Editor’s Note: In this BC Law Magazine “Vision Project” series, we are engaged in a lengthy discussion with Boston College Law School faculty about where the Covid-19 pandemic and its attendant medical, economic, racial, and political consequences may lead us. As New York Times op-ed columnist Timothy Egan so eloquently put it recently, “Every crisis opens a course to the unknown. In an eye-blink, the impossible becomes possible. History in a sprint can mean a dark, lasting turn for the worse, or a new day of enlightened public policy.” There are warnings and worries in these professors’ views, but there are also farsighted ideas and strategies for crafting a better future, a more just society, and a world in which each and every human being is equal under the law.
PROFESSOR KARI HONG
Kari Hong is an associate professor of law and an expert in immigration law, criminal law, and LGBT issues. Her scholarship and advocacy focus on immigration policy, criminal justice reform, and immigration consequences of criminal convictions.
What has the coronavirus pandemic revealed about the strengths and weaknesses of our understanding of immigration and the system that supports it? The most profound change we see is that people whom our government and some in society have disparaged as “illegal” are in fact essential workers.
When our society shut down in March, we all came to realize how much we relied on particular workers for our survival and daily well-being—grocery clerks, agricultural workers, post office workers, sanitation workers, teachers, child care workers, health care providers, those who deliver food, and those running neighborhood restaurants.
I think we all have been humbled to realize how many of these workers have been denied a livable wage.
We also realized that a vast number of the essential workers are immigrants. The majority of mom and pop restaurants are owned by immigrants; it is estimated that close to 70 percent of agricultural workers are immigrants, and a large number of nurses and doctors are immigrants. The program that placed the highest number of doctors in rural locations was the H-1B visa program.
Yet all of those immigrants are in precarious standing. Dreamers—many of whom are doctors and nurses—still face uncertainty about their future, even though a June Supreme Court ruling, on narrow grounds, blocked a Trump administration effort to dismantle the program.
Those who said immigrants take jobs from Americans are in fact checked by the reality that more jobs are lost to automation than to immigrants. (Think of the ATM machines and automated checkout lines displacing workers, many of whom were high school students holding their first job, bag checkers with intellectual disabilities, and other workers who needed the 40 hours to support their families.)
Those who said we need to build a wall are rebutted by the Republican policymakers admitting there is no economic growth without more immigrants. (Right before Covid-19 hit, on February 24, President Trump’s chief of staff, Mick Mulvaney, said the country was “desperate” for immigrants to “fuel economic growth” and lamented the lack of immigrants who could work in our country.)
President Reagan championed and passed an amnesty law, called by that very name, in which anyone who had worked in agricultural labor for 90 days was given permanent legal status. It is time to realize that our government has been captured by extremists who are advocating for policies that are unrecognizable when compared to what the Republican party championed a generation ago. More important, it is time to realize that our administration is championing immigration policies that are at odds with what our country needs to grow and thrive.
What short- and long-term opportunities do you see arising from the pandemic for improving how we define and deliver justice? The Covid-19 pandemic, combined with the awareness rising from the Black Lives Matter movement, brings into sharp relief that not all problems can be met with more police, more jails, and more enforcement. In addition, the calls to defund the police are further focusing on the costs that enforcement-only policies impose.
First, our country will have to rethink the use of immigrant detention centers. In 1980, only 30 people were held in immigration detention centers. That is not a typo—30 was the total number of people who were held in detention centers, and that was only after they had had their hearings and pursued federal review.
Today, the mentality is to detain first. Those who are now lucky enough to enter the country by clearing the bars that are in place (in addition to his travel ban, Trump has issued an asylum ban for anyone who did not enter at an official place of entry) are immediately placed in immigration detention. Our country detains more immigrants than any other country, and the reasons are suspect. President Obama detained up to 40,000 people. When President Trump asked for funding for up to 52,000, the Democratic Congress countered with 16,000; the parties compromised at 35,000. Around 4,000 have been released after lawyers filed individual petitions showing that they are especially vulnerable to Covid-19. The remaining 30,000 hope they can receive legal status before the Covid-19 virus kills them, even though the Trump administration has made over 100 rule changes that make obtaining legal status infinitely more difficult.
Their detention costs us $3 billion a year. With the economy ravaged, that seems untenable. With money needed for hospitals, schools, and local government, it will be harder to justify detaining immigrants, especially when studies have shown that 97 percent of those not detained appear at hearings, a number that rises to 99 percent when an attorney is involved in their case.
Second, our country will have to rethink the value, mission, and size of the agency known as ICE. Before 2002, ICE did not exist, and deportations still happened as necessary. Whatever the intention behind the founding of ICE, the agency has morphed into one that the Trump administration has permitted to arrest parents who are dropping off their kids at school, raid workplaces to deport workers preparing our food (while not even charging the owners with crimes), and striking fear into the immigrant community.
In addition, the law enforcement justification for ICE’s existence has been eroded by a culture of corruption and incompetence. For instance, a federal prosecutor had to throw out a case against human traffickers because the ICE agents—when appearing undercover in the sting operation—raped the trafficking victims.
Third, and lastly, the immigration system needs to refocus on attracting, keeping, and legalizing immigrants. Before Covid-19, the Trump administration admitted that our economy needs more immigrants to sustain economic growth. Now in the middle of rebuilding, our country will need immigrants to bolster the ranks of essential workers, many of whom are immigrants in need of status.
Covid-19 has also highlighted the fact that everyone in our country needs access to health care. No one will remain safe unless everyone can get tested and doesn’t fear to get tests and medical treatment for what is a contagious and deadly disease. The health and well-being of the undocumented immigrants in our country are essential for everyone’s health and well-being.
There are two ways to solve the “illegal immigrant” problem. The first is the one tried by President Trump. In an effort of a kind not seen since 1930, our country placed banned people from entering, deported those who could contribute, and restarted denaturalization efforts, going after even citizens. Along the way, we have separated families, jailed children, rewritten the rules, and rigged the courts to increase the deportations. This is justified by the supposed need to stop poor, nonwhite people from entering our country. At a cost of over $20 billion to achieve a country the majority do not want to live in, and an economy no one can live in, these policies are not justifiable.
The other way to solve “illegal immigration” is to legalize immigrants. That is not a radical idea. Our country is ending the war on marijuana, with a growing number of states legalizing its use and sale. It turns out that the fears of marijuana causing crime and decay were unfounded. Instead, marijuana is deemed safe, can be successfully regulated, and is a growing source of tax revenues for local and state governments.
Our country has always been conflicted over immigration. Throughout history, a portion of our population has always supported more immigration, recognizing its benefit; another portion has advocated for closed borders, believing that immigrants cause crime, unemployment, or disease.
For the past twenty years, those who wanted to curtail and end immigration have been in charge. But the economic cost is $5 billion more spent on federal immigration efforts than on the combined budgets of the FBI, DEA, and Secret Service. The human cost is tallied with children afraid for their parents’ deportation. The moral cost is losing our standing as the place where the oppressed sought refuge. Today, those seeking safety have their children taken from them, are locked up in detention centers, and have a system designed to deny their claims for relief.
What policies and plans would you recommend to guide us toward building and sustaining a stronger and more just society? There are a number of practical and compelling reforms that can emerge.
First, end all bans that the Trump administration enacted. End the travel ban on Muslim-majority countries. End the asylum ban that bars those seeking protection. End the Remain in Mexico Program, a program deemed illegal by the Ninth Circuit for violating Congress’ intent to protect all seeking safety. End the public charge rule, a policy dusted off from the 1910s to keep out those who are believed to be poor in the future.
Second, end detention for asylum seekers and children, and end the family separation policy once and for all. End detention for anyone who was a lawful permanent resident or has been a long-term resident who is pursuing a legitimate claim in the immigration system. That will save more than $2 billion each year.
Third, we can make immigration courts independent. Most people are surprised to learn that immigration judges are not actually judges; rather, they’re attorneys employed, supervised, and subject to firing by the Attorney General, who also controls the deportation policy of the Department of Justice. There is simply no fair trial if the prosecutor can hire, fire, and control the actions of the judge. The Trump administration has seized on this conflict by implementing a number of policies that are causing immigration judges to retire early. Among those retirees, some have criticized the immigration agency for acting like a Politburo, rubber stamping a political agenda instead of focusing on fairness and justice.
Fourth, we can scale back the reach of ICE. ICE officers should not be policing streets, hospitals, schools, and parks, looking for immigration violators. ICE says it exists to “catch the bad guys,” but we have a comprehensive criminal justice system that adequately polices and incarcerates those who break criminal laws. As noted by a district court judge recently, it is shocking that we’re wasting our national treasure to detain immigrants, the majority of whom could be released into the community on reasonable bond conditions.
Fifth, we can legalize the 11 million undocumented. The undocumented remain here because they are military veterans, fathers and mothers to US citizens, work in essential sectors like agriculture, or have been in our country since they were children. Returning to President Reagan’s amnesty program for farmworkers, how fitting it would be if President Trump’s tenure ends with a landmark bill that legalizes the 11 million undocumented immigrants who have been toiling in our fields, caring for our sick, building up our small businesses, and calling our country their home for years.
President Reagan’s last speech to the country was a call for increased immigration. He said, “We lead the world because, unique among nations, we draw our people— our strength—from every country and every corner of the world. And by doing so we continuously renew and enrich our nation. While other countries cling to the stale past, here in America we breathe life into dreams. We create the future, and the world follows us into tomorrow. Thanks to each wave of new arrivals to this land of opportunity, we’re a nation forever young, forever bursting with energy and new ideas, and always on the cutting edge, always leading the world to the next frontier. This quality is vital to our future as a nation. If we ever closed the door to new Americans, our leadership in the world would soon be lost.”
Sixth, restore asylum. “The strength of this nation may be measured in many ways: military might, industrial productivity, scientific contributions, its system of justice, its freedom from autocracy, the fertility of its land, and the prowess of its people. Yet no analytical study can so dramatically demonstrate its position in the world as the simple truth that here, more than any other place, hundreds of thousands of people each year seek to enter and establish their homes and raise their children.”
In 1960, President Eisenhower issued these words before calling on Congress to greatly increase both the number of immigrants in general and asylum seekers in particular admitted to the country. As he noted, “Nations who in the past have granted entry to the victims of political or religious persecutions have never had cause to regret extending such asylum. These persons, with their intellectual idealism and toughness, will become worthwhile citizens and will keep this nation strong and respected as a contributor of thought and ideals.” In the past three years, we have ended asylum. It is time to undo the damage and reopen the door to those who go on to be some of our best defenders of our country’s ideals and dreams.
Read all faculty Vision Project interviews here.