|
Allegra Love is a veteran immigration attorney based in
Santa Fe, New Mexico. She has represented and advocated for immigrants in the
U.S. and Mexico. This post was originally published February 21, 2023 as an
email newsletter. A couple months ago I did some public speaking for the first time in a very long while. There was a period not too long ago when I felt like I was giving presentations once a week but that has slowed down. I have stopped working for the various non-profit organizations I used to work for and, by my estimation, the public is a lot less interested in immigration issues these days. Nevertheless when a church study group asked me to come through and talk about border issues under the administration, I gladly accepted. It was fun to kick the tires and chop it up with some church-goers and try out some new ideas. And gratefully, the conversation left me with plenty to think about. At the event a gentleman asked a perfectly reasonable and welcomed question that I know is on the minds of many Americans. I had been rattling on about the rights of asylum seekers and our obligation both moral and legal to welcome them to the U.S. He mentioned that not all the people at the U.S. border could possibly be seeking asylum, a point I do not dare dispute. I don’t recall if he used the term “economic migrants” but the implication of his question was that asylum rights may be well and good and important but what about all the people who aren’t bona fide asylum seekers and are fleeing their countries because of poverty or lack of jobs or food. Do we have an obligation to those people too? The term economic migrant gets thrown around a lot. People (not this gentleman at the church, I must clarify) act as if the worst thing in the world would be an asylum system that fails to exclude economic migrants. Where on earth did this term, “economic migrant” even come from? I think in a lot of people’s imaginations, economic migrants are people who are attempting to enter the U.S. because they simply need a job. There are certainly plenty of people at the U.S. border who fit into this category. There are those people that leave relatively stable existences in their home countries to seek better opportunities here. But there are many who are leaving places where they simply cannot work at all or earn a single dollar to feed their family. Or there isn’t actual food to buy in their countries. Or maybe their homes have been destroyed by climate disaster. These are all economic migrants and they are treated as if they don’t need protection because we have an asylum system that doesn’t contemplate the dangers they face. Qualifying for asylum requires meeting an extremely narrow set of specifications that make up the refugee definition. It can be very very hard to prove and there are many moving parts including but not limited to: your immigration history; the country you are from; timing; where you apply; what judge you appear in front of; if you manage to find a lawyer to help you; and what lawyer is assigned to represent the government. During my career as an asylum lawyer I have often been in court rooms where the judge, the government attorney, and I all agree that my client will be killed if they are returned to their country. Despite this, too many times, my client and I have failed to adequately prove asylum eligibility and the judge orders my client removed under the color of law. Asylum is designed to help a very specific set of people and there are a ton of honest-to-god life threatening calamities which it does not contemplate. One glaring omission in asylum law is that violence against women is not considered a ground for protection. There are so many more: flood; famine; war; gang violence; crop failure. But one critical principle of asylum and refugee law is that everyone gets the chance to ask for protection. In theory, we allow everyone to ask because if we don’t, then we run the risk of capriciously sending people back to situations where they will be killed. Everyone gets scrutiny if they want it and the bar is set purposefully low for asking. Eventually they may find themselves in an immigration court attempting to prove that complicated eligibility, but Day 1 of the asylum process is meant to be easier. It is supposed to help people get immediately safe from the threats they face while they get the complicated asylum process started. The result of this is that yes, some people who accurately claim on Day 1 that their lives are in danger in their countries, end up not qualifying for actual asylum when it is adjudicated by a judge. And yes, that creates a system where some people are allowed into the U.S. to live for a while who will one day be deemed undeserving of that favor by U.S. law. To many that is a problem. But let’s imagine an opposite system where the threshold to access basic protection for getting the asylum process started wasn’t easy to pass. How many people would we send back to their deaths who would have otherwise qualified for asylum because we made it too hard to seek the initial protection? I contend there would be many. I will argue every day for a system that accidentally protects too many people than one that results in more people dead. Of course, this is all theoretical. I answered that gentleman’s question based on an idea of how asylum is supposed to work. In reality, here in the U.S., at our Southern border, we currently have a system that chooses more dead people over giving some people who may one day lose their asylum cases in court temporary protection. The reasons why are a little bit practical but mostly political. Practically speaking, our immigration courts are backed up beyond belief. Our system of evaluating claims in immigration court is so slow and broken that there is a backlog of over 2 million cases. When someone accesses temporary protection to wait for their day in court it could result in years of living in the U.S. This one way that the myth of open borders perpetuates around asylum seekers. Waiting for your asylum hearing looks like being allowed to come in and live and make a life. There are people who see that and feel resentful but there are other ways to react. My reaction is usually, who cares? I have had so many clients who have waited five, six, seven years to get to their asylum hearings. By the time it happens most people have established communities in their towns. Some have had kids. Some have graduated from school programs and started careers. They are paying taxes. In a lot of cases you would barely know them from any other immigrant who came to the U.S through “the right way”. They are living proof that newcomers can create thriving lives that contribute to American life. And then their hearing comes around and I, for one, have pretty much lost the plot on why we need to deport them. But the open borders myth is politically dangerous. People don’t think that it should be so easy to come to the U.S. This is, of course, an ironic position coming from the millions and millions of Americans who earned their inalienable rights of citizenship in this country by… wait for it... being born. We did not have to go through an obstacle course or battle or moral test of character to have our chance to grow up safely, work, have a family, thrive, or fail in this country. And yet we think people leaving home, traveling across continents, placing their bodies in abject danger, suffering horrific indignities at the hands of our government, and navigating the bureaucratic morass of American immigration law is too easy. Just pause, please, and think about that. So our country continues to use its political energy to devise strategies to keep more people out and make it harder for people to navigate. We have a box we call “asylum” and we say only people who fit in it deserve mercy and we make it extraordinarily difficult for people to fit into. Why not just create more boxes? I ask that with a shrug. That morning at the church I basically ended my answer to that gentleman's fine question with a shrug. Yes, we can get hung up on which group deserves more humanity than others, but we don’t have to. I don’t have all the answers about how it would work but, and I am repeating myself here, I will argue every day for a system that accidentally protects too many people than one that results in more people dead. To that end I have a fun book recommendation. It’s a serious and goofy graphic novel called “Open Borders: The Science and Ethics of Immigration”, by Brian Caplan and Zach Weinersmith. It is, as the title suggests, a case for open borders. It is written by an economics professor who believes in capitalism, which makes it all the more interesting. You may not agree with everything you read in it. I didn’t. But isn’t that the point of books? But it does shamelessly contemplate a future where everyone who wants to come to the U.S. would be welcome to come to the U.S. and how that could actually be a good thing. Seems like an interesting idea to take for a spin.
|