The U.S. Is Deporting People Who Qualify For Asylum

The Ohio Immigrant Alliance submitted testimony to the U.S. House of Representatives Committee on the Judiciary, Subcommittee on Immigration and Citizenship, for a hearing entitled “For the Rule of Law, An Independent Immigration Court.” Following are key excerpts; please see the complete testimony for examples and evidence.

The U.S. is deporting people who qualify for asylum. 

In Ohio, immigrants are ten times more likely to win their cases if they have a lawyer. The high percentage of case denials for unrepresented people, and the fact that most people who win relief in court have an immigration lawyer at her side, are evidence of a painful but inevitable truth. U.S. Immigration Judges are ordering the deportation of true refugees because they didn’t have legal guides to help them explain their cases in court, not because their experiences did not qualify for asylum. 

The U.S. immigration court system is not a real court system, and does not provide a real check and balance on administrative or congressional actions.

U.S. Immigration Courts, Immigration Judges, and even the Board of Immigration Appeals are all directed, overseen, managed, and funded by the U.S. Department of Justice. Also, many Immigration Judges have no training or background in immigration law. This is a farcical “court” structure where judges are overseen by political appointees and due process is nothing but a dream. 

The current U.S. immigration system is not designed to function fairly, but to fail. Racism is a driver of this reality. 

Immigration laws and administrative agencies were created on a foundation of white supremacy. The goal was not to provide a fair hearing and process for people to become U.S. residents and citizens, but to present the illusion of fairness, while keeping poor people and people of color from accessing power. 

In U.S. Immigration Courts, mainly white, Western-educated people of Judeo-Christian backgrounds make character judgements about people from diverse religious, cultural, social, linguistic, educational, financial, and literacy backgrounds. Some decisions are made based on ignorance and bias.

This is not a system designed for humanitarian protection, but coercion and control.

Immigration cases are about civil law compliance and enforcement. But the system makes broad use of tools from the criminal system when it suits the state—such as incarceration—and ignores them when they suit the individual—such as access to counsel and the right to appear in court in person, rather than through a jailhouse video feed. 

The federal government uses incarceration to coerce people into accepting deportation, rather than continuing to fight their cases from jail. Inside jails, the government uses physical and verbal abuse; denial of access to phones/recreation time/law libraries; medical neglect; and other indignities to force detained people into giving up. Then, on mass deportation charter flights,  shackled at their wrists, waists, and feet for hours, the harm continues. 

If we want to protect the values we claim, this system has to be discarded and redone. We must:

1) End the deportation life (and death) sentence

The Biden administration must include all separated families in its reunification policies, regardless of where the separation occurred; evaluate and expand the U.S. veteran return policy; and enhance and create other avenues for return for individuals who are stateless, have U.S. citizen relatives or other equities in the U.S., and/or are living in unstable and violent situations due to their deportation. Congress should also remove existing deportation penalties and barriers to return in U.S. law.

2) Redirect funding from the carceral system toward due process and human needs

The Biden administration and Congress should redirect federal appropriations from immigration detention and deportation toward policies and practices that promote family unity and due process, and recognize the inherent dignity of all people. This includes ending contracts with the companies that jail immigrants and facilitate mass, inhumane charter flight deportations, whether by providing the planes or undignified restraints. 

Instead, money should be directed towards hiring officers to adjudicate consular petitions, waivers, parole requests, and other applications for return; access to legal counsel for all people facing immigration judicial proceedings; and other pro-human due process needs.

3) Rewrite U.S. immigration laws, systems, and processes based on humanitarian values, not white supremacy

Peter L. Markowitz, Professor of Law at the Benjamin N. Cardozo School of Law has proposed a new architecture for the immigration enforcement system that is more humane, functional, and cost-effective than the current one. This scheme is based on the goal of compliance with the law—which is supposed to be the aim of civil legal structures, no matter the topic—rather than punishment and control based on white supremacy. 

He writes: 

Just as the goal of criminal justice systems is to reduce crime rates, not to maximize incarceration, policymakers must judge the effectiveness of America’s immigration enforcement system on the ultimate measure that matters: compliance with immigration law. By that measure, while ICE’s heavy-handed tactics have succeeded in terrorizing communities and dividing the nation, they have failed as a law enforcement strategy. Thus, anyone who cares about fiscal responsibility or effective law enforcement—not simply those who care about immigrant communities—should be eager to rethink the United States’ immigration enforcement strategy.

4) Create an independent immigration court, with guaranteed access to legal counsel 

A system of fairer laws, proportionate consequences, paths to compliance, access to counsel, and an independent immigration court must replace the current punishment-based system created to achieve white supremacist goals. 

American school children learn the value of an independent judiciary every day, because this is a fundamental tenet of a functioning democracy. Also today, more and more Americans are committed to naming and rooting out systemic racism in society, laws, and policies.  Addressing the U.S. Immigration Courts—and immigration system writ large—must be part of this reckoning. 

It’s time to stop pretending we have an immigration court and legal system that functions well, and build a system that is fair and just.

No person should be forced to make his immigration case without access to counsel or while incarcerated, cut off from free communication and the ability to track down evidence he needs to succeed. A person should never have to face his adversary or attempt to appeal to an Immigration Judge through a jailhouse video feed. Those are characteristics of a system designed to fail the people it pretends to protect.

Read OHIA’s full statement, submitted for the congressional record, here.