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Law360 (April 8, 2020, 2:51 PM EDT )
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| Alexandra Dufresne |
Practices once seen as unavoidable in the U.S., such as the detention and incarceration of nonviolent offenders, are being reevaluated. All of a sudden, modest, tinkering-around-the-edges types of policy proposals seem out of touch.
The current crisis provides the opportunity to reboot U.S. immigration law and policy. Comprehensive immigration reform is long overdue: The pandemic simply underscores the urgency.
The work of undocumented immigrants has long been essential to the U.S. economy, especially in times of national crisis. However, the pandemic provides a rare political moment.
Concerns that large-scale legalization would create a precedent for a future amnesty, thereby encouraging future illegal immigration, drop out of the picture. Congress could enact a large-scale legalization program in response to the pandemic as a one-time measure.
Congress could take this step, regardless of whether the U.S. Supreme Court upholds the Trump administration's attempt to rescind the Deferred Action for Childhood Arrivals,[1] the Obama-era program giving temporary status to certain classes of young people who immigrated to the U.S. as children.
The urgency of the current moment presents a historical opportunity. At the heart of the debate over unlawful immigration lies a central tension. On the one hand, business leaders know that the extraordinary productivity of the U.S. economy would not be possible without the hard work and creativity of undocumented immigrants, particularly in times of national crisis.
Undocumented individuals have provided essential assistance in the aftermath of 9/11 and of numerous natural disasters. Undocumented immigrants have served in the U.S. military.
During this pandemic, many undocumented people in the U.S have been deemed essential workers.[2] Their deportation would jeopardize the U.S. food supply and health care system.[3] The U.S. relies not only on the contributions of well-educated and highly skilled DACA recipients — Americans in all but name — but also on the contributions of those who do not qualify for DACA.
In addition, undocumented individuals are often the spouses, parents, brothers, sisters, neighbors, colleagues and friends of U.S. citizens. Our society would simply fall apart under the large-scale deportation of any number of an estimated 11 million people, integrated into every aspect of American life, especially in a time of crisis.
Stop-gap measures, such as promises not to carry out immigration enforcement actions near health care facilities, except in the most extraordinary of circumstances,[4] or a temporary coronavirus-related exception to the recent changes in the public charge rule (designed to discourage undocumented immigrants from using public benefits), are steps in the right direction.
But the fact that immigration courts are at least partially open, and that many immigrants without criminal records are still detained in overcrowded detention centers despite fears of the virus spreading in cramped conditions, undermines undocumented immigrants' trust of the federal government.
Many undocumented immigrants are terrified of seeking government help, as deportation is a risk they simply cannot take.
On the other hand, in a country that prides itself on being governed by the rule of law, it is extremely awkward to have 11 million people forced to live in the shadows, defined by the status of having violated the law, however outdated and out of sync with economic reality.
Absent exceptional circumstances, the laws passed in a democracy must be enforced. When the disconnect between what is practical and what is legal becomes too great, the remedy should be law reform, not a tacit agreement to look the other way.
Illegality opens up the door to corruption, abuse and arbitrary uses of discretion: It is dehumanizing to put people in a situation in which they have to work illegally in order to take care of their children, or in which they have to forgo medical treatment or police protection to avoid deportation.
We now have a rare opportunity to thread the needle. We need not worry about sanctioning wrongful conduct.
American citizens I speak with, including lawyers, often misunderstand the basic legal landscape. They often think that people are undocumented because they "skipped the line" or "did not want to follow the rules." This is a misunderstanding. There is often no line for people to stand in.
There are only four ways to immigrate to the U.S. lawfully: through work visas, family visas, the diversity lottery system or some sort of human rights protection. Each of these avenues is closed to all but a narrow subset of a large pool of well-qualified individuals.
In addition, basic norms of procedural due process do not apply in immigration proceedings, as evidenced by the fact that even children seeking asylum do not have a right to a government-appointed lawyer in removal proceedings and must often represent themselves. Many Americans' intuitions about what the U.S. immigration laws say simply do not track reality.
Moreover, unlike so many challenges we face during this pandemic, this one can be fixed. All we have to do is allow people who are undocumented to apply for permanent residency.
This reform should cover not just those currently eligible for DACA, but everyone who has made substantial contributions to life in the U.S., including all essential or potentially essential workers, including those caring for U.S.-citizen or permanent resident children or U.S.-citizen adults with special health needs.
It should also cover anyone who came to the U.S. under the age of 18, regardless of when they arrived, and, if they are still children, their immediate family members or guardians. Finally, it should include adults without U.S. citizen children or spouses whose contributions and ties to the U.S. outweigh their unlawful presence. Time spent in the U.S. and the relative hardship a person and their family would face if deported could factor into close cases.
If Congress wishes to preserve certain laws requiring the deportation of people with certain serious criminal convictions regardless of their relationship to U.S. citizens, it should do so, though an avenue should be opened to suspend the deportations of those who have made substantial contributions to the U.S., or who are actively caring for U.S.-citizen or permanent resident children, or for U.S.-citizen adults with special health care needs.
Of course, reasonable people can disagree about where exactly the lines should be drawn. The details should turn on up-to-date data regarding the health, safety and economic effects of various proposals, especially on U.S.-citizen or permanent resident children.
But it is unreasonable during a pandemic to permit a situation in which hundreds of thousands, if not millions, of people provide essential labor, including taking care of U.S. citizen relatives, but are too frightened to seek government help when they themselves fall sick.
The top priority should be the health and safety of everyone within the U.S., and the virus has taught us that its contagiousness does not turn on legal status.
Legalization is not a radical idea. President Ronald Reagan signed a large-scale legalization law in 1986. President George W. Bush and Sen. John McCain advocated for large-scale reforms that would bring U.S. immigration law more in line with the needs of the U.S. economy.
We make similar trade-offs in our law all of the time, when we impose statutes of repose or statutes of limitations. It is reasonable to protect the reliance interests of people who have built lives in, and contributed to, the U.S., especially when doing so improves public health and safety by keeping essential workers in the workplace, allowing people to seek medical care, and keeping families, including the families of U.S. citizens, together.
Political polarization has led positions to calcify to the extent that it would be hard for many Republicans to save face while accepting what many understand is in the U.S.' best interest. But here is where the pandemic is helpful.
Major areas of public life are going to be analyzed in terms of before and after the pandemic. The same rules simply do not apply. Legalizing the status of undocumented people is essential now to public health and safety, as the government of Portugal quickly realized, in awarding temporary status to everyone in the country unlawfully.[5]
We do not need to worry about setting a precedent for future legalization initiatives, or at least not until faced with the next national emergency of this magnitude. Concerns that this effort could encourage future unlawful immigration can be met by limiting the legalization to people currently within the U.S.
This U.S. surgeon general is correct that this is "our Pearl Harbor moment."[6] Let us take the opportunity to finally recognize what we have known all along: The contributions of our undocumented friends, family, neighbors and colleagues are essential to the health, safety and prosperity of the U.S.
Alexandra Dufresne teaches at the School of Management and Law at Zurich University of Applied Sciences.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.nytimes.com/2020/03/27/us/dreamers-supreme-court-daca.html.
[2] https://www.nytimes.com/2020/04/02/us/coronavirus-undocumented-immigrant-farmworkers-agriculture.html.
[3] https://www.nytimes.com/2020/04/02/opinion/trump-coronavirus-daca.html.
[4] https://www.ice.gov/coronavirus.
[5] https://edition.cnn.com/2020/03/30/europe/portugal-migrants-citizenship-rights-coronavirus-intl/index.html.
[6] https://www.nytimes.com/2020/04/06/us/politics/coronavirus-trump.html.
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