not that we have too many immigrants at our border— arguably, we have too few. U.S birth rate fell at a record low, dropping two percent from 2017 to 2018. And while two percent seems like a low number, that percentage is only going to increase. There could be many reasons for this— more women are getting higher degrees, choosing careers over families, and are looking to the sustainability of the future within the context of climate change. This means that soon will have an aging population to care for, and economic systems and markets to keep stable. We can’t force women to have more children (Georgia, Missouri, and Alabama- all try and fail), so why not take in the willing and able who have so much to contribute? Forget politics— the economic benefits alone surpass any argument against anti-immigration. The U.S isn’t the only country dealing with a declining population- Japan, Italy, Britain, Germany, and France are soon to experience the same thing.
Increasing the number of immigrants in our country makes complete sense to me in this context.
212: Excludable Applicants
In general, no applicant should be inadmissible from the United States, unless it is based on security-related grounds, terrorist activity— to be defined by the Department of Justice, the FBI, and the Department of Homeland Security.
That’s it. To quote Joseph H Carens in his essay, The Ethics of Immigration, he says “restrictions on the freedom of human beings require moral justification.” In the statutes we have currently, I can’t find a single one. Also, the Universal Declaration of Human Rights says:
Article 13
1. Everyone has the right to freedom of movement and residence within the borders of each State.
2. Everyone has the right to leave any country, including his own, and to return to his country.
237: Deportable Applicants
In general, no applicant should be inadmissible from the United States, unless it is based on security-related grounds, terrorist activity- to be defined by the Department of Justice, the FBI, and the Department of Homeland Security.
Deportation is a form of punishment. When a U.S citizen commits a crime, they serve a sentence and re-enter society. That should not be a citizen privilege— that is a human privilege: to be given a second chance. Depending on the severity of the crime, depends on the sentence— decisions that should be up to our criminal justice system.
Things like public charge should be out of the statutes completely— unless we can deport U.S citizens for being poor, not vaccinating their children, or being illiterate, then we can not keep people out for those same reasons. Hopefully, by putting together an informational campaign as mentioned earlier, unlawful immigration can happen a lot less. By providing attainable pathways to citizenship, no one should have to be here unlawfully. But in the case it happens that someone got into our country without proper channels, it has to depend on how long they have been here and their reason for doing so. If this person has been here for less than three years and was fleeing danger— then their case should be waived. If a person has been in our country for more than three years— say 17 years, then it is safe to say that we waited too late— they have already formed connections and livelihoods that would be inhumane to pull them away from.
240: Removal Proceedings
241: Cancellation of Removal
We should not be treating our immigration system like a Netflix subscription service. Once you have been permitted to stay in the United States, it should not be revoked. The only understandable way I could foresee removing an immigrant to be acceptable would be for security grounds or terrorist activity (again, decided upon by our Attorney General, DHS, and the FBI). Get rid of 240 and there is no need for 241.
4. Asylum and Refugee Reform
It may not be our responsibility, but it becomes our obligation simply because seeking asylum is a human right. As a country, we may have forgotten, but human rights aren't myopic— the point isn’t to just care about your people within borders, but those on the other side of them as well. It is the price we pay for being a part of a social society. It is a price we should be proud to pay— as the US has more often than naught chosen to be silent up until the last moment in the face of some of the world’s ugliest atrocities.
For the past few weeks, the media has been covering impeachment hearings, and while that is extremely important, it is also dangerous. Because anytime we focus on one story following Trump, others emerge without the same attention. This time, it’s the growing humanitarian crisis at the border. While CNN, Fox News, MSNBC, and others cover testimonies from Volker, Morrison, and Vindman, over 50, 000 people along the U.S-Mexico border are living in deplorable conditions— camps that lack safety, sanitation, and medical care as they wait for their asylum cases to start.
This started around the Midterms of 2018. Trump needed a story to pitch to his base during election season, so he (and the rest of his Republican puppets) created the frenzy surrounding the migrant caravans. Fox News described it as “massive migrant caravans”, with one caravan of 8,000 people. The reality? Maybe closer to 3,000. Nevertheless, Trump used this as a rationale to enact the Migrant Protection Protocol, also known as “Remain in Mexico”. It means that people coming to America to seek asylum, now need to remain in Mexico while the U.S processes their case. Under this policy, more than 51,000 people have been sent to dangerous border towns, and hence over 340 cases of violence ranging from rape to kidnapping have been reported while people have been waiting. On DHS’s website, they cite the INS as how this is legal to implement: Section 235(b)(2)(C) provides that “in the case of an alien . . . who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the U.S.,” the Secretary of Homeland Security “may return the alien to that territory pending a [removal] proceedings under § 240” of the INA.” But this is not the case. The forced return policy violates legal prohibitions in U.S. law and international obligations on returning people seeking U.S. protection to persecution and torture, and it disrespects international asylum law and the due process protections Congress adopted for refugees seeking protection at the border.
Currently, the ACLU is fighting MPP— but that is only the beginning. If Reagon’s zeitgeist is the War on Drugs, then surely Trump will be the War on Asylum. Asylum is U.S law, but every high-income country has some formal system of asylum— we are not special. But to get rid of it would be detrimental to every other nation on earth. Somewhere in between Harry S. Truman’s compassionate speech to congress about how “...victims of war and oppression look hopefully to the democratic countries to help them rebuild their lives…..the only civilized course is to enable these people to take new roots in friendly soil” we've got a current president who thinks people scam the asylum system with “bogus stories” they have “rehearsed” with their lawyers. But there is no evidence of any widespread scamming— of all the categories people can choose to immigrate into our country-- asylum is the hardest. People do not choose asylum, they are forced into it. This administration is making that process even harder with policies that should immediately be reversed:
Metering: the CBP has enacted a policy that puts a daily limit on how many people can claim asylum. For example at the Tijuana and San Diego border, asylum agents could generally process 100 asylum seekers a day, but with metering in place, the number has been capped at 20. The waitlist is nearly 11,000- and this is just at one location at the border. Metering has to end from a logistical and efficiency lens- it simply doesn’t work.
This compounds other issues such as legal aid. In the same way that having a lawyer can help someone during a deportation hearing, those who have access to attorneys have a five percent higher chance of getting their case approved. If it’s hard to get a lawyer within the U.S, imagine how hard it is when you are sent to a border town.
Establishing Credible Fear: I don’t think we understand how privileged we are— whether we are asylum officers or not— the privilege that comes with having someone in desperation, sit across from you and share their life, as you hold their fate in your hands or decide if they are telling the truth or not. The very idea that someone has to prove that they are in danger when we have the eyes and ears to know what is going on in some of these countries— the Northern Triangle, or conflict zones/corrupt governments in Africa or Southwest Asia— sounds absurd. Trump’s administration tried to issue a policy that says domestic and gang violence no longer count as credible fear, and is instead private violence. It was struck down, but within the six months that it was permitted, asylum acceptance cases from the Northern Triangle plummeted. It should be enacted that every case that was turned down, gets reevaluated or has the opportunity to appeal. If we are going to redefine credible fear it needs to be that a person’s story sounds reasonable for the context of the country, the history, government action, and effectiveness.
What do I mean by context? The U.S Department of State, as well as Amnesty International, releases reports on countries every year highlighting abuses and violations within different categories and demographics of people. This can and should be used along with the Societal Violence and Political Terror Scales to help provide further likeliness for an incident to concur. For example, is it likely and therefore truthful that a single mother with two teenage daughters is fearful for their lives living in Guatemala, when both human rights reports highlight gender-based sexual violence as an issue and the SVS places women and children at category 4 (Reports of violence against the group are pervasive in scope as well as severe in nature and may assume a variety of forms. It affects a significant proportion of the group) and the PVS scale puts the country as a whole at a level 3 (There is extensive political imprisonment, or a recent history of such imprisonment. Execution or other political murders and brutality may be common. Unlimited detention, with or without a trial, for political views is accepted).
What happens if context and scoring do not match up with the story a person provides, and they might indeed have fabricated their story with the hopes of entry? It should be that instead of returning them to their country we find other categories of which lawful immigration can occur- being sponsored by employment or a family member who is a citizen, etc.
The Transit Rule: This policy was implemented to further deter asylum in the U.S. This policy went into effect in September, and it requires that any person applying for asylum at the Southern border first apply and get rejected somewhere else. There are three exceptions to this rule: if you are a victim of human trafficking, if you have been rejected somewhere else, and if the countries you are passing through are not parties to certain international treaties. This new rule is dangerous for many reasons, one of the most important being that the new regulation does not require the countries to be safe at all. This administration is trying to say, “if you are genuinely fearful, you would apply for asylum in the first place you reached.” But if you are in the Northern Triangle— nowhere is safe. Not even Mexico. If safety isn’t a persuasive enough argument— let's look a logic. In a country like Guatemala, which matches Tennessee in geographical size, with a population of a little over 16 million people, their asylum agency only has 8 employees. Guatemala would not be able to handle asylum cases of our caliber, even if they wanted to. Other countries do not have the resources we do to save lives. Either we help them to be able to or we need to help with the responsibility.
I have tried to cover what is happening presently, before diving into structural changes that also need to be fixed. If asylum was created to protect people, then the fact that people are falling through the cracks means that the system is not working— we are doing more harm than good and indirectly causing human rights violations rather than protections. As it stands on the U.S Citizenship and Immigration Services website the current asylum definition is as follows:
“Every year people come to the United States seeking protection because they have suffered persecution or fear that they will suffer persecution due to:
Race
Religion
Nationality
Membership in a particular social group
Political opinion
If you are eligible for asylum you may be permitted to remain in the United States. To apply for Asylum, file a Form I-589, Application for Asylum and for Withholding of Removal, within one year of your arrival to the United States. There is no fee to apply for asylum.”
It should be noted that both U.S and international definitions of refugees and asylum seekers do not provide any legal accountability for how someone should be taken care of, and the U.S definition especially leaves out groups and it is not reflective of 21st-century issues. It should be that you are seeking protection from a well-founded fear. Nothing else. But if the opposing argument is that by opening up the definition we encourage “open borders”, then we at least need to expand the categories beyond the five groups. They should include:
Climate Refugees: In communities in Bangladesh and Malawi and everywhere in between, people who depend on agriculture and labor as livelihoods are seeing their futures disappear right before their eyes. These stories are not uncommon, but rather the effects of the ongoing global climate crisis: those who have done nothing are seeing the consequences of something they had no control in: their land is becoming unmanageable, rainy seasons are unpredictable, and extreme heat and cold cycles are killing any chances for crops and livestock to thrive. Climate refugees will be the biggest movement of people my generation will see in our future- they need protection from possible human trafficking (including labor exploitation), and inhumane immigration policies. Not expanding a category for climate refugees is itself a human rights violation. New displacement patterns and competition over depleted natural resources can spark conflict between communities or compound pre-existing vulnerabilities.
Gender-Based Violence: This should include but is not limited to domestic violence, sexual assault, marital rape, dowry violence, FGM, reproduction violence, economic violence and disadvantage, violence against trans women, breast ironing, and forced veiling. Women make up one of the largest vulnerable populations that exist within every nation. When we endanger our women and girls we endanger our futures. This category should be made available to grant asylum. However, it should be noted that this is titled gender-based violence, not specifying women even though that is the larger target. Males experience gender-based violence as well (for example gang-related violence targets male youth), and they can be victims of domestic abuse, marital rape, and forced sterilization.
Violence committed by Non-State Actors: While it can be argued in some instances that violence committed by non-state actors or non-state armed groups can fit under persecution based on nationality or political opinion, it needs its own category. They are formidable challengers to the legitimacy and security of the existing state system. In some cases, they can be more organized and powerful than lawful and recognized groups. They do this by adopting methods and structures similar to state armed forces but are informal nonetheless. A category should be made so that if a person is fearful of a non-state actor perpetrating violence they can seek asylum. Actors can include but are not limited to, criminal organizations such as drug cartels, people’s movements that choose to use guerrilla tactics to pursue their goals, militias, insurgencies, paramilitary groups, warlords, religious or ideological groups, and gangs.
Economic Instability: What happens if you are living in a country with no credit or future building markets in place- i.e insurance, social security, savings, credit, etc? To help provide context on whether economic stability can be used as a credible factor, the Human Development Index should be used for consultation. The HDI can also assess national policy choices that can help the U.S collaborate with other countries on how to bridge that gap. The Inclusive Development Index can also be used to analyze economic progress. You should be able to claim asylum for anything that violates your human rights- not knowing whether you have a future for yourself and your family is persecution. Under the UDHR-
Article 3: Everyone has the right to life, liberty, and the security of person.
Article 23
1 Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
3 Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
Any way we go about it, we must be mindful in what approach we take— asylum in some cases can be a big way to take a political standpoint as well. To what extent can we infringe on state rights in order to ensure the protection of individual human rights? Which ones come first?
5. Foreign Policy
Foreign policy helped create the current instability and inequality that is at the root of what we are seeing in some parts of the world, so surely it can help provide solutions. To quote Carens’ essay again, in The Ethics of Immigration, he says, “there is no natural social order. The institutions and practices that govern human beings are ones that human beings have created and can change.”
To successfully reform our immigration system, we must be willing to invest in the institutions that other governments cannot afford or do not have the resources to do- especially if the opposing argument is treating our borders with more strict, harsh policies. The current administration has been trying to and in some cases had successfully cut spending for foreign aid which could considerably help other governments implement stronger institutions- ranging from security to employment. In other words, Trump is being counterproductive to his goal. He wants to cut assistance as a way to punish countries for not being able to curb the outflow of migrants- when assistance is the very method that can help curb those numbers. Let’s look at the Northern Triangle to highlight policy and aid strategies that could be used to help people stay within their borders safely.
Agricultural Assistance: In places like Honduras and Guatemala agricultural setbacks such as weather and eroding coffee rust has fueled food insecurity that is driving people away. We may not be able to rebuild an entire economy but we could perhaps provide other technologies and assistance to help farmers to work with coffee in new weather patterns or possibly help them to grow and sell other crops- this is not to be confused with cash crops (forcing countries to grow things outside of their diets or use), but rather building on top of what already exists in the country. Creating pathways for farms and plantations to be fair-trade certified, promoting family/independent farms and self-reliance, making it easier to obtain property/land licenses, and having systems in place to protect land rights from big corporate drilling, mining, and plantation companies, and lowering produce quotas. If we can find ways to rebuild agricultural economies, we can expand job opportunities and provide one avenue of a stable livelihood.
U.S Intervention: The U.S has had its hands in the Northern Triangle, in ways that make what we are seeing at our U.S-Mexico border our fault. In 1954, the CIA held a covert operation to overthrow a democratically elected president in Guatemala. We intervened in El Salvador’s civil war of the 1980s to help “prevent the spread of communism” by helping to train soldiers like the Atlacatl Battalion who would go on to commit massive massacres of unarmed civilians, including women and children. And in 2009, under Obama, we refused to label the ouster of Honduras's president a military coup— even though soldiers dragged him out of his home in the middle of the night and sent him into exile. In short, countries that managed to see decades of political and economic stability are Costa Rica and Panama, which ironically have had little U.S intervention. Our intervention has left governments weak and fragile, making this crisis one that we should have seen coming as a consequence of some of our actions. Rather than intervene based on a political agenda, we should instead do so in a collaborative effort to reduce corruption and violence within governments and with non-state actors- whether that be through campaigns or imposing sanctions.
Global Health and Policy: The growth of migration and population mobility, international trade, and communication technologies are shaping global health. The relationships between these globalizing processes and health are introducing health into foreign policy discussions, in part because governments are recognizing the limits of domestic policy and only focusing on health within their borders. Under the Trump administration, at our Southern border, we are endangering the health of not only migrants who have been cut off from access to basic medical care and sanitation, but we endanger everyone around them- our citizens and officers and Mexican citizens on the other side. There needs to be a consideration for gender-sensitive health care and concerns, especially since women migrants outnumber male migrants and are more so susceptible to the sex trade and domestic services. The movement of healthcare workers from lower-income countries needs special policy consideration as well. There are some migration policies in lower-income countries that favor immigration applications from well-educated and skilled workers from higher-income countries. This approach facilitates an exodus of health professionals, contributing to a profound deficit of healthcare workers in some parts of the world or can hinder skilled health professionals from low-income countries to get better jobs or access to further study or to be of use in general.
6. Enforcement (State and Local)
While it is true that the federal government has a monopoly over the terms of immigration law, and it superintends the nation’s singular immigration enforcement bureaucracy, we must keep in mind that our federalism nonetheless provides a vital playing field for sharp debates over the status of immigrants in American life. The forms of state and local involvement in immigration policy may vary from state to state, but they fall into two basic categories of mutually dependent and re-enforcing policies: enforcement federalism and integration federalism. Enforcement federalism concerns the extent to which localities should assist or resist federal removal policies, while integration federalism encompasses measures designed to assist immigrants, regardless of status, to plant roots and acculturate to life in the United States. I can not say what works better.
I do however know that just because something is federal law, does not mean it is not harmful— and because of that, I believe that if a state wants to go against federal law, they should be allowed, even if it means taking a case to the Supreme Court. Most people are for federal law aligning with state law, so that sanctuary cities can be illegal, but I believe sanctuary cities must exist. Sanctuary cities have been synonymous with being tagged as a liberal agenda when in reality many conservative sanctuary cities have a deep understanding of how embedded immigrants are to the local economy and job market. The concept of sanctuary derives from the ancient imperative: to provide hospitality to the stranger. Churches and some northern cities were sanctuaries for Black Americans at a time when society was at its most immoral. Instead of attacking sanctuary cities, opponents should be listening to their message- sometimes the legal system can fall short of compassion and justice and that all people are deserving of protection.
Outside of sanctuary cities, I do not believe that local law enforcement should be forced to work with ICE or help detain immigrants.
7. Other Technicalities
→ what happens if you overstay your visa?
This should be treated under a case-by-case circumstance, but generally speaking, if you have not been caught within five years and you have a family, a well-paying job, or are making a continuous contribution to your community, there should be a path of citizenship available to you.
→ what if you violate your visa requirements (for example stop going to school or quit working)?
This should also be treated on a case-by-case basis. What if you stopped going to school so you could work to help pay for resources or because you found out your family was struggling back home? You should not be barred from coming to the country or penalized if it was for an honest circumstance (even if it was just you realized school wasn’t for you and you just wanted to work)- we should instead try and adjust your status with the understanding that the visa is temporary and at some point, you might be going back home. The only way I could foresee the possibility of being barred is if the visa was obtained with premeditated fraud (but how could you prove that?)
→ DACA Reform?
If you were brought to this country under the age of 18, you should automatically have access to become a citizen or if you are over 18, once the policy is implemented you should automatically be considered a citizen. It should be safe to say that the American identity for almost all DACA recipients is all they know. To not give them unconditional legal citizenship status is to hold them in limbo for a choice they did not get to make.
8. Conclusion
To say that the United States is a nation of immigrants, highlights and hides the truth of our founding. Some of us did decide to come to the U.S to flee religious persecution, while others were forced and kidnapped to a new place. Either way, this country does not belong to any of us, other than the first people of which it was stolen. We should be treating our immigration system with a lot more nuance and compassion. I am hopeful that come a new election cycle and a new outcome we can put someone in office who can recognize the benefits that our immigrant community can bring and who can bring humanitarian values to our borders. Someone who sees people as human first, and their citizenship status last. I cannot say that I want to become an immigration lawyer after taking this course, but I can say that I fully recognize the amount of security and privilege I hold just by having the right country named on my birth certificate and the right color passport.
Translating at the border this summer was eye-opening because for the first time in all my 20 years of existence I had never been embarrassed about being an American citizen.
But standing at the bus station in McAllen Texas, watching migrants pile off unmarked buses changed that for me. As they were walking in men, women, and children of all ages, I witnessed how they dragged their feet behind them. While they are detained in centers in Tijuana, ICE officers confiscate their shoelaces, and when they are released they don’t give them back. It is something so small and yet so instantly dehumanizing. It is enough to make anyone want to give up or become crippled with overwhelming anxiety- but those are no longer options when people’s lives are endangered. Once you know something, you cannot un-know it. The only possible thing to do is to act.