Immigration Reform: Yes it’s Complicated, But We Can Change It If We Don’t Look Away
As a lawyer for more than thirty years, I represented financial institutions and corporations of one sort or another in disputes against other similar parties. I did this in courts all over the country. I live in a safe town with clean water, fresh air, and excellent local services. I have never had to run from a life and death situation or consider emigrating. I felt no hostility toward migrants, but in truth, I rarely thought about them at all. That changed when I met and started working with migrant children in 2015.
Kids, with and without their parents, have been coming to the United States requesting help for generations. Historically, the U.S. response has been welcoming, and in 1990 Congress created a pathway for some unaccompanied children to be able to normalize their status and to become citizens, called “Special Immigrant Juvenile Status.” Before the 1980s, most ‘unaccompanied children’ - a legal term that refers to kids who arrive without a parent or guardian - actually came from Europe, Asia, and Cuba. Over the past ten years, the majority has come from Central America. In this same period, hundreds of thousands of Central American family groups have also come to the border, desperate to save their lives, escape from gang and cartel violence, lawlessness, police corruption, and other threats to their very existence.
In the summer of 2014, images in the American press of thousands of unaccompanied children at the southern border briefly captured the public's and my own attention. The press reported heavily on the arrival of almost seventy thousand children without parents. Their arrival was dubbed “the Surge.” Some Americans lined the roads of border towns on which traveled buses full of kids in custody, holding signs reading, “Return to Sender” and “Go back to Mexico.” Well before Donald Trump coined his “America First” slogan, these folks already felt threatened by suffering children.
I saw the press coverage of “the Surge” in 2014, and wondered why so many children were at the border without their parents. I had no idea what the kids were running from, or what their lives had been like. Silently, I was judgmental about why their parents would have allowed them to come. And I was in the middle of two big financial cases. I looked away. But the kids tugged at my heart.
The following year, I took on my first pro bono case for an unaccompanied child. I figured I could represent just one child. I listened as a young boy called Jose haltingly told me his story. His father had left their small village in El Salvador to find work to support the family when Jose was very young. The dad ended up working in a car wash in Los Angeles, sending money every month and keeping in touch by WhatsApp. When he was twelve, Jose's father, 38, died of a sudden heart attack while working at the car wash. Jose's distraught mother set out to recover his body, and disappeared on the journey. The orphaned Jose was pursued mercilessly by gangs in his town. But Jose didn't want that life. He wanted to find out what happened to his father. He wanted to finish school, have friends and to play soccer. He wanted to live in a family without constant fear. At the age of 14, Jose made the 1500-mile journey from El Salvador to the U.S.border by himself, walking and taking buses when he could.
I worked with Jose to get him protection in the U.S. as a Special Immigrant Juvenile. Living with an aunt, he played high school varsity soccer and he graduated. Jose is a kind young man, who now has a green card and a job. Working with him led me to other kids. And the kids changed my life. At the end of 2015, I gave up my business law practice to represent unaccompanied children full time.
Donald Trump ran for president in 2016 on an anti-immigrant, “America First” platform, calling Mexican immigrants the “worst of the worst,” “rapists,” and “criminals.” I had not seen it coming. In the Administration’s first year, unable to change immigration law since it requires action by Congress, the White House rolled out unlawful policy after policy, some announced, some secretly implemented without telling the public. All of them were aimed at deporting undocumented people and deterring others from coming. Trump’s policies didn’t work because the forces driving people to flee Central America did not change. In the first two years of the Trump Administration, ninety thousand more kids came to the border to ask for help. And in the third year, 2019, 76,000 more unaccompanied children arrived. I have represented more than 75 of these children, as they fight the increasingly difficult and often unlawful tactics of the federal government, looking for permission to remain in the country.
During the summer of 2018, the Trump Administration announced its “zero tolerance” policy, which had been piloted in secret in 2017. Zero tolerance was not, as has been suggested, a continuation from prior administrations, which occasionally had to separate children from adults suspected of serious crimes. Under Trump's policy, all adults who approached the border with their children to ask for asylum were forcibly separated from the children, charged with the crime of unlawful entry, jailed and deported. Their children were sent to juvenile detention centers. Of course, asking for asylum at the U.S. border is not, and has never been, a crime.
A federal judge eventually ordered the Administration to stop the unlawful zero tolerance policy. Over the government's strenuous objection, it was ordered to reunite thousands of children with their parents. Two years later, as of October 2020, the government admitted that it has not reunited 545 of the stolen childrenwith their deported parents - because the government didn't bother to keep track of who belonged with whom. Government documents show that “an increase in orphans” was known to be a likely consequence of this dreadful policy when it was conceived. Since 2018, I have represented some of these families. Of the thousands of parents who were deported without their children in 2018, only nine have been allowed to return. Reunification for most of the others has meant the children were sent back to the dangerous places the fled in the first place.
How did we get to this deeply shameful place in the history of our vast and magnificent country where we used to welcome families and children with open arms as part of our country’s basic fabric? In part, we got here by electing and enabling a president willing to authorize illegal conduct and engage in atrocities. Many of us - and our elected representatives - have looked away. But we also got here because our long-outdated immigration law and legal system is so complicated that almost no one - including the people with the strongest opinions about it - really understands it today. Complexity, and the unceasing and furious pace of the news cycle have led many of us to ignore the dreadful, un-American conduct our government has done in our names.
To fix this brokenness, there are two things we must do.
First, the hundreds of unlawful policies and unwritten practices that have been embraced by the Trump Administration and implemented by the Department of Homeland Security, ICE, Customs and Border Protection, the Department of Justice and the immigration court system must be unwound, and the victims of the policies made whole. Those of us in the weeds of this work, who have been challenging the policies in case after case in federal courts, are keeping track.
Second, Congress must change the law itself, to bring it into the 21st century, to be consistent with our collective values (which since the country's inception have included both “welcoming the stranger” and “families belong together”) and to meet the country's future economic needs. But for a consensus to build that Congress must change the law, the American people need a basic grasp of what exists now.
Here are the five most basic things to know:
1. U.S. immigration law is not full of “loopholes” that allow undesirable people to flood into the country. The law is incredibly complicated, tightly regulated, and full of landmines that trip up people who cannot pay lawyers (or who are scammed by bad lawyers), leading them to fall off the path. Under current law, it is exceptionally difficult for anyone to migrate to live and work long-term in the U.S.
2. The law contains only four roads to lawful permanent residence:
Family-based migration, which some people derogatorily called “chain migration,” is based on the long-standing, shared cultural value that families belong together. Simply put, U.S. citizens and green card holders may sponsor a relative to migrate to the U.S. But, because family-based migration is limited by law to 480,000 people per year, migration on this road is extremely slow. People wait decades to sponsor a single relative from Mexico, India, the Philippines and many non-White countries. The idea that recent immigrants are followed by busloads of family members 'in a chain' is simply not true. The numerical limit on family-based migration should be recalibrated to take into account both the value that families belong together and the future economic needs of the country, particularly in light of the drastically lower birth rates of citizens than when the limits were put in place.
Employment-based migration is even more limited - to 140,000 persons per year. Employment-based visas are available (on other than a temporary, non-immigrant, basis) only to professionals and other highly skilled persons through a corporate sponsor, able to prove that no one already in the country can do the job. This numerical limitation must also be re-evaluated, to ensure that U.S. businesses can recruit top minds to stay competitive in the world economy.
The diversity lottery, a quirky program that Congress started in the 1980s to help Irish people who flew to the U.S. to escape “the Troubles,” (the long-term ethno-nationalist conflict between Protestants and Catholics in Northern Ireland) and then overstayed their tourist visas, now allows a tiny number of people (50,000 persons per year) to migrate from countries with small populations here. All lottery winners are vetted and must prove they are both educated and employable. Largely due to its tiny size, whether this program continues or is terminated makes very little difference to the country's future.
Humanitarian relief, which includes asylum, refugee status and a few other categories. Contrary to what most people believe, the U.S. grants humanitarian relief in very few cases. Suffering people, whom this country acknowledges have fled from terrible persecution and life-and-death situations, are routinely turned away under current law because the motivation of their persecutors, is not the “right kind.” Looking at the motivation of the persecutors, the reason for the torture, rape, extortion, murder, is the wrong lens.
That's it. Only the people on one of those “roads” can apply for lawful permanent resident status.
3. The area in which the most reform to U.S. law is desperately needed is humanitarian relief. Even before the Trump Administration stopped following the law, it badly needed to be reformed because as it stands, the law simply does not allow most suffering people who legitimately ask for humanitarian relief (to save their lives), to enter and work lawfully in the country. People who are running for their lives, who were severely persecuted in their countries, and children who have been abused and abandoned - for whatever reason, should not be rejected because their persecutors were motivated by the wrong thing.
4. Defenses to being deported for the 10-12 million people who presently live in the U.S. without permission exist for only a few, very narrow categories of people. Estimates are that under existing law, only about 10 percent of the undocumented people living in the U.S. (many for decades) have a defense to being deported under our existing law. But these people have families, pay taxes, contribute to the economy and perform key roles in our society (including jobs now seen as “essential”). Reform of the law must include a pathway for undocumented people, including Dreamers and their parents, Deferred Action for Childhood Arrivals (DACA) recipients and Temporary Protected Status (TPS) beneficiaries, to normalize their situations.
5. Because of the complexity of both U.S. immigration law and the system itself, the process favors affluent, highly educated people who can pay lawyers to navigate for them. By calling the immigration a “civil,” not criminal matter, poor migrants are not entitled to a lawyer if they cannot afford one - even when they are incarcerated. This must change.
Real reform of the U.S. immigration system must: (1) respect all human life; (2) recognize our country's longstanding values of welcoming the stranger and protecting children; (3) take responsibility for our country's historical conduct, including our external foreign policies that have contributed to making life difficult in other countries; and (4) respect our country's borders - but never at the expense of suffering of children and families.
This election gives us the opportunity to change the Administration and make real immigration reform; we must not look away. The soul of our country is at stake.
About the Author:
Linda Dakin-Grimm is Sr. Consulting Partner at Milbank LLP and a 2020 Harvard Advanced Leadership Fellow. Ms. Dakin-Grimm handled numerous jury and bench trials, appeals and arbitration proceedings in courts across the United States as a litigation partner at Milbank LLP. She now concentrates exclusively on pro bono immigration matters. She has taken on more than seventy five unaccompanied children and separated families in immigration proceedings. In addition to the legal work, Ms. Dakin-Grimm organized a group of interpreters/mentors to assist the children and works to identify resources (scholarships, school supplies, language learning tools) to help them thrive. Ms. Dakin-Grimm also acts as counsel in class actions against the federal government based on unlawful immigration policies. Her first book is called Dignity and Justice: Welcoming the Stranger at our Border.