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Do Not Come

The United States’ punitive immigration regime

The Slow Violence of Immigration Court: Procedural Justice on Trial (2023) by Maya Pagni Barak. New York University Press, 240 pages.

Suspended Lives: Navigating Everyday Violence in the US Asylum System (2023) by Bridget M. Haas. University of California Press, 264 pages.

A young father and his daughter, just a month shy of her second birthday, lie facedown in the murky waters of the Rio Grande: the little girl’s arm around her dad’s neck, the man’s black T-shirt covering them both. His name was Óscar; hers was Angie Valeria. Óscar had crossed the river with Angie Valeria, safely deposited her on the other side, and then waded back into the water to help his wife across. The girl, too young to sit still, followed him back in, according to the Mexican newspaper La Jornada. Then the current carried them both away.

The photograph of the drowned migrants was, in the summer of 2019, a source of international outrage—a visual representation of the human toll of President Donald Trump’s restrictive border policies. Joe Biden, at the time one of more than a dozen Democrats vying for the 2020 presidential nomination, called Óscar and Angie Valeria’s deaths a “moral failing and a national shame.” If elected, Biden promised, he would “take urgent action to undo Trump’s damage and reclaim America’s values” and “reassert America’s commitment to asylum-seekers and refugees.” Back then, a year after the outcry over Trump’s family separation policy, it seemed like such a reckoning could actually happen under a Democratic president. Even at the start of 2021, after the pandemic had given Trump a pretext to turn away virtually all asylum seekers at the southern border, there was widespread hope that President Biden would keep his word.

The constant emphasis on the border from both the right and the left elides the fact that it is just one nexus of the immigration system’s cruelties.

In his first few weeks in office, Biden lifted Trump’s Muslim ban; scaled back Immigration and Customs Enforcement’s arrest priorities to the Obama-era standard; created a task force to track down families separated at the border under the zero-tolerance policy; announced a hundred-day moratorium on deportations while ICE reviewed its practices; sent an immigration reform bill to Congress that would create a path to citizenship for millions of undocumented immigrants; and halted border wall construction. Biden initially kept Title 42—a statute allowing border officers to expel asylum seekers on public health grounds—in place but reached an informal agreement with the ACLU to let in up to 250 asylum seekers each day at official ports of entry. After four years of playing defense, immigrant advocates were cautiously optimistic that the Biden administration would work with them to rebuild what Trump had destroyed.

The honeymoon phase was short-lived. A Trump-appointed federal judge blocked the deportation moratorium before it could really go into effect. The American Dream and Promise Act passed in the House but predictably died in the Senate. Thousands of migrants were expelled under Title 42 each day, according to human rights groups, even as Covid-19 vaccines became widely available; Biden’s eventual attempt to end the policy was prevented by the Supreme Court. And in March of 2021, a mother and her two children were found unconscious on an island on the Mexican side of the Rio Grande. The woman and her younger child, a three-year-old boy, survived; her nine-year-old daughter did not. Three months later, Kamala Harris went on her first international trip as vice president. In Guatemala, Harris delivered a now-infamous message to would-be migrants: “Do not come. Do not come. The United States will continue to enforce our laws and secure our borders.”

What went wrong? Early on, it became evident that the Biden administration’s fear of being perceived as “weak” on the border outweighed campaign promises to overhaul the immigration system. The right baselessly accused Biden of “opening” the border even as migrants continued to die on our doorstep. In response to these claims, administration officials repeated their constant refrain: do not come, do not come. It seemed as if, in the years since Title 42 was implemented, those in power had developed collective amnesia about the way asylum processing worked before the pandemic. It had never been a free-for-all; the migrants who made it across the border were, more often than not, apprehended by immigration agents and placed in deportation proceedings.

The constant emphasis on the border from both the right and the left elides the fact that it is just one nexus of the immigration system’s cruelties. Once in the country, asylum seekers, undocumented immigrants, permanent residents, and all other noncitizens live at the mercy of a labyrinthine bureaucracy that threatens them with deportation.

Borrowed Time

All sorts of things can trigger deportation from the United States, such as crossing the border without papers, hopping a subway turnstile, or working without legal authorization. Undocumented people can be deported on the basis of their presence in the country alone, while anyone with an immigration status short of citizenship can wind up on ICE’s radar after being arrested for nearly any crime.

Immigration courts force noncitizens into a defensive posture; the goal is to prove you deserve not to be deported.

Every step of deportation proceedings is a civil procedure. Customs and Border Protection “apprehends” migrants at the border, while those caught without papers in the interior of the country are subjected to “administrative arrests” by ICE; they are not imprisoned, but rather held in “civil confinement.” Legally, deportation is neither a sentence nor a punishment, even if it leads to a person’s death. Because of this, people in deportation proceedings are not entitled to the same constitutional protections as criminal defendants; the usual Miranda disclaimers don’t apply. If someone facing deportation can’t afford a lawyer or find one willing to take their case pro bono, they must represent themselves. There are no exceptions. And children who arrive at the border unaccompanied go through the same deportation hearings as adults. More than eighty-one thousand deportation cases opened between October 2021 and February 2022 involved minors; of those cases, 40 percent involved children under the age of four. Toddlers who have yet to master the alphabet are expected to tell a judge why they’re afraid to return to their home country.

Upon learning of these injustices, any reasonable person would be forgiven for concluding that the immigration adjudication system could benefit from simple, common-sense reforms. At the very least, we could limit the use of detention and provide free legal representation to indigent clients. But in her new book The Slow Violence of Immigration Court, University of Michigan-Dearborn associate criminal justice professor Maya Pagni Barak cautions against this line of thinking. “What is the value of procedural justice,” she writes, “in the face of a substantively unjust immigration system?”

That’s not to say that procedural reforms are useless. Study after study has proven that immigrants with legal representation have a better chance of obtaining relief from deportation than those who don’t have attorneys. Barak isn’t arguing against policies like these, but she notes that calls for enhanced due process in immigration courts can serve to legitimize a legal process that is built on a faulty premise.

Most forms of relief from deportation require immigrants to prove that they would face harm upon returning to their country of origin, or that their removal from the United States would create undue hardship for a U.S. citizen who depends on them. Hiring more immigration judges or providing every person facing deportation with a free, government-appointed lawyer wouldn’t change the underlying laws that force people into deportation proceedings in the first place by dramatically limiting the scope of who has a right to stay. Procedural reforms, Barak writes, “will do little more than advance the illusion of rights in the immigration system and the myth of rights in the American mind.” The system is more focused on removing people from the United States than welcoming newcomers. Immigration courts force noncitizens into a defensive posture; the goal is to prove you deserve not to be deported. While you can challenge a deportation order with the Board of Immigration Appeals, doing so is often futile—and the Department of Homeland Security can also file appeals with the BIA, meaning someone can win their immigration case and still not be in the clear.

Barak recounts the story of Maribel, a Salvadoran woman who migrated to the United States during El Salvador’s long, brutal civil war. Maribel left her daughter, Jessica, behind, hoping to earn enough money in the United States to bring her daughter across the border someday. In the years that followed, Maribel found a job, got married, and had three more children. In 1986, she was among the estimated 2.7 million undocumented immigrants who obtained permanent residency and eventually U.S. citizenship through the Immigration Reform and Control Act. Upon becoming a citizen, Maribel applied for a family-sponsored visa for Jessica.

“The problem,” Barak writes, “was that her visa was not materializing quickly enough.” There are more people who want to come to the United States than there are available visas, and Jessica’s application would take nearly a decade to process. By 2003, Jessica had given up on the idea of entering the country legally and hired a smuggler to get her to the United States. She was apprehended by Border Patrol and put into deportation proceedings, which made her ineligible for the family-based visa her mother had requested for her.

The few pathways that exist for legal migration are inaccessible to most who want to come to the United States, especially if they don’t have a job or U.S. citizen relative—though it bears repeating that arriving at the border and asking for asylum is a form of legal migration, even if it immediately triggers deportation proceedings. It shouldn’t come as a surprise, then, that people who are locked out choose to take matters into their own hands. Unauthorized migration exists because of the absence of a fair, functional migration system. Congress hasn’t passed a single comprehensive immigration reform bill since the Immigration Reform and Control Act of 1986; every attempt to do so has been stymied by conservatives and moderate Democrats, who claim that such reforms will only encourage more illegal immigration.

The only immigration laws that have passed in the wake of IRCA have served to make the system more restrictive, like the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. The act increased the number of people eligible for deportation, expanded immigration enforcement, allowed local law enforcement agencies to cooperate with federal immigration officers, and established years-long bans on reentry for people who had been deported. The stated goal of the act was to deter unauthorized migration, and yet in the nearly three decades since its passing, the United States’ undocumented population has surpassed an estimated eleven million.

Instead of a path to citizenship for this ever-growing undocumented underclass, we have stopgap measures like Temporary Protected Status and Deferred Action for Childhood Arrivals, both of which shield certain groups of immigrants from deportation but don’t confer any kind of permanent status. TPS is the product of the Immigration Act of 1990 and, as its name suggests, the protections it grants are meant to be temporary. The secretary of Homeland Security can at any time grant TPS to nationals of a certain country because of emergency conditions there, including armed conflict and natural disasters. But these protections only apply to people who are already in the United States at the time the designation is granted. People who flee from the very circumstances which prompted the issuance or extension of TPS are offered no such protections; if they arrive at the border after TPS is in effect, they’ll immediately be thrown into the deportation machine.

DACA, meanwhile, arose from a legislative failure. The Obama administration created the program after Congress tried and failed for over a decade to pass the DREAM Act, which would have created a path to citizenship for undocumented immigrants who came to the United States as children. Like the DREAM Act, DACA allowed a generation of immigrants to legally live and work in the country albeit without granting them legal status.

The hundreds of thousands of people who benefit from DACA and TPS are vulnerable to the whims of the executive branch. Trump’s Homeland Security secretaries attempted to repeal DACA and rescinded TPS status for El Salvador, Nicaragua, Honduras, Sudan, and Nepal. Federal judges ultimately prevented both repeals from going through (though the government is no longer processing first-time DACA applications), but there’s nothing stopping a subsequent Republican president from trying again in the future. And Trump’s attempts to revoke both DACA and TPS served as a reminder of the instability all noncitizens face, even when they have some degree of status.

There is no singular profile of an undocumented immigrant, let alone a noncitizen. Though Barak’s book focuses on Central Americans in two East Coast cities, the breadth of their experiences is striking despite these surface similarities. Some of her subjects, like Jessica, crossed the border without authorization. Others were permanent residents who were charged with crimes that triggered deportation proceedings. A few won their cases, while others were ordered removed from the country and, in some cases, refused to comply. Regardless of how or why they had come to the United States, the immigrants Barak interviewed do have one thing in common: their experiences in the country have been characterized by constant uncertainty—even if their children or parents or siblings or spouses have status, even if they came here “the right way.”

In the face of this uncertainty, the immigrants featured in The Slow Violence of Immigration Court do everything in their power to maintain their optimism. Perhaps shockingly, most of them tell Barak they think of the immigration adjudication system as fair and just, even in situations where they have faced removal from the country. For Barak’s interviewees, the most unjust part of the process was not whatever decision the judge came to, but having to wait months or even years to learn whether they’d be deported. “They explained that the prolonged deportation process amplified the stress, fear, and frustrations of being deportable,” she writes. This uncertainty “left them unable to plan for the future, placing their own and their families’ lives on hold.”

Until Proven Innocent

The psychic toll of prolonged immigration cases is the subject of Bridget M. Haas’s Suspended Lives, an ethnographic account of the experiences of asylum seekers in Minnesota. Haas, an assistant professor of anthropology at Case Western Reserve University, writes about a group of immigrants whose experiences are rarely considered in the endless debates about the border: people who filed affirmative asylum applications, meaning they asked for asylum after arriving in the United States, often on nonimmigrant visas, and in many cases never crossed the southern border at all.

Asylum officers will interrogate minor inconsistencies and look for any opportunity to question a petitioner’s credibility.

Even in immigration circles, there’s an implicit assumption that people who file affirmative asylum claims are a privileged class. Haas writes about a lawyer at an immigration conference who says that these claimants “have it so much easier” than people who file asylum claims after being apprehended at the border. Their cases are decided by asylum officers who work for U.S. Citizenship and Immigration Services, not by immigration judges in courtrooms. But as Haas illustrates, the line between defensive and affirmative asylum claims isn’t as clear-cut as it may seem. Both are “part of the same governmental apparatus, part of a larger shared continuum of violence.” And if a USCIS officer denies someone’s asylum claim, their case is referred to the same immigration judges that handle defensive asylum applications. In that moment, supposedly privileged affirmative asylum seekers become deportees-in-waiting.

In order to obtain asylum, a person must prove that they face persecution in their country of origin due to their race, religion, nationality, political opinion, or membership in a particular social group. For the most part, the asylum seekers Haas features were activists or self-proclaimed “freedom fighters” in their home countries, and were directly targeted due to their involvement in various social movements. But even they had a difficult time convincing asylum officers that they were deserving of asylum. Though USCIS asylum hearings are supposed to be non-adversarial, Haas’s interviews with officers reveal that the agency’s employees are trained to be on guard for anyone trying to game the system. “We get the embellishers. We get the liars. We get the people with fraudulent intent,” one tells Haas. “We’re very generous and we try to be very fair. But the reality is that we deal with a lot of economic refugees and that separates them from other refugees as a group.” In practice, this means that asylum officers will look for any opportunity to question a petitioner’s credibility.

Take Patrick, a university student from Rwanda who was arrested because his mentor often criticized the government. Not long after Patrick left Rwanda, his father was killed outside their home; his family believes that the same police officers who had arrested Patrick killed his father in retaliation. During his asylum hearing, Patrick was asked for proof that his father was really dead. “I don’t even know how to answer that,” he tells Haas. “I mean, he’s dead. He’s gone.” But Patrick’s word wasn’t enough—the asylum officer asked for a death certificate. Patrick’s claim was denied, and his case was transferred to an immigration judge.

Patrick’s inability to provide a specific piece of paperwork affected his credibility, but some asylum officers Haas interviewed note that they’re wary of applicants who have too much paperwork, especially documents that should serve as objective proof of severe trauma, such as evaluations by a therapist. “It seems like everybody says they have PTSD or depression,” one USCIS asylum officer tells Haas. “So it’s kind of like, ‘meh,’ you don’t know what’s real, what isn’t.”

Asylum officers and immigration judges can also use inconsistencies between a person’s psychological evaluation and their testimony to claim they aren’t credible. Daniel, an asylum seeker from Liberia, filed a written statement as part of his application in which he described the day soldiers stormed into his family’s home, forced him into a closet, and killed his relatives in the living room. The doctor who submitted Daniel’s psychological evaluation to USCIS wrote that Daniel “hid” in the closet—rather than being forced—when the soldiers entered his home. USCIS denied his claim, which was then taken up by an immigration judge who used the minor discrepancy in Daniel’s testimony to call his account into question. Later, the DHS attorney asked Daniel if he had any proof his relatives had been murdered. Daniel said that the soldiers had covered their bodies with a sheet. “Did you actually see the faces of the bodies under the blankets?” the lawyer asked. “How did you know they were the bodies of your family?”

Asylum officers know that the people whose fates they decide are often traumatized, and that trauma can affect a person’s memory. Still, their decisions rely on subjective and capricious interpretations. Some say they expect applicants to be able to recount what happened to them in chronological order; others say that an applicant’s credibility could be called into question if their story appears to be too rehearsed. One officer tells Haas about an applicant who “was getting his dates all confused and he was all over the place,” which led her to believe he was “making up this story.” Later in that same interview, the officer realized the applicant had been tortured in prison. “I was like oh, my god, you were electrocuted. Your brain’s scrambled eggs,” she recalls. Still, she ultimately ruled against him: given the problem of the dates and “no medical evidence,” she “couldn’t say he was credible.”

Asylum seekers are regarded with suspicion from the moment they file an application—or, in the case of those who are placed in deportation proceedings after crossing the border, from the moment they set foot on U.S. soil. As a result, the process is designed to make petitioners’ lives as difficult as possible. They aren’t eligible for government assistance; they also aren’t allowed work permits until their asylum application has been pending for at least 150 days, after which USCIS has 30 days to process the work permit application. Asylum seekers who are caught working under the table risk getting their cases thrown out. The goal of these regulations is to dissuade so-called economic migrants from filing asylum applications in order to temporarily work in the United States while their claims are adjudicated, a process that usually takes several years. In practice, however, these rules force all asylum seekers into precarious financial situations.

One of the few success stories in Suspended Lives involves Ahmed, a Somali asylum seeker from Ethiopia, but his path was far from easy. Ahmed speaks three languages—Somali, Amharic, and English—and worked as a translator for the United Nations near the Somalia-Ethiopia border. He came to the United States in 2009 after being kidnapped by Somali rebels who accused him of siding with the Ethiopian government. Unlike most of the other asylum seekers Haas interviews, Ahmed crossed the Mexican border with the help of a smuggler.

Ahmed eventually reached Minnesota, where he moved in with his younger sister, a U.S. permanent resident. He was relieved to be somewhere he felt safe but demoralized by his inability to work while his asylum case was pending. By 2011, he had been in the United States for two years, his father had been killed in Ethiopia by the same people who had targeted him, and his mother was struggling to get by on the money Ahmed’s sister sent home. Without a job, Ahmed tells Haas, he couldn’t help his family through a difficult time. But his desire to work was not just about “financial security,” Haas writes; it was also about “having somewhere to be.” Without something to occupy his time, all he could think about was the outcome of his case. “Asylum is the only thing in my mind now,” he tells Haas at one point. “I cannot imagine a free world. I cannot dream freely. I cannot think about the future. I am not finding any hope. I’ve become religious because I don’t understand my life anymore. . . . I need hope.”

Ahmed’s feelings began to improve after his work permit arrived. He got a job on a factory assembly line and started to send money to his family in Ethiopia. But the hearings in his case kept getting pushed back. It took another four years before he was granted asylum, and two more before he could get a green card. “Now I can say that I live in America,” he tells Haas, after spending more than half a decade in the country. Before that, he was in limbo.

Help Isn’t Coming

This is the byzantine system that people die trying to reach. Rather than replacing it with a truly just one, the Biden administration has spent most of the past two years reaffirming some of the immigration system’s most punitive policies. In January of this year, Biden visited the U.S.-Mexico border for the first time since taking office, days after announcing a new plan “to stiffen enforcement for those who try to come without a legal right to stay.”

The Biden administration has spent most of the past two years reaffirming some of the immigration system’s most punitive policies.

This plan is, in effect, an expansion of Title 42. The administration convinced the Mexican government to accept thirty thousand Haitian, Nicaraguan, and Cuban nationals expelled at the border each month. In exchange, thirty thousand people from those same countries will be eligible for entry into the United States via humanitarian parole every month. (Biden created a similar program for Venezuelans in 2022.) In order to qualify for parole, applicants must have a financial sponsor in the United States, pass a background check, and be in possession of an unexpired passport from their country of origin. They cannot have “irregularly” crossed the Mexican, Panamanian, or United States borders after the date of the announcement. If their application is accepted, they’re required to pay for their own passage to the United States. And unlike asylum, parole doesn’t confer any permanent status; migrants admitted into the country under the new program won’t truly be able to settle here. If and when a conservative president takes office, a simple pen stroke is all it will take to order hundreds of thousands of parolees to leave or face deportation. The administration could be sued for violating the Administrative Procedures Act depending on how they seek to terminate the program, but other than this, there is very little legal recourse.

Asylum seekers who don’t qualify for parole currently have two options: they can attempt to cross the border without authorization, or they can apply for asylum via a new mobile app called CBP One. The app, which a DHS press release described as “safe, orderly and humane,” has already proven to be a disaster. “It freezes and it stays frozen. When we try to go in and enter our information, it takes us to this screen and then it crashes,” a Peruvian migrant told reporters. Those who don’t use the app risk being expelled at the border under Title 42 or deported via expedited removal—a process that circumvents the court system, robbing noncitizens of due process. Even in the best-case scenario, a person who manages to successfully request asylum via the CBP One app will be precluded from fully integrating into the United States until and unless they win their cases, which may take years. The majority will lose.

And things may soon get even worse. The Biden administration recently proposed a rule that would effectively punish asylum seekers for not applying via CBP One. Under the new regulations, migrants who cross the border between ports of entry will have to prove that they applied for and were denied asylum in at least one country they passed through on their way to the United States, such as Mexico, before being able to apply for asylum here. This is a revival of a Trump-era policy that automatically denied asylum to anyone who passed through a third country en route to the U.S. border and didn’t apply for asylum there. Biden administration officials claim that unlike Trump, they’ve expanded pathways to migration—by creating temporary parole programs and requiring migrants to apply for asylum through a glitchy app—even as they codify variations of the same policies they decried as racist just a few years earlier. “To be clear, this was not our first preference or even our second,” an administration official said on a press call. If these new regulations go into effect, which they are likely to do in May after the pandemic emergency declaration is lifted, they will be in place for at least two years. [*]

Near the end of January, I sat in on an asylum hearing at the Varick Immigration Court in lower Manhattan. The respondent, an indigenous woman from Ecuador, had a lawyer. Speaking through a Quechua interpreter who appeared via video teleconference, she told the judge that she had been a victim of religious persecution in her village. Then the ICE attorney, who also appeared via video, asked the woman if she had ever reported the crime to the police. The woman said she didn’t; she was from a small village where there were no police, only an indigenous justice authority who wasn’t interested in hearing her story. The ICE attorney asked if she had attempted to relocate within Ecuador. The woman said no, explaining that she was afraid she’d be discriminated against in larger cities because of her race, and in smaller villages because of her religion.

After the woman’s lawyer gave his closing statement, the judge asked us to leave the courtroom while she reviewed the facts of the case and made her decision. We were told to return in about twenty minutes. The woman, her lawyer, and I sat in the harshly lit waiting room. The woman stared straight ahead, legs jiggling nervously.

When we returned, it was clear what was going to happen from the moment the judge began to speak. “Ma’am, I want you to know that I believe that you are a member of the Evangelical church in Ecuador, and that you were physically harmed by a man in your community based on your religion,” she said, pausing after each clause so the interpreter could translate her words. “However, one of the things I have to look at is whether the government of Ecuador is unwilling or unable to protect you based on this discrimination and mistreatment that you have received.” Since Ecuador claims to protect the rights of its citizens to practice their religion, and the woman never reported the crime to the police, the judge continued, she didn’t qualify for asylum. “I recognize that there was no government authority where you live,” she said. “However, the government cannot help you if you don’t tell them you need help.”

In other words, the woman had sought help in the wrong place. Though the judge concluded she was a victim of persecution with a credible story, she didn’t qualify for asylum. If she had gone to the police and they had done nothing, or if she had moved to a different city in Ecuador and suffered an even worse fate before coming to the United States, maybe things would have turned out differently. “I do wish you and your family the best,” the judge told the woman, before turning to her attorney and adding, “You did a great job, as you always do.”



[*] Editor’s Note: The preceding paragraph was written for the online version of this story to address developments that occurred after the issue went to print.