We have immigration policies that, when enacted into law and enforced by the government, come to results that are not just absurd, but which ought to shock the conscience:
[Arthur] Mkoyan, who has a grade-point average above 4.0—extra credit for Advanced Placement classes makes that possible—is set to graduate next week from Bullard High School in Fresno, California.
Ten days later, Immigration and Customs Enforcement plans to deport him and his family to the Armenian capital city of Yerevan, the same city his family fled in fear 16 years ago.
Follow the link above to read the rest of the story. In short, it demonstrates the utter heartlessness of our laws regarding immigration.
I’ll agree that it appears really harsh to deport this entire family just days after the son’s high school graduation.
BUT. This family apparently couldn’t prove the statutory criteria necessary for asylum, or for relief of removal, after ten years of litigation. (I’m assuming they were applying for asylum — the CNN story references their fear of reprisal but does not specify what section of the INA they were applying under.)
What do we do with people who don’t meet the statutory requirements? Waive the statutory requirements altogether? Reform the statutory requirements for asylum? If so, how far should we reform them? The problem with drawing lines is that there will always be people who fall outside those lines.
So, where would you draw the statutory lines, or what would you do with individuals who fall outside those lines?
Immigration criteria need to make sense when applied. Immigration law reflects immigration policy, which ought to reward participation, contribution, and any other indicia of what would otherwise be called “good citizenship.” In other words, our immigration policy ought to be broadly drawn: If you want to participate in our economy by legitimate and peaceful means, then you should be allowed.
Unfortunately, our immigration policy is less broadly drawn and rooted in protectionism and security paranoia.
Since we speak as citizens free to articulate substantial policy concerns, not as judges bound by text of the laws enacted by Congress, I am not persuaded by the argument that people who fail to meet the statutory criteria must either not deserve resident status or fall within some “exception.” We can go outside the boundaries of statute law because our conversation, out here as simply citizens, is the kind of thing that must be cultivated with creativity and then sent off to our elected representatives for expression in statute.
People, including immigrants, need to be given substantial guarantees of reasonableness in the policies that affect their livelihood, their families, and the fate of their children. I am particularly bothered in this case because we have a son who has only ever known the United States as his home, due to the decisions of his parents, and we now, as a nation, through the immigration laws that advance our immigration policies, have essentially told him that, despite his entire life, despite the fact that he did not and could not make the decisions that put him in this situation, must now be left to the whims of what can only be called a cold, cruel fate.
This is the nation where we have struggled to bring substantial rights and equal protection to people who, through no fault or decision of their own, have classifiable characteristics that tend to result in their subjection to the caprice of others. But when it comes to people, like Arthur Mkoyan, whose unchosen, classifiable characteristic is simply that they are aliens subject to exclusion or deportment, we are suddenly bound by rules and exceptions? Is there no substantial justice that transcends the paranoid, protectionist, and xenophobic policies articulated by our citizens and enacted by our elected Legislators?
The situation is different where an adult makes the decision to come here and the government then decides that same adult must be sent back to his or her place of origin. Then at least there is identity between the initial actor and person suffering the consequence.
But more simply annoying than all of that, we have also established the ridiculous rule that all those wonderful equitable defenses like estoppel, laches, and unclean hands are ineffective against the federal government. If the federal government fails to enforce its immigration laws and, in the meantime, a family lays down roots, grows up, and integrates into its community, then years down the road the government decides to throw them out, those intervening events mean nothing. If the Mkoyan family should not have been here ten years ago, then the government should have sent them home ten years ago. That failure ought to mean something, just as their intervening success ought to mean something.
If lines cannot be drawn that avoid these kinds of manifest injustices, then they should not be drawn at all. But I think such lines could be drawn, by people who first give up their protectionism, security paranoia, and xenophobia. When it comes to our criminal justice system, we seem so proud of the maxim, better to let ten guilty people go free than punish one innocent. But in the realm of immigration, it seems we adhere to the reverse: better to send ten good people out of our lands than let one bad person in.
That reversal of good faith and good fortune is also apparent in the public reaction to the recent ruling of the Supreme Court, correct in my opinion, that detainees in Guantanamo Bay are entitled to the benefit of habeas corpus. The shrill response to that from people like Justice Scalia and Senator McCain is shocking. They perpetrate more actual terror on the American people than the terrorists do, when they claim that allowing these detainees simply to get themselves before a civilian judge will somehow result in deaths and loss of life.
The failure of Americans to recognize the basic humanity of immigrants, foreigners, and even enemy combatants is stark and offensive. That we will treat these people so shoddily simply because they do not share our citizenshipâ€â€when we are ourselves are the ones doling out the official papersâ€â€is embarrassing and unconscionable.
Anyway, that’s all I have to say about that right now.
On a related note: I was flipping through radio channels the other day and happened across Rush Limbaugh (whom I strongly dislike) whining about the Gitmo decision. He just kept saying “But there’s this thing called precedent, and a decision called Eisentrager!” He was sputtering in rage. I yelled at my radio and told my radio that:
1) Eisentrager was decided on the ground that these were enemy aliens held in a foreign country (German POWs held in Korea, or something like that, if I recall correctly?), and the Supreme Court apparently decided that Gitmo was US territory for the purposes of the constitutional right to the great writ of habeas corpus… so Eisentrager doesn’t control, and
2) This is the SUPREME COURT OF THE UNITED STATES. It has overruled its own precedents before (Plessy–> Brown being one of the most notable examples), and it’s perfectly entitled to, although it should of course give due weight to its own precedents under the principle of stare decisis. So even if the Court had overruled Eisentrager, it wouldn’t be the first time the Court has overruled precedent.
I wish Rush could have heard me. Instead, I probably frightened fellow motorists who saw me yelling.
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Now, back to the subject of immigration. If I understand the Mkoyan case, the Mkoyans were engaged in appeals for the past 10 years. It would indeed be nice if they could use equitable defenses, but how would the defenses apply? Laches doesn’t seem to apply if the government has been in proceedings of one stage or another for the past decade, so the government has been trying to enforce the law during that time. One answer that I suspect would be popular among many Americans is that the government shouldn’t give immigrants any appeal rights of immigration decisions at all — once the government makes an initial decision that you are inadmissible or excludable, you’re deported, period. It seems rather distasteful not to provide aliens with any appeals process, however. So then we’re left with another distasteful situation, when the appeals process drags on for a decade. (If I were a federal politician, I’d hire more immigration judges so that these cases could be heard more quickly, and so that we could minimize some of these injustices created by delay, but alas, I am not.)
I am completely in favor of liberalized immigration laws. The family reunification policies are especially insane. When family members from Mexico or the Philippines must wait 15 to 20 years or longer to be reunited with their sponsoring citizen or LPR relatives, something is terribly wrong with our nation’s immigration system. Similarly, the number of work visas available is far too low to meet demand, which is in part why we have so many undocumented workers. Clearly, the current paths for legal immigration are inadequate.
That said, I do think we need *some* guidance and restrictions on immigration. For example, I think that the bars to entry for aliens convicted of certain crimes are probably a good idea. I think the classes of crimes should probably be narrowed, and I might allow more exceptions, e.g. the passage of time after a conviction. Nevertheless, I would want to retain some restrictions — America probably does not want serial killers entering as immigrants, even if those serial killers promise to make a fresh start and contribute to and participate in American society. The trouble is, of course, how to draw those distinctions.
Judge Alex Kozinski (lately in the news for some, uh, more interesting things) spoke at my school this past year. He talked about how great America was and then said that if we opened our borders, “we’d have three billion people here by next Tuesday.” The numbers may be exaggerated, but he has a very good point — though this country has its flaws, many, many immigrants still want to come here.
I don’t think an open-door policy is entirely tenable, in part because of the reason Judge Kozinski suggests. Our country can’t handle a billion people moving here during the next 12 months, so it is probably sensible to keep the legal immigration flow to a certain level — higher than it is now but lower than the level which would create chaos. Again, the question is where to set that level.
It always bothers me that debates about immigration always seem to descend into an “Us versus Them” argument. Much of the debate becomes racial, focusing on those brown-skinned people who don’t speak English and are allegedly just ruining the country. That’s sad. I think too often the people making those statements forget that it wasn’t so long ago that some of their ancestors were the disfavored immigrants — the Jews, the Italians, the Irish, etc. I think that if more Americans could connect with their own immigrant ancestry, and see today’s immigrants as following a long trend of immigration to the “Promised Land” of America, our immigration policy would look tremendously different. It would allow far more family immigration, issue reasonable numbers of work visas, and be more concerned with justice and humanity.
But I don’t foresee the US ever discarding the immigration statutes entirely and adopting an open door policy.
(I really hope this all makes sense — I’ve been studying multistate property all day… Apologies for any incoherence.)
Re: Limbaugh. Argh. Lame. Plus, when your argument really just boils down to precedent and you’re not talking about the merits, you’re hanging by a legal thread, in my opinion.
Re: Multistate property. I feel your pain. Of all the multistate subjects, I’m a good twenty or thirty percentage points below all the others when I practice property questions. Those things are damn near impossible. (But one of the Bar/Bri staff attorneys said on the first day of the course that he thinks the property questions are the easiest because they’re just common sense, that if you see someone acting like a jerk, they should lose. I tried that method. Got even more questions wrong than before. It seems my idea of who is a “jerk” does not coincide with the bar examiners’ idea. Better to just remember and apply rules.)
Re: Immigration. Yeah, you make sense.
The problem between the different stages, from exclusion to deportment (I think it’s all called “removal” now) is, yes, the appellate process. If I recall correctly from a bunch of research on immigration law that I did last year, before an initial exclusion hearing, before the person has been admitted into the country (not sure if my terms are correct), the government can hold or detain them. Then, they’re not out working, integrating, or otherwise developing a life here. But when somebody comes in on a visa, sticks around, gets involved, etc., and there is a denial of a more permanent visa, then unless there are extraordinary circumstances, yes, I think we need to nip it in the bud and send the person out.
The process needs to be fast. If the government can’t make a quick, accurate call on that matter, then yes, I think they are dealing unfairly with people, because in the interim those people are going to develop their lives here and make any subsequent removal proceedings increasingly more unjust the longer they take.
From what I recall of the research I did last year — I made a big map of how immigration proceedings work — our system is rather byzantine. On the one hand, it’s like we’re saying, “Okay, we’ll give you some process before we kick you out, but on the other hand, we don’t give a rat’s ass what you do while we’re giving you that process, even if you become a model of good citizenship and industry, because once we’re done, we’re slapping you down and shipping you out.” It seems very contradictory to me. Why do we say that immigrants have a right to the process they do get, but then enforce the law so coldly once we’re done giving that process?
If our immigration administrators and courts can’t handle dealing with everybody fairly case-by-case, then they shouldn’t. But my impression of the immigration system is that it’s vastly overloaded, due to the number of people it has to process, so the rules are designed not to come to correct decisions, but to just come to decisions. In other words, as an added layer on top of the xenophobic, protectionist, and security-paranoid policies, there is the problem of administrative impossibility. All of this together makes the system, in my opinion, a ridiculous farce.
Certainly, in an ideal world, we should have criteria, like not allowing in people convicted of certain crimes, and we would be able to control the flow of who comes in. But in the real world, our screening process is not capable of learning the truth about every new applicant, and any limitations on how many people can come here will always just breed illegal immigration.
I do think, despite what I said about it being “byzantine,” we have a very sophisticated immigration administration. But ultimately they’re trying to do an impossible job. Consequently, they too easily come to conclusions that are just fundamentally unfair. Which is why I called attention to the Mkoyan story initiallyâ€â€not because I have a solution, but because I think it stands as a good example of where our immigration law runs aground. I am far more worried about stories like that than I am about the popularly noted fact that our immigration laws let the 9/11 hijackers in. Unfortunately, I think “the people” would rather have draconian laws that aim for impossible security than liberal laws that aim for fairness and justice.
Just one more sign that we’re well down the road to fascist tyranny… and people like Limbaugh are loving it.
Also, I was looking for this, finally found it:
The Immigration Court Practice Manual
It has lots of good info on immigration law in actual practice. But if you’re reviewing for the bar exam like I am, you probably don’t have time to look at it much, either. 🙂
“if you see someone acting like a jerk, they should lose. I tried that method. Got even more questions wrong than before.”
Interesting. Our torts lecturer warned us that the torts MBE questions tend to involve a lot of really malicious defendants who are not liable… He told us that if we see a defendant who is acting especially maliciously, we should read extra carefully because there’s a good chance that the defendant will win.
So, that’s really the opposite advice. Ha.