What Would Humane Immigration Policy Look Like?

In a previous article, “Can We Have Humane Immigration Policy?” I outlined what I believe to be a fundamental hurdle to real immigration reform: namely, the fact that Democrats have very few clear, long-term ideas of what “reform” should even look like. The right has a very straightforward restrictionist agenda, and from this have derived a set of policies that they believe (rightly or wrongly) will be effective in restricting immigration. In its worst iteration, this restrictionism is pure, ethnostate-style xenophobia; in its “best” iteration, it reduces individuals to a number that symbolizes their economic value, and allows immigration only when it stands to benefit native-born, “real” Americans. The left, by contrast, vaguely believes that immigration is an inherently Good Thing, but has no clear idea of how much immigration is desirable, or how it ought to be regulated. Democrats have historically very often defaulted to the “admitting immigrants based chiefly on their economic usefulness” position, partly because it has seemed superficially reasonable to them, partly because they hoped to compromise with Republicans, and partly for lack of any better ideas. Now that “points-based immigration” has been touted by the Trump administration, thankfully, more people are finally beginning to understand what an ugly and inadequate idea it actually is.

But what scheme of immigration regulation should the left actually pursue, then? In my view, we’ve dithered on this question long enough, and made far too many inhumane concessions in the process: now that we have arrived at a moment where favoring immigration and opposing Trump are becoming increasingly merged in the public imagination, it’s time to go big or go home. Our position should be simple, and ambitious. In the long term—and I don’t think we should hide the ball about this—our goal should be to ensure that anybody who wants to come to the U.S. and live and work peaceably should be allowed to do so. If an immigrant has been in the U.S. for some period of time and want to settle here permanently, they should be able to do that, too.

I do not think being pro-free movement or pro-open borders as a general matter means committing to the position that a region can never restrict immigration under any circumstances. Almost every argument adduced for limiting immigration to wealthy countries is utterly specious—the U.S., in particular, is the world’s third-largest country geographically and its 179th-most densely populated, so the idea that we “can’t” take more people is a ludicrously transparent lie—but nevertheless, every region does have some genuine resource constraints. There may be situations of political unrest, natural disaster, or economic crisis that are so serious that admitting more population is actually dangerous. For example, Lebanon is currently hosting 172 Syrian refugees for every 1000 of its citizens: that means that a full 30% of its population are refugees. This is a pretty big burden for any small state to shoulder, and the situation cannot possibly go on indefinitely, especially if Lebanon finds itself spiraling towards governmental collapse, or under attack by a neighboring country. Though it’s hard to imagine how an exactly parallel situation could ever arise in the U.S., due to its sheer size, there may, someday, be other disaster scenarios that would qualify in the U.S. context.

The point is, we should treat immigration restrictions as time-limited responses to specific, articulable conditions, not as a default mode. To the extent that immigration might need to be restricted or regulated more closely in certain emergency circumstances, our concern must be to admit immigrants primarily on the basis of need, and the direness of the situation they will face if returned, not according to factors like nationality, wealth, education, or ability, which is how our U.S. system presently operates.

All this, however, is the long game. We certainly can’t arrive at a more open immigration system overnight, and I think that there’s a hierarchy of intermediary policy goals that would alleviate some of the most unconscionable effects of our present system, while laying the groundwork for a future immigration system that looks entirely different. Here, I’ll outline several policy changes that would benefit immigrants who are already present in the U.S., and individuals who face serious dangers in their home countries. (Stay tuned for part three, which will deal with visa allotments, employment-based immigration, and admissions more generally.)

FIDDLY LEGISLATIVE FIXES

Given how messed-up our immigration system is on a large scale, it’s worth asking how much time we ought to devote to tinkering with the finer points of laws that we would be better off scrapping wholesale. Some people might say that these kinds of small fixes are a waste of energy, like rearranging the deck chairs on the Titanic. But I disagree. In a disaster of this scale, you want some of your people making repairs to the leaky lifeboats, and other people working to contact bigger rescue vessels, because who knows which avenue will prove more successful before the whole mess slides into the sea.

What I mean by “fiddly legislative fixes” are legal changes that wouldn’t result in any immediate, sweeping changes to what categories of people are eligible for immigration relief: rather, they might slightly alter the boundaries of those categories, and also ensure that people who are eligible for immigration relief aren’t barred from getting it for reasons that are totally outside their control.

The only area of immigration law with which I have any minute familiarity is asylum law, and there are certainly a number of small procedural changes in this field that could make a huge difference to an asylum-seeker’s chances of success. For example, Congress passed a catastrophically bad immigration bill in 1996 which, among many other things, included a requirement that all asylum applicants file their applications within one year of their last entry to the United States. (Supposedly, this rule is supposed to “prevent fraud,” because fraudsters are notoriously bad at reading calendars, or something.)

Unfortunately, though not surprisingly, a lot of people with asylum claims don’t manage to file on time. Most people in deportation proceedings don’t have attorneys; many of them are traumatized; some of them may be sitting in immigration detention on the day of the deadline; their first-ever court hearings after entering the U.S. may even end up being scheduled past their one-year anniversary; the application form is absurdly complicated and the questions are all in English; etc., etc. You can try to file late, of course, but your application won’t be accepted unless you can prove some very specific extenuating circumstances. According to a 2010 study, nearly one in five failed asylum applications were rejected by the court solely because they were filed after the one-year deadline. Changing this rule would give a lot more immigrants access to the asylum process, and save asylum lawyers a lot of time wasted writing one-year deadline memos. No doubt there are numerous other boring, wonkish policy changes of this kind that could be slipped into larger bills with comparatively little fanfare.

A more ambitious but indispensible short-term goal, which would have huge implications for the success of immigrants’ legal cases, is getting guaranteed access to lawyers for immigrants in deportation proceedings. Because immigration is a “civil,” not a “criminal” offense, people in immigration proceedings aren’t entitled to a lawyer. This is despite the fact that deportation is effectively a penalty of exile, which is at least as severe as incarceration, and in some cases (for example, when the individual is being deported back to life-threatening violence) even more severe. There are even restrictions on when federal legal aid funding can be used to aid non-citizens in immigration proceedings, which means that the sorts of legal organizations that would typically try to provide pro bono assistance to immigrants are significantly hampered in their ability to do so.

My impression, based on my conversations with friends and family, is that the fact that immigrants have no guaranteed access to legal representation is not widely known, even among liberals. The Democratic position should clearly be that if deportation is on the table as a possible outcome, all immigrants should be guaranteed a lawyer. In the lead-up to this larger goal of universal representation, if we can even manage to secure mandatory lawyers for certain classes of especially vulnerable immigrants—such as minor children and people with diagnosed PTSD and other forms of mental illness—that would already make a significant difference. There have been a number of bills before Congress proposing exactly this, but they have rarely made it past the committee stage. The Democratic Party needs to start publicizing this as a major problem in our justice system, highlighting especially that the vast majority of people in deportation proceedings have not committed any crimes, beyond simply existing in our country without a specific piece of paper.

It is also vitally, urgently important that Democrats begin calling for legislation to end expedited removal, a process under which immigrants who cannot affirmatively prove that they have been in the country continuously for the past two years may be immediately deported from the U.S. with no opportunity to appeal their deportation in front of a judge. This egregious practice—another unfortunate legacy of the 1996 immigration “reform” legislation signed by Bill Clinton—regularly results in the deportation of, among others, asylum-seekers and U.S. citizens.

DECRIMINALIZING IMMIGRATION OFFENSES

The idea of “decriminalization” is to reduce the consequences of immigration offenses to something that befits a non-violent transgression of a civil law—a fine, for example—rather than things like imprisonment and deportation. If immigration violations are indeed civil rather than criminal, then they ought to have more moderate penalties, especially if the immigrant in question poses no conceivable danger to the community. Immigration enforcement has come to increasingly resemble criminal enforcement over the past fifteen years or so, and Democrats’ willingness to continue expanding enforcement as a bartering chip has greatly exacerbated the problem.

One crucial piece of decriminalization is the elimination of immigration detention, which is functionally indistinguishable from prison. And, like most areas of the prison system, it’s an increasingly lucrative business for private companies. Family detention centers—where women and children are incarcerated after being picked up at the border or in internal raids—constitute the most obviously absurd example of imprisoning people who pose absolutely no risk to public safety. Adult-only detention centers are far more numerous, however, and the conditions there are far worse. There are certain legal restrictions on the circumstances under which child immigrants can be incarcerated, which means that almost all children who aren’t deported are released from detention after a relatively brief period. Adults, on the other hand—almost all of whom, let’s just be clear, have committed no criminal offenses—are often detained through their entire removal proceedings, and sometimes months past their final order of deportation, which can amount to years behind bars.

Detainees have no meaningful opportunity to recruit a lawyer, and no access to email or internet, which means their ability to prepare their own cases is entirely contingent on what the prison stocks in its so-called “legal library”—and on the detainee’s ability to read and write in English, because all the documents they submit to the court must be in English. Our immigration laws are pretty pitiless under the best of circumstances, but many detained people who actually could qualify for relief never even apply for it, or don’t submit the correct evidence. Meanwhile, they are separated from their families, who suffer greatly, emotionally and financially, in their absence. Some people manage to be released on bond, but bonds are often set unreasonably high, or parole is arbitrarily denied because the court determines that someone is a “flight risk.” The whole detention system is hideous and unnecessary: immigrants have never been detained on this scale at any other time in U.S. history, and there is no conceivable justification for locking people up who haven’t even committed any violent acts.

Getting rid of deportation as a consequence of simply being present in the U.S. without status is the next important phase of decriminalization. In the public imagination, deportation has come to seem like the natural culmination of an immigration violation: you’re not supposed to be here, so the government removes you. But why not simply allow people to pay a penalty and adjust their status? That’s how we treat most civil offenses in the U.S. There is a legal fiction that deportation isn’t “punitive,” but common sense tells us that it is: and the offense of simply existing in the country without authorization isn’t anywhere near proportionate to the extreme penalty of exile. Decriminalizing immigration offenses generally is a better long-term solution to the plight of undocumented people than time-delineated “amnesties” that will leave any subsequent immigrants in the exact same straits as their predecessors.

Now, advocates who work on the intersection of immigration and criminal law will point out—justly—that putting too much emphasis on “non-violent” immigrants demonizes immigrants who have committed crimes, and promotes the idea that their immigration offenses should be selectively criminalized, while those of “good” immigrants shouldn’t be. (This is the idea behind Obama’s “felons not families” deportation scheme, which was inconsistently-implemented in addition to being theoretically suspect). I do think this is one of the trickiest areas in immigration policy, both politically and practically. I believe that the left should advocate for fairer treatment for immigrants who have committed violent crimes, in light of the fact that deportation serves no rehabilitative function and may put either the immigrant themselves, or other people in the receiving country, at risk of serious harm. However—and there are legitimate, persuasive reasons to disagree with me on this—I do think that the question of how to handle unauthorized immigrants who commit violent crimes is fundamentally different from the question of how to handle unauthorized immigrants who have committed no violent crimes. The former involves some inherently difficult balancing between individual rights and community safety, in which every available option may entail certain or probable harm to some person; the latter implicates none of these issues. To put the entire population of immigrants in the same basket forecloses the possibility of using some very easy, simple, straightforward arguments on behalf of non-criminal immigrants (i.e. the overwhelming majority of the immigrant population), which is to say that, in the same way you wouldn’t put someone in prison or eject them from the country for failing to pay a debt on time, you shouldn’t impose such extreme penalties for some ordinary person who has merely fallen afoul of an administrative category.

TAKING IN MORE REFUGEES

We are in the middle of the biggest refugee crisis since World War II: there are estimated to be around 60 million people currently displaced from their homes. Under U.S. law, the president has the power to determine how many refugees we admit annually: Trump has already moved to lower the annual number to 45,000, less than half of the number President Obama admitted in 2016 (although, in fairness, a couple years of Obama’s presidency were almost as ungenerous).

Ideally, the U.S. ought to commit to take a fixed percentage of UNHCR-designated refugees every year. This number should be calculated based on the population densities of all the countries that are signatories to the 1951 Refugee Convention, so that each country is assigned a target number that fairly reflects their capacities. (Given that, as I mentioned earlier, the U.S. is the third-largest country in the world by landmass and the 179th-most densely populated, we ought to be on the hook for a lot more refugees than we’re currently taking.)

Another method for increasing refugee admissions would be to continue allowing the president to determine the annual number of refugees to be admitted and resettled countrywide, but also allow states or municipalities to opt to accept additional refugees above the federally-determined number, and take responsibility for their resettlement. This would create opportunities for people to campaign locally for refugee admissions, and force cities with “immigrant-friendly” PR images to put their money where their mouth is. Yet another option would be to allow private individuals, churches, and other organizations to “sponsor” additional refugees, if they can demonstrate their ability to provide accommodations and support. This would further increase community-level engagement in refugee issues—and who knows, we might be heartened to discover how many people actually want to help. Refugee organizations report that they get calls every single day from people asking how they can privately sponsor a refugee: why not actually make it possible?

We should also aim to expand the definition of what constitutes a “refugee” or an “asylee” under U.S. law. Under current international and domestic law, many people who are fleeing violence don’t qualify as refugees because they can’t prove that they’ve been targeted based on a “protected ground,” like political opinion or ethnicity. For example, women and even children who are targeted for sexual violence outside the context of a domestic relationship may be denied asylum in many parts of the country. Likewise, people who are extorted by gangs, or ordered to join gangs, usually do not win their asylum cases, even if the gang has made credible threats or committed actual violence against the victim. This distinction often cruelly denies protection to people who are in danger of violence that is being inflicted indiscriminately in their region of origin, or who are being specifically targeted for a reason that isn’t enumerated in the law. We should aim to amend our refugee definition (or designate an alternate category of protection that will cover these additional cases) so that any person fleeing violence perpetrated by their state, or violence that their state won’t protect them from, is afforded protection under U.S. law.

Part III in our immigration series, “More Immigration Policy Proposals,” will be published next week.

Photo by Avery White.