How the Trump Administration Uses the “Hidden Weapons” of Immigration Law

And that’s not even getting into the asylum coöperative agreements, which are another example of effectively running roughshod over the rule of law. Congress created the safe-third-country Agreements with the idea that it would be used in a responsible manner, that we would send asylum seekers to other countries where they would be safe and where they would have access to full and fair asylum systems.

Instead, we have effectively bullied Central American governments into taking other countries’ asylum seekers, with full knowledge that no one from Honduras is going to seek asylum in Guatemala because Guatemala sends more asylum seekers to the U.S. border than Honduras. It makes no sense to ask somebody to seek asylum in a country that hundreds of thousands of people are leaving every year, and yet, in spite of all of the evidence, that’s what we’re doing.

I want to talk about the newest version of the travel ban, which was released on January 31st. The first one went through three iterations before it became legally acceptable. What is different about the legal case that the Administration is making for this new one?

It remains to be seen whether the new ban is going to face the same kind of legal challenges as the first one. It’s worth noting that the rationale the Administration offered for the first ban was keeping out terrorists, but what they chose to do with this latest version is only ban people from immigrating permanently to the United States. The logic has never held up on these. Under the current travel ban, a person can get a tourist visa from Nigeria and fly to the United States, but a person who has a husband or a wife in the United States and is seeking to move here to be with that family member is blocked from entering. Ironically, Umar Farouk Abdulmutallab, the “underwear bomber”—the one person from Nigeria who has ever been accused of terrorist attacks against the United States—came here on a tourist visa and would not have been blocked under this current ban.

So what we’re left with is nationality-based immigration restrictions, and we have seen this in American history before. From 1924 to 1965, the United States had what was known as the national-origins quota system, a fully racist system, which was designed to keep America at the ethnic makeup of the 1890 census, which was directly responsible, in many ways, for keeping out Jews during the era the Nazis came to power and which was roundly rejected in the 1965 Immigration and Nationality Act, which was, at the time, treated like a third civil-rights act because it effectively eliminated the one remaining national immigration restriction, which treated entire parts of the world as inferior. Unfortunately, we’re moving back in that direction.

Can you construct an argument that these bans are sincere attempts to pursue a policy that you, Aaron, may abhor? Or a policy with some sort of policy goal beyond racism and bigotry? Or do you feel that there is no actual defense of them beyond that, because, if the goal was something other than that, there’s just no possible argument they would have been constructed in the way they’ve been constructed?

I’m not an expert on Nigeria’s identity-management systems, so I can’t evaluate the extent to which the Administration’s arguments about any perceived inadequacies in those systems exist. At the heart of that ban, as well as the bans against Iran and other countries in the first travel ban, is the inherent contradiction between only banning people who come on immigrant visas and not banning, by and large, people who come on non-immigrant visas—students, tourists, and others. If the goal truly was national security and preventing terrorists from coming to the United States, you would want to have a targeted and specific system that focussed on those most likely to cause harm. Here we have a system that bans a five-year-old child and an eighty-year-old grandparent as much as it does everyone else. These blanket restrictions on countries just don’t hold up logically, and never have held up logically.

So, while I can’t comment on whether those countries truly do have inadequate identity-verification systems, this blanket ban effectively means that six point five per cent of the entire world’s population faces some form of nationality-based immigration restriction. That clearly is not about national security.

Is there one particular thing that you think the press doesn’t cover much, and that has had a huge impact?

I think the big picture with the Trump Administration’s immigration policy is that it’s almost impossible to know what they’re doing on a day-to-day basis and that they are willing to take every step, no matter how small, in order to crack down on legal immigration and crack down at the border on those seeking asylum. So, for every major policy out there, there are a dozen other small things, each of which could block hundreds or maybe thousands of people from being able to stay in the United States or come here in the first place. It is exhausting, from an immigration-policy perspective, trying to keep track of all of these things.

The big picture at this point, three years into the Trump Administration, is that they are winning the war on asylum, they are winning a few battles in the war on legal immigration, in cutting the number of people who’ve come into the United States, but so far they haven’t won the war. A lot of what they’ve done is held in place with duct tape and string, and one court decision that goes against them could end it because they need Congress to actually make anything permanent.

If there was one thing that I think the nation needs to be paying more attention to right now, it’s the Remain in Mexico policy, the so-called Migrant Protection Protocols. I’ve been down to the border, I’ve been to Ciudad Juárez, I’ve talked to people in this program. It is a stain on the rule of law, and it has politicized the immigration-court system in a way that has never been done before, and it is actively leading to thousands of children and families being put into enormous amounts of danger on a day-to-day basis, and yet it has never broken through to the same extent as when U.S. agents were tearing kids from their parents’ arms, because it’s out of sight and out of mind on the other side of the border. I often like to say the Trump Administration realized that Americans would rise up in anger when it saw our own government officials doing horrific things to people at the border, so what they did is they exported that—they outsourced the violence, and the crime, and the danger to the cartels in Mexico and let the cartels do the deterrence work that our agents were no longer able to do.

What is the status of the separated children from a year and a half ago?

The big picture with separated children is that family separations are still going on at the border. What we’ve seen is that, since Judge Dana Sabraw issued his order [to halt family separations] more than a year ago, I believe over a thousand children have still been separated for various reasons. [In January, 2020,] Sabraw permitted the government to continue to separate parents from their children solely on the basis that a parent had been previously convicted of reëntering the United States on a removal order, which is technically a felony, but it’s not a violent felony, it doesn’t mean that somebody’s not a good parent.

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