Hello all,

I provided Dave with a belated response to his original blog on immigration (refer to Dave’s post: https://errantthoughts.com/hi-my-name-is-dave-part-2/), and he asked to share my thoughts as a guest post.  For context, and for those of you who do not already know, my name is Courtney McCausland.  I am the co-director of the immigration program at the East Bay Community Law Center (EBCLC), which also houses the immigration clinics for the UC Berkeley School of Law. I have nearly a decade of experience working directly in US immigration law, and have represented hundreds of individuals in their immigration cases at every stage from administrative filings to complex litigation. I am also Dave’s daughter-in-law. Based on my professional experience as a practicing attorney, I certainly agree with Dave that our existing immigration system is woefully in need of reform, likely to such a degree that would amount to outright replacement.

A few preliminary notes: the entire rhetorical framework of “illegal immigration” is a red herring that has become so deeply entrenched in our collective social psyche for decades that it has effectively shifted the Overton Window of reasonable conversation on this topic significantly to the right of anything resembling moderation. This is extremely challenging, because there are many good-hearted and well-intentioned folks who want to have earnest conversation about immigration reform, but the very vocabulary we are provided on this topic anchors us in bad-faith territory. Referring to folks as “illegal immigrants” (or worse, circa Fox News “illegal aliens”) is not only a legal misnomer, it is also a device used to dehumanize the impacted communities. As a short point of distinction, entering the United States without inspection (what is referred to as ‘EWI’) is an act that may be prosecuted as a misdemeanor, though it rarely is. (For those who get really up in arms about this, I like to remind them that the unlawful discharge of fireworks can also be prosecuted as a misdemeanor so – you know – perspective). This is distinguishable from lawfully entering the United States with inspection, and then overstaying or otherwise violating the terms of your visa, which is a civil infraction – not a criminal one. Notably, visa-overstays have outnumbered EWIs in the US since 2007. Nevertheless, both categories of folks are rendered undocumented and lumped under the inflammatory label of “illegals.”

But before I get ahead of myself, let’s look at the starting point of the immigration journey. As Dave touched on in his original post, the United States’ foreign policy has profoundly destabilized whole regions of the world, but notably for modern immigration trends this is particularly true of Central America. Dissecting the socio-political history of that region is beyond the scope of this post, but I would encourage you to research the US military’s “School of the Americas” at Fort Benning (which claims dictators, generals, and drug lords alike amongst its illustrious alumni), as well as the 1954 United Fruit Company (AKA Chiquita) coup of Guatemala, and the civil war and genocide that followed. The overthrow of democratically elected governments, among other things, created huge power vacuums in which organized criminal groups (cartels, gangs, etc.) emerged as parallel governments. These circumstances, coupled with the extreme poverty that followed, are very common drivers of migration to the United States.

Unfortunately, our current systems for offering humanitarian protections to these folks have not been meaningfully reformed since World War II. The categories of protection established at that time (on the basis of the 1951 Refugee Convention) were reflective of the persecution that was common under the WWII/Westphalian nation-state model of government persecution. Now, the agents of harm are often non-state actors, like those organized criminal groups that arose in the power vacuum to run in parallel to the recognized governments of those states, and private actors that the government is unable or unwilling to control in their unchecked violence against any minoritized group. So under the current reality of largely non-state persecutors, our paradigm falls profoundly short. In practice this means that, even in the event that people make it to the United States, our pretextual framework for protection is used to exclude many individuals (who have real and valid fears of returning to their country of origin) simply because their claim does not fall neatly into any of the prescribed categories.

So what happens when folks get to the United States? When encountered at the border, via self-surrender or apprehension, folks are usually detained in immigration detention facilities while their case is initiated, or sometimes until it is fully adjudicated. Or, let’s say that the individual entered with inspection, but ran afoul of the system in one of myriad available ways – they may also end up detained. (Side bar here to note that crime is a socially defined construct, and our criminal ‘justice’ system is a separate, extraordinarily fraught topic. But we know statistically that everything from legal enforcement to post-conviction sentencing disparately impacts people of color. That demographic overlap is significant within the immigrant community, who then face dual punitive consequences in the immigration system. We also know that immigrants are statistically less likely than the general population to commit violent or non-violent crime, so the idea of violent immigrants who we need to dedicate resources to deporting is another red rehiring.) Immigration apprehensions have become increasingly violent, and all federal prohibitions offering protected spaces (i.e. churches, hospitals, schools, etc.) or protected practices (i.e. care for people who are pregnant) have been eliminated. The cruelty is the point – its aim is deterrence. Once detained, conditions are nothing short of horrific. One of the most notorious facilities at the border is known as “the refrigerator” or “the ice box” because of the temperature it is kept at constantly, specifically as a coercive tactic to ensure compliance (recall also the family separation policy of Trump I). During the pandemic, infection rates were so ubiquitous and health care was so routinely denied that class action lawsuits were filed to ensure mass release because people were dying.

Now, about this time you might be asking – but don’t folks have the right to an attorney to help them seek release? Well, yes and no. While immigrants in removal proceedings are entitled to counsel at their own expense, counsel will not be provided to them – even to children, or even in the event of detention. This stands in stark contrast to U.S. constitutional law that says that when there is any risk of detention in a criminal setting, the liberty interest at stake is so high that the government is compelled to provide counsel. The mental gymnastics used to avoid this outcome in immigration proceedings is that immigration detention has been deemed “administrative” rather than “punitive.” I think you will find that the children being incarcerated don’t find that distinction to be meaningful.

But that’s just the beginning, and humanitarian immigration (while my passion area) only accounts for a portion of immigration to the United States! To this end, I totally agree with Dave that the existing policies are woefully inadequate and inappropriate. The last major, comprehensive Congressional immigration overhaul actually happened in 1996 under President Clinton, when he signed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) into law. While this is true at a legislative level, one of the most insidious truths of our immigration system is that immigration law administration and enforcement it is housed almost entirely within the Executive Branch. (Largely within the Department of Homeland Security (clerks, adjudicators, ICE officers and prosecutors, and more), Department of Justice (immigration courts and the Board of Immigration Appeals), Department of State (national embassies/consulates), and Department of Health & Human Services (Office of Refugee Resettlement)). This means that, even under the best of stable circumstances, policy directives substantively change immigration law under every single new administration. This also means that every decision – from enforcement and detention priorities and tactics, to form and fee processing, to guidance on court case processing policies, to case law itself – all come from the same office with virtually no independent oversight. 

As a direct result of this uniquely politicized system, what we are seeing happen now is comprehensive and extremely punitive reform (against immigrants and practitioners alike) rolling out on a mass-scale, on a daily basis. It makes it almost impossible for licensed professionals to keep abreast of the situation, let alone pro se folks (under this administration, this destabilizing tactic is very much intentional). Immigration law also intersects with many other areas of law (administrative, criminal, tax, public benefits, etc.), so any changes to those areas of law also substantively impacts immigration law. All of which to say, while it is true that there hasn’t been meaningful Congressional reform of immigration law for decades, that characterization misses the mark of the state of total reform chaos we are living in right now. As such, even for folks who manage to do things the “right way,” they are navigating a system that cannot even aspirationally be called a stable system of the rule of law.

As to the subject of resourcing, I myself struggle with this because – ultimately for me – at this point I find our system to be so irredeemably broken that any additional investment into its infrastructure is simply throwing good money after bad. All overtures at resourcing reform at this point are going to installing political puppets that uncritically uphold the will of the Executive (see the recent mass firings of long-standing immigration judges on the San Francisco bench, with the resulting staffing shortage being used to justify the importing of JAG attorneys with no background in immigration to fill these seats).

In short, our foreign policies drove mass migration, our border policies manufactured a crisis in processing these individuals, and then this supposed crisis was used to justify extreme deprivations of our constitutional civil liberties in the United States. Liberties guaranteed to all, regardless of citizenship status. The idea of doing things “The right way” is a myth, the goalposts are moved constantly and every single tier of our already dysfunctional immigration system is being manipulated to support an anti-immigrant narrative. This tactic is not new, and each generation has seen the demonization of whatever immigrant group it is politically expedient to blame (see the Chinese Exclusion Act, anti Irish / Italian policy, the “Muslim Ban”, etc. – not to mention the philosophical through-lines othering people and justifying slavery and forced resettlement of Native American tribes). In my professional opinion, “illegal” immigration to the United States is simply a non-issue. But it is enduringly utilized as a political device to keep the population looking down at the oppressed instead of up at the oppressors. Immigrants are simply the test group to see just how much infringement onto our rights Americans will stomach. It turns out, the palatable portion is devastatingly high.