The United States can proudly see itself as 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 protecting them, argues Jennifer chacon, professor at the law school of the University of California at Los Angeles.
Forced family separation is just one example of how federal regulations and policies “dehumanize” migrants, says Chacón in “The dehumanizing work of immigration law”, One of the 13 articles of“Punitive excess», A collection of essays on criminalization and punishment published by The Brennan Center for Justice.
Regardless of which party is in power, U.S. laws and policies have been enforced in a way that approves punitive pathways to immigration and establishes incredibly high standards of citizenship, the essay says.
“In fact, our immigration laws are exceptionally tough and often defy common sense,” Chacón writes.
Misconceptions about immigration shape U.S. laws and legal opinions, hurting people fleeing unsafe conditions when they reach U.S. immigration law sets rigid standards for legal immigration.
Most undocumented residents do not fit the rigid standards of legal immigration, set by US laws and court rulings, which are based on misconceptions about immigration.
Chacón cites the example of Oscar Martinez who was deported after living in the United States with his family for 25 years, because he failed to find the legal path to citizenship.
Legal details also have huge consequences for immigrants who try to ‘do things’ the right way,’ writes Chacón.
Although a non-citizen who marries a citizen becomes eligible for a visa sponsored by their citizen spouse, non-citizens who have been in the country for more than a year without permission must leave the country for visa processing.
Before returning home on a family-sponsored visa, they face a 10-year ban.
Beyond the breaking up of families by legal means, US lawmakers have historically broken their own promises. US treaty obligations, for example, prohibit the government from penalizing asylum seekers who arrive at the border undocumented.
But Donald Trump’s administration criminally prosecuted and separated thousands of asylum seekers on the southern border from their families in 2018 and 2019.
“While this policy of separating families has sparked a national outcry and even drew criticism from the government itself, little public attention has been paid to the tens of thousands more who have been turned away and invited to stay in Mexico, often in situations of great danger. , pending their hearing, ”writes Chacón.
Respecting immigration law, Joe Biden’s administration has yet to pass the sweeping immigration reform promised during the election campaign. Biden officially ended Trump’s “migration protection protocol” four months after his inauguration.
“Even now, asylum seekers face an overloaded system where they sometimes have to wait years for their claims to be reviewed and five-year-olds have had to appear without a lawyer in the proceedings,” Chacón writes.
In US law, deportation and criminalization often go hand in hand. Criminal records – even marijuana-related convictions involving conduct that are no longer criminal in some jurisdictions – can lead to deportations years after the offense.
In one case, the government pursued a deportation case in 2000 involving a conviction for possession of a small amount of drugs in 1978.
An immigrant’s involvement in the criminal justice system has historically determined his risk of deportation. The Obama administration has told the public that it will deport “criminals, not families, criminals, not children,” despite the fact that these “criminals” – whose criminal designation stems from a discriminatory legal system – also had families.
Chacón also identifies the active fortification by the Supreme Court of the law on inhuman immigration. In the case of 1976 United States v. Martinez-FuerteJudge Lewis Powell called the stops at domestic immigration checkpoints necessary to address the “formidable law enforcement problems” posed by the “flow” of “illegal Mexican aliens.”
In the 1984 decision INS c. Lopez-MendozaJudge Sandra Day O’Connor said illegally obtained evidence can be used against immigrants in their deportation proceedings.
It is under this guise of “rule of law,” Chacón argues, that US lawmakers legitimize the cruel treatment of immigrants, many of whom migrate to escape the repercussions of US economic, climate and foreign policies.
“Today people commonly use the term ‘illegal’ not to refer to law enforcement practices such as the policy of protecting migrants who openly violate US treaty obligations, or the hiring practices of many employers in the country, but to describe immigrants as outside the law, always threatening to her, ”writes Chacón.
“For people thus dehumanized, no legal consequence seems too serious; for them, the law is a threatening sword, not a protective shield.
Eva Herscowitz is a TCR Justice Reporting intern.