This January marks the anniversary of many things, but what tops the list is the January sixth insurrection that took place in 2021. The January Sixth insurrection was a frontal attack of the American democracy, a violent assault on our faith that in a democracy, the majority decides and that there will be peaceful transfer of power following a free and fair election. It was the gravest threat to our democracy. The insurrection also ripped open the thin veil to bare the deeply divided Congress where immigration reform proposals have run into a dead end. Gone are the days when the bipartisan Gang of Eight ushered to passage in the Senate an immigration reform bill in 2013.
One year into the Biden Administration, despite the House passed the Dream and Promise Act of 2021 and the Farmworker Modernization Act in March of 2021 and the introduction of President Biden’s U.S. Citizenship Act of 2021, there has been no action on any of these bills in the Senate. Proposals to incorporate measures of immigration reform through the Budget Reconciliation process were thrice rejected by the Senate Parliamentarian. Common sense legislative change such as advancing the date from the current January 1, 1972 (set thirty-five years ago as part of the 1986 Immigration Reform and Control Act) to allow long-term residents to acquire permanent immigration status through the registry process went nowhere.
On the campaign trail, President Biden promised to finish the work of building a fair and humane immigration system. What would a fair and humane immigration system look like? First, stop calling immigrants “aliens.” U.S.C.I.S. has replaced references of “alien” with “noncitizen” or “undocumented noncitizen,” but there is still a lot of work remaining to meet the goal of replacing that word in all federal statutes and regulations as proposed in the U.S. Citizenship Act of 2021.
To begin building a humane and fair immigration system, we must acknowledge that the system we have is a product of systemic racism. It started with the Naturalization Act of 1790 that allowed only free whites with good moral character to attain citizenship. The law excluded African Americans, Native Americans, and all immigrants of color. The Fourteenth Amendment and the Naturalization Act of 1870 conferred citizenship to African Americans, but Asian immigrants would have to wage decades-long losing legal battle trying to squeeze within the riddle of who is a White person.[1] It was not until 1952 when Asian immigrants became eligible for American citizenship.
A fair and humane immigration system also does not create family separation. Under our current immigration system, families are separated because of the artificial quota that limit how many people from which country under which immigration category can immigrate to the U.S. The quota system is another product of systemic racism. It came into being under the Emergency Quota Act of 1921 that imposed a national origins quota restricting the number of immigrants from any country based on its share of U.S. population in the 1910 Census, thus favoring immigrants from Europe over the rest of the world. Congress further tightened the national origins quota system to favor immigrants from western Europe in the 1924 legislation by setting the quota based on the 1890 Census. Asians, except Filipinos who were U.S. Nationals, were categorically excluded due to the Chinese Exclusion Acts barring Chinese and the Asiatic Barred Zone adopted by Congress in 1917 that barred all immigrants from Asia. This racially discriminatory quota system remained the principle of our immigration system until 1965 when Congress overhauled our immigration laws and assigned the same 20,000 visa quota for every country. Despite the improvement, our immigration law creates family separation by classifying different members of the same family into various preference groups, separating immigrant families for years, and in some cases, decades. For example, in 2018, there were 1.3 million Mexicans waiting for visas to immigrate to the U.S. The interaction between per country quota limit and immigrant preference means that an unmarried adult son or daughter of a Mexican green-card-holder must wait 51 years for an immigrant visa to be available, and should this person decide to get married, this decision will set him or her back another 11 years. Filipinos who are married sons and daughters of a U.S. Citizen also experience a lengthy wait of 61 years for immigrant visas. Should the petitioner pass away before the immigrant visa becomes available, the immigration petition becomes null and void unless there is another parent who can substitute as petitioner. An immigration system that causes families to separate for decades cannot be a humane system. A quota system that originated from systemic racism is fundamentally unfair.
A fair and humane immigration system must have pathways to citizenship for our long-term residents. Among the estimated 10.5 million unauthorized immigrants, 58% have lived in the U.S. for more than 10 years as of 2019, 33% came to the U.S. at seventeen years old or younger, nearly one in three lived in households with U.S. Citizens (the overwhelming majority of them children), 96% of those in the work force were employed.[2] If the pandemic has taught us anything, it is that 7.2 million essential workers who are unauthorized immigrants have risked their lives to feed us, care for us, stock the shelves of supermarket, process our Amazon orders, and are the engines of our economic recovery. Conferring legal status to these individuals would be the true measure of our gratitude.
To have a fair and humane immigration system also means that we honor our obligations under our laws and international treaties and conventions. It means that we allow asylum-seekers to enter the U.S. to seek refuge, not turning them away under spurious public health excuses or create un-resourced refugee camps across the border in Mexico to expose migrants to grave dangers. A fair and humane system also means providing equitable access for everyone, especially Black migrants, to our immigration system. In 2021, Immigration and Customs Enforcement (ICE) operated 1,056 deportation flights, expelling at least 100,000 migrants.[3] Of these deportation flights, 154 were flown to Haiti, 116 of these flights took place after September 19, 2021, expelling around 15,300 Haitians. Most of the Haitians expelled never had a chance to seek asylum prior to removal. These numbers did not include most expulsions that happened on land border.[4]
United States is a signatory to the International Covenant on Civil and Political Rights. Article 9 of the Covenant provides that everyone “has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.”[5] Immigration violations are civil in nature. Immigrants, and especially asylum-seekers, who violate immigration law for entering U.S. without a visa or immigration inspection should not be detained. If our immigration system continues to detain individuals for violating immigration laws, they should have assigned counsel to help them defend against deportation before Immigration Judges. Public funding to provide legal counsel to detained immigrants is sound policy not only because it improves administrative efficiency by helping immigration Judges move cases along and ensuring immigrants appear for scheduled hearings, but it is also a matter of fundamental due process rights. More than forty years ago, the U.S. Supreme Court found that indigent parents who stand to lose custody of their children have strong liberty interest, and that due process demands that they be appointed counsel in these proceedings.[6] The U.S. Supreme Court also found that a litigant’s right to counsel is not determined by whether the case is civil or criminal in nature, but the right attaches when the outcome of the case may result in the individual’s freedom being curtailed.[7] Immigrants, children and adults alike, lost their freedom when they are thrown into immigration detention from which they are not free to leave. Detention curtails their freedom before they even get a chance to seek immigration protection. From that point on, they must alone navigate the complex immigration system operated in a language not their own against the U.S. government represented by trained attorneys. This David versus Goliath situation can hardly be fair. Unrepresented and detained individuals are more than ten times more likely to lose their bid for immigration relief.[8] The outcome of losing an immigration case is deportation and expulsion back to a country where grave danger awaits, in addition to family separation. A fair and humane immigration system must protect the significant liberty interest of immigrants and their right to due process.
Throughout decades of public discourse about immigrants and debate about what our immigration system should look like, our country looks at what immigrants do for us: pick the crops, cut and pack the meat, clean our offices and hotels, teach our children, care for our elders and sick, innovate our technology, invest to elevate our economic prowess. Immigrants must also prove their worth in dollars, degrees, diplomas, extraordinary skills, squeaky clean backgrounds, among other things. Our country rarely considers what our immigration system does to immigrants, whom we need but do not welcome. Our immigration system can never be fair and humane if we cannot agree on this core truth “that we are all human, we are all Americans and we have common hopes for our communities and country to thrive.”[9]
~ by Zenobia Lai
[1] In a unanimous decision in 1923, the U.S. Supreme Court found that the term “Caucasian” is not synonymous with “White,” and an Indian person though might be Caucasian was not White as recognized by other White people, and therefore should be stripped of U.S. citizenship. United States v. Bhagat Singh Thind, 261 U.S. 204 (1923). In so deciding, the U.S. Supreme Court contradicted its logic in deciding that Takao Ozawa, an immigrant from Japan who had adopted western culture and upbringing, was ineligible for citizenship as he was not a Caucasian. Ozawa v. United States, 260 U.S. 178 (1922).
[2] Donald Kerwin, et al., Ready to Stay: A Comprehensive Analysis of the US Foreign-Born Population Eligible for Special Legal Status Programs and for Legalization under Pending Bills, (Center for Migration Studies, Dec. 9, 2021), https://cmsny.org/publications/ready-to-stay-report/
[3] Thomas Cartwright, ICE Air Flights: December 2021 and Last 12 Months, (Witness at the Border, Jan. 4, 2022), https://static1.squarespace.com/static/5e221cacff87ba2d2833cf54/t/61d39007020a5d713c988e78/1641254920060/ICE+Air+Dec+2021F_THCPDF.pdf
[4] Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions FY2021, https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-and-title-42-statistics-fy2021; Nationwide Enforcement Encounters: Title 8 Enforcement Actions and Title 42 Expulsions FY2022, https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/title-8-and-title-42-statistics
[5] International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976. https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx
[6] Lassiter v. Dept. of Soc. Services, 452 U.S. 18 (1981).
[7] In re Gault, 387 U.S. 1 (1967).
[8] Jennifer Stave, et al, Assessing the Impact of Legal Representation on Family and Community Unity. P. 28 (New York: Vera Institute of Justice, 2017), https://www.vera.org/publications/new-york-immigrant-family-unity-project-evaluation; Transactional Records Access Clearinghouse (TRAC), “Representation Makes Fourteen-Fold Difference in Outcome: Immigration Court ‘Women with Children’ Cases,” July 15, 2015, https://perma.cc/7NBM-BNXW.
[9] Jimmy Carter. I Fear for Our Democracy (New York Times, Jan. 6, 2022), https://www.nytimes.com/2022/01/05/opinion/jan-6-jimmy-carter.html