There are two ways of looking at immigration and they result in different conclusions.

Sunday, April 7th, 2019
By: Jonathan MontagJ.D.

Asylum is in the news. There is the “border crisis” at our Southern border where increasing numbers of families and unaccompanied minors are coming to the border in search of safety. Then, less reported, are events in the courts revolving around Iraqis facing deportation to their country.

Starting first with Iraq. In June 2017, Immigration and Customs began rounding up Iraqis in the United States to deport them. Reports are that the people arrested were chiefly Iraqi Chaldeans, the primary Christian denomination in Iraq, who had come to the United States more than a decade earlier, chiefly as refugees or asylees, and then committed crimes that rendered them deportable, Prior to 2017, Iraq was not accepting deportees, and so these people would report to ICE annually for ICE to keep tabs on them, but they were able to live and work in the United States notwithstanding their deportation orders because Iraq and no other country would accept them. That appeared to change in 2017 as ICE came to believe it could begin removing Iraqis, and so ICE began rounding them up, mainly in Michigan where there is a large Chaldean population.

The government’s view was that these people had final orders of removal and knew, or should have known, a day would come when they would have to go. Further, their deportation orders were legally entered and final. The deportees had their trials and appeals. They had the right to pursue all appropriate relief and were found ineligible for any. They then had years and decades to reopen their cases if some basis existed, but did nothing or failed in their attempts. The day had come and they had to go home.

The Chaldeans’ view is different. They committed crimes years earlier, perhaps more than twenty years earlier that led to removal orders. They since were released from custody, re-joined the community after paying their debts, and have since lived peacefully, working, having families, and pursuing happiness. It was obvious from decades of experience that they would not be deported, and, judging from the violence and sectarian mayhem in Iraq, the United States would not send Iraqi Christians into that chaos. Suddenly, with no warning, they were arrested to be deported with no opportunity to seek to reopen their cases based on changed circumstances in Iraq and, perhaps, changes in the law. From detention centers scattered around the country and no idea when it would be wheels up, it would be nearly impossible to gather the old case files, transcripts. and conviction records to properly seek reopening.

The Iraqis sued and faced success in Michigan.  In this case and subsequent ones, a district court in Detroit stayed removals and later ordered large numbers released from custody, as the American Civil Liberties Union discusses here.

However, on December 20, 2018, the 6th Circuit Court of Appeals vacated all the protections imposed by the lower court and allowed for the removal of the Iraqis. On April 2, 2019, the 6th Circuit denied rehearing thus allowing removals to go forward.

Two views of the situation are crystalized. On the one hand, these people face grim, potentially fatal prospects for their futures and should be protected by the United States, their home of long residence. Our tradition of harboring the oppressed should result in the government finding a way to let these people stay. On the other, these people, like all non-citizens are protected by the immigration laws. The law lays out who shall stay and who shall go. If their own conduct rendered them ineligible to stay, then the law must be obeyed.

The other situation is the situation at the border. People from around the world are fleeing dire situations of various kinds. Neighboring countries, near and far, face populations fleeing persecution for multiple reasons – some political, some racial, some religious, some based on nationality, and some based on other social orientations. Others face misery because of poverty, crime, and war. Europeans face people from the Middle East and Africa making their way to their countries. Colombians face Venezuelans. Brazil and the Dominicans face Haitians. Bangladesh faces Burmese Muslims. The United States faces Central Americans and a smattering of everyone else.

How to deal with these people depends on how you look at it. On the one hand, if you are a Honduran woman facing the prospect of being skinned alive, you’ve got to flee and America, the harborer of the oppressed. Certainly America should give safe haven to desperate people. On the other hand, the immigration laws provide for the protection of certain groups of people – those that are able in a timely fashion demonstrate with their testimony and corroborating documentation and proof of identity that they will face persecution based on their race, religion, political opinion, nationality or immutable and recognized social orientations and cannot find safety anywhere at home. Obtaining protection because of crime or poverty is not the law. As former Attorney General Jeff Sessions noted in a decision he wrote regarding the ineligibility for asylum for victims of domestic and gang violence, the asylum law is not the cure for every “heart-rending situation.”

It is based on these two views that the game is played. On the pro-immigrant side, advocates argue that the law allows for generosity with a goal of protecting the defenseless. Not all of these values are mere moral or ethical ones, but also issues like fairness, access, equal treatment, and due process are Constitutional rights. On the enforcement-oriented side, advocates point out that Congresses have passed and presidents have signed laws about how to control foreign populations coming to the United States. Congress allocates billions of dollars to enforce them as written. If you don’t like the laws, then change them. Vilification of the desperate  and their advocates is a disgraceful sideshow to the real issue, which is that until the laws are changed, they should be enforced.

It is the tension between these two views that is the basis of the legitimate (rather than the vile sideshow) immigration debate. Posted April 7, 2019.


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