The U.S. might proudly consider itself a society governed by the “rule of law” — but its immigration policy uses legal principles to punish individuals seeking a better life in this country, rather than protect them, argues Jennifer Chacón, a University of California, Los Angeles Law School professor.
Forced family separation is just one example of the way federal regulations and policies “dehumanize” migrants, argues Chacón in “The Dehumanizing Work of Immigration Law,” one of 13 articles in “Punitive Excess,” an essay collection on criminalization and punishment published by The Brennan Center for Justice.
Regardless of the party in power, the U.S. laws and policies have been applied in such a way to endorse punitive pathways to immigration, and set impossibly high standards of citizenship, the essay maintains.
“In fact, our immigration laws are exceptionally harsh in ways that frequently defy common sense,” Chacón writes.
Misconceptions about immigration shape U.S. laws and judicial opinions, hurting people who flee dangerous conditions when they reach the U.S. Immigration law establishes rigid standards for lawful immigration.
Most undocumented residents don’t fit the rigid standards for lawful immigration, established by U.S. laws and judicial rulings, which are based on misconceptions of immigration.
Chacón cites the example of Oscar Martinez who was deported after living in the U.S. with his family for 25 years, because he failed to navigate a legal path to citizenship.
Legal technicalities, too, have massive consequences for immigrants who attempt to “do things ‘the right way,’” Chacón writes.
Though a noncitizen who marries a citizen becomes eligible for a visa sponsored by their citizen spouse, noncitizens who have been in the country for over a year without authorization must leave the country for visa processing.
Before reentering on a family-sponsored visa, they face a 10-year bar.
Beyond splintering families through legal means, U.S. lawmakers have historically broken their own promises. U.S. treaty obligations, for example, prohibit the government from penalizing asylum seekers who arrive at the border without documents.
But the Donald Trump administration criminally prosecuted and separated from their families thousands of asylum seekers at the southern border in 2018 and 2019.
“While that family separation policy generated a national outcry, and even drew criticism from the government itself, there was little public attention paid to the tens of thousands of others who were turned back and told to remain in Mexico, often in situations of great peril, while they awaited their hearing,” Chacón writes.
Abiding by immigration law, the Joe Biden administration has yet to enact the sweeping immigration reform promised during the campaign trail. Biden formally terminated Trump’s “Migration Protection Protocol” four months after his inauguration.
“Even now, asylum seekers face an overburdened system where they sometimes have to wait years to have their claims adjudicated and where five-year-old children have had to appear without counsel in proceedings,” writes Chacón.
In U.S. lawbooks, deportation and criminalization often go hand in hand. Criminal records — even marijuana-related convictions involving conduct that’s no longer criminal in some jurisdictions — can lead to deportations years after the offense.
In one instance, the government pursued a deportation case in 2000 regarding conviction for possession of a small amount of drugs in 1978.
An immigrant’s involvement with the criminal legal system has historically determined their risk of deportation. The Obama administration told the public it would deport “felons, not families, criminals, not children,” despite the fact that those “felons” — whose criminal designation emerged from a discriminatory legal system — had families, too.
Chacón also identifies the Supreme Court’s active fortification of inhumane immigration law. In the 1976 case U.S. v. Martinez-Fuerte, Justice Lewis Powell called interior immigration checkpoint stops necessary to address the “formidable law enforcement problems” posed by the “flow” of “illegal Mexican aliens.”
In the 1984 decision INS v. Lopez-Mendoza, Justice Sandra Day O’Connor’s said illegally obtained evidence can be used against immigrants in their deportation proceedings.
It’s under this guise of “rule of law,” Chacón argues, that U.S. lawmakers legitimize the cruel treatment of immigrants, a large swath of whom emigrate to escape the repercussions of U.S. economic, climate and foreign policies.
“Today, people routinely use the term ‘illegal’ not to refer to the law enforcement practices like the Migrant Protection Policy that openly violate U.S. treaty obligations, or to the hiring practices of many of the nation’s employers, but to describe immigrants as outside of the law, always threatening to it,” Chacón writes.
“For people thus dehumanized, no legal consequences seem too severe; for them, the law is a threatening sword, not a protective shield.”
Eva Herscowitz is a TCR Justice Reporting intern.