Thursday, October 11, 2018
Guest blogger: Mary Wallace, law student, University of San Francisco:
Please come to America from China, to build our railroads… Ah, they are built, please go away. Please come from Mexico to jumpstart our need for nationwide agriculture so that corporations can profit by growing food on massive swaths of land… Please go away, war in Europe has made us afraid of foreigners. Please come to do the dirty work at beef processing plants, poultry processing industry so that we can eat our burgers and chicken nuggets… please go away, the 9/11 tragedy has made us afraid of foreigners again. Oh, Latin America and Mexico had nothing to do with the terrorist attacks on 9/11? Eight of the terrorists who killed 3400 Americans that day were Saudi? Our friends, the Saudis? Well, we just completed a financially lucrative, MASSIVE, weapons sale with the Saudis, good for us… Still, you can’t come in and, if you’re already here, we’re going to find a way to get rid of you.
America has a finicky history with immigrants from our southern border, in particular. We want ‘em when they will work cheap, silently, hidden away in factories or fields. We let them pay into our tax system. We don’t want them when we can actually see them. Our history of inviting immigrant workers in and then throwing them out when government or politicians use politically-motivated fear is oddly cyclical and consistent. We ignore the overwhelming statistics that show that localities prosper when they have immigrant workers. We have brought citizens from other countries in, then excluded them, every decade or so since the Great Depression. We have allowed employers to benefit from their cheap labor, allowed communities to pocket tax money based on their labor. But when they ask for rights, in immigration courts, we deny them and deport them.
We hide behind the ‘plenary’ power of Congress and the Executive Branch, allowing US immigration law to become so immoral that 2-year old children sit on witness stands, expected to protect their human rights, alone, with no lawyer of their own present, facing off against our government-paid Immigration Judge and our government-paid INS lawyer.
Our government’s basic argument is that Congress has broad powers to deal with foreign affairs, including immigration, as delegated by the Constitution. Congress has the authority to determine when allowing certain groups of people into the country would constitute a risk to the country’s security, even if war is not occurring or even likely to occur. This was the government’s argument back in 1889, when the Supreme Court addressed the Chinese Exclusion laws, after Chinese laborers BUILT the US railroads for near-slave labor wages. What about the idea of ‘checks and balances?’ How do we ensure that one branch of government does not become racist, fascist in its actions? In Fiallo v. Bell, in 1977, US Supreme Court Justice Marshall, in a dissent, argued that Congress indeed has not been given free rein to discriminate … with immigration. Against that voice of fairness, there have been countless arguments over the last hundred years asserting that Congress and Executive branch agencies may discriminate for all things related to immigration. The voices that argue for the human rights of undocumented immigrants in the US, do not have the supposed ‘iron-clad legitimacy’ that Department of Homeland Security and ICE (Immigration and Customs Enforcement) claim, they don’t have the unlimited money behind them that federal programs have.
A bad boyfriend says, “The rules for me are different than the rules for you… don’t ask about that.” The Republicans in control of the US government are rabidly ANTI-‘Big Government’. Yet the DHS merged 22 federal agencies with a combined $40 billion budget and 170,000 workers, representing the biggest government reorganization in 50 years. ICE was created and funded for enforcement of US immigration policy, especially along the Southern US border. That’s a lot of political heft. There is no movement in the government to balance ‘national security’ interests with international norms for protection of human rights. There is no counter-balance, when the judiciary stays silent and lets DHS, ICE and the Executive branch wield its unfettered power against immigrants.
Globally, we are seeing huge flows of refugees and inopportune immigration as people abandon their homelands in search of safety, hope, self-determination. We should look closely at WHY they are leaving their homelands. Many times, their lives are in danger because of civil war, which, surprise, surprise, might be partially funded by the United States’s sale of weaponry, as Trump just gloated about his huge arms US deal with the Saudis, above… Where is the United States’s acceptance of responsibility for the after-effects of our ‘money-making, based on war-making’ activities around the globe? Many times, refugees leave their homelands because their lands become uninhabitable, they can no longer provide for themselves by subsistence farming because of climate change or destruction of their villages by warfare bombing. Again, should we look at the United States’s culpability in these substantial changes in the living environment of the countries whose citizens flock, looking for safety, to and through our southern border?
It is time to recalibrate our immigration programs. We have millions of immigrants working within the US whom we have criminalized, making their presence a misdemeanor, which thus allows us to deport them. We have DREAMERS, we have DACA, we have DAPA, we have grandparents, we have American-citizen children who are forced to be deported when their non-citizen parents are deported. Immigration judges hear cases where immigrants don’t understand the proceedings and can’t adequately defend themselves. Let’s retrain our system, focus all that manpower and money on both helping workers to stay and also addressing the problems of the countries from which they are escaping. It's a multi-headed beast of a problem, and our finicky behavior, ‘please help us when we can profit from you, please go away when we can’t,’ is doing us harm.
 Chae Chan Ping v. United States, 130 U.S. 581 (1889)
 Fiallo v. Bell, 430 U.S. 787 (1977)