Archive | January, 2012

Human Dignity

23 Jan

I’ve been thinking a lot about human dignity lately. I am increasingly struck by how many of this country’s so-called leaders treat immigrants – particularly the undocumented ones (a.k.a. “illegal aliens”) – and it occurs to me that such hostility is borne not merely of ignorance, or fear, or a lack of empathy. What’s really shocking is the cavalier manner in which so many politicians, pundits, and even average Americans seem to regard immigrants as undeserving of human dignity.

Take, for example, Mitt Romney, the presumptive Republican presidential nominee.  Romney recently secured the endorsement of Kris Kobach, author of Arizona’s S.B. 1070 anti-immigration law and a virulent and unapologetic immigrant-hater. Romney gushed:

I’m so proud to earn Kris’s support. Kris has been a true leader on securing our borders and stopping the flow of illegal immigration into this country. We need more conservative leaders like Kris willing to stand up for the rule of law. With Kris on the team, I look forward to working with him to take forceful steps to curtail illegal immigration and to support states like South Carolina and Arizona that are stepping forward to address this problem.[1]

If Romney and Kobach and Dan Stein and Sheriff Joe and all the other immigrant bashers were to have their way, we would deny the country’s burgeoning immigrant population not just employment, or education, or healthcare, or opportunity – but simple human dignity.

John Rawls wrote:

Once the conception of justice is on hand … the ideas of respect and of human dignity can be given a more definite meaning. … [T]o respect persons is to recognize that they possess an inviolability founded on justice that even the welfare of society on the whole cannot override. It is to affirm that the loss of freedom for some is not made right by a greater welfare enjoyed by others.[2]

My own philosophical mentor, the American pragmatist Richard Rorty, contemplated morality and humanity in terms of “human solidarity.” Rorty wrote:

The view I am offering says that there is such a thing as moral progress, and that this progress is indeed in the direction of greater human solidarity. But that solidarity is not thought of as recognition of a core self, the human essence, in all human beings. Rather, it is thought of as the ability to see more and more traditional differences (of tribe, religion, race, customs, and the like) as unimportant when compared with similarities with respect to pain and humiliation – the ability to think of people wildly different from ourselves as included in the range of “us.”[3]

And I began thinking about how many Americans view this large (and growing) class of individuals in our society as “the Other,” as persons undeserving of compassion or respect. Yet, don’t we share a great number of similarities with these more recent arrivals to the American experiment? No matter how we got here, it seems we pretty much all desire the same things: a safe place to live and raise our families, the opportunity to work and earn a decent wage, the chance to send our kids to good schools so that they can aspire to – and even achieve – more than their parents, and also to be treated justly and with respect. In short, to be recognized as deserving of human dignity. Yet these shared similarities, which ought to unify us and help bridge the divide between the “been here for awhiles” and the “just recently arriveds,” are being drowned out by the shrill cries of “Different! Other! Illegal!” that we hear daily in stump speeches and on hate radio and from Fox News.

The national animosity isn’t reserved for the stereotypical law-breaking border-crosser, and it doesn’t appear much affected by how long a person may have lived here, how many of his family members reside in the U.S. (and how many of them are citizens or green card holders), what he has contributed through his labor (whether as a lettuce picker or a software engineer), how much he’s paid in taxes, or contributed to his community, or looked out for his neighbors. Unless his papers are in order and he has strictly adhered to our erratic and ill-conceived immigration laws, this person apparently doesn’t merit a shot at the American dream.

So is the kind of respect and solidarity that Rawls and Rorty advocated possible in the current political climate? Is it even conceivable? Can we, as a community of humans, tolerate and even embrace these wildly different “others”? I believe we can. Having reflected on it, I’m convinced that solidarity and treatment of our immigrants (even the “illegal” ones) with dignity is achievable in at least one realm of American society: the law.

Justice William J. Brennan referred to human dignity as “the basic premise upon which I build everything under the Constitution.”[4] As he tirelessly battled against the death penalty and championed the rights of criminal defendants and prisoners, Brennan characterized “the dignity and worth of the individual” as the “supreme value of our American democracy.”[5] Although the concept has enjoyed a decidedly less prominent role on the Court in recent years, none other than the resolutely moderate Justice Anthony Kennedy has taken up the cause, and has been described as the Court’s “leading invoker of human dignity.”[6] Do we dare to hope for the concept’s return to prominence in the hands of recent additions like Justice Sonia Sotomayor, or Justice Elena Kagan, or possibly others whom President Obama will nominate during his second term? Might human dignity even inform the discourse in the Court’s looming immigration battlefront, particularly Arizona v. United States, which is set to be argued later this term?

Like Rorty, I believe that the greater our capacity to treat the Other (read “immigrants”) in our midst with dignity and compassion, the greater our human solidarity, and the stronger our democracy. Rorty urged, as a historical progression toward greater human solidarity,

the inclusion among “us” of the family in the next cave, then of the tribe across the river, then of the tribal confederation beyond the mountains, then of the unbelievers beyond the seas (and, perhaps last of all, of the menials who, all this time, have been doing our dirty work).

Sounds appealing, but how to accomplish such a lofty goal? I maintain that it has to be through the law. Unlike Justice Brennan, though, I don’t believe that restoring human dignity to a central role in the debate requires an appeal to the individual’s “essential dignity and humanity.”[7] Rather, we can foster the dignified treatment of immigrants in the same way that, as a nation, we have struggled to overcome injustice and inequality based on race, gender, religion, sexual orientation, and so many other differences that have divided us: through the rule of law.

                A search of Supreme Court jurisprudence turned up 64 references to “human dignity,” principally in cases involving the death penalty, prison conditions, and unreasonable search and seizure, but also in civil rights. In Heart of Atlanta Motel v. United States, Justice Goldberg affirmed that “[t]he primary purpose of the Civil Rights Act of 1964 … is the vindication of human dignity.”[8] He denounced “the deprivation of human dignity” produced by racial discrimination, which he described as “the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because of his race or color.”[9] What about because of his immigration status? Just last term, in Ashcroft v. al-Kidd, Justice Ginsburg condemned the “brutal conditions” of Al-Kidd’s confinement in federal custody and declared the “need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times.”[10] For immigrants, these times are unquestionably perilous.

It’s time to introduce human dignity into the immigration debate. Though a vexingly difficult concept to define, it could prove a powerful organizing principle – one that appeals to our most deeply held values of justice, compassion, and respect for the individual. Might human dignity be a factor in the Supreme Court’s consideration of the pending immigration disputes? Time will tell. Regardless, I intend to incorporate the concept in my legal briefs, my courtroom arguments, and my discussions with allies and opponents alike. Because treating immigrants as deserving of human dignity, and vigorously opposing the wave of anti-immigrant laws and policies that are sweeping through the country, can only strengthen the republic.

-Thomas K. Ragland


[2] Rawls, A Theory of Justice, p. 513 (Harvard Univ. Press 1971).

[3] Contingency, Irony, and Solidarity, p. 192 (Cambridge Univ. Press 1989).

[4] Stern and Wermiel, Justice Brennan: Liberal Champion, p. 418 (Houghton Mifflin Harcourt 2010).

[5] Id.

[6] Id. at 545.

[7] Id. at 418.

[8] Heart of Atlanta Motel v. United States, 379 U.S. 241, 291 (1964) (Goldberg, J., concurring).

[9] Id. at 291-292 (citing S. Rep. No. 872, 88th Cong., 2d Sess., 16).

[10] Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2089 (2011) (Ginsburg, J., concurring).

Why isn’t this big government?

20 Jan

Last night, the candidates for the Republican nomination for President all endorsed mandatory background checks and strong punitive measures for employers regarding their workforce.  After listening to an hour of these men stating how federal regulations are strangling small business, the cognitive dissonance of their responses on immigration was stunning.  Each endorsed massive fines for employers who do not follow the government’s system for verifying the work authorization of their emplyees.  Only Ron Paul noted that requiring businesses to verify, re-verify and monitor their employee’s immigration status and subjecting them to huge fines for failure made “the employer the policeman.”

Why is that when Washington mandates that employers follow labor, environmental, civil rights or health care laws, Washington is “strangling business and getting in the way,” but when Washington demands that employers acts as immigration agents or face, in Mitt Romney’s words, “severe sanctions,” that is a reasonable imposition on employers everywhere?  Having reviewed business practices regarding the verification of workers’ authorization to be employed and the never-ending questions on approrpiate documentation, I can testify that businesses spend an inordinate amount of time and money on trying to comply with the federal immigration law.  Yet, I never hear any of these candidates recognize that burden, with the exception of Ron Paul.  Rather, they support increasing the burden and risks to employers and support laws like those in Arizona and Alabama that create the “business death penalty” for companies found to have illegally employed unauthorized workers.  It is hard to think of anything that would kill business more than a death penalty.

Forcing employers to do the dirty work of indentifying the unauthorized workers from U.S. citizens and other authorized employees is a burden for businesses.   Yet, it appears that it is a burden that the candidates for the Republican nomination want to keep in place and increase.  It seems quite clear that their enmity for the immigrant is greater than their concern for unreasonable regulation of business.

Still a Beacon of Hope

15 Jan

Lest anyone get the impression that this blog is simply an opportunity for us to point out the inequities and harshness of U.S. immigration law and policy, we share with you the story of Warina Zaya Bashou, who became a U.S. citizen on Friday, January 13.  While many people became citizens that day, Ms. Bashou stands out because she was certainly the oldest person to gain citizenship that day.  In fact, at 111 years old, she is the oldest person to naturalize since a 117 year old woman naturalized in 1997.  When Ms. Bashou was born, William McKinley was the President, a new century had just dawned, a century that would become one of the bloodiest in history.  During all those years, huge waves of immigrants came through America as refugees from the World Wars, cold wars, and wars of independence sought freedom and protection in America.  People sought better lives for their family.  Ms. Bashou shows that the flame does not die out and that people, for as long as they draw breath, will continue to “yearn to breathe free.”  Congratulations.

Battle Lines are Drawn

11 Jan

Mitt Romney, almost certainly the Republican nominee, just announced that he received the endorsement of Kris Kobach, the architect of the vast majority of state immigration laws, such as Arizona’s SB 1070, as well as Alabama and South Carolina’s terrible immigration laws.  Given that nearly every court that has looked at these laws has found them constitutionally impermissible, Romney should really wonder if he is getting his money’s worth on his choice of legal advice.

Obama chooses Cecilia Muñoz; Romney chooses Kobach.  The choice is clear on immigration.

There’s Something Happening Here

10 Jan

As Buffalo Springfield sang in the 60s, “there’s something happening here.”  However, as murky as the 60s were, what is happening here is becoming increasingly clear- the administration is beginning to fight on immigration.  As the election shifts into higher gears and the obstructionism of Congress becomes more and more pronounced, it seems fairly clear that the Obama administration has decided that now is the time to fight on immigration.  The last six months have seen a flurry of positive developments from the administration in immigration and the need for the President to prove his immigration bona fides in this election year indicate that more is to come.

It is no secret that immigration advocates have been disappointed with the President.  Many had very high hopes for the administration and hoped that the President would be a luminous flagbearer for comprehensive immigration reform.  However, it appears that the adminsitration made an early miscalculation in believeing that the republicans in Congress could be counted on as good faith partners in immigration reform.  The administration seemed to believe that if it could show that it was effective at enforcing the law and removing deportable individuals, Congress would flock to support sane immigration reform.  That was not to be in a caucus that saw their role as to defeat anything Obama advocated rather than to support the development of sensible policy.  Thus, comprehensive immigration reform was stillborn and the DREAM Act fell victim to the filibuster.  In the meantime, Immigration & Customs Enforcement’s  Secure Communities program removed tens of thousands of small-time offenders, despite the promise of focus on the “worst of the worst.”

Over the last year, the President has demonstrated that the Congress is willing to risk armageddon rather than compromise on anything that the President seeks.  Congressional hostage-taking and a challenging election have allowed the President to find his voice on immigration.  In the past six months, the administration has unveiled three major initiatives that will have a profound positive effect on immigrant communities.

First, in June 2011, Immigration & Customs Enforcement issued new directives to agents in the field instructing them to be more aware of their duty to exercise discretion in enforcing the law more often and more favorably.  This is a simple enough directive, as if a police lieutenant told officers to go after armed robbers over litterers when facing such a choice.  In a world of limited resources, the adminsitration has told its agents, the focus should be on those who present a danger to our community or national security rather than peaceful immgrants who may have only entered illegally or overstayed visas.  In response to critics who argued that ICE agents in the field routinely disregarded the orders of their superiors, ICE has attmepted to initiate a training for ICE agents.  The ICE agents union’s foot-dragging and recalcitrance in completing this training demonstrates just how much of a change this approach is for ICE.

Second,  just last week, the Citizenship & Immigration Service (CIS) announced that it would process certain waivers in the U.S., eliminating for some families the risk that they would proceed abroad to obtain a waiver and be separated from their families, communities and jobs for lengthy periods of time.  This change has the potential to, in one fell swoop, allows tens of thousands of people to seek residence in the U.S. and to avoid the longterm social damages that follow when a member of a family or a valued employee is stuck outside the U.S. trying to process a visa and waiver.

Finally, the White House announced today that Cecilia Muñoz will be filling the position of Director of the Domestic Policy Council.  In this position, Ms. Muñoz will coordinate the policy-making process and supervise the execution of domestic policy in the White House.  This is a clear sign that the President intends to make immigration a priority as Ms. Muñoz has a long history of pro-immigrant advocacy as an immigration policy specialist at the National Council of La Raza, the nation’s largest Latino civil rights organization.  Although Ms. Muñoz got a lot of grief for defending the administration’s aggressive enforcement politicies on an episode of Frontline, Ms. Muñoz is a knowledgeable and compassionate voice for humane immigration reform.  Her elevation to such an important post is a strong indication that the President intends to focus on immigration in the coming months and in the next term.

Cynics may say that this is simply election year posturing.  That remains to be seen.  Until then, we need to appreciate that these are concrete steps that are going to have a positive impact on the lives of thousands of immigrants and should be applauded and encouraged.

More ICE insubordination

8 Jan

The Times’ Julia Preston has another update from the bureaucrats’ revolt at Immigration & Customs Enforcement.  ICE bureaucrats have been in open revolt against the Obama administration since the Obama team took office.  Working in tandem with arch-restrictionist know-nothings in Congress, Lamar Smith and Charles Grassley, the ICE bureaucracy has tried at every step to thwart the administration’s goal of a smarter and more humane immigration policy.  As the election of 2012 grows closer and the administration grows bolder in challenging the restrictionists, a collision is inevitable and it will have reverberations in presidential politics as well as immigrant communities.

President Obama and his ICE director John Morton never got much of a honeymoon with the ICE bureaucracy.  The bureaucracy they inherited was coming off quite the “roid rage” after the Bush years.  Prolonged detention, special registration, workplace raids, the ideological purging of the Board of Immigration Appeals empowered the bureaucracy to think they could do anything.  This attitude resulted in debacles such as the Postville raid, where the term “assembly-line justice” got new meaning as immigrants were packaged into convictions and deportations as efficiently as the chickens and hogs the immigrants once slaughtered were turned into deli meats.  When the new administration came in and declared that it intended to focus ICE resources on employers who abuse immigrants and those immigrants who present a danger to our community or are a national security threat, the ICE bureaucracy fumed about “backdoor amnesty” and lamented the ability to arrest scores of hard-working non-criminal immigrants at big show raids.

ICE’s unhappiness with the administration grew as the political leadership announced that it would demand that its agents focus on deporting  those who presented dangers to the community and to de-emphasize the removal of individuals who did not present any danger and had been in the U.S. for a long time.  Why would ICE agents be against focusing their resources on criminals and dangers to national security?  Well, to be fair, they are not.  However, they have the same level of antipathy for the mother trying to care for a family as they do for a convicted criminal.  ICE has been notoriously incapable of distinguishing between those who present a danger to our community and those who do not.  And, since ICE likes to go out and arrest people, it is safe to assume that ICE agents would prefer to knock down a door of a peaceful family rather than a violent criminal who might have a weapon.

Finally, the administration announced that it was formalizing the efforts to get immigration officials to focus on the dangerous and violent rather than the hardworking and peaceful by conducting a top-to-bottom review of pending removal proceedings and the decisions that go into the initiation of removal proceedings.  In response to these directives, ICE bureaucrats cockily state that “nothing has changed.”  Bureaucratic intransigence means that event the most insignificant discretionary decisions now are made at the national level as ICE bureaucrats passively fight the administrations policy goals.

Leading the charge against the administration’s efforts to pursue sane immigration policy is Chris Crane, the president of the ICE bureaucrats union.  The union has voted “no confidence” in Mr. Morton and Secretary of Homeland Security Janet Napolitano and is now dragging its feet on completing mandatory training on the new discretion policies.  Why is this tolerated?  This is not just a case of insubordination– particularly ironic in an agency that tries so hard to ape military discipline– but also a subversion of democracy.  In America, the bureaucrats are supposed to follow the legal policy orders of the elected branch.  When they do not, they are directly undermining our democracy.  Of course, if they find doing their duty distasteful, they can always do the honorable thing and quit.

The President seems to be getting some confidence in  taking on the restrictionists.  However, his ability to battle the restrictionists in Congress and the undoubtedly restrictionist Republican nominee, he will first need to fight the rear-guard action against the bureaucrats attempting to undermine his policies from the inside.

Finally some good news!

8 Jan

On Friday, January 6, 2012, the Citizenship & Immigration Service announced that it intended to make a minor procedural change to the way certain waivers of inadmissibility are decided.  Although this change is best described as minor and procedural, it has enormous implications for hundreds of thousands of immigrants, their families, employers and communities.  In announcing its intention to reform the process of deciding unlawful presence waivers, the administration has taken a large step towards a saner and more humane immigration policy. As a result of this change, many American families will avoid the pain and hardship of prolonged separation while waiting for an overseas office to consider their waiver applications.

What changed?

CIS announced that it would decide waivers of inadmissibility in the United States before an immigrant proceeds abroad to seek an immigrant visa.   Certain immigrants who must travel abroad to obtain visas will now be able to obtain waivers of unlawful presence in the U.S. before they travel abroad.

How did it work before this change?

Before this change, many immigrants seeking resident status had to travel abroad to obtain a visa.  However, if they had accrued more than 180 days of unlawful presence prior to leaving the U.S., their departure to obtain the visa triggered the so-called “3 and 10 year bars,” which prohibited their return for either three or ten years, depending upon how long they had been unlawfully present in the U.S.  A waiver of this bar is available.  The waiver could be sought only after a consular officer determined that the applicant was inadmissible due to unlawful presence.  At that point, the immigrant could apply for the waiver.  Adjudication of waiver applications often took over a year, during which time the applicant would have to wait in his home country, separated from loved ones in the U.S.  If the waiver was granted, the visa could be issued and the immigrant would return to the U.S.  If the waiver was not granted, the immigrant would have to “serve” the rest of the three or ten year bar before becoming eligible to return.

What was wrong with this system?

Many individuals who would travel abroad to seek an immigrant visa were married to Americans but were ineligible to get their green cards in the U.S.  They often have children and are significant contributors to the household income.  However, due to their unlawful presence, by traveling abroad, they would be barred from returning unless a waiver was granted.  Even if a waiver were granted, the process would take about a year, during which time they would be separated from their families and out of work.  Of course, if the waiver were not granted, they would be stuck outside the U.S. for up to a decade.   Many immigrants made the reasonable decision not to take such a  risk.  They chose to remain in the U.S. without legal status rather than risk prolonged separation by departing to seek a chance to obtain a visa.  As a result, the three and ten year bars and the Russian roulette odds regarding waivers actually served to ensure continued unlawful status.  By making it difficult to fix one’s immigration status, the law, policy and procedures encouraged and prolonged illegal status.

How does the change fix this?

The proposed rule will allow individuals who are eligible for an immigrant visa but would be inadmissible due to travel abroad to seek a waiver before departing the U.S.  Thus, if the waiver is approved, the immigrant could travel to his home country to seek the visa, knowing that he would be able to return.  It remains to be seen how the government will react to unsuccessful applicants for waivers and whether it will seek to initiate removal proceedings against them.  However, for those individuals who are able to obtain waivers, the new process will give them certainty that their departure abroad will result in an immigrant visa and not a prolonged separation from loved ones and work.

How does someone get a waiver and does the new procedure change this?

The new procedure does not alter the legal requirements for a waiver.  A waiver is only granted where the immigrant can demonstrate that denial of residence would result in extreme hardship to a U.S. citizen or permanent resident spouse or parent.  Thus, even under the new procedure, an applicant must demonstrate extreme hardship to a close family member if the visa were denied.  Extreme hardship remains a highly subjective standard taking into account health, financial, emotional, and social factors.  In addition, an immigrant must show that he merits a favorable exercise of discretion.

Who does this apply to?

The new procedure only applies to waivers required due to unlawful presence.  Individuals who need waivers due to fraud or criminal convictions can not obtain pre-adjudication of the waivers prior to departing abroad.  In addition, it only applies to people seeking visas as immediate relatives, which means the spouse, parents or children of U.S. citizens.

Sounds great! How do I sign up?

Hold your horses!  This is not the law yet.  CIS has simply stated that it intends to change this procedure.  To actually change the procedure, CIS must publish a new regulation, receive and review comments and publish a final rule.  CIS anticipates that this procedure will not be implemented until the end of 2012.  Thus, at this time, nothing has changed in the process.

Drat!  Is there any chance that this does not happen?

Yes.  Immigration politics and policy are extremely volatile.  Given the timeline for this change to be implemented, the results of the 2012 election could impact whether this change actually takes place.  It is hard to imagine any of the candidates for the Republican nomination for President supporting this change.  Therefore, President Obama’s failure to get re-elected will almost certainly derail this progress.

Why is the government doing this?

Simply put, it is smart policy.  By allowing individuals who otherwise qualify for immigrant visas, are members of American families and have no other legal problems other than unlawful presence to obtain legal status, the administration brings a new group of people into our community, supports family unity, and deals a blow to the underground economy where so many immigrants toil without adequate safety protections, wages, and rights.

In addition to being good policy, it is good politics.  In an election year, the President has apparently decided that he wants to cast his lot with American families trying to stay together rather than with the arch-restrictionist caucus in Congress.  After several years of attempting to placate the know-nothing restrictionists, the President appears to have decided that he will take those steps to help immigrants that he is legally empowered to do.  It is a refreshing step.