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February 2019

Immigration Law in Disarray – The Urgent Need for Structural Reform and Bold Action

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Article by: Francesco Arreaga

Published: February 25, 2019

Photo by Simon King on Unsplash

The United States is often thought of by many as a nation that advocates for the rule of law, human rights, opportunity, freedom, and equality. Although many Americans have strived to embody these ideals, our country has not always lived up to them. Immigration law is an area that is plagued by a history of xenophobia and must be reformed so that it can reflect the values we hope to represent.

A History of Xenophobia in America and its Impacts on Current Immigration Laws

From 1776 to 1882, the United States did not have federal laws restricting immigration into the country. The Alien Enemies Act and the Alien Friends Act of 1798 were enacted to address the possibility of war with France. The acts pertained to immigrants that were from enemy nations during war time. However, the laws did not have any effect as  the U.S. did not declare war against France, and no immigrant was ever deported. The term “undocumented immigrant” did not exist during the first hundred years of our nation’s history because people could freely, or in the case of slaves, unwillingly, enter the country. Bigotry and discrimination, however, affected newcomers in America.

From 1845 to 1855 more than 1.5 million adults and children emigrated from Ireland to the United States in search of a better life. They were fleeing from the poverty and desperation experienced in their country as a result of the Great Famine. The Irish immigrants faced dire circumstances in America due to language barriers, racial discrimination, and religious prejudice. As Christopher Klein describes in his article, Irish immigrants were targeted by nativist organizations such as the “Know-Nothings” due to their Catholic background, faced challenges finding employment as evidenced by “No Irish Need Apply” advertisements, and were portrayed as inferior people by illustrators. Christopher Klein also describes how the 13th President of the United States “courted the votes of nativist Yankees fearful of the changes brought by the Great Hunger refugees, and he blamed ‘foreign Catholics’ for his defeat in the 1844  New York gubernatorial election.” I am sure that if the 13th President of the United States were still alive, he would get along very well with the 45th President of the United States.

In 1882, the Chinese Exclusion Act was signed into law. It was the “first significant law restricting immigration into the United States.” The restrictions on Chinese immigrants during the late 19th century were clearly based on racial animus. John Hayakawa Torok’s article in Berkeley’s Asian American Law Journal describes the racial nativism that shaped the debates on immigration in Congress. Mr. Torok begins his article by quoting an 1877 Congressional Report of the Joint Special Committee to Investigate Chinese Immigration, to depict how politicians viewed Chinese immigrants as inferior: “The Chinese… have no knowledge or appreciation of our institutions. Very few of them learn to speak our language… To admit these vast numbers of aliens to citizenship and the ballot would practically destroy republican institutions on the Pacific Coast.”

Following the establishment of the Chinese Exclusion Act, the Geary Act was enacted in 1892. This law required Chinese immigrants to register and secure a certificate as proof of their legal right to reside in  the country. The punishment for not securing this certificate was deportation. The irony of these exclusionary laws is that our nation was built by immigrants who dropped their anchors on the shores of land that was inhabited by Native Americans. These xenophobic and discriminatory laws are the root of our nation’s immigration system. As Professor Lew-Williams stated to HuffPost, “What stayed in place was [the] system of immigration deportation and removal we have today.

Reforming the Immigration Courts

Our Constitution guarantees judicial independence so that judges are protected from political coercion. These constitutional principles, however, do not apply to immigration courts. The immigration court system we have in place today is mired by conflicts of interests and does not embody our country’s reverence for the rule of law.

Immigration judges are not confirmed by the U.S. Senate; instead, they are appointed and can be terminated by the Attorney General of the United States. As the American Immigration Lawyers Association (AILA) has stated, immigration courts have an inherent conflict of interest because they are housed under the Department of Justice, the same law enforcement agency that is charged with prosecuting immigration cases.

Furthermore, due process is not guaranteed in immigration proceedings because immigrants are not afforded the right to an appointed attorney. Last month, I attended immigration hearings in San Francisco, California, through the Berkeley Immigration Group’s court observation project. During these hearings, I observed how a detained immigrant explained to the judge how he had been searching for an attorney to represent him for several days but had been unable to secure any legal representation. The judge provided him with more time to search for an attorney and continued with the next case. I thought about what this man would do if he was unable to find someone to represent him. How is it possible that the immigration court system provides interpreters who translate words but not attorneys who interpret laws and provide adequate representation? Due process ought to be provided to every person that sets foot inside an American courtroom. This is not the case, however, because as the Ninth Circuit ruled last year, even an immigrant teenager facing deportation is not guaranteed an attorney.

One of the most troubling aspects of our immigration court system is that immigration judges are not protected from political influence. The former Attorney General of the United States began requiring that all immigration judges meet case completion quotas as a basis for their performance review. Moreover, under 8 U.S.C. § 1103(g)(2), the decisions of immigration judges can be overruled because the Attorney General has the power to “review such administrative determinations in immigration proceedings.” The former Attorney General used this power by removing cases from the Board of Immigration Appeals and subsequently “referring them to himself to issue a decision instead.” This sort of action is legal under our current laws but is contrary to the principles that are embodied in our Constitution.  

The structure of immigration courts in America brings shame to our democratic values because it resembles the judicial system of countries ruled by authoritarian regimes that prefer rule by law over rule of law. It is imperative that we fix our immigration court system by enacting the reforms advocated by the AILA in their policy brief: Restoring Integrity and Independence to America’s Immigration Courts. Moreover, the Federal Bar Association has been urging Congress to create an independent immigration court system since 2013 and has even created model legislation to do so. American politicians who value the rule of law and the integrity of our legal system must create independent Article I Immigration Courts and ensure that due process for immigrants is protected by permitting them to have access to public attorneys.

Utilizing the Pardon Power of the Executive

The 46th President of the United States will have the power granted by the U.S. Constitution to issue pardons. Article II Section 2 of the U.S. Constitution states that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The Constitution does not specify whether the President can issue a mass-pardon or whether a pardon may be issued to a non-citizen. I would argue that based on precedent, the President of the United States has the power to issue a mass-pardon to forgive undocumented immigrants for the offense they committed when they entered the country. Even though this would not change the immigration status of undocumented immigrants, it would provide them with permanent relief from deportation.

Previous Presidents of the United States have issued mass-pardons that are not specific to an individual. In 1893, President Benjamin Harrison issued a Proclamation pardoning all members of the Mormon Church for the federal crime of polygamy. His proclamation stated:

“I, Benjamin Harrison, President of the United States, by virtue of the powers in me vested, do hereby declare and grant a full amnesty and pardon to all persons liable to the penalties of said act by reason of unlawful cohabitation under the color of polygamous or plural marriage who have since November 1, 1890, abstained from such unlawful cohabitation…”

Additionally, in 1977 President Jimmy Carter fulfilled his promise to pardon every American that had evaded the military draft during the Vietnam War. On his first day in office President Carter’s proclamation stated:

“I, Jimmy Carter, President of the United States, do hereby grant a full, complete and unconditional pardon to: (1) all persons who may have committed any offense between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act…”

Presidents have also pardoned non-citizens in the past. In 1923, President Coolidge pardoned Lothar Witzke, a German spy and saboteur. On November 30, 1923, The New York Times reported how Witzke sailed back to Germany after President Coolidge pardoned him. Moreover, President Franklin D. Roosevelt pardoned Duncan Renaldo, an undocumented actor convicted of “perjury for claiming he had been born in New Jersey. After serving 18 months in federal prison, he was granted an unconditional pardon by President Franklin D. Roosevelt.

Based on precedent and the reading of the Constitution, it is clear that the President of the United States has broad discretion to make decisions about pardons. The 45th President used his power under the Constitution to grant a pardon to a racist individual in Arizona who was convicted of a crime for disobeying a federal judge’s order to stop racial profiling. The 46th President of the United States ought to use his or her constitutional power to grant a mass-pardon to undocumented immigrants so that they can live in their communities without the fear of deportation.

Comprehensive Immigration Reform

Millions of undocumented immigrants are currently living in the shadows and afraid that they will be deported from the country that they love and have lived in for years. Revamping the DACA program and extending Temporary Protection Status to a select group of immigrants is important but is not enough to make the necessary changes required to integrate immigrant families into our society. For this reason, it is crucial that Congress enact comprehensive immigration reform. In fact, Congress could enact the 2013 comprehensive immigration reform bill that passed the U.S. Senate by a vote of 68-32. This comprehensive immigration reform bill also incorporated the DREAM Act. Moreover, it created a merit-based visa system alongside the existing family-based immigration and employment-based immigration programs.  

Remedies for the Families that were Victims of the Child Separation Policy

Finally, Congress and the 46th President of the United States need to provide an apology and a remedy to the victims of the 45th President’s Zero Tolerance Policy, also known as the Child Separation Policy.

It took 46 years for the United States to apologize for the trauma inflicted by Executive Order 9066, which called for the internment of Japanese Americans during WWII. The Civil Liberties Act of 1988 finally granted every Japanese American who had been interned by the U.S. government during WWII a formal presidential apology and redress of $20,000. It should not take the U.S. government 46 years to apologize and provide redress to the thousands of immigrant families that were terrorized by the current administration’s policy of family separation.

One remedy that can be provided to all the families that were separated is granting them asylum. Professor Kari Hong proposed this remedy in an opinion piece that she wrote for Huffpost. Professor Hong describes how the current president, “aided by his attorney general and secretary of homeland security took these children away, stripping from their parents the very reason they risked so much.” Children who were separated from their families included a five-month-old baby who was held in a detention center several states away from his mother. Professor Hong provides a comprehensive justification as to why the victims of the Child Separation Policy “should be released and reunited. The wrongfully deported returned. And all of them given legal status with the option to stay.”

A second remedy that can be provided to the families is monetary compensation. It would not surprise me to know that mothers and fathers who were separated from their children at the hands of U.S. officials do not ever again want to travel to the United States. As such, the families that reject the asylum offer should receive some kind of monetary compensation for the amount of trauma that they endured. The American Immigration Council is already representing six asylum-seeking mothers and their children who were victims of the Child Separation Policy. Each claimant seeks $3 million from the government for its intentional infliction of emotional distress. The severe trauma that these parents and their children experienced is unimaginable and most likely can never be properly monetized. Congress and the 46th President should obtain expert testimony as well as testimony from the victims of this cruel policy so that an amount of compensation can be determined for every family that was affected by the Child Separation Policy.

It is Time to Rewrite the Rules of Immigration

It is time to rewrite the rules of immigration and overcome the xenophobic and discriminatory roots that plague our immigration laws. Any progressive candidate that wants to become the 46th President of the United States, and is ready to make bold systemic changes, should easily decide to adopt the policies outlined in this article. With a record-high 75% of Americans expressing that immigration is a good thing for the United States, all democratic presidential candidates should be confident that the public supports a bold plan for immigration reform. These policies represent a positive vision of America and embody the values that our country should always defend: inclusivity, diversity, the rule of law, opportunity, justice, human rights, and freedom.

Francesco Arreaga is pursuing a Juris Doctorate at Berkeley Law. He graduated from UCLA with a Bachelor’s degree in Political Science and Chinese, as well as a minor in Global Studies in 2017.