The Criminalization of Immigration – All Around the World

The world is increasingly on the move, with more forced migrants on earth than ever before. As a result, destination countries around the globe are frantically working to enact policies and practices to keep them out – at all costs. 

To better understand the vast machinery of our own border policies, we must sometimes look overseas for a comparative view. ILD’s staff advocates for and provides direct representation to immigrants trapped in the throes of the U.S. immigration system, but a number of our staff have also worked in the European context. 

When the refugee crisis in Greece first began, ILD’s Executive Director, Eleni Wolfe-Roubatis, and ILD’s Managing Attorney, Helen Lawrence, traveled to the refugee camps in Greece (where Eleni was born and raised) to support local NGOs to provide legal support to asylum seekers. Lauren Markham, ILD’s Communications & Partnerships Manager, has spent the past several years reporting from Greece, looking at the country’s shadow “pushback” policies, as well as the case of the six young Afghans accused with burning down Moria Refugee Camp. Other staff members worked on this comparative study early on in their careers: Managing Attorney Misha Seay researched European asylum law and policies while in law school; Managing Attorney Christina Lee studied comparative human rights in Germany and interned at the World Organization Against Torture in Geneva; and Founding Managing Attorney Alison Pennington studied EU immigration law and policies while on a fellowship in Germany.   

Through this work, our staff have seen first-hand that the parallels between immigration exclusions in the United States and those in Europe are rather astonishing. 

For instance: the United States continues to warehouse asylum seekers in Mexico via the nefariously-named “Migrant Protection Protocols”, requiring that they remain in Mexico while awaiting their asylum interviews – a process that can take many months or even years, and that puts the lives of asylum seekers in grave danger. This practice, which violates the rights of migrants under both domestic and international laws, appears to be becoming more of an international norm. Last year, the UK announced a pilot program that would send asylum seekers from all around the world to Rwanda – a country over 4,000 miles away – to undergo the UK asylum process there. These policies are mirrors of one another: in violation of international and domestic laws, they turn poor sovereign countries into effective detention centers.

Meanwhile, within their borders, Europe (and Greece, in particular) is building more and more closed, repressive refugee camps in the prison-like model of US detention facilities. They are also building walls. Throughout Europe and the Schengen zone–from Hungary to Bulgaria to Serbia to Poland to France and even in arctic Norway – countries have scrambled to seal up their borders since refugees began arriving in 2015. Greece even seriously considered building a floating wall across the sea. 

There is ample evidence that walls do nothing to stop immigration, but only enrich human smuggling rings (which, in the US context, are aligned with drug cartels) and push migrating people into more deadly topography. This is perhaps the most clear and devastating link between the immigration policies in the U.S. and those in Europe: they are murderous in their impacts and their intent. 

Between January 2021 and October 2022, the International Organization for Migration (IOM) recorded more than 5,000 deaths of migrants attempting to make their way to Europe, most of them at sea. And these are just the deaths that have been recorded, for many more go missing along the way. Likewise, the IOM’s Missing Migrants project has recorded nearly 3,000 deaths of people trying to cross the US-Mexico border since 2014 (many more die south of the border in their northward journey). In FY 2022, over 800 people died attempting to cross into the US – an all-time high – making the US – Mexico border “the deadliest land crossing in the world.” 

These deaths are not mere happenstance, nor are they tragic inevitabilities. While immigration policies have become key campaign talking points around the world widely exploited for political gain, they have real, grave consequences for people on the move. The world’s immigration enforcement policies, detention systems, asylum application processes, and borders resemble one another more and more each day, in structure and in deed. And they kill. 

Migration is a human right, and movement is – and has always been – a condition of being alive. As a globalized world, we must stop looking at migration as a crime to be punished, and as a problem to be stopped. What must be stopped is not migration, but the murderous immigration policies sweeping the globe. 

Thousands of Immigrant Youth Stuck in Limbo Due to Immigration Backlog

The day a person gets an approval notice for their immigration application should be a cause for celebration – for securing immigration status is truly life-changing news. But right now, there are tens of thousands of young immigrants who have been approved for something called Special Immigrant Juvenile Status yet are stuck in a many-years limbo, unable to enjoy the benefits or protections of the immigration status for which they’ve already qualified. 

Special Immigrant Juvenile Status (SIJS) is a special status created in 1990 to offer protection to vulnerable immigrant youth who have been abused, abandoned, or neglected by a parent and for whom returning to their home country is not in their best interest. Immigrant Legal Defense has supported hundreds of young people in accessing SIJS protections; we currently have 182 active SIJS cases from countries as far-ranging as El Salvador, Nigeria, Guatemala, Jamaica, and Vietnam. While some SIJS applicants have lived in the U.S. for years, many of these youth left their home country on their own, traveling to the U.S. unaccompanied, and they now find themselves in deportation proceedings, fighting for the right to stay safely in the U.S. 

The application process for SIJS differs from most other immigration relief because it first requires action by a state court. Once a state court judge finds that a child is eligible for SIJS, they can apply for this special protection with US Citizen and Immigration Services (USCIS) and are automatically eligible to adjust their status to permanent residency (also known as a “green card”) and, eventually, to apply for citizenship. 

This all used to happen pretty quickly; in fact, after the initial state court determination, a person could submit applications to USCIS for SIJS, a work permit, and permanent residency all at the same time. Usually, it would only take a few months for eligible applicants to get a work permit and a few more for their permanent residency card to arrive. But now, that has changed; a groundbreaking 2021 report by the End SIJS Backlog Coalition and The Door revealed that in 2020, over 44,000 young people whose SIJS had already been approved by USCIS are stuck in limbo, waiting for their permanent residency to take full effect. 

The problem is that the U.S. government puts an annual cap on how many permanent residency visas can be granted annually via SIJS. (For more information on these caps, see the Immigrant Legal Resource Center’s SIJS Practice Advisory.)  This creates an effective ghost status and a massive backlog that strands young people from all over the world in a state of rampant insecurity. They “won” a critical piece of their immigration case, but they are not able to adjust their status accordingly. Meanwhile, the date they can apply for permanent residency is dictated by something called “the visa bulletin,” a chart that changes every month. These youth are left fully at the whims of this chart and the astronomical wait times. 

Each and every one of ILD’s 182 active SIJS applicants is or will be subject to the backlog. The wait for SIJS applicants from certain countries can now be longer than five years. That means if someone is granted SIJS by USCIS today, they won’t receive their permanent residency until roughly the spring of 2028, or perhaps even later. Four years is a lifetime for a young person – and far too long for anyone to have to wait under such insecurity and unstable conditions.

As of April 2022, SIJS recipients are eligible for deferred action, which allows them to work and protects them from deportation while they wait in the unfathomably long line for their permanent residencies. But even with this deferred action in place, many young people are left with insecurity and uncertainty. Even with deferred action, these youth are still barred from accessing federal financial aid to attend college or other higher education in many states. They cannot access the public benefits they are otherwise eligible for until they receive permanent residency. 

Before April 2022, a Special Immigrant Juvenile Status recipient stuck in the backlog could not legally work, leaving them vulnerable, as outlined in a recent Washington Post story, to predatory and exploitative employment practices and employers. 

Another absurdity of this backlog limbo is that many youth deemed eligible for SIJS are still in active immigration removal proceedings until they receive their deferred action, with the fear and stress of deportation looming over them even as they follow and meet the application requirements for immigration status. And even once they get deferred action, many young people still live in a state of precarity and fear. 

“Five years after I won my SIJS, I still fear being deported,” an ILD client from El Salvador, who is now twenty-two years old, shared. He and his siblings, who are also part of the backlog, “practically grew up here. I see videos online of people being deported, and I think this could happen to me because of these delays. After having a life here and growing up here, it is hard to think about going back to a country where I have no one and nothing there.” Though he has deferred action, he says, “I don’t feel safe and I won’t until I have my green card.”

Some stuck in the SIJS backlog are also unable to travel outside of the U.S. while they wait in this seemingly endless line. 

“When I first meet with a new client to talk about SIJS, “I have to advise them that it is unlikely they can travel outside of the United States, including returning to their country to visit family, until they have their green card.” That means they won’t see the elderly grandmother who raised them or their younger brother for seven, eight, even more years. That’s a lifetime for any of us, but especially a young person,” explains ILD Managing Attorney, Katie Annand. 

In this way, the Special Immigrant Juvenile Status backlog is yet another mechanism of family separation at the hands of US authorities. 

Image by Julia Kuo of The Marshall Project

Despite all of the adverse impacts of the SIJS backlog, it is currently only growing – and though it’s impossible to know for certain, wait times could end up even longer. 

“I used to tell clients it would be approximately three years, but I’m now saying five to seven years, and it could be even longer” Annand explains. She tells ILD clients that there are dedicated people advocating for change, but that “right now, this is the reality of the wait time.” 

ILD is a founding member of the End SIJS Backlog Coalition, a coalition of lawyers, child welfare organizations and impacted youth working to educate decision makers about the impacts of the SIJS backlog and dismantle the conditions behind it. 

It’s important to note that the SIJS backlog is not the only backlog in the U.S. immigration system. But the SIJS backlog is particularly reprehensible because it impacts young people who have already succeeded in navigating the draconian U.S. immigration system and shown they qualified for status under U.S. law. Even so, the government’s bureaucratic logjams keep them from securing the benefits that they both deserve and have proven to qualify under U.S. law. 

Such backlogs function as another abuse against immigrants in our country’s machinery of immigration exclusion. 

Thanks to national advocacy, there is hope – the “Protect Vulnerable Immigrant Youth Bill” will soon be presented in Congress to exempt Special Immigrant Juvenile Status beneficiaries from the numerical visa limitations which cause the backlog. 

For more information on the SIJS backlog, and those fighting for justice for people trapped in SIJS limbo, visit the End SIJS Backlog Coalition website.  

How the U.S. Immigration System Tears Established U.S. Communities Apart

In the popular imagination, immigration is an issue relegated solely to the border and affects new arrivals trying to reach the United States. This is what most often gets covered in the media: caravans of Central Americans traveling toward the border, newly-arrived families separated as a matter of cruel policy, people crossing the desert and the Rio Grande, or those stuck in Mexico waiting for their number to be called. 

But in fact, a large number of those imprisoned in prolonged immigration detention are people who have resided in the US for years and years – people with steady jobs, families, strong community ties, and even immigration status, and who are now at risk of being deported from the only place they call home. 

Take ILD’s client “Ricardo,” who was brought to the United States when he was nine. Now in his forties, he is incarcerated in ICE Detention and faces deportation back to Mexico – a place where he has no ties, a place that is far away from his disabled mother and daughters, and a place where he fears for his life. When he was younger, Ricardo made a number of poor life choices born out of economic insecurity and pursuit of safety in unstable circumstances: he joined a gang as a teenager seeking protection from a rival gang that was threatening him (a life which he has long since left and fully renounced), and when he experienced homelessness, he took possession of a gun that, though he never used it, offered a sense of protection on the streets. 

These were bad decisions, yes. But too often, immigrants are expected to hold flawless records and are relegated to an impossible and dangerous binary of “perfect angel” or “dangerous criminal.” Ricardo, like most of us human beings, is neither. But low-income immigrants of color aren’t afforded the opportunity to change for the better or to right past wrongs – in spite of the fact that their mistakes are often by-products of living in a vastly unequal society where it is becoming more and more difficult for working-class families, and especially working-class families of color, to survive.  

Much time has passed since Ricardo’s poor decisions. He served his time in prison. He is a devoted father and son; before he was locked up, he was caring for his daughters, one of whom struggles with mental health issues, and acting as the sole caregiver to his permanently disabled mother. Yet even so, in the eyes of the US government, Ricardo is and always will be a criminal and must be treated as such. He now faces deportation back to Mexico – where he fears he’ll be killed as a result of past gang involvement. And the U.S. is his home. 

Another of ILD’s clients, “Manuel,” lived in the U.S. since he was five years old. In 2016, he was caught shoplifting. Because there was a gun in his car at the time–a mistake he deeply regrets–Manuel was charged with armed robbery, a completely bogus charge given the fact that the gun wasn’t even in his possession when he stole from the store.  A criminal defense attorney encouraged him to plea without advising him of the immigration consequences of doing so (this is an all too common experience for non-citizens interfacing with the criminal justice system – ILD supports many clients dealing with the aftermath of poor counsel on the implications of criminal convictions on their immigration cases). Since serving his prison sentence, Manuel has been locked up in immigration detention and faces deportation, just like Ricardo.  And just like Ricardo, the U.S. is his home; he has practically never lived anywhere else. 

The so-called criminal justice system is notoriously racist and classist, adversely impacting men of color like Manuel and Ricardo and their families and communities. The U.S. immigration system is also a mechanism of racial exclusion and human rights abuses. 

Because immigration proceedings are considered civil matters, immigrants in these proceedings are stripped of due process and rights that they would be afforded in analogous criminal proceedings, such as the right to speedy trials and the right to counsel. And as civil matters, courts contend that detention and deportation are not considered “punishment” analogous to prisons. Yet immigrant communities know all too well that detention, as well as the threat and reality of deportation, are clearly wielded as instruments of punishment, abuse, and deterrence meant to terrorize immigrants of color – including those who have long resided in the US and made many contributions to our society and economy. 

The machinery of U.S. immigration detention and deportation is cruel, costly, and unnecessary – a system full of daily abuses, heartbreaks, and human rights violations, big and small. Just like mass incarceration in the criminal system, detention and deportation cleave families, decimate communities, and create irreparable generational harm across the US – not just for newcomers, but also for people who have long resided here, paid taxes, worked jobs, sent their children to school, and secured immigration status in spite of the many barriers to doing so within our current system. 

In this way, detention and deportation are elements of what researchers Tanya Golash-Boza and Pierrette Hondagneu-Sotelo term “a gendered racial removal program” – one that disproportionately impacts working-class Latino Men like Ricardo and Manuel and is explicitly designed to punish, remove, and exclude them from US society.

Biden Administration Opens Parole Pathway While Restricting Border Access

In January, the Biden administration announced a series of policy changes related to parole applications for individuals from Haiti, Cuba, Nicaragua, and Venezuela, allowing up to 30,000 individuals from all countries to obtain parole into the United States each month. The expansion of parole was coupled with an announcement that the Biden administration would expand Trump-era restrictions to rapidly expel migrants from those countries apprehended at the Southern Border. The move has been met with criticism by immigration advocates and legal action by conservative states hoping to block the program. According to USCIS, individuals from Cuba, Haiti, Nicaragua, and Venezuela may apply for parole to enter the United States in a “safe and orderly way.” The program will consider applications on a case-by-case basis for authorization to enter the United States and obtain a work permit for two years for “urgent humanitarian reasons or significant public benefit.”  USCIS notes that applicants must:

• Have a supporter in the United States;

• Undergo and clear robust security vetting;

• Meet other eligibility criteria and

• Warrant a favorable exercise of discretion.

The announcement comes as the Biden administration continues to double down on rhetoric designed to discourage migrants from journeying to the Southern Border and create what the administration claims are alternative and safer pathways. "This new process is orderly, it's safe, and it's humane," President Biden said in a speech at the White House. The President reiterated that the message he hoped to send to individuals from Cuba, Haiti, Venezuela, and Nicaragua is: "Do not just show up at the border."The program is the latest move in a saga that has placed the Biden administration in between Republicans who continuously file legal challenges to any move the administration makes on the immigration front and advocates who decry the Biden administration for failing to live up to its campaign promises to undo Trump era policies that undermine access to asylum and safety. 

Republican Opposition

The parole program has been met with opposition from Republican states, with twenty states, led by Texas, coming together to file suit to halt the program. In a press release, Texas Attorney General Ken Paxton’s office claimed the program "unlawfully creates a de facto pathway to citizenship for hundreds of thousands of aliens." The lawsuit is just the latest in a series of lawsuits filed by Republicans against the Biden administration designed to limit progressive immigration policies under the pretext that the arrival of migrants unfairly burdens border states. The suit has been dismissed by Democrats and immigrant rights advocates as a political stunt, with many pointing out that Republican states failed to oppose a similar program designed to provide parole opportunities for Ukrainians fleeing war and seeking refuge. While the Republican states present legal arguments citing concerns about the Biden administration creating pathways to citizenship normally reserved for Congress, some advocates believe the concerns stem more from who is being let in as opposed to how. As a result, many advocates note that opposition seems to be centered on communities of color rather than procedure and practice. In an interview with Desert News, Utah immigration lawyer Carlos Trujillo shared his sentiments on the Republican opposition. "It's purely a political act. ... At the time Ukraine was being invaded by Russia and the war was starting, I guess it was not a good PR move to oppose something like that. But they don't have the same concerns for the other countries."

Program Criticized by Refugee Advocates 

The policy has been met with criticism by advocates who point out that the parole pathway comes with a concurrent limitation posed on border crossings. As a result, the policy actually undermines the ability of individuals to seek asylum at the Southern Border, despite their right under international law to do so. Seeking asylum is a fundamental human right under international law. “Opening up new limited pathways for a small percentage of people does not obscure the fact that the Biden administration is illegally and immorally gutting access to humanitarian protections for the majority of people who have already fled their country seeking freedom and safety,” International Refugee Assistance Project Policy Director Sunil Varghese said in a statement. Other advocates have noted that specifically precluding individuals from the listed countries from applying for asylum at the Southern Border results in confusing and contradictory policies that exclude certain nationalities from accessing their fundamental human rights. In a commentary, the Washington Office on Latin America criticized the recent announcement as creating a double system of ineligibility and imposing additional requirements for individuals to obtain safety in the United States. “In essence, the new parole program, apart from providing only temporary permission to reside in the United States, would establish a double system of ineligibility for people to seek asylum: access to asylum would be denied to individuals from eligible countries who are unable to use the parole program, and the parole program would be restricted to those who meet certain requirements and would be closed to those who have crossed borders without authorization.” Advocates have also pointed out that the program doubles down on the Biden administration's use of Trump-era border policies designed for rapid deportations and expulsions. This includes Title 42, a policy developed by the Trump administration to prevent migrants from accessing international protections under the pretext of stopping the spread of COVID-19. Many advocates have noted that Title 42 is illegal and should end. The Biden administration has continually shifted its stance on the program, following a decision by the Supreme Court which allowed the program to remain in place while legal challenges play out. The Department of Homeland Security has touted the new parole program's effectiveness and claimed that it has resulted in a 97% decrease in border crossings by individuals from the countries covered by the program. While the program is sure to face legal and political challenges, even those who support it are forced to acknowledge that it does not address the root causes of migration. “We welcome the humanitarian parole,” Commissioner Marleine Bastien of Miami’s District 2 told a local ABC News affiliate. “But this is not the full solution… because as long as we don’t address the root causes of migration in these nations, including Haiti, the refugees, there will be pressure for refugees to come here.” 

Supreme Court Hears Challenge to Biden's Immigration Enforcement Priorities

The Supreme Court is set to hear the first major immigration case of this term, U.S. v. Texas, focused on whether the President of the United States has the power to prioritize the deportation of certain immigrants in the United States over others. The court is revisiting the issue after it issued a ruling four months ago temporarily blocking President Biden’s authority to prioritize immigration enforcement against individuals deemed a threat to public safety or national security.  A ruling in the case could have sweeping implications for the issue of immigration enforcement generally, as well as the ability for states to present legal challenges to immigration policies put forth by Presidential administrations. The case may set an important legal precedent as to just how much power a President has to enact specific immigration policies without the express direction of Congress. The outcome of the court’s decision will impact both Democrats and Republicans, as any limitations placed on the Biden administration could potentially limit aggressive actions of future Republican presidents that are seemingly outside the mandate of Congress.    

The case will center on arguments put forth by the conservative states that claim that federal law requires agencies such as Immigration Customs and Enforcement (ICE) to arrest and deport individuals who are in the United States unlawfully without room for discretion. The Biden administration has countered this argument by citing the lack of resources available to arrest and deport millions of individuals unlawfully in the United States and arguing for the need to set priorities as a natural consequence of this limitation.  Texas and Louisiana filed suit against the Biden administration to challenge a policy announced by the President in September of 2021 that sought to dedicate enforcement resources against a select class of immigrants, as opposed to the policy of mass enforcement that took place during the Trump era. The legal challenge presented by the states was before U.S. District Judge Drew Tipton, who ruled in favor of the conservative states and vacated President Biden’s policy. The U.S. Court of Appeals for the 5th Circuit declined to put the ruling on hold during appeals, leading the Biden administration to file an emergency request with the Supreme Court in July of 2022 to review the court's decision. The court ruled in a 5-4 vote that they would not grant Biden emergency relief and kept Judge Tipton’s ruling in place but agreed to hear the case in its emergency docket. Conservative critics of the current Biden policy, including Texas and Louisiana, claim that limiting immigration enforcement has resulted in economic burdens on their states, with more money being spent on law enforcement, education, and health care programs. They argue that the federal government's actions result in a drain on resources to states located near the border. Immigrant advocates challenge this argument.

"Just because you say it's a drain on resources doesn't actually mean that that is real," Sirine Shebaya, executive director of the National Immigration Project, whose group co-authored a brief in the case supporting Biden's position, told USA Today. "They are actively targeting this group and breaking it apart from the rest of the population, even though federal and state law requires that all residents of a state be treated similarly."Advocates have also pointed to a federal statute stating that the Homeland Security secretary “shall be responsible” for “establishing national immigration enforcement policies and priorities.” That statute had previously served as the basis for legal memos issued by the Obama administration to direct federal agencies to concentrate their resources on specific targeted groups. Legal analysts have been quick to point out that the Biden administration has faced numerous challenges from increasingly partisan judges, some of whom have relied on legally dubious reasoning. The legal challenges are bolstered by the decisions of many Trump-appointed judges, who many believe are keen on presenting judicial roadblocks to the Biden administration's major policies. In fact, many believe that states like Texas have intentionally filed cases in a manner to avoid liberal judges.

In an amicus brief filed with the court, University of Texas law professor Stephen Vladeck pointed out that the state of Texas has filed 20 suits against the Biden administration in Texas. Vladeck notes that of the 20 suits, 19 were heard by Republican-appointed judges. “Texas has intentionally filed its cases in a manner designed to all but foreclose having to appear before judges appointed during Democratic presidencies,” he argues. The Supreme Court has previously held that executive branch officials have broad discretion to exercise prosecutorial discretion, especially in the context of immigration laws. The court wrote in Arizona v. United States (2012), “A principal feature of the removal system is the broad discretion exercised by immigration officials.” As far back as 1985, the court held in Heckler v. Chaney (1985) that “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.”

The court went on to state that the principle “is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.”Despite the past precedent, there is reason to believe that the conservative composition of the Supreme Court may be willing to reverse course, as it did in overturning Roe v. Wade and issue a ruling that undermines a democratic administration. A decision against the Biden administration and in favor of states could have serious consequences. The Department of Justice argued in legal filings that such a ruling “would inject the federal courts into all manner of policy controversies at the behest of States seeking to secure by court order what they could not obtain through the political process.” While the Biden administration has faced significant challenges in the Supreme Court based on its judges' composition, it succeeded in a recent legal battle to end the so-called “Remain in Mexico” program, with a 5-4 decision in its favor. While the outcome of this case regarding immigration enforcement remains to be seen, what is clear are the high stakes for the executive branch, states, and the immigrant community.