First published January 26, 2023
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 piece was originally published on her blog at the
beginning of the third year of the Biden administration. But many of its
observations on the meanings and uses of the term “illegal” resonate even more
strongly today.
~~~~~~~~~
Wherever there are folks talking about the U.S. border or
U.S. immigration policy, there seems to be a whole lot of confusion about what
the word illegal means. Without getting too philosophical, we can just
generalize and say that illegal means something forbidden by law. There are so many
instances we can point to where we can confidently call an action illegal
because we understand the law that prohibits it. But when it comes to
immigration, I think sometimes we throw the word illegal around willy-nilly without
actually understanding the mechanics of the law or being able to articulate the
actual violation of a statute.
The latest federal policy concerning Haitians, Cubans,
Venezuelans and Nicaraguans at the U.S. border is a prime example of this.
Three weeks ago, on January 5th, the White House made a major announcement in
regard to the “situation in the southwest border”. If you didn’t catch the news
about it then, you can read the President’s remarks on the White House web site.
The announcement revealed the rollout of two new programs
supposedly designed to reduce migration pressure. The first is an app called
CBP ONE that will theoretically allow an asylum seeker to schedule an
appointment at a port of entry to make an asylum claim. The second is a “parole
program” that creates a pathway to the U.S. for Haitians, Venezuelans,
Nicaraguans, and Cubans, the nationalities that represent the highest number of
border crossers in the last couple years. A limited, though substantial number
of people can apply but to qualify they must do so from their country of origin
and have a fiscal sponsor in the United States.
Neither of these programs are a terrible idea. In fact, they
could be an awesome step forward to creating a better and more humane way to
seek safety in the U.S. We need more orderly ways to apply for asylum at the
border and an app could theoretically streamline information and communication.
And although “parole” can be a complicated and problematic immigration status
once someone arrives to the U.S., having more humanitarian pathways directly
out of these countries that circumvents the drama at the border is a nod in the
right direction. But these programs should complement the right to asylum, not
undermine it.
See the problem is that when the President announced these
programs, he completely undermined our laws about how a person can legally seek
asylum. Unless they do what he says, Cubans, Haitians, and Nicaraguans will now
be ineligible for asylum and categorically expelled from the U.S. border (the
administration had already been subjecting Venezuelans to this ban). He said it
in his speech:
“My message is this: If you’re trying to leave Cuba,
Nicaragua, or Haiti… do not just show up at the border. Stay where you are and
apply legally from there.”
Moments later he said:
“We can’t stop people from making the journey but we can
require them to come here … in an orderly way under U.S. law.”
It’s a sleight of hand for sure. The administration has
created these new programs which will make things more orderly for them. They
want people to use them. They would prefer it if they used them. But they
communicate it by saying that this is the new way of coming to the U.S. is
legal and the other is illegal. This is not true.
Let’s take a look at the text of 8 U.S. Code § 1158, part of
the Refugee Act as it was adopted by Congress in 1980, which describes the
general authority to apply for asylum:
“Any alien* who is physically present in the United States or
who arrives in the United States (whether or not at a designated port of
arrival and including an alien who is brought to the United States after having
been interdicted in international or United States waters), irrespective of
such alien’s status, may apply for asylum in accordance with this section or,
where applicable, section1225(b) of this title.”
(* Here I would like to acknowledge that calling someone an
alien is a shitty thing and we should not do it in conversation and should push
back anytime people around us including politicians and media do it. In a
recent piece I wrote blasting the Biden Administration, my editor and I
discussed how you should quote a law that uses such a vitriolic term and we
decided that the best thing to do is quote the statute faithfully and then
include aside bar explaining why the term sucks. Consider this my sidebar.)
The law states it rather plainly. A person can ask for
asylum whether or not at a designated port of entry. This means that someone
who crosses the U.S. border in pursuit of asylum has not acted illegally. They
do not need to stay in their home country. They do not need a fiscal sponsor. They
do not need to use an app. This is true no matter how many times our President,
politicians on the right, or reporters for the media imply otherwise. A
president cannot arbitrarily decide that it is illegal for entire nationalities
to seek asylum at the border because they are undesirable and problematic and
because he created a way that would be easier for his administration to deal with.
There are people for whom asking for parole from will be impossible and for
whom it is too dangerous to wait for an appointment at the border. These people
are allowed to ask for asylum by crossing the border, exactly the way our
Congress prescribed.
This point was almost universally missed in the media
coverage following Biden’s announcement.
Take the NY Times headline: “Biden Announces Major Crackdown
on Illegal Border Crossings.”
Or Politico: ”Biden announces new program to curb illegal
migration as he prepares for visit to border.”
Or the lede from PBS New Hour: “President Joe Biden said
Thursday the U.S. would immediately begin turning away Cubans, Haitians and
Nicaraguans who cross the border from Mexico illegally, his boldest move yet to
confront the arrivals of migrants that have spiraled since he took office two
years ago.”
If you re-read those headlines and substitute the word
undesirable, uncontrollable, or unwelcome in for the word illegal, you will get
a more accurate sense of what this new policy means. But when we keep saying it
– “illegal, illegal, illegal” - it’s understandable that we start to believe it’s
true.
Perhaps a more accurate use of the word illegal is where it
concerns the President’s actions. He is not only contravening federal law by
turning back people of these nationalities, he is also violating the Refugee
conventions to which the U.S. is a signatory.
Yesterday a group of 77 Congress people sent a letter to the
White House criticizing Biden’s policies and calling them out as illegal for,
well, the exact same reasons I laid out above. According to NBC news this was
the White House’s response:
“Donald Trump tried to categorically bar asylum in the
United States for everyone, everywhere. The Biden administration is creating
safe and orderly pathways for people who want to seek asylum in the United
States. People can make an appointment from their phone to apply for asylum at
a port of entry; plus, they can use the expanded parole process, or use the
expanded refugee programs. That’s not an asylum ban. It’s a safe, orderly, and
humane process for seeking asylum.”
This White House official does not mention the expulsions of
people who can’t follow their new, safe, orderly process and shouldn’t be
expected to because they don’t have the luxury of waiting in their country or
waiting for an appointment at the port of entry. The whole point of asylum is
its universality and to say that this is not a ban because there are still some
people in the world who can get it is just ... gaslighting.
I do not imagine that there is going to be much uproar about
the effective end of asylum rights for Haitians, Nicaraguans, Venezuelans, and
Cubans. The public seems to believe that providing these protections is an
option, not a law and unfortunately, many people who were watchers on the wall
to call out Trump’s border policies as illegal, seem less inclined to do so
when it is President Biden calling the shots. Once this transition is complete
and we normalize violating the international rights of asylum seekers, then
there is no reason to doubt that we will turn this policy on the next
nationality of people who threaten the White House’s political narrative. It
took them less than two months to expand it from Venezuelans to three more
nationalities. They tested it, there was little pushback, they expanded it.
I hope people read this newsletter and think about what it
means for something to be illegal versus undesirable. I hope that when the
White House inevitably reports a sharp decline in “illegal” border crossings
and touts the success of their program, that you pause and consider just which
people are acting illegally. Think a few steps down the line to what this might
mean as climate catastrophes worsen. What if the only option we allow people is
to stay where they are and request a limited number of spots on the parole
list. What if they are cooking to death or drowning? This could happen any day
now. And what will we think when the president says:
“My message is this … Stay where you are and apply legally
from there.”
Will you feel comfortable with a president deciding on the
fly what legal means? Or would it be better if we had a set of international
conventions and norms that guaranteed the right of people to move when they are
going to die? Well, we have them and though they are flawed and insufficient
and in dire need of modernization, we adopted them into U.S. law 43 years ago to
protect ourselves from ourselves when it becomes inconvenient to help people
who need humanitarian protection. This president is abandoning them.
~~~~~~~~~
See also Allegra’s previous post: Allegra Love - Newsletter #41 - More Boxes
Allegra Love, PO
Box 3218, El Paso, TX 79923
