The public outrage against President Donald Trump’s executive orders on immigration has thus far been focused on the travel ban aimed at seven Muslim-majority countries and the attacks on the American refugee program. This is understandable, as the chaos and trauma caused by these actions were immediate. These stories gave the public a glimpse into the arcane and confusing world of immigration law, and the injustice of the situation was clear. Unfortunately many other aspects of the new immigration orders are equally unjust, but are even more subtle and confusing to those unfamiliar with the Immigration and Nationality Act.
In fact, it is likely that the architects of the executive orders are counting on the lack of knowledge about immigration law and enforcement to shield their actions from public scrutiny. The breadth of the new orders seems to make every undocumented immigrant a priority for removal, and to treat all immigration violations as national security and public safety threats. This sweeping approach to immigration enforcement undermines not only years of efforts to improve the use of prosecutorial discretion in immigration enforcement, but it also ignores a fundamental fact: not everyone in the country who is undocumented can or should be deported.
Let’s start with the “can.” Just because someone is in the United States without authorization does not mean that he or she doesn’t have a legitimate basis for remaining here. In most cases, the law allows for people to contest whether they are deportable, and to apply for relief from deportation. Hearings before immigration judges actually reflect that philosophy—first the immigration judge determines whether there are legitimate charges to find an individual removable from the country and then he or she reviews whether the person is entitled to any relief from removal. This two part analysis essentially means that the government has to prove someone can be removed, and then the individual has to show why he or she should be able to stay.
Some individuals are here with authorization and can prove that to the judge. More often, they raise alternate reasons for why they should be allowed to stay. They may have an asylum claim. They may have a spouse or relative who can sponsor them for lawful permanent resident status. They may qualify for a type of relief known as cancellation of removal, in which their time in the United States, good moral character and proof of various severe hardships will persuade that judge that, on the whole, the individual should be permitted to stay. This judgement is in the hands of the court as long ago, Congress determined that there needed to be some element of grace in the system and forms of relief, such as cancellation, represent that effort to balance all of the factors in individual cases.
The executive orders, however, seek to limit that grace as much as possible, in part by potentially reducing access to immigration judges. The executive orders authorize expansion of expedited removal—an accelerated process for removing recent entrants to the United States which severely restricts the ability to make a claim for relief, except for those seeking asylum. Although we don’t know how the government will implement this aspect of the President’s vision, it could mean that many people who have lived in the country for a while might no longer have the chance to see an immigration judge. Even those who have been in the country for a short period of time may still have reasons to argue that they should remain in the U.S.—but they won’t get the chance to do so under expedited removal.
In short, the breadth of the executive order ignores an inherent element of immigration law: forgiveness. Not everyone who overstays a visa or enters the country unlawfully will be removed because some people can and should be forgiven. Congress decides how generous that forgiveness will be, but it has yet to completely eliminate discretion and grace in the application of the law.
Thus, in promoting its interior and border enforcement agenda, the Administration is deliberately lumping together a vast range of people and circumstances, attempting to scare the public into believing that every single person in this country without documentation is a national security or public safety threat. Yet most of those he seeks to deport have lived here for decades, have U.S. citizen family members, and deep community ties. This ramp-up of enforcement is already causing hardships, and sending a ripple effect through American families, communities, and economies. This is not how immigration law is supposed to be applied and its perversion does all Americans a disservice.
Photo by David Amsler.