Friday, September 10, 2021
The Crisis of Our National Debate on Immigration by Geoffrey Hoffman
We exist in a kind of rarefied environment in law school. I have had robust conversations in my classes touching on all aspects of immigration enforcement. I have even had a USCIS officer, a DHS OPLA trial attorney and other federal employees as students. Their conversations with me in the classroom have always been productive. The classroom is a wonderful environment that fortunately does not mirror the ugliness of the national debate.
That ugliness was brought home in an interview on C-SPAN during a 40+ minute call-in show where I was asked about the Biden Administration’s immigration policies. The topics included the MPP or "Remain in Mexico" program, and court decisions resurrecting it. Instead of questions from the call-in viewers that probed legitimate issues, seeking elucidation and real knowledge, what showed itself was an odd mixture of personal attack and bias.
I was struck by “questions” that confronted the role of the immigration advocate by positing ad hominem arguments supposedly expressing “shame” at what we do. The argument seemed to be we as nonprofit immigration advocates are “paid by the public,” presumably meaning by U.S. citizens.
The thrust of this specious argument appeared to be that advocates are arguing only out of “self-interest” given that they are paid not by immigrants themselves but by a public fund. By this logic any non-profit would be subject to criticism for helping anyone who could not afford to pay their fees - a dubious proposition indeed!
I was asked whether I lived in a “gated” community, and the like, implying that I would prefer immigrants not accosting me at my “gate” and what would I say to such immigrants. It boggles the mind that the debate in our nation has reached such lows. A threat and other derogatory emails followed. As immigration advocates we shouldn't be subjected to personal attack. The outright xenophobia and narrow-minded bigotry was unfortunately not unexpected but disappointing nonetheless.
This is symptomatic of a growing pervasive trend to demonize and attack the professionals who provide assistance to the most vulnerable. When you can’t get to the immigrants themselves, or more likely have run out of ways to attack these victims, then this new approach seems to be to attack the people helping them, attack the legal advocates themselves.
This is nothing new. It is a tried and true technique to undermine human rights and promote fascism. We saw it in Hungary in 2018 with the much publicized law banning help for asylum seekers in that country. The Orban government dubbed the law, passed by their Parliament, the “Stop Soros law” which was named after the billionaire philanthropist accused of supporting Muslim migrants. The law criminalizes lawyers and advocates who help migrants and provides for a 1-year term in jail for alleged violators. See here.
In 2009, the Supreme Court case, Holder v. Humanitarian Law Project considered the application of the statute making it a crime to knowingly provide “material support” or resources to a foreign terrorist organization. The Supreme Court upheld the statute as constitutional and not in violation of the First Amendment over objections by plaintiffs’ groups that the law could be used to criminalize anyone providing legal assistance to organizations who later turned out to be designated as terrorist organizations.
The C-SPAN interview and general tenor of calls should give us all pause. It reminds us of threats to free speech for immigration advocates who are immigrants themselves. There have been a number of documented cases of people speaking out against ICE, against Trump- era immigration policies, including MPP, and in favor of DACA, among a variety of other issues. In some such cases, ICE has been quick to detain and apparently take a punitive approach, seeking quick deportations, where otherwise these people would not be priorities for removal. See the excellent Alina Das, Deportation and Dissent, Protecting the Voices of the Immigrant Rights Movement (2020-2021).
Whether we are talking about non-profit lawyers helping the poor at the border, private attorneys helping clients in the immigration courts, or non-citizen immigration advocates speaking out, none of us should be silenced or intimidated. The roadblocks to comprehensive immigration reform suddenly became viscerally clear. If you do not add to the debate, then do not engage in intimidation. Our American society was built upon preventing the much feared "violence of faction" that our Founders warned against. We should prioritize the values of free speech and a marketplace of ideas.
Institution for Identification only