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The Dehumanizing Work of Immigration Law

America’s immigration rules are unduly harsh, leading to family separation and other needless suffering.

  • Jennifer M. Chacón
July 12, 2021
John Moore/Getty
View the entire Punitive Excess series

This essay is part of the Bren­nan Center’s series examin­ing the punit­ive excess that has come to define Amer­ica’s crim­inal legal system.

During his confirm­a­tion hear­ing to be attor­ney general, when asked about the Trump admin­is­tra­tion’s policy of separ­at­ing chil­dren from their parents at the U.S.–Mex­ico border, Merrick Garland repu­di­ated the policy, stat­ing “I can’t imagine anything worse.”

Yet, now that he is confirmed, Attor­ney General Garland presides over an agency that repres­ents the U.S. govern­ment in court arguing every day that parents should be separ­ated from their chil­dren, broth­ers from sisters, grand­chil­dren from grand­par­ents. Family separ­a­tion is baked into our immig­ra­tion system. It is as much a part of that system as is family unific­a­tion. Unless our elec­ted offi­cials make signi­fic­ant changes to laws and policies, Garland’s name will appear on thou­sands of case captions oppos­ite a person facing family separ­a­tion, often perman­ent.

Public offi­cials histor­ic­ally have justi­fied their parti­cip­a­tion in our immig­ra­tion system’s daily sunder­ing of family ties by invok­ing the rule of law. We are a nation of immig­rants, after all, “but we are also a nation of laws.” People who want to be here, we are repeatedly told, need to do it “the right way.” Those who viol­ate our laws will face consequences. The comfort­able invoc­a­tion of these brom­ides requires the assump­tion that the law provides sens­ible aven­ues for deserving people, partic­u­larly those with strong family ties to the United States, to enter or remain legally. But the real­ity is much differ­ent. In fact, our immig­ra­tion laws are excep­tion­ally harsh in ways that frequently defy common sense.

First, we need to acknow­ledge that the notion that there is a “right way” to immig­rate is just not true for many people. Most long-term, undoc­u­mented resid­ents, for example, do not fit the law’s rigid categor­ies for lawful immig­ra­tion, even though they are long­stand­ing members of our communit­ies and do some of the nation’s most essen­tial work. The annals of U.S. immig­ra­tion history are filled with the stor­ies of men like Oscar Martinez, an undoc­u­mented resid­ent in the United States for 25 years with a loving family and community, who have never­the­less been depor­ted because they could not navig­ate a legal path to citizen­ship.

Even when long-term resid­ents have found a way to regu­lar­ize their status — such as when marriage to a citizen opens up the possib­il­ity of a spousal visa — our laws make it almost impossible to do things “the right way.” A noncit­izen who marries a citizen gener­ally becomes eligible for a visa sponsored by her citizen spouse. But the law requires anyone who has been in the coun­try for more than a year without author­iz­a­tion to leave the coun­try to process her visa, whereupon she faces a 10-year bar before reen­ter­ing on that family-sponsored visa.

Noncit­izens with Tempor­ary Protec­ted Status (TPS) might have been spared some of this legally imposed separ­a­tion. TPS hold­ers who became eligible for family-based or employ­ment-based visas during their time in the United States success­fully argued to several federal appeals courts that their admis­sion to the TPS program was a legal admis­sion that allows them to bypass the need to leave the coun­try and face the 10-year reentry bar when processing their family-based visas. Yet Assist­ant Attor­ney General Michael Huston argued before the Supreme Court in April that the better read­ing of an ambigu­ous stat­ute was to treat TPS hold­ers as if they have not been “admit­ted” when they seek to adjust their status based on an avail­able visa.  The Supreme Court unan­im­ously agreed.

This sounds like a banal and tech­nical argu­ment, but the effect is to require TPS hold­ers, many of whom have now lived in the United States for two decades, to leave the coun­try and contend with the 10-year reentry bar when they other­wise qual­ify for a visa grant­ing lawful perman­ent resid­ent status. The full weight of the U.S. govern­ment was thus brought to bear in favor of a legal posi­tion that will inev­it­ably require more need­less family separ­a­tions.

Second, our coun­try has not always honored its own legal processes when immig­rants are doing things “the right way.” For example, U.S. treaty oblig­a­tions prohibit the govern­ment from penal­iz­ing asylum seekers who arrive at the border without docu­ments. But under Pres­id­ent Trump, when Cent­ral Amer­ican asylum seekers presen­ted them­selves to U.S. Border Patrol agents at the south­ern border in 2018 and 2019, as permit­ted by law, many were crim­in­ally prosec­uted and thou­sands of parents were separ­ated from their chil­dren.

While that family separ­a­tion policy gener­ated a national outcry, and even drew criti­cism from the govern­ment itself, there was little public atten­tion paid to the tens of thou­sands of others who were turned back and told to remain in Mexico, often in situ­ations of great peril, while they awaited their hear­ing. When the U.S. govern­ment shut down asylum processing in the wake of Covid-19, doing things “the right way” turned increas­ingly deadly as condi­tions deteri­or­ated in migrant camps.

Notwith­stand­ing the Biden admin­is­tra­tion’s prom­ise to reverse harsh Trump-era policies, it took the admin­is­tra­tion until June 1 — more than four months — to form­ally termin­ate the so-called “Migra­tion Protec­tion Protocol,” prolong­ing the misery of asylum seekers who, by the end of the Trump admin­is­tra­tion, had already languished in Mexico for as long as two years. Even now, asylum seekers face an over­burdened system where they some­times have to wait years to have their claims adju­dic­ated and where five-year-old chil­dren have had to appear without coun­sel in proceed­ings.

Third, long-time lawful perman­ent resid­ents who have contact with the crim­inal legal system are often denied the chance to do things “the right way.” Crim­inal records, no matter how old or how minor — for instance, for marijuana-related convic­tions involving conduct that is no longer even crim­inal in some juris­dic­tions — are often a barrier to regu­lar­iz­ing an immig­rant’s status and remain­ing in the United States.

The law allows for the deport­a­tion of long-time resid­ents, includ­ing lawful perman­ent resid­ents, for offenses that were not deport­able offenses at the time of their commis­sion. In describ­ing the harsh effects of these immig­ra­tion laws, Nancy Morawetz discussed a deport­a­tion case the govern­ment was pursu­ing in 2000 on the basis of a convic­tion for posses­sion of a small amount of drugs in 1978, three years after the immig­rant entered the coun­try as a lawful perman­ent resid­ent. U.S. law requires deport­a­tion for a long list of relat­ively minor offenses regard­less of a person’s family ties, length in the coun­try, or service in the U.S. milit­ary.

Our national sever­ity toward those charged with crimes rever­ber­ates far beyond the crim­inal legal system, weigh­ing down those who have already served sentences for crimes. The pattern of over­poli­cing that plagues Black and Latino communit­ies ensures that immig­rants from these racial groups are overrep­res­en­ted among those depor­ted on crim­inal grounds or barred by crim­inal convic­tions from obtain­ing lawful status and natur­al­iz­ing.

In 2014, at the very same time that Pres­id­ent Obama and other members of his admin­is­tra­tion were critiquing the racial inequit­ies of our crim­inal legal system, it was dismay­ing to hear them doub­ling down on their reli­ance on a noncit­izen’s contacts with the crim­inal legal system as the basis upon which to prior­it­ize them for removal. We were told that the admin­is­tra­tion would deport “felons, not famil­ies, crim­in­als not chil­dren” even though it was clear that famil­ies would be separ­ated by the removal of those labeled “felons,” and that the felony label itself emerges out of a crim­inal legal system that is both overly punit­ive and racially discrim­in­at­ory.

Again and again, notions of the rule of law are invoked to justify the sunder­ing of famil­ies and communit­ies that would, in other circum­stances, seem unthink­able. Courts have played an essen­tial role in shor­ing up the dehu­man­iz­ing narrat­ives that enable our nation’s harsh enforce­ment prac­tices. In decisions that laid the ground­work for today’s excep­tion­ally severe immig­ra­tion laws, the Supreme Court has treated work­ers coming to fill jobs in the United States as a threat to public safety and secur­ity.

In uphold­ing the consti­tu­tion­al­ity of interior immig­ra­tion check­point stops in the 1976 case of U.S. v. Martinez-Fuerte, Justice Lewis Powell justi­fied these stops — includ­ing those made on the basis of race — as neces­sary to address the “formid­able law enforce­ment prob­lems” posed by the “flow” of a popu­la­tion that he describes at the outset of the opin­ion as “illegal Mexican aliens.” In Justice Sandra Day O’Con­nor’s 1984 decision in INS v. Lopez-Mend­oza, she concludes that illeg­ally obtained evid­ence can be used against immig­rants in their deport­a­tion proceed­ings, analo­giz­ing the ongo­ing pres­ence of an unau­thor­ized immig­rant worker to “a leak­ing hazard­ous waste dump.”

Notably, both of these decisions were handed down before the enact­ment of the 1986 Immig­ra­tion Reform and Control Act. At the time, no law prohib­ited employ­ers from hiring these immig­rant work­ers; indeed, employ­ers were actively recruit­ing the very immig­rant work­ers whose “flow” was treated by the Supreme Court as such a toxic menace. Employ­ers hired work­ers with impun­ity, yet govern­mental offi­cials were given license to viol­ate these work­ers’ Fourth Amend­ment protec­tions when enfor­cing the immig­ra­tion laws. Immig­rant work­ers paid a price for perceived lawless­ness; those whose recruit­ment efforts brought them to the United States did not. And the price increased when legal changes in the 1980s and 1990s attached expans­ive penal­ties to new crimes of migra­tion, made it more diffi­cult for immig­rants to regu­lar­ize their status, and vastly increased the range of crim­inal viol­a­tions that would bar immig­rants from coming to or remain­ing in the United States

Today, people routinely use the term “illegal” not to refer to the law enforce­ment prac­tices like the Migrant Protec­tion Policy that openly viol­ate U.S. treaty oblig­a­tions, or to the hiring prac­tices of many of the nation’s employ­ers, but to describe immig­rants as outside of the law, always threat­en­ing to it. For people thus dehu­man­ized, no legal consequences seem too severe; for them, the law is a threat­en­ing sword, not a protect­ive shield.

Amer­ican economic policies, climate policies, and foreign policy choices play a signi­fic­ant role in shap­ing the forces that drive people in neigh­bor­ing coun­tries from their homes. Yet when those displaced persons — many with family and other affect­ive ties to the United States — arrive at our borders, we use law as a cudgel against them and deploy legal language to mask our inhu­man­ity.

I can’t imagine anything worse.

Jennifer M. Chacón is a professor of law at the Univer­sity of Cali­for­nia, Berke­ley, School of Law.