tag:theconversation.com,2011:/uk/topics/immigration-law-35395/articlesImmigration law – The Conversation2024-03-27T03:24:35Ztag:theconversation.com,2011:article/2267132024-03-27T03:24:35Z2024-03-27T03:24:35ZThe consequences of the government’s new migration legislation could be dire – for individuals and for Australia<p>The Albanese government came to power with <a href="https://twitter.com/AlboMP/status/1154510763433684992?lang=en">a promise</a> to be “strong on borders without being weak on humanity”. </p>
<p>But there was little humanity in parliament yesterday as the government tried to force through some of the most draconian migration laws this country has seen in decades. The draft legislation was distributed to MPs and introduced in the lower house for debate <a href="https://www.abc.net.au/news/2024-03-26/government-suddenly-brings-on-legislation-deportation-powers/103632704">just hours</a> later.</p>
<p>Today, the senate <a href="https://www.abc.net.au/news/2024-03-27/coalition-wont-support-immigration-legislation/103638462">stopped the bill</a> in its tracks, referring it to a committee instead of passing it just before a parliamentary break.</p>
<p>In a radical departure from the existing framework, the government is seeking to further criminalise the migration system. The consequences could be disastrous.</p>
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<a href="https://theconversation.com/the-government-is-fighting-a-new-high-court-case-on-immigration-detainees-whats-it-about-and-whats-at-stake-226120">The government is fighting a new High Court case on immigration detainees. What's it about and what's at stake?</a>
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<h2>What would the laws do?</h2>
<p>The <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r7179">Migration Amendment (Removal and Other Measures) Bill</a> proposes amendments to the Migration Act to deal with situations where non-citizens subject to removal are not cooperating with government authorities, or where their own government refuses to take them back. </p>
<p>It is widely understood to be a response to the High Court’s ruling in <a href="https://theconversation.com/the-high-court-has-decided-indefinite-detention-is-unlawful-what-happens-now-217438">November 2023</a> that found indefinite immigration detention to be unlawful. </p>
<p>It’s also considered an attempt to pre-empt <a href="https://www.smh.com.au/politics/federal/government-sweats-on-critical-new-court-challenge-on-immigration-detainees-20240315-p5fcro.html">further litigation</a> scheduled in the High Court. The case of an Iranian man refusing to cooperate in his deportation is due before the court <a href="https://theconversation.com/the-government-is-fighting-a-new-high-court-case-on-immigration-detainees-whats-it-about-and-whats-at-stake-226120">next month</a>.</p>
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<p>However, the amendments introduced in the bill go far beyond addressing this issue. They have wide-ranging impacts for how non-citizens are treated in Australia, and indeed for Australia’s relationship with governments around the world. </p>
<p>As such, it is particularly concerning the government tried to rush the bill through parliament without the opportunity for proper scrutiny or review. While a senate committee hearing is a welcome development, it won’t fix everything. </p>
<h2>Criminalising non-cooperation</h2>
<p>The bill gives the minister new powers to compel people who have exhausted their options to stay in Australia to cooperate and take steps towards their own removal. This would apply not only to people affected by the High Court’s ruling last year, but also to certain bridging visa holders. </p>
<p>Extraordinarily, it would also apply to “any other non-citizens” the minister might seek to designate through the migration regulations. </p>
<p>The powers include directing individuals to sign and submit documents to facilitate their departure, attend appointments, and provide any other information as required. In the case of families, if the parents are affected non-citizens, they can be directed to help facilitate the removal of their children, irrespective of whether it is in the child’s best interests.</p>
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Read more:
<a href="https://theconversation.com/government-rushing-through-bill-to-crack-down-on-uncooperative-non-citizens-it-is-trying-to-remove-226615">Government rushing through bill to crack down on 'uncooperative' non-citizens it is trying to remove</a>
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<p>Anyone who fails to comply with these directions without a “reasonable excuse” will face a mandatory jail term of between one and five years, a A$93,900 fine, or both. The fact that someone faces a real risk of persecution or other serious harm will not be considered a reasonable excuse. </p>
<p>These are extraordinary provisions without precedent in Australia. Even in the context of terrorism offences, a failure to comply with a direction does not result in mandatory imprisonment. </p>
<p>The closest comparisons are offences under various state laws concerning failure to disclose identity, which may be punished by up to 12 months’ imprisonment. In some states, reportable offenders, such as child sex offenders, who fail to produce electronic devices when directed by police, may face up to five years in prison. </p>
<p>However, in all these cases, these are maximum sentences, not a mandatory minimum sentence. As the Law Council of Australia President <a href="https://lawcouncil.au/media/media-releases/removal-bill-causes-rule-of-law-and-human-rights-concerns">put it</a>: “In effect, this Bill will implement mandatory sentencing”.</p>
<h2>Concerns for fast-track asylum seekers</h2>
<p>Section 199D of the bill attempts to ensure that the new powers are not used to remove individuals to a country where they would face a real risk of persecution or other serious harm. </p>
<p>But there is a risk the bill could still lead to people who do have protection claims being forced to return to countries where their life or freedom is threatened. There are particular concerns for people assessed under Australia’s fast-track asylum processes. </p>
<p>The Labor party has acknowledged these processes have not been <a href="https://alp.org.au/media/2594/2021-alp-national-platform-final-endorsed-platform.pdf">“fair, thorough and robust”</a>, meaning people with genuine refugee claims may have been denied protection. </p>
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<a href="https://theconversation.com/what-is-the-governments-preventative-detention-bill-heres-how-the-laws-will-work-and-what-they-mean-for-australias-detention-system-219226">What is the government's preventative detention bill? Here's how the laws will work and what they mean for Australia's detention system</a>
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<p>Others could also be at risk of removal contrary to Australia’s protection obligations if their personal circumstances or the situation in their home country has changed since their original protection claim was determined. </p>
<p>The Refugee Council of Australia has warned about these risks and shared its <a href="https://www.refugeecouncil.org.au/new-legislation-puts-refugees-failed-by-fast-track-process-at-risk/">concerns</a> that “those who do have strong claims, but have not had a fair hearing or review, will be sent back to real harm.” </p>
<h2>Countries can be blacklisted</h2>
<p>The bill also gives the minister a new power to “blacklist” entire countries and prevent their citizens from applying for Australian visas.</p>
<p>This is a discretionary power that requires little consultation and is unlikely to be subject to administrative or judicial review. The only limitations on this power are that the minister first consults with the prime minister and minister for foreign affairs. The immigration minister must also detail why they think it is in the national interest to make such a decision.</p>
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<p>The travel bans are intended to force targeted countries to cooperate and accept the return of their own nationals. But in practice, they will prevent people who may wish to work, study in or visit Australia from leaving – through no fault of their own. </p>
<p>Travel bans could also have unintended consequences. Diplomatic relations between countries may sour following such decisions, and countries may opt to <a href="https://sgp.fas.org/crs/homesec/IF11025.pdf">retaliate</a> in other ways, whether through trade, tourism or other matters of international concern. </p>
<p>The issue of international cooperation concerning the return of nationals to their home country is a diplomatic one that should be negotiated in good faith between political leaders. It is quite likely that inducements rather than threats would work better. </p>
<p>Other countries may also simply be unmoved to take any further steps to facilitate returns, or may even welcome their citizens not being able to visit Australia. It is important to remember that not all countries wish for their citizenry to be able to leave.</p>
<h2>Walking the walk</h2>
<p>At a time when the immigration minister has <a href="https://minister.homeaffairs.gov.au/AndrewGiles/Pages/refugee-communities-assoc-aust-conf-21092023.aspx">emphasised</a> the “importance of lived experience in shaping national and international dialogue and policy” and claimed that the “government walk the walk on meaningful participation for refugees”, it is disappointing to see attempts to rush this bill through parliament without any consultation with refugee communities and other stakeholders, and very limited scrutiny. </p>
<p>The Albanese government is continuing the tradition of governments before it by attempting to ram legislation through parliament that severely curtails human rights and is disproportionate to its stated objectives. Both the government and the opposition have a vested interest in passing laws that further expand the minister’s discretionary powers, which are already ill-suited to a liberal democracy. </p>
<p>But the changes will have far-reaching consequences for both our migration program and our foreign policy objectives, and demand further democratic scrutiny.</p><img src="https://counter.theconversation.com/content/226713/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jane McAdam receives funding from the Australian Research Council. She is a member of the expert sub-committee of the Ministerial Advisory Council on Skilled Migration. </span></em></p><p class="fine-print"><em><span>Daniel Ghezelbash receives funding from the Australian Research Council and the NSW Government. He is a member of the management committee of Refugee Advice and Casework Services and Wallumatta Legal, and a Special Counsel at the National Justice Project.</span></em></p><p class="fine-print"><em><span>Madeline Gleeson and Tristan Harley do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The government has failed in its attempt to ram unprecedented changes to the migration act through parliament. The laws, now being reviewed by a senate committee, could be disastrous.Jane McAdam, Scientia Professor and Director of the Kaldor Centre for International Refugee Law, UNSW SydneyDaniel Ghezelbash, Associate Professor and Deputy Director, Kaldor Centre for International Refugee Law, UNSW Law & Justice, UNSW SydneyMadeline Gleeson, Senior Research Fellow, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW SydneyTristan Harley, Senior Research Associate, Kaldor Centre for International Refugee Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2262022024-03-19T20:42:27Z2024-03-19T20:42:27ZTexas immigration law in legal limbo, with intensifying fight between Texas and the US government over securing the Mexico border<figure><img src="https://images.theconversation.com/files/582914/original/file-20240319-18-3mjl2y.jpg?ixlib=rb-1.1.0&rect=502%2C0%2C5479%2C3970&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A Texas National Guard soldier watches over a group of migrants who crossed the Rio Grande from Mexico in Eagle Pass, Texas, on Dec. 18, 2023. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/texas-national-guard-soldier-watches-over-a-group-of-more-news-photo/1865364688?adppopup=true">John Moore/Getty Images</a></span></figcaption></figure><p>The U.S. Supreme Court <a href="https://thehill.com/regulation/court-battles/4542285-supreme-court-texas-law-state-police-to-arrest-migrants/">issued an opinion on March 19, 2024, that Texas can</a> – at least for now – have <a href="https://www.keranews.org/texas-news/2023-12-18/gov-abbott-signs-bill-that-makes-unauthorized-entry-a-state-crime">state authorities</a> <a href="https://www.texastribune.org/2024/02/15/texas-immigration-law-sb4-border-court-hearing/">deport undocumented migrants</a>, which has traditionally been the federal government’s responsibility. </p>
<p>Three liberal judges dissented from the opinion that temporarily backed Texas’ controversial new law, known as Senate Bill 4. </p>
<p>“That law upends the federal-state balance of power that has existed for over a century, in which the national government has had exclusive authority over entry and removal of noncitizens,” Supreme Court justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson wrote in their dissent.</p>
<p>The Biden administration had tried to block Texas’ enforcement of SB 4, maintaining that the state law is “flatly inconsistent with federal law,” <a href="https://thehill.com/regulation/court-battles/4540053-supreme-court-pause-texas-law-migrants/">according to a letter</a> U.S. Solicitor General Elizabeth Prelogar wrote to the Supreme Court justices. </p>
<p>The Supreme Court’s decision <a href="https://www.nytimes.com/2024/03/19/us/supreme-court-texas-immigration.html">tossed the question of SB 4</a> to an appeals court for a ruling. With this 6-3 ruling, the justices also foreshadowed how they could ultimately rule on SB 4 if a ruling by the 5th Circuit Court of Appeals is itself appealed to the Supreme Court in the near future. Late on March 19, <a href="https://www.reuters.com/world/us/us-supreme-court-wont-halt-texas-law-illegal-border-crossings-2024-03-19/">the 5th Circuit barred enforcement</a> of the law until it heard arguments in the case.</p>
<p>This decision follows shortly after a failed Senate proposal to tighten border security and make it tougher for people to get asylum in the U.S. It also coincides with Americans’ rising <a href="https://www.axios.com/2024/02/27/immigration-americans-top-problem-us-poll-election">concern about immigration</a>.</p>
<p>Texas Gov. Greg Abbott has been battling with the Biden administration since 2021 over the state’s ability to secure its border with Mexico. Under Abbott’s leadership, <a href="https://www.voanews.com/a/republicans-governors-national-guard-and-the-texas-border-what-to-know-/7467727.html">Texas has sent Texas National Guard</a> troops and state troopers to its 1,254-mile-long border with Mexico. Texas is the only border state that has built its own wall, partially dividing itself from Mexico. Texas has also constructed <a href="https://nypost.com/2024/02/09/news/texas-on-track-to-build-more-border-wall-in-state-than-trump-gov-abbotts-says/">more than 100 miles</a> of other barriers along the border.</p>
<p>I <a href="https://www.bakerinstitute.org/expert/mark-p-jones">am a scholar</a> of Texas politics and government at Rice University’s Baker Institute. Texas’ attempts to control its border with Mexico and intervene on immigration issues – historically both the responsibility of the federal government – derive in part from the fact that many Texans believe that their Lone Star State is unique. </p>
<p>Texas, for starters, is the largest U.S. state among the lower 48, geographically speaking, and the second-most populous after California. It has a distinct state culture and the history of being an independent republic. </p>
<p>Today, Texas is the most powerful and influential red state, pushing back against the Biden administration on many policy issues. It is also home to a small but growing political movement advocating for Texas to secede from the U.S. and become an independent country.</p>
<p>There is a great deal of truth to the popular saying that everything is bigger in Texas.</p>
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<span class="caption">People protest Texas Gov. Greg Abbott’s immigration and border policies in Eagle Pass, Texas, in February 2024.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/counter-protesters-wave-flags-across-the-street-from-local-news-photo/1978653675?adppopup=true">Michael Gonzalez/Getty Images</a></span>
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<h2>Border security battles</h2>
<p>Over the past several months, Texas has become increasingly enmeshed in a series of skirmishes with the Biden administration over border security and immigration. Abbott, bolstered by <a href="https://uh.edu/hobby/txprimary2024/">Republican voters</a> and the unanimous support of Texas Republicans who dominate the state Legislature, has made Texas more involved in day-to-day border security and immigration enforcement than any state in recent history. </p>
<p>In December 2023, Abbott signed SB 4, which made it a state crime to cross the border illegally and also gives Texas judges the power to deport undocumented migrants. SB 4 will now be implemented, at least until the 5th Circuit Court of Appeals reaches a decision in April.</p>
<p>Abbott’s border security interventions are funded by a 2021 state initiative called <a href="https://gov.texas.gov/operationlonestar">Operation Lone Star</a>. During the program’s first two years, Texas spent <a href="https://www.governing.com/now/2-years-and-4b-later-what-we-know-about-operation-lone-star">US$4.4 billion</a> on a multifaceted strategy that includes, for example, sending Texas <a href="https://gov.texas.gov/news/post/governor-abbott-expands-border-security-operations-in-eagle-pass#:%7E:text=The%20Texas%20Military%20Department%20acquired,created%20by%20the%20Biden%20Administration.">National Guard troops</a> to the border. In some cases, these National Guard <a href="https://thehill.com/homenews/state-watch/4416126-texas-us-legal-standoff-eagle-pass-border/">troops have blocked U.S. Border Patrol agents</a> from patrolling the border. </p>
<p>Now, Texas is spending <a href="https://everytexan.org/2023/10/27/third-special-spending-updated-spending-limits-mean-more-options-for-lawmakers/">$5.1 billion</a> on trying to patrol the border from 2023 through 2025. </p>
<p>This doesn’t include the additional $1.5 billion Texas has allocated for expansion of its <a href="https://www.houstonchronicle.com/politics/texas/article/border-wall-deportation-bills-18480062.php">border wall</a> over the next few years. </p>
<p>Since 2022, Texas has sent more than 100,000 immigrants who arrived in Texas to <a href="https://gov.texas.gov/news/post/texas-transports-over-100000-migrants-to-sanctuary-cities">liberal cities such as New York and Chicago</a>. </p>
<p>And in 2023, Texas constructed a <a href="https://apnews.com/article/texas-buoys-border-immigration-12bc8abddef1c9384b25222b92d0840b">buoy barrier in the middle of the Rio Grande</a>, although a federal appeals court ruled in December that Texas must <a href="https://www.cnn.com/2023/12/01/politics/federal-appeals-court-orders-texas-to-remove-controversial-border-buoys-from-rio-grande/index.html">remove those barriers</a> from the river. </p>
<p>The Biden administration has <a href="https://www.houstonchronicle.com/politics/texas/article/biden-lawsuit-border-law-18588009.php">challenged</a> virtually all of these actions in court.</p>
<p>The federal government argues that Texas’ border and immigration activity is unconstitutional, since only the federal government can enforce immigration law. The <a href="https://thehill.com/homenews/state-watch/4416126-texas-us-legal-standoff-eagle-pass-border/">federal government maintains</a> that the new Texas immigration law that allows state authorities to deport migrants also would interfere with the federal asylum process. </p>
<p>In response, Texas says that its border and immigration work is legal, in part because the federal government cannot adequately secure the border. Abbott and other Republicans characterize migrants crossing into Texas as an “invasion,” which they say gives Texas the right to defend itself, as <a href="https://gov.texas.gov/news/post/governor-abbott-issues-statement-on-texas-constitutional-right-to-self-defense">they say the U.S. Constitution allows</a>. </p>
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<span class="caption">Texas Gov. Greg Abbott tours the U.S.-Mexico border in Eagle Pass in May 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/texas-governor-greg-abbott-tours-the-us-mexico-border-at-news-photo/1240862283?adppopup=true">Allison Dinner/AFP via Getty Images</a></span>
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<h2>What’s unique about Texas</h2>
<p>Understanding Texas’ particular history and Texans’ sense of pride for their state helps to better understand the context behind this current conflict. </p>
<p>In Texas, you can’t travel far without seeing the Texas flag fluttering outside of houses and business storefronts. It is quite common to see people carrying Texas flag-themed Koozies, or wearing Texas flag shirts and hats. </p>
<p>Texas is one of the only U.S. states that went directly from being an independent republic – from 1836 to 1845 – to getting statehood. More than <a href="https://www.tshaonline.org/texas-day-by-day/entry/220">nine out of 10 Texans</a> voted for Texas to become part of the U.S. in 1845. </p>
<p>Texas has also been led continuously by a Republican governor since 1992, when George W. Bush was first elected. No Democrat has won any statewide race in Texas since 1994. </p>
<p>Today, Texas’ executive branch, led by Abbott, Lt. Gov. Dan Patrick and Attorney General Ken Paxton, is the country’s most powerful and vocal opponent of the Biden administration. </p>
<h2>A push to secede</h2>
<p>While the Texas state government is challenging the federal government’s immigration and border powers, there has also been a <a href="https://www.texastribune.org/2023/11/15/texas-secession-texit/">rise in support for</a> a political group called the <a href="https://tnm.me/">Texas Nationalist Movement</a>, which since 2005 has been advocating for Texas to secede from the U.S.</p>
<p>Texas’ Republican political leaders have not embraced this secession movement, often called “TEXIT.” Recently, Matt Rinaldi, the ultra-conservative chair of the Texas Republican Party, kept a Texas secession proposition <a href="https://www.tpr.org/government-politics/2023-12-28/texas-gop-rejects-ballot-question-asking-if-state-should-secede">off the Republican primary ballot</a>. </p>
<p>Abbott and other Texas Republican politicians agree with former conservative Supreme Court Justice Antonin Scalia, who <a href="https://www.politico.com/blogs/ben-smith/2010/02/scalia-no-to-secession-025119">wrote in a letter in 2006,</a> “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.”</p>
<p>But these same Republicans still want Texas to have greater state autonomy from the federal government. </p>
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<a href="https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The words 'Greetings from Texas' are seen on a colorful illustration, with a large red star, blue bulls and smaller images of fruit and flowers." src="https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=386&fit=crop&dpr=1 600w, https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=386&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=386&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=486&fit=crop&dpr=1 754w, https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=486&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=486&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A vintage postcard from the 1950s offers greetings from Texas, often known as the Lone Star State.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/vintage-illustration-of-greetings-from-texas-the-lone-star-news-photo/583785842?adppopup=true">Found Image Holdings/Corbis via Getty Images</a></span>
</figcaption>
</figure>
<h2>Texas pride</h2>
<p>Abbott and other Texas Republicans continue to assert their right to secure the border and deport undocumented immigrants because they say the federal government is failing to do either effectively. </p>
<p>In addition, Republicans continue to use immigration and border security as a top issue to rally Republican and independent voters heading into the 2024 election. </p>
<p>And, while TEXIT is not going to happen, Texas Republicans will continue to vigorously promote Texas autonomy, appealing to their voters’ Texas pride. </p>
<p><em>This is an updated version of an <a href="https://theconversation.com/military-drones-are-swarming-the-skies-of-ukraine-and-other-conflict-hot-spots-and-anything-goes-when-it-comes-to-international-law-205898">article originally published on Feb. 29, 2024</a>.</em></p><img src="https://counter.theconversation.com/content/226202/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark P Jones does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court announced that Texas can have state authorities arrest and deport undocumented migrants. A lower court has temporarily blocked the law.Mark P Jones, Joseph D. Jamail Chair in Latin American Studies & Baker Institute Political Science Fellow, Rice UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2251582024-03-08T04:01:43Z2024-03-08T04:01:43ZBiden defends immigration policy during State of the Union, blaming Republicans in Congress for refusing to act<figure><img src="https://images.theconversation.com/files/580628/original/file-20240308-24-r50pvr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Joe Biden delivers his State of the Union address on March 7, 2024. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-joe-biden-delivers-the-annual-state-of-the-union-news-photo/2059263399?adppopup=true">Alex Brandon-Pool/Getty Images</a></span></figcaption></figure><p><em>President Joe Biden delivered the annual <a href="https://www.whitehouse.gov/briefing-room/speeches-remarks/2024/03/07/remarks-of-president-joe-biden-state-of-the-union-address-as-prepared-for-delivery-2/">State of the Union address</a> on March 7, 2024, casting a wide net on a range of major themes – the economy, abortion rights, threats to democracy, the wars in Gaza and Ukraine – that are preoccupying many Americans heading into the November presidential election.</em></p>
<p><em>The president also addressed massive increases in immigration at the southern border and the political battle in Congress over how to manage it. “We can fight about the border, or we can fix it. I’m ready to fix it,” Biden said.</em></p>
<p><em>But while Biden stressed that he wants to overcome political division and take action on immigration and the border, he cautioned that he will not “demonize immigrants,” as he said his predecessor, former President Donald Trump, does.</em> </p>
<p><em>“I will not separate families. I will not ban people from America because of their faith,” Biden said.</em></p>
<p><em>Biden’s speech comes as a <a href="https://thehill.com/homenews/campaign/4422273-immigration-overtakes-inflation-top-voter-concern-poll/">rising number of American voters</a> say that <a href="https://news.gallup.com/poll/611135/immigration-surges-top-important-problem-list.aspx">immigration is the country’s biggest problem</a>.</em></p>
<p><em><a href="https://gould.usc.edu/faculty/profile/jean-lantz-reisz/">Immigration law scholar Jean Lantz Reisz</a> answers four questions about why immigration has become a top issue for Americans, and the limits of presidential power when it comes to immigration and border security.</em> </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/580622/original/file-20240308-21-t103cg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="President Joe Biden stands surrounded by people in formal clothing and smiles. One man holds a cell phone camera close up to his face." src="https://images.theconversation.com/files/580622/original/file-20240308-21-t103cg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/580622/original/file-20240308-21-t103cg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/580622/original/file-20240308-21-t103cg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/580622/original/file-20240308-21-t103cg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/580622/original/file-20240308-21-t103cg.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/580622/original/file-20240308-21-t103cg.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/580622/original/file-20240308-21-t103cg.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Joe Biden arrives to deliver the State of the Union address at the US Capitol on March 7, 2024.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-joe-biden-arrives-to-deliver-the-state-of-the-news-photo/2067104727?adppopup=true">Chip Somodevilla/Getty Images</a></span>
</figcaption>
</figure>
<h2>1. What is driving all of the attention and concern immigration is receiving?</h2>
<p>The unprecedented number of undocumented migrants crossing the U.S.-Mexico border right now has drawn national concern to the U.S. immigration system and the president’s enforcement <a href="https://www.npr.org/2023/12/22/1221006083/immigration-border-election-presidential">policies at the border</a>. </p>
<p>Border security has always been part of the immigration debate about how to stop unlawful immigration.</p>
<p>But in this election, the immigration debate is also fueled by images of large groups of migrants crossing a river and crawling through <a href="https://www.cbsnews.com/news/record-number-migrant-border-crossings-december-2023/">barbed wire fences</a>. There is also news of standoffs between Texas law enforcement and U.S. <a href="https://www.texastribune.org/2024/01/24/texas-border-wire-supreme-court/">Border Patrol agents</a> and cities like New York and Chicago struggling to handle the influx of arriving migrants. </p>
<p>Republicans blame Biden for not taking action on what they say is an <a href="https://abcnews.go.com/Politics/trump-doubles-warnings-migrant-crime-border-speech/story?id=107691336">“invasion”</a> at the U.S. border. Democrats blame Republicans for refusing to pass laws that would give the president the power to stop the <a href="https://www.msn.com/en-us/news/politics/biden-and-trump-s-dueling-border-visits-will-encapsulate-a-building-election-clash/ar-BB1j5jKy">flow of migration at the border</a>. </p>
<h2>2. Are Biden’s immigration policies effective?</h2>
<p>Confusion about immigration laws may be the reason people believe that Biden is not implementing effective policies at the border. </p>
<p>The U.S. passed a law in 1952 that gives any person arriving at the border or inside the U.S. the right to apply for asylum and the right to legally stay in the country, even if that person crossed the <a href="https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1158&num=0&edition=prelim">border illegally</a>. That law has not changed. </p>
<p><a href="https://www.washingtonpost.com/graphics/2019/politics/trump-overruled/#immigration">Courts struck down</a> many of former President Donald Trump’s policies that tried to limit immigration. Trump was able to lawfully deport migrants at the border without processing their asylum claims during the COVID-19 pandemic under a public health law <a href="https://www.pbs.org/newshour/nation/what-is-title-42-and-what-does-it-mean-for-immigration-at-the-southern-border">called Title 42</a>. Biden continued that policy <a href="https://www.cbsnews.com/news/what-is-title-42-policy-immigration-what-happens-ending-expiration/">until the legal justification for Title 42</a> – meaning the public health emergency – ended in 2023. </p>
<p>Republicans falsely attribute the <a href="https://www.pewresearch.org/short-reads/2024/02/15/migrant-encounters-at-the-us-mexico-border-hit-a-record-high-at-the-end-of-2023/">surge in undocumented migration</a> to the U.S. over the past three years to something they call Biden’s <a href="https://thehill.com/homenews/house/4414432-house-approves-resolution-denouncing-bidens-open-border-policies/">“open border” policy</a>. There is no such policy. </p>
<p>Multiple factors are driving increased migration to the U.S. </p>
<p>More people are leaving dangerous or difficult situations in <a href="https://www.rand.org/pubs/commentary/2024/02/the-crisis-at-the-border-a-primer-for-confused-americans.html">their countries</a>, and some people have waited to migrate until <a href="https://www.migrationpolicy.org/news/border-numbers-fy2023">after the COVID-19 pandemic</a> ended. People who smuggle migrants are also <a href="https://thehill.com/campaign-issues/immigration/3576180-human-smugglers-often-target-migrants-with-misinformation-on-social-media-watchdog/">spreading misinformation</a> to migrants about the ability to enter and stay in the U.S. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/580236/original/file-20240306-24-y12r2h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Joe Biden wears a black blazer and a black hat as he stands next to a bald white man wearing a green uniform and a white truck that says 'Border Patrol' in green" src="https://images.theconversation.com/files/580236/original/file-20240306-24-y12r2h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/580236/original/file-20240306-24-y12r2h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/580236/original/file-20240306-24-y12r2h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/580236/original/file-20240306-24-y12r2h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/580236/original/file-20240306-24-y12r2h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/580236/original/file-20240306-24-y12r2h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/580236/original/file-20240306-24-y12r2h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Joe Biden walks with Jason Owens, the chief of the U.S. Border Patrol, as he visits the U.S.-Mexico border in Brownsville, Texas, on Feb. 29, 2024.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/president-joe-biden-walks-with-jason-owens-chief-of-us-news-photo/2041441026?adppopup=true">Jim Watson/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>3. How much power does the president have over immigration?</h2>
<p>The president’s power regarding immigration is limited to enforcing existing immigration laws. But the president has broad authority over how to enforce those laws. </p>
<p>For example, the president can place every single immigrant unlawfully <a href="https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1103&num=0&edition=prelim">present in the U.S.</a> in deportation proceedings. Because there is not enough money or employees at federal agencies and courts to accomplish that, the president will usually choose to prioritize the deportation of certain immigrants, like those who have committed serious and violent crimes in the U.S. </p>
<p>The federal agency Immigration and Customs Enforcement <a href="https://www.washingtonpost.com/immigration/2023/12/29/immigrants-ice-border-deportations-2023/#">deported more than 142,000 immigrants</a> from October 2022 through September 2023, double the number of people it deported the previous fiscal year. </p>
<p>But under current law, the president does not have the power to summarily expel migrants who say they are afraid of returning to their country. The law requires the president to process their claims for asylum. </p>
<p>Biden’s ability to enforce immigration law also depends on a budget approved by Congress. <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2024/02/29/fact-sheet-impact-of-bipartisan-border-agreement-funding-on-border-operations/">Without congressional approval</a>, the president cannot spend money to build a wall, increase immigration detention facilities’ capacity or send more Border Patrol agents to process undocumented migrants entering the country.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/580242/original/file-20240306-18-k0ch8n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large group of people are seen sitting and standing along a tall brown fence in an empty area of brown dirt." src="https://images.theconversation.com/files/580242/original/file-20240306-18-k0ch8n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/580242/original/file-20240306-18-k0ch8n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/580242/original/file-20240306-18-k0ch8n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/580242/original/file-20240306-18-k0ch8n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/580242/original/file-20240306-18-k0ch8n.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=565&fit=crop&dpr=1 754w, https://images.theconversation.com/files/580242/original/file-20240306-18-k0ch8n.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=565&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/580242/original/file-20240306-18-k0ch8n.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=565&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Migrants arrive at the border between El Paso, Texas, and Ciudad Juarez, Mexico, to surrender to American Border Patrol agents on March 5, 2024.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/groups-of-migrants-of-different-nationalities-arrive-at-the-news-photo/2054049040?adppopup=true">Lokman Vural Elibol/Anadolu via Getty Images</a></span>
</figcaption>
</figure>
<h2>4. How could Biden address the current immigration problems in this country?</h2>
<p>In early 2024, Republicans in the Senate refused to pass a bill – developed by a bipartisan team of legislators – that would have made it harder to get asylum and given Biden the power to stop <a href="https://www.cbsnews.com/news/immigration-biden-border-authority/">taking asylum applications</a> when migrant crossings reached a <a href="https://edition.cnn.com/politics/live-news/senate-vote-border-bill-aid-02-07-24/h_3263c78238d0d2de96a203fad7fd9e94">certain number</a>. </p>
<p>During his speech, Biden called this bill the “toughest set of border security reforms we’ve ever seen in this country.”</p>
<p>That bill would have also provided <a href="https://edition.cnn.com/politics/live-news/senate-vote-border-bill-aid-02-07-24/h_3263c78238d0d2de96a203fad7fd9e94">more federal money</a> to help immigration agencies and courts quickly review more asylum claims and expedite the asylum process, which remains backlogged with millions of cases, Biden said. Biden said the bipartisan deal would also hire 1,500 more border security agents and officers, as well as 4,300 more asylum officers. </p>
<p>Removing this backlog in immigration courts could mean that some undocumented migrants, who now might wait six to eight years for an asylum hearing, would instead only wait six weeks, Biden said. That means it would be “highly unlikely” migrants would pay a large amount to be smuggled into the country, only to be “kicked out quickly,” Biden said. </p>
<p>“My Republican friends, you owe it to the American people to get this bill done. We need to act,” Biden said. </p>
<p>Biden’s remarks calling for Congress to pass the bill drew jeers from some in the audience. Biden quickly responded, saying that it was a bipartisan effort: “What are you against?” he asked. </p>
<p>Biden <a href="https://www.cbsnews.com/news/biden-weighs-invoking-executive-authority-stage-border-crackdown-212f/">is now considering</a> using section 212(f) of the <a href="https://www.uscis.gov/laws-and-policy/legislation/immigration-and-nationality-act">Immigration and Nationality Act</a> to get more control over immigration. This sweeping law allows the president to temporarily suspend or restrict the entry of all foreigners if their arrival is detrimental to the U.S.</p>
<p>This obscure law gained attention when Trump used it in January 2017 to implement a <a href="https://www.nbcnews.com/politics/white-house/trump-s-immigration-ban-raises-more-questions-answers-here-s-n1188946">travel ban</a> on foreigners from mainly Muslim countries. The Supreme Court upheld the <a href="https://www.nytimes.com/2018/07/01/world/americas/travel-ban-trump-how-it-works.html">travel ban in 2018</a>. </p>
<p>Trump again also signed an executive order in April 2020 that <a href="https://www.nbcnews.com/politics/white-house/trump-s-immigration-ban-raises-more-questions-answers-here-s-n1188946">blocked foreigners who were seeking lawful permanent residency from entering the country</a> for 60 days, citing this same section of the Immigration and Nationality Act. </p>
<p>Biden did not mention any possible use of section 212(f) during his State of the Union speech. If the president uses this, it would likely be challenged in court. It is not clear that 212(f) would apply to people already in the U.S., and it conflicts with existing asylum law that gives people within the U.S. the right to seek asylum.</p><img src="https://counter.theconversation.com/content/225158/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jean Lantz Reisz does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A rising number of Americans say that immigration is the country’s biggest problem. Biden called for Congress to pass a bipartisan border and immigration bill during his State of the Union.Jean Lantz Reisz, Clinical Associate Professor of Law, Co-Director, USC Immigration Clinic, University of Southern CaliforniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2235202024-02-29T13:42:41Z2024-02-29T13:42:41ZThis is Texas hold ‘em – why Texas is fighting the US government to secure its border with Mexico<figure><img src="https://images.theconversation.com/files/578702/original/file-20240228-28-s1zpjo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Texas National Guard troops try to untangle a migrant caught in razor wire along the Texas-Mexico border on Jan. 31, 2024. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/texas-national-guard-troops-try-to-untangle-an-immigrant-news-photo/1976393392?adppopup=true">John Moore/Getty Images</a></span></figcaption></figure><p>President Joe Biden and former President Donald Trump are both traveling to Texas border towns on Feb. 29, 2024, and are <a href="https://www.washingtonpost.com/politics/2024/02/26/biden-trump-border-immigration/">expected to fault each other</a> for chaos in border enforcement and the <a href="https://www.pewresearch.org/short-reads/2024/02/15/migrant-encounters-at-the-us-mexico-border-hit-a-record-high-at-the-end-of-2023/">high number of undocumented migrant crossings</a>.</p>
<p>Their dueling visits follow a failed Senate proposal to tighten border security and make it tougher for people to get asylum in the U.S. They also coincide with Americans’ rising <a href="https://www.axios.com/2024/02/27/immigration-americans-top-problem-us-poll-election">concern about immigration</a>.</p>
<p>Texas Governor Greg Abbott has been battling with the Biden administration since 2021 over the state’s ability to secure its border with Mexico. Under Abbott’s leadership, <a href="https://www.voanews.com/a/republicans-governors-national-guard-and-the-texas-border-what-to-know-/7467727.html">Texas has sent Texas National Guard</a> troops and state troopers to its 1,254-mile-long border with Mexico. Texas is the only border state that has built its own wall, partially dividing itself from Mexico. Texas has also constructed <a href="https://nypost.com/2024/02/09/news/texas-on-track-to-build-more-border-wall-in-state-than-trump-gov-abbotts-says/">more than 100 miles</a> of other barriers along the border.</p>
<p>I <a href="https://www.bakerinstitute.org/expert/mark-p-jones">am a scholar of</a> Texas politics and government at Rice University’s Baker Institute. Texas’ attempts to control its border with Mexico and intervene on immigration issues – historically both the responsibility of the federal government – derive in part from the fact that many Texans believe that their Lone Star State is unique. </p>
<p>Texas, for starters, is the largest U.S. state among the lower 48, geographically speaking, and the second-most populous after California. It has a distinct state culture and the history of being an independent republic. </p>
<p>Today, Texas is the most powerful and influential red state pushing back against the Biden administration on many policy issues. It is also home to a small but growing political movement advocating for Texas to secede from the U.S. and become an independent country.</p>
<p>There is a great deal of truth to the popular saying that everything is bigger in Texas.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/578708/original/file-20240228-28-ctnbfw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man is seen from the side, holding both an American flag and a Texas flag, which is red and blue with one white star." src="https://images.theconversation.com/files/578708/original/file-20240228-28-ctnbfw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/578708/original/file-20240228-28-ctnbfw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/578708/original/file-20240228-28-ctnbfw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/578708/original/file-20240228-28-ctnbfw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/578708/original/file-20240228-28-ctnbfw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/578708/original/file-20240228-28-ctnbfw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/578708/original/file-20240228-28-ctnbfw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People protest Texas Gov. Greg Abbott’s immigration and border policies in Eagle Pass, Texas, in February 2024.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/counter-protesters-wave-flags-across-the-street-from-local-news-photo/1978653675?adppopup=true">Michael Gonzalez/Getty Images</a></span>
</figcaption>
</figure>
<h2>Border security battles</h2>
<p>Texas is now enmeshed in a series of skirmishes with the Biden administration over border security and immigration. Abbott, bolstered by the unanimous support of Texas Republicans who dominate the state legislature, and <a href="https://uh.edu/hobby/txprimary2024/">Republican voters</a>, has made Texas more involved in day-to-day border security and immigration enforcement than any state in recent history. </p>
<p>In December 2023, Abbott signed controversial new state legislation that makes it a state crime to cross the border without a visa. This legislation, which goes into effect in March 2024, also gives <a href="https://www.keranews.org/texas-news/2023-12-18/gov-abbott-signs-bill-that-makes-unauthorized-entry-a-state-crime">Texas authorities</a> the <a href="https://www.texastribune.org/2024/02/15/texas-immigration-law-sb4-border-court-hearing/">right to deport undocumented migrants</a> – which is generally considered the federal government’s responsibility. </p>
<p>Abbott’s border security interventions are funded by a 2021 state initiative called <a href="https://gov.texas.gov/operationlonestar">Operation Lone Star</a>. During the program’s first two years, Texas spent <a href="https://www.governing.com/now/2-years-and-4b-later-what-we-know-about-operation-lone-star">US$4.4 billion</a> on a multifaceted strategy that includes, for example, sending Texas <a href="https://gov.texas.gov/news/post/governor-abbott-expands-border-security-operations-in-eagle-pass#:%7E:text=The%20Texas%20Military%20Department%20acquired,created%20by%20the%20Biden%20Administration.">National Guard troops</a> to the border. In some cases, these National Guard <a href="https://thehill.com/homenews/state-watch/4416126-texas-us-legal-standoff-eagle-pass-border/">troops have blocked U.S. Border Patrol agents</a> from patrolling the border. </p>
<p>Now, Texas is spending <a href="https://everytexan.org/2023/10/27/third-special-spending-updated-spending-limits-mean-more-options-for-lawmakers/">$5.1 billion</a> on trying to patrol the border from 2023 through 2025. </p>
<p>This doesn’t include the additional $1.5 billion Texas has allocated for expansion of its <a href="https://www.houstonchronicle.com/politics/texas/article/border-wall-deportation-bills-18480062.php">border wall</a> over the next few years. </p>
<p>Since 2022, Texas has sent more than 100,000 immigrants who arrive in Texas to <a href="https://gov.texas.gov/news/post/texas-transports-over-100000-migrants-to-sanctuary-cities">liberal cities like New York and Chicago</a>. </p>
<p>And in 2023, Texas constructed a <a href="https://apnews.com/article/texas-buoys-border-immigration-12bc8abddef1c9384b25222b92d0840b">buoy barrier in the middle of the Rio Grande</a>, although a federal appeals court ruled in December that Texas must <a href="https://www.cnn.com/2023/12/01/politics/federal-appeals-court-orders-texas-to-remove-controversial-border-buoys-from-rio-grande/index.html">remove those barriers</a> from the river. </p>
<p>The Biden administration has <a href="https://www.houstonchronicle.com/politics/texas/article/biden-lawsuit-border-law-18588009.php">challenged</a> virtually all of these actions in court.</p>
<p>The federal government argues that Texas’ border and immigration activity is unconstitutional, since only the federal government can enforce immigration law. The <a href="https://thehill.com/homenews/state-watch/4416126-texas-us-legal-standoff-eagle-pass-border/">federal government maintains</a> that the new Texas immigration law that allows state authorities to deport migrants also would interfere with the federal asylum process. </p>
<p>In response, Texas says that its border and immigration work is legal, in part because the federal government cannot adequately secure the border. Abbott and other Republicans characterize migrants crossing into Texas as an “invasion,” which they say gives Texas the right to defend itself, as <a href="https://gov.texas.gov/news/post/governor-abbott-issues-statement-on-texas-constitutional-right-to-self-defense">they say the U.S. Constitution allows</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/578723/original/file-20240228-24-kgno9h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A middle aged white man in a white shirt sits in a. wheelchair and shakes the hand of a soldier who wears a camo uniform, in a row of other people in camp." src="https://images.theconversation.com/files/578723/original/file-20240228-24-kgno9h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/578723/original/file-20240228-24-kgno9h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/578723/original/file-20240228-24-kgno9h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/578723/original/file-20240228-24-kgno9h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/578723/original/file-20240228-24-kgno9h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/578723/original/file-20240228-24-kgno9h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/578723/original/file-20240228-24-kgno9h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Texas Governor Greg Abbott tours the U.S.-Mexico border in Eagle Pass in May 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/texas-governor-greg-abbott-tours-the-us-mexico-border-at-news-photo/1240862283?adppopup=true">Allison Dinner/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>What’s unique about Texas</h2>
<p>Understanding Texas’ particular history and Texans’ sense of pride for their state helps to better understand the context behind this current conflict. </p>
<p>In Texas, you can’t travel far without seeing the Texas flag fluttering outside of houses and business storefronts. It is quite common to see people carrying Texas flag-themed koozies, or wearing Texas flag shirts and hats. </p>
<p>Texas is one of the only U.S. states that went directly from being an independent republic – from 1836 to 1845 – to getting statehood. More than <a href="https://www.tshaonline.org/texas-day-by-day/entry/220">nine out of 10 Texans</a> voted for Texas to become part of the U.S. in 1845. </p>
<p>Texas has also been led continuously by a Republican governor since 1992, when George W. Bush was first elected. No Democrat has won any statewide race in Texas since 1994. </p>
<p>Today, Texas’ executive branch – led by Abbott, Lieutenant Governor Dan Patrick and Attorney General Ken Paxton – is the country’s most powerful and vocal opponent of the Biden administration. </p>
<h2>A push to secede</h2>
<p>While the Texas state government is challenging the federal government’s immigration and border powers, there has also been a <a href="https://www.texastribune.org/2023/11/15/texas-secession-texit/">rise in support for</a> a political group called the <a href="https://tnm.me/">Texas Nationalist Movement</a>, which since 2005 has been advocating for Texas to secede from the U.S.</p>
<p>Texas’ Republican political leaders have not embraced this secession movement, often called “TEXIT.” Recently, Matt Rinaldi, the ultra-conservative chair of the Texas Republican Party, kept a Texas secession proposition <a href="https://www.tpr.org/government-politics/2023-12-28/texas-gop-rejects-ballot-question-asking-if-state-should-secede">off the Republican primary ballot</a>. </p>
<p>Abbott and other Texas Republican politicians agree with former conservative Supreme Court Justice Antonin Scalia, who <a href="https://www.politico.com/blogs/ben-smith/2010/02/scalia-no-to-secession-025119">wrote in a letter in 2006,</a> “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.”</p>
<p>But these same Republicans still want Texas to have greater state autonomy from the federal government. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The words 'Greetings from Texas' are seen on a colorful illustration, with a large red star, blue bulls and smaller images of fruit and flowers." src="https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=386&fit=crop&dpr=1 600w, https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=386&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=386&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=486&fit=crop&dpr=1 754w, https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=486&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/578703/original/file-20240228-22-c5eetx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=486&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A vintage postcard from the 1950s offers greetings from Texas, often known as the Lone Star State.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/vintage-illustration-of-greetings-from-texas-the-lone-star-news-photo/583785842?adppopup=true">Found Image Holdings/Corbis via Getty Images</a></span>
</figcaption>
</figure>
<h2>Texas pride</h2>
<p>Abbott and other Texas Republicans continue to assert their right to secure the border and deport undocumented immigrants because they say the federal government is failing to do either effectively. </p>
<p>In addition, Republicans continue to use immigration and border security as a top issue to rally Republican and independent voters heading into the 2024 election. </p>
<p>And, while TEXIT is not going to happen, Texas Republicans will continue to vigorously promote Texas autonomy, appealing to their voters’ Texas pride. </p>
<p><em>This article was updated to reflect that Texas is one of the only states to have first been a republic.</em></p><img src="https://counter.theconversation.com/content/223520/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark P Jones does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Texans’ belief in their state’s exceptionalism has helped fuel support for the Republican state government trying to take border security and immigration enforcement into its own hands.Mark P Jones, Joseph D. Jamail Chair in Latin American Studies & Baker Institute Political Science Fellow, Rice UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2207412024-01-19T13:41:25Z2024-01-19T13:41:25ZThe US is struggling to handle an immigration surge – here’s how Europe is dealing with its own influx<figure><img src="https://images.theconversation.com/files/570216/original/file-20240118-29-pkmecl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Workers from the Spanish nonprofit Open Waters rescue 178 migrants from different countries, off the coast of Italy in September 2023. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/migrants-of-different-14-nationalities-are-rescued-by-the-news-photo/1698787922?adppopup=true">Jose Colon/Anadolu Agency via Getty Images</a></span></figcaption></figure><p>As record-high numbers of <a href="https://www.smithsonianmag.com/history/1924-law-slammed-door-immigrants-and-politicians-who-pushed-it-back-open-180974910/">undocumented migrants</a> cross the United States-Mexico border illegally, one key question is how the U.S. got into this situation, and what lessons can be learned from how other countries respond to <a href="https://www.nytimes.com/2024/01/04/us/border-eagle-pass-ambulance-workers.html?action=click&pgtype=Article&state=default&module=styln-us-immigration&variant=show&region=MAIN_CONTENT_1&block=storyline_top_links_recirc">border security</a> and immigration problems. </p>
<p>Having worked <a href="https://fletcher.tufts.edu/people/faculty/tara-sonenshine">both inside the U.S. government</a> and in the private sector, I have observed the growing importance of welcoming foreign citizens to one’s country for <a href="https://www.cbpp.org/research/immigrants-contribute-greatly-to-us-economy-despite-administrations-public-charge-rule">improving economic growth</a>, scientific advancement, labor supply and cultural awareness. </p>
<p>But migrants entering and staying in the U.S. without visas or proper documentation can create problems – for the <a href="https://www.kff.org/racial-equity-and-health-policy/press-release/immigrants-overwhelmingly-say-they-and-their-children-are-better-off-in-the-us-but-many-also-report-substantial-discrimination-and-challenges-a-new-kff-los-angeles-times-survey-reveals/">migrants themselves</a>, and for overtaxed governments that lack the ability to quickly process asylum cases in <a href="https://www.gao.gov/blog/u.s.-immigration-courts-see-significant-and-growing-backlog#:%7E:text=This%20backlog%20has%20more%20than,immigration%20judges%20and%20court%20staff.">immigration courts</a>, for example, or to <a href="https://www.nytimes.com/2024/01/17/nyregion/migrants-shelter-snow-nyc.html">provide temporary shelter</a> and other basic services for large numbers of arriving migrants. These strains are happening now in many places in the U.S.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/570214/original/file-20240118-27-na6vez.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A black and white photo shows a large crowd of people, mostly men wearing hats, crowded on the second story of a small boat, which is coked." src="https://images.theconversation.com/files/570214/original/file-20240118-27-na6vez.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/570214/original/file-20240118-27-na6vez.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=452&fit=crop&dpr=1 600w, https://images.theconversation.com/files/570214/original/file-20240118-27-na6vez.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=452&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/570214/original/file-20240118-27-na6vez.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=452&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/570214/original/file-20240118-27-na6vez.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=568&fit=crop&dpr=1 754w, https://images.theconversation.com/files/570214/original/file-20240118-27-na6vez.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=568&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/570214/original/file-20240118-27-na6vez.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=568&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Immigrants arrive at Ellis Island in 1923, one year before Congress reformed immigration laws in the U.S., making it harder to enter the country.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/immigrants-arriving-at-ellis-island-aboard-the-machigonne-news-photo/171811445?adppopup=true">Underwood & Underwood/Underwood Archives/Getty Images</a></span>
</figcaption>
</figure>
<h2>U.S. immigration trends</h2>
<p>In 1924, after decades of the U.S. welcoming foreign-born citizens to its shores, Congress passed the Immigration Act, <a href="https://history.state.gov/milestones/1921-1936/immigration-act#:%7E:text=The%20Immigration%20Act%20of%201924%20limited%20the%20number%20of%20immigrants,of%20the%201890%20national%20census">restricting the numbers</a> and types of people who could legally enter and stay in the U.S. </p>
<p>That legislation ushered in even more xenophobia and division in the U.S. over the ethnic origins of immigrants – cutting <a href="https://www.smithsonianmag.com/history/1924-law-slammed-door-immigrants-and-politicians-who-pushed-it-back-open-180974910">off large-scale immigration</a>, especially from <a href="https://history.state.gov/milestones/1921-1936/immigration-act">Europe and Asia</a>, until jobs needed to be filled – and there weren’t enough people in the U.S. to fill them. </p>
<p>In the 1960s, immigration laws were reformed again, ushering in waves of immigration from Asia because the U.S. needed people to work at unfilled jobs.</p>
<p>Today, once again, some U.S. politicians are pushing for new ways to <a href="https://theconversation.com/republicans-are-pushing-for-drastic-asylum-changes-an-immigration-law-scholar-breaks-down-the-proposal-219173">restrict immigration</a>. Much of their work focuses on making it harder for migrants to get asylum – meaning legal permission to remain in the U.S. if they have a legitimate fear of persecution in their home countries. </p>
<p>Overall, U.S. border officials encountered more than 1.1 million people <a href="https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics">illegally crossing</a> the U.S. border from April 2022 through March 2023 – a sharp rise from previous years, when the number of people illegally crossing each year hovered at less than 300,000. </p>
<p>U.S. authorities are now <a href="https://www.washingtonpost.com/immigration/2023/12/29/immigrants-ice-border-deportations-2023/#">stepping up deportations</a>, quickly sending more undocumented people back to their home countries.</p>
<h2>A shifting response to immigration</h2>
<p>Globally, <a href="https://www.ft.com/content/e1cabc36-d050-4674-a16c-fff60c548174">international migration to rich countries</a> reached an all-time high in 2022. </p>
<p>So, how do other countries, including Canada and Germany, respond to migrants crossing their borders without a visa or proper documentation? </p>
<p>One answer has been to reform their <a href="https://www.wsj.com/articles/the-worlds-biggest-economies-cautiously-open-their-doors-to-more-foreign-workers-664c3549">immigration systems</a> to make deportation easier.</p>
<p>Germany, for example, has been wrestling with increases in <a href="https://www.dw.com/en/germany-illegal-immigration-set-to-exceed-record-high/a-67175099">undocumented immigration</a>. </p>
<p>Germany Chancellor Olaf Scholz announced <a href="https://www.dw.com/en/german-immigration-policy-whats-changing-in-2024/a-67753472">at the end of 2023</a> that he supports <a href="https://www.bmi.bund.de/EN/topics/migration/illegal-entry/illegal-entry-node.html">large-scale deportations</a> for migrants who are rejected for asylum. </p>
<p>Germany deported close to 8,000 people, many of them fleeing the war in Ukraine, in the first part of 2023. In total, an estimated <a href="https://www.dw.com/en/germany-illegal-immigration-set-to-exceed-record-high/a-67175099#:%7E:text=Police%20data%20shows%20that%2092%2C119,that%20illegally%20entered%20in%202016.">92,119 immigrants entered</a> Germany illegally from January through September 2023. </p>
<p>New German <a href="https://www.dw.com/en/german-immigration-policy-whats-changing-in-2024/a-67753472#:%7E:text=A%20reform%2C%20dubbed%20the%20Repatriation,their%20property%2C%20such%20as%20phones">government reforms</a> will increase that figure and no longer require officials to announce deportations in advance. </p>
<p>Italy, which is also battling a huge influx of undocumented <a href="https://www.reuters.com/world/europe/what-lies-behind-italys-immigration-crisis-2023-09-13/">migrants from North Africa,</a> recently <a href="https://www.reuters.com/world/europe/italy-pass-tougher-measures-deter-migrant-arrivals-2023-09-18/">doubled the amount</a> of time that it can detain undocumented migrants, rising from three months to at least six months. This decision is seen as an <a href="https://www.france24.com/en/europe/20230918-italy-extends-detention-period-to-deter-migrant-crossings-after-lampedusa-surge">effort to deter more migrants</a> from illegally entering Italy. </p>
<p>In November 2023, Italy signed an agreement <a href="https://www.cnn.com/2023/11/07/europe/italy-albania-migrant-refugee-deal/index.html">to build two new immigration detention centers</a> across the Adriatic Sea in Albania. </p>
<p>This allows Italy to skirt a European Union policy that requires its member countries to consider and process all <a href="https://home-affairs.ec.europa.eu/policies/migration-and-asylum/common-european-asylum-system/country-responsible-asylum-application-dublin-regulation_en">asylum applicants’ requests</a> within a year of their arrival. Since Albania is not part of the European Union, it could quickly deport the migrants that Italy sends there. </p>
<p>In December 2023, the European Union’s 27 countries also <a href="https://www.nytimes.com/2023/12/20/world/europe/eu-migration-asylum.html">voted on a major overhaul of asylum laws</a>. These changes will make it easier for countries to deport migrants who fail to get asylum. They also direct the European Union to give money to countries that allow more asylum seekers to stay in those countries. </p>
<h2>Other approaches</h2>
<p>Right now, Italy and Greece bear much of the brunt of migration in the EU.</p>
<p>More than <a href="https://www.voanews.com/a/greece-wants-eu-to-slap-sanctions-on-countries-that-won-t-accept-return-of-illegal-migrants/7297844.html">31,000 undocumented migrants</a>, mainly from Syria, crossed into Greece in 2023, up from 18,000 undocumented people who entered the country in 2022.</p>
<p>The parliament in Greece is considering new laws that would enable the country to issue tens of thousands of undocumented migrants <a href="https://apnews.com/article/greece-migrants-residence-work-permits-0851a9592f1811487d1fde49a63be5ae">residence and work permits</a> to address labor shortages. </p>
<p>Greece is also pushing the European Union to slap economic sanctions on countries, like Pakistan, that refuse to take back the <a href="https://apnews.com/article/migration-greece-deportations-eu-f4964595a5d9554cea7999df9f882795">undocumented migrants that Greece</a> deports to their home countries.</p>
<p>Closer to home, Canada is also experiencing a surge of undocumented migration into Quebec and other places, prompting some Canadians to <a href="https://theconversation.com/whats-behind-the-dramatic-shift-in-canadian-public-opinion-about-immigration-levels-219193">feel growing anxiety</a>, in part because of perceptions that the sudden population growth is also raising the country’s already-high housing costs. Canada <a href="https://www.thestar.com/news/canada/deportations-surge-as-regularization-stalls-for-the-undocumented/article_05fb6e0a-9461-11ee-8601-b3de32d91e09.html">deported 7,232 undocumented people</a> in the first six months of 2023 – a rise compared to the 7,635 deportations Canada carried out in the entire year of 2021.</p>
<p>Canada also announced in December 2023 that it is planning to allow people who entered the country with valid, short-term visas, and who continue living in Canada after these visas expire, to <a href="https://www.reuters.com/world/americas/canada-create-citizenship-path-undocumented-immigrants-globe-mail-2023-12-14/">apply for permanent residency</a>. This would mainly affect foreign students and temporary workers.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/570218/original/file-20240118-23-1y6fq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a grey uniform and a black police vest speaks to a small group of people who wear jackets and have suitcases as they approach him." src="https://images.theconversation.com/files/570218/original/file-20240118-23-1y6fq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/570218/original/file-20240118-23-1y6fq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=384&fit=crop&dpr=1 600w, https://images.theconversation.com/files/570218/original/file-20240118-23-1y6fq2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=384&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/570218/original/file-20240118-23-1y6fq2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=384&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/570218/original/file-20240118-23-1y6fq2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=483&fit=crop&dpr=1 754w, https://images.theconversation.com/files/570218/original/file-20240118-23-1y6fq2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=483&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/570218/original/file-20240118-23-1y6fq2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=483&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A Canadian officer speaks to migrants as they arrive in Quebec in March 2023.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/an-officer-speaks-to-migrants-as-they-arrive-at-the-roxham-news-photo/1247840460?adppopup=true">Sebastien St-Jean/AFP via Getty Images</a></span>
</figcaption>
</figure>
<h2>An uncertain way ahead</h2>
<p>Back in the U.S., the fight over immigration continues, with Republicans eager to crack down and Democrats who generally want to avoid harsh new standards that could lead to more deportations and <a href="https://www.nbcnews.com/politics/congress/democrats-seek-restrain-new-immigration-powers-fearing-abuse-trump-rcna13031">mass roundups</a> of undocumented immigrants. </p>
<p>Traditionally, Democrats have been supportive of immigration and the rights of undocumented immigrants in the U.S. </p>
<p>But the <a href="https://www.nbcnews.com/politics/joe-biden/biden-immigration-border-plan-voters-senate-negotiations-rcna12515">wave of migrants</a> who arrive in cities like New York and <a href="https://www.pbs.org/newshour/show/chicago-leaders-demand-help-from-white-house-to-deal-with-surge-of-migrants-in-city">Chicago without any money</a>, jobs or places to live is severely straining city governments’ capacity and budgets. Local leaders like New York Mayor Eric Adams are pleading with the federal government to help with a crisis that, as Adams said in September 2023, has <a href="https://www.nytimes.com/2023/09/07/nyregion/adams-migrants-destroy-nyc.html">no clear end</a> in sight.</p><img src="https://counter.theconversation.com/content/220741/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tara Sonenshine does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Germany and Italy are among the countries that are looking for ways to handle rises in undocumented migration and, in many cases, are making it harder for people to remain in their countries.Tara Sonenshine, Edward R. Murrow Professor of Practice in Public Diplomacy, Tufts UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2191732024-01-10T13:32:59Z2024-01-10T13:32:59ZRepublicans are pushing for drastic asylum changes – an immigration law scholar breaks down the proposal<figure><img src="https://images.theconversation.com/files/568299/original/file-20240108-23-1ap3d1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Migrants cross through a gap in the U.S.-Mexico border fence on Dec. 22, 2023, in Jacumba Hot Springs, Calif.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/migrants-cross-through-a-gap-in-the-us-mexico-border-fence-news-photo/1876398355?adppopup=true">Qian Weizhong/VCG via Getty Images</a></span></figcaption></figure><p>There is bipartisan agreement for the need for immigration reform and stark disagreement on what that reform should be. </p>
<p>A <a href="https://www.pewresearch.org/short-reads/2023/01/13/monthly-encounters-with-migrants-at-u-s-mexico-border-remain-near-record-highs/">rise in illegal</a> <a href="https://www.reuters.com/world/us/what-republicans-democrats-want-do-us-mexico-border-security-2024-01-08/">border crossings since 2020</a> has applied significant pressure for changing under what conditions someone can apply for asylum. This government system is designed to provide life-saving relief for noncitizens afraid of returning to their home countries. </p>
<p>Undocumented migrants entering the United States have few plausible options to legally stay in the country. For many migrants fleeing their countries due to violence, war, government collapse, natural disasters or any personal threats that could harm them, the only legal pathway of immigrating to the U.S. is by receiving asylum. </p>
<p>Conservative Republicans in Congress are now <a href="https://thehill.com/homenews/senate/4387973-shutdown-risk-grows-with-gops-border-fury/">proposing legal changes</a> that would make it harder for most applicants to get asylum. </p>
<p>The Republicans’ plan is <a href="https://thehill.com/homenews/house/4390204-5-things-to-know-about-border-bill-hr2-gop-shutdown-threats/">similar to</a> both a similar rule that the Department of Homeland Security adopted in 2019 and a policy that President Joe Biden is trying to push through. </p>
<p>I am an <a href="https://gould.usc.edu/faculty/profile/jean-lantz-reisz/">immigration professor</a> and teach asylum law. I believe it’s important to understand what sets Republicans’ proposed law apart from previous iterations. </p>
<p>The president cannot change the law, but Congress can. If these lawmakers succeed in changing federal asylum law, the law would override the court decisions striking down previous versions. Because Congress has broad power over immigration, the new laws would likely be upheld if challenged in court.</p>
<p>Still, currently, <a href="https://www.migrationpolicy.org/article/refugees-and-asylees-united-states">most people who seek asylum </a> do not receive permission to stay in the country, and they are deported. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/568300/original/file-20240108-29-cd4px2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People are seen standing in a desert on a grey day with a white SUV nearby." src="https://images.theconversation.com/files/568300/original/file-20240108-29-cd4px2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/568300/original/file-20240108-29-cd4px2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=337&fit=crop&dpr=1 600w, https://images.theconversation.com/files/568300/original/file-20240108-29-cd4px2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=337&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/568300/original/file-20240108-29-cd4px2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=337&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/568300/original/file-20240108-29-cd4px2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/568300/original/file-20240108-29-cd4px2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/568300/original/file-20240108-29-cd4px2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Migrants wait to be processed by U.S. Border Patrol agents near the U.S.-Mexico border in Jacumba Hot Springs, Calif.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/migrants-wait-to-be-processed-by-the-u-s-border-patrol-news-photo/1876398361?adppopup=true">Qian Weizhong/VCG via Getty Images</a></span>
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<h2>Understanding asylum</h2>
<p>Currently, any noncitizen, including someone who already lives in the U.S. or who entered the country without a visa – <a href="https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1158&num=0&edition=prelim">can apply for asylum</a>. This is true regardless of the person’s legal immigration status. </p>
<p>A person can ask the U.S. government for asylum only once they are in the country or at the border – and they must ask for asylum within a year of arriving in the U.S. </p>
<p>Applying for asylum is a complicated process that could take several years. Undocumented migrants <a href="https://www.pbs.org/newshour/nation/supreme-court-says-detained-immigrants-not-entitled-to-bond-hearing">often apply for asylum</a> while they are detained in an immigration detention center. </p>
<p>Overall, asylum applicants <a href="https://www.usa.gov/asylum">will need to prove</a> that they face severe harm in their home country from their government or someone their government cannot control, like an armed militia group. This potential severe harm must trace back to their race, religion, political opinion, nationality or some characteristic they cannot, or should not have to, change.</p>
<p>Asylum seekers first make their case to a U.S. government asylum officer, who judges the veracity of their claim in an interview. </p>
<p>If migrants pass this <a href="https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum/questions-and-answers-credible-fear-screening">first interview</a>, the migrant is allowed to seek asylum before an immigration judge. </p>
<p>At this stage, asylum seekers will need to show extensive evidence of events and other conditions that place them in severe danger if they are deported. Getting this proof is very difficult for asylum seekers, who typically require the help of an attorney to <a href="https://trac.syr.edu/immigration/reports/396/">complete this application process</a>. </p>
<p>Even if an applicant meets all of the requirements to get asylum, a judge still has the discretion to decide whether or not this person should receive it. </p>
<p>Judges then give some migrants asylum, allowing them to apply for U.S. green cards, which are the documents that give someone <a href="https://www.uscis.gov/sites/default/files/document/brochures/USCIS_Welcomes_Refugees_and_Asylees.pdf">legal permission to remain</a> in the U.S. They can then lawfully work, receive certain government benefits and eventually apply for citizenship. </p>
<h2>A backlog</h2>
<p>As a result of the rising number of undocumented migrants crossing into the U.S. – increasingly from <a href="https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_refugees_and_asylees_fy2022.pdf">places with widespread government instability</a> and violence, like Venezuela and Honduras – asylum requests are also on the rise.</p>
<p>Asylum cases in immigration court more than tripled <a href="https://www.dhs.gov/sites/default/files/2023-11/2023_0818_plcy_refugees_and_asylees_fy2022.pdf">between 2021 and 2022</a>, rising from 63,074 to 238,841. And the <a href="https://trac.syr.edu/reports/705/">asylum case numbers continue to grow</a>. </p>
<p>This rise in asylum applications is then coupled with a growing backlog of asylum cases in immigration court. </p>
<p>There are <a href="https://trac.syr.edu/reports/734/">3 million cases</a> still waiting to go before a judge in immigration courts – 1 million of these are asylum cases. In comparison, the average number of backlogged <a href="https://www.dhs.gov/sites/default/files/publications/Refugees_Asylees_2016_0.pdf">asylum cases</a> from 2012 through 2016 consistently remained below 200,000. </p>
<p>Consequently, people seeking asylum typically <a href="https://www.cbsnews.com/news/immigration-migrants-us-asylum-process-legal-limbo/">now wait an average of four years</a> before they have an asylum hearing in court – and, in many cases, may wait longer for a decision that they have appealed. </p>
<p>An asylum seeker may, in some cases, <a href="https://www.forbes.com/sites/stuartanderson/2023/09/01/new-york-businesses-give-immigrant-work-permits-to-asylum-seekers/?sh=58b60afb4219">apply for a work permit</a> if they must wait more than six months for a decision.</p>
<h2>Republican plan</h2>
<p>Conservative House Republicans are now <a href="https://www.nbcnews.com/politics/congress/republicans-threaten-government-shutdown-immigration-deal-democrats-rcna132534">threatening a government shutdown</a> that could happen as early as Jan. 19, 2024. They also have blocked more foreign aid to Ukraine and Israel, and are using their power over this aid as leverage for changing asylum laws. </p>
<p>Biden, meanwhile, wants Congress to <a href="https://www.reuters.com/world/us/what-republicans-democrats-want-do-us-mexico-border-security-2024-01-08/">approve nearly US$14 billion</a> to pay for more border security agents, as well as asylum officers and immigration judges. </p>
<p>Republicans have rejected Biden’s proposal and instead <a href="https://www.congress.gov/bill/118th-congress/house-bill/2?q=%7B%22search%22%3A%22hr2%22%7D&s=3&r=1">want new laws</a> that would deny asylum to any migrant who passed through a third country while traveling to the U.S., or who did not enter the U.S. at an official port of entry along a border. </p>
<p>These changes target the fact that most migrants who cross into the U.S. without documentation – and apply for asylum – come from countries other than Mexico. But these people, coming from countries like Venezuela, Haiti and Cuba, first pass through Mexico on their way to the U.S. Approximately 71% of the over <a href="https://www.npr.org/2023/11/12/1212058889/migrants-u-s-southern-border-historic-numbers-why">2.4 million</a> people who were apprehended at the southern border in 2023 traveled through Mexico, but were not <a href="https://www.migrationpolicy.org/news/border-numbers-fy2023">Mexican citizens</a>. </p>
<p>If this proposed law is passed, these migrants would no longer have a court consider their asylum applications. </p>
<p>Instead, they would not be allowed to apply for asylum. They would be immediately deported back to their own countries. </p>
<p>Democrats have opposed the changes when they were proposed as part of a bill in May 2023, but some <a href="https://www.reuters.com/world/us/what-republicans-democrats-want-do-us-mexico-border-security-2024-01-08/">Democrats are more open</a> to asylum restrictions and may compromise to reach a deal. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/568301/original/file-20240108-109125-esu3dh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="People walk along white walls that wrap in a circular manner. The people carry backpacks, children and wear jackets." src="https://images.theconversation.com/files/568301/original/file-20240108-109125-esu3dh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/568301/original/file-20240108-109125-esu3dh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=433&fit=crop&dpr=1 600w, https://images.theconversation.com/files/568301/original/file-20240108-109125-esu3dh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=433&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/568301/original/file-20240108-109125-esu3dh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=433&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/568301/original/file-20240108-109125-esu3dh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=544&fit=crop&dpr=1 754w, https://images.theconversation.com/files/568301/original/file-20240108-109125-esu3dh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=544&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/568301/original/file-20240108-109125-esu3dh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=544&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Ukrainians who were seeking asylum arrive at the U.S. port of entry in Tijuana, Mexico, in April 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/ukrainians-who-are-seeking-asylum-walk-at-the-el-chaparral-news-photo/1390002303?adppopup=true">Mario Tama/Getty Images</a></span>
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<h2>Not the first go-around</h2>
<p>The proposed change that would deny asylum to those who have traveled through a third country is identical to a Department of Homeland Security rule that the agency adopted under former president <a href="https://www.cbsnews.com/news/asylum-ban-trump-administration-blocked-by-judge-today-2019-07-24/">Donald Trump’s administration in 2019</a>. </p>
<p><a href="https://www.cnn.com/2023/07/25/politics/biden-asylum-court-ruling/index.html">Biden has proposed a similar policy</a>, with exceptions for a migrant who obtained special permission to enter the U.S., or who was denied asylum in another country. The <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/05/19-56417.pdf">Ninth Circuit Court of Appeals</a> struck down Trump’s rule in 2020 because it violated current asylum law that permits anyone to seek asylum, regardless of how they enter the U.S. </p>
<p>The president cannot change the law. </p>
<p>A federal district court <a href="https://www.texastribune.org/2023/07/25/texas-biden-asylum-rule-california-judge/">struck down Biden’s policy</a> in July 2023 on the same basis. Biden has appealed <a href="https://www.ca9.uscourts.gov/cases-of-interest/east-bay-sanctuary-covenant-v-joseph-biden/">that decision</a>. </p>
<p>Republicans are proposing other laws to make it harder to receive asylum. One change would require asylum seekers to present a large amount of evidence proving their fear of persecution during their first interview with a government asylum officer – not later, when they go before a judge. The law would also end programs that allow migrants to stay with sponsors in the U.S. while seeking asylum. </p>
<p>In summary, the proposed changes would make it almost impossible for a migrant entering through the U.S.-Mexico border to get asylum, even if that migrant has a legitimate fear of returning to his or her home country.</p><img src="https://counter.theconversation.com/content/219173/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jean Lantz Reisz receives funding from Los Angeles City and County. </span></em></p>A GOP proposal would make it nearly impossible for most migrants now crossing the US border to gain asylum and the right to remain in the country.Jean Lantz Reisz, Clinical Associate Professor of Law, Co-Director, USC Immigration Clinic, University of Southern CaliforniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2186992023-11-28T09:23:23Z2023-11-28T09:23:23ZHigh Court reasons on immigration ruling pave way for further legislation<p>After ruling on November 8 that indefinite immigration detention is unlawful, the High Court today delivered its <a href="https://eresources.hcourt.gov.au/showCase/2023/HCA/37">reasons</a> for the decision that upturned 20 years of precedent. Its ruling has required the release of some 140 people from immigration detention so far, and set off a political scramble to legislate in response to the outcome.</p>
<p>The judgment, the first made by the court under new Chief Justice Stephen Gageler, was unanimous. It largely turned on questions of constitutional law and the limits of executive power. </p>
<p>The court made it clear that a person must be released from detention when there was no real prospect of them being deported in the foreseeable future. Previously, there was no limit to the length of time people could be detained in immigration detention in Australian law. In fact, people could legally be detained for the rest of their lives without ever being found guilty of a crime. </p>
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Read more:
<a href="https://theconversation.com/the-high-court-has-decided-indefinite-detention-is-unlawful-what-happens-now-217438">The High Court has decided indefinite detention is unlawful. What happens now?</a>
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<p>The decision overturns the much-criticised 2004 Al-Kateb v Godwin case, where a 4-3 majority ruled that, provided the government maintained an intention to eventually remove a person from Australia, the Constitution allowed them to be detained indefinitely until that removal took place. </p>
<p>The court’s reasons in this case indicated that other laws allowing detention, such as continuing detention orders, could apply to people released because of the decision. Continuing detention orders are a mechanism that enable people to be detained once they have served their sentence for a crime. </p>
<p>However, those orders are only available if the person is considered to pose an “<a href="https://www.legislation.gov.au/Details/C2023C00283">unacceptable</a>” risk of reoffending and only in relation to specific, serious crimes. Such orders can only be made with the support of expert evidence and with judicial oversight, as detailed below. </p>
<h2>Implications of the decision</h2>
<p>The decision has significant ramifications for the rapidly drafted legislation that was passed by parliament in response to the case, before the High Court had released its reasons. </p>
<p>In response to the release of the reasons for the decision, the federal government <a href="https://www.theage.com.au/politics/federal/high-court-publishes-reasons-for-indefinite-detention-decision-20231128-p5ena0.html">indicated</a> it would legislate again before parliament rises for the year.</p>
<p>Laws rushed through parliament earlier this month included curfews, high levels of monitoring of people released from detention and severe mandatory prison sentences for infringements of release conditions. The first package of laws has <a href="https://www.theguardian.com/law/2023/nov/22/labor-immigration-detention-laws-high-court-challenge">already been challenged</a> in the courts by a Chinese refugee known as S151, on the basis they are “punitive”. More challenges are anticipated. </p>
<p>With this decision, the court has revealed an intention to exercise much greater scrutiny of the parliament and executive in ensuring constitutional limits on power are respected. </p>
<p>In this way, this judgment can be seen as representing a turn from more permissive approaches to limits on parliamentary legislative power.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1729361661839184093"}"></div></p>
<h2>The challenge and decision</h2>
<p>The challenge was brought by a <a href="https://theconversation.com/the-high-court-has-decided-indefinite-detention-is-unlawful-what-happens-now-217438">stateless Rohingya man</a>, given the pseudonym NZYQ, who had fled his home country of Myanmar and arrived in Australia by boat in 2012. He spent just over a year in immigration detention on arrival. </p>
<p>Soon after he was released into the community, he was convicted of sexual intercourse with a minor and was sentenced to a maximum of five years imprisonment. While in prison, he applied for refugee status. He was found to be owed protection but, due to his criminal history, was not granted a protection visa. On release from prison, he was immediately re-detained in immigration detention.</p>
<p>Both international and Australian law prohibit sending people back to places where they are at risk of persecution, as NZYQ had been found to be. </p>
<p>The <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s196.html">Migration Act</a> requires “unlawful non-citizens” to be held in detention until they are removed from Australia, deported or granted a visa. </p>
<p>NZYQ’s appeal focused on two questions. Did the detention provisions authorise the potential indefinite detention of non-citizens in circumstances where there were no real prospects of removal? If so, was this constitutionally valid?</p>
<p>The High Court answered the first question in the affirmative, in essence agreeing with the majority in Al-Kateb that relevant legislative provisions authorised detention until a detainee was removed, deported or given a visa, no matter how long that might take.</p>
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<p>But on the second question, treading a course it said “should not lightly be taken”, the court reopened and overruled the constitutional holding in Al-Kateb, finding that detention provisions contravened the separation of powers in the Constitution. That is, detention is generally punishment, which can only be ordered by courts, not the government. </p>
<p>There are limited exceptions to this rule for immigration detention. Detention will not be punishment as long as it for the purpose of deportation or enabling an application for a visa to be made.</p>
<p>In NZYQ, the High Court stated that ongoing detention – where there is no reasonable prospect of the removal of the plaintiff from Australia in the reasonably foreseeable future – would not meet this test. </p>
<h2>What does it mean?</h2>
<p>With this judgment, the court unanimously rejected the ability of the parliament to define its own limits for detention. In doing so, it brings Australia into line with international law and practice. No other country allows for, let alone requires, indefinite mandatory immigration detention. </p>
<p>While the court did not engage directly with international law arguments, the outcome and reasoning reaffirm international principles of reasonableness and proportionality, set out in a <a href="https://www.kaldorcentre.unsw.edu.au/sites/kaldorcentre.unsw.edu.au/files/Memo_Explusion_Non-Citizens.pdf">memo</a> by international refugee law expert Professor Guy S Goodwin-Gill. This formed the basis of Kaldor Centre’s <a href="https://www.hcourt.gov.au/assets/cases/08-Sydney/s28-2023/NZYQ-MICMA-IntHRLCKaldor.pdf">intervention</a> with the Human Rights Law Centre in the case. </p>
<p>In terms of when an individual will be required to be released from detention, the court makes clear that the onus is on the government to show there is real prospect of removal in the reasonable future. This means deportation has to be a real possibility – it is not enough for the government to say it is trying without showing there is a real prospect it can be achieved.</p>
<p>This decision also will have broader ramifications for <em>habeas corpus</em> in Australian courts. This is the requirement that any person detained by the government has the right to challenge that detention. When challenged, the government must demonstrate the basis for the detention. With this judgment, the court has made it clear that inquiries will be rigorous, not merely considering the surface arguments made by detaining authorities. </p>
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Read more:
<a href="https://theconversation.com/grattan-on-friday-a-government-in-a-big-hurry-gives-opposition-some-wins-on-ex-detainees-217912">Grattan on Friday: A government in a big hurry gives opposition some wins on ex-detainees</a>
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<h2>Preventive detention</h2>
<p>The court acknowledged that people released from immigration detention because of its decision could be re-detained under other laws, such as continuing detention provisions. These allow for the ongoing detention of people who are considered to pose an unacceptable risk of reoffending. This would need to be for reasons exclusively connected to the risk that is posed, not to their immigration status.</p>
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<p>Such provisions already exist for some sex or terrorism crimes. However, for such orders to be made, there must be clear evidence the individual poses an unacceptable risk; merely having committed a crime before is not adequate. Most importantly, these decisions are generally made by the courts, and not the government.</p>
<p>The High Court’s decision was clear – only the courts have the power to deal out punishment. The risk is that any further blanket restrictions on individual liberty that are not subject to judicial oversight will be similarly overturned by the courts.</p><img src="https://counter.theconversation.com/content/218699/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Ghezelbash receives funding from the Australian Research Council and the NSW Government. He is a member of the management committee of Refugee Advice and Casework Services and a Special Counsel at the National Justice Project. He is the Deputy Director of the Kaldor Centre for International Refugee Law, which was given leave to intervene in the NZYQ case as amicus curiae.</span></em></p><p class="fine-print"><em><span>Anna Talbot receives funding from the Australian government as a PhD scholar at the Kaldor Centre for International Refugee Law, University of NSW, Sydney, which was given leave to intervene in the NZYQ case as amicus curiae.</span></em></p>The High Court judges unanimously held that a person must be released from immigration detention where there is no real prospect of them being deported in the foreseeable future.Daniel Ghezelbash, Associate Professor and Deputy Director, Kaldor Centre for International Refugee Law, UNSW Law & Justice, UNSW SydneyAnna Talbot, PhD Candidate, Kaldor Centre for International Refugee Law, UNSW Sydney, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2173632023-11-10T00:18:22Z2023-11-10T00:18:22Z‘I have no rights’: what happens to stateless people in Australia after the High Court’s ruling?<figure><img src="https://images.theconversation.com/files/558737/original/file-20231109-17-q814h2.jpg?ixlib=rb-1.1.0&rect=21%2C50%2C4803%2C3168&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/stateless-word-dictionary-concept-1155404044">Shutterstock</a></span></figcaption></figure><p>The decision by the High Court of Australia this week <a href="https://www.abc.net.au/news/2023-11-08/indefinite-immigration-detention-ruled-unlawful-by-high-court/101569082">overturning the legality</a> of indefinite immigration detention marks a watershed moment in Australian legal history. </p>
<p>For almost two decades, stateless people have faced the prospect of spending their lives behind bars. </p>
<p>Now, a stateless <a href="https://www.abc.net.au/news/2023-11-10/asylum-seekers-indefinite-detention-to-be-released/103088762">Rohingya refugee</a> has been released from detention.</p>
<p>With no “stateless” visa category or pathway to permanency, stateless people will continue to face a life of uncertainty in the Australia community, begging the question; what next?</p>
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<strong>
Read more:
<a href="https://theconversation.com/government-must-use-trauma-informed-approach-to-end-uncertainty-on-refugee-visa-applications-203758">Government must use trauma-informed approach to end uncertainty on refugee visa applications</a>
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<h2>Overturning decades of precedent</h2>
<p>This week the Australian High Court <a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans/2023/154.html">ordered</a> the immediate release of the stateless refugee, known as “NZYQ”, from immigration detention.</p>
<p>He’d been held there for more than five years. </p>
<p>The Court found that because there was no real prospect of his removal from Australia “becoming practicable in the reasonably foreseeable future”, his detention was unlawful.</p>
<p>This decision is highly significant, overturning almost twenty years of legal precedent established in <a href="https://eresources.hcourt.gov.au/showCase/2004/HCA/37">2004.</a> </p>
<p>In that case, the High Court upheld the ability of the Australian government to detain people for an unlimited period. </p>
<p>That looked to be the fate of the man at the centre of this week’s case.</p>
<p>Having had his visa cancelled due to a <a href="https://www.theguardian.com/australia-news/2023/nov/09/high-court-indefinite-immigration-detention-coalition-safety">criminal conviction</a> and unable to be returned to Myanmar as a stateless refugee, he faced potentially being detained for the rest of his life.</p>
<p>Australia’s system of mandatory indefinite detention, a bipartisan policy introduced in 1992, is unique, even when compared with countries with similar legal traditions, such as the UK. </p>
<p>Available <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">government statistics</a> indicate there are currently over 1,000 people in immigration detention, 31 of whom are stateless.</p>
<p>The average length somebody is detained in Australia is a staggering <a href="https://www.homeaffairs.gov.au/research-and-stats/files/immigration-detention-statistics-31-august-2023.pdf">708 days</a>.</p>
<p>More than 100 people have been held for more than five years. </p>
<h2>What does is mean to be stateless?</h2>
<p>There is little understanding of statelessness in Australia, despite the fact it affects millions of people globally. </p>
<p>A stateless person is someone with no nationality. Legally speaking, they are recognised as “belonging” to no country in the world. </p>
<p>While the <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0009/4460454/Statelessness_overview_factsheet_Feb_2023.pdf">causes of statelessness</a> vary, the dominant root cause is usually discrimination of one kind or another, including on the grounds of gender, race or religion.</p>
<p>The legal definition of statelessness does not do justice to the lived reality. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-migration-review-could-close-some-disability-discrimination-loopholes-but-not-for-people-already-waiting-or-refused-visas-215894">A migration review could close some disability discrimination loopholes – but not for people already waiting or refused visas</a>
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<p>Statelessness has the potential to impact almost every aspect of a person’s day-to-day life.</p>
<p>It can inhibit freedom of movement, access to education, housing, employment and medical care. </p>
<p>In Australia, these challenges are compounded by an often overwhelming sense of uncertainty about the future and the ever-present threat of detention.</p>
<p>The lived reality of statelessness is perhaps better understood in the <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0007/3645547/StatelessChildrenReport.pdf">words of Amir</a>, a stateless father living in Australia:</p>
<blockquote>
<p>Being stateless has been a huge source of sadness for me in my life. At times it has made me question my very existence and made me wonder why my parents chose to bring me into this world. I’ve never felt like I have a future. Wherever I’ve gone, I have no rights.</p>
</blockquote>
<p>We must never forget that behind legal judgements are the lives of real people. Many stateless families we work with in the <a href="https://law.unimelb.edu.au/centres/statelessness/engage/stateless-children-legal-clinic">Stateless Legal Clinic</a> have spent years in immigration detention, including Australian-born children who marked their <a href="https://firstdogonthemoon.com.au/cartoons/2014/11/12/baby-ferouzs-first-birthday/">first birthdays</a> behind the wire. </p>
<p>The ongoing health impacts of detention, especially on children, have been <a href="https://humanrights.gov.au/our-work/2-findings-and-recommendations#:%7E:text=The%20Commission%20makes%20the%20general,prolonged%20detention%20on%20the%20mental">well documented</a>.</p>
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<h2>A lack of legal protections means an uncertain future</h2>
<p>Along with the harmful effects of detention is the gap in legal protections stateless people experience in the Australian community. </p>
<p>Australia doesn’t have a distinct visa category for stateless people or pathway to permanent residency. </p>
<p>Many live with crippling prohibitions on their ability to build a secure life for themselves and their children. Access to some of the basic rights many of us take for granted – such as education - can be challenging. In the <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0007/3645547/StatelessChildrenReport.pdf">words of stateless mother Nur:</a></p>
<blockquote>
<p>Being stateless makes things challenging for us here. My children feel Australian – yet we are often reminded they are not […] our eldest child, Iman started kindergarten this year. It was so difficult trying to enrol him – they asked about his passport, his visa, his status. I felt embarrassed having to explain he has no passport – no identity. No certainty of his future.</p>
</blockquote>
<p>Australian law does not adequately protect the rights of stateless people in this country. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-the-governments-plan-to-overhaul-the-asylum-system-is-a-smart-use-of-resources-and-might-just-work-215061">Why the government's plan to overhaul the asylum system is a smart use of resources – and might just work</a>
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<p>This week’s High Court decision is a critical first step in protecting stateless people from being indefinitely deprived of their liberty. What happens next is just as important. </p>
<p>In the absence of being recognised as citizens of any country in the world, Australia can – and must – do more to offer stateless children and adults a life of certainty in this country.</p><img src="https://counter.theconversation.com/content/217363/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Foster receives funding from the Australian Research Council. </span></em></p><p class="fine-print"><em><span>Katie Robertson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The overturning of almost 20 years of legal precedent allowing indefinite detention is a watershed moment. But stateless people in Australia have few rights and little say over their futures.Katie Robertson, Director - Stateless Legal Clinic, The University of MelbourneMichelle Foster, Professor, Melbourne Law School, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2106312023-07-31T05:23:10Z2023-07-31T05:23:10ZParents may wait up to 40 years to join family in Australia. Is a visa lottery the answer?<p>“Providing an opportunity for people to apply for a visa that will probably never come seems both cruel and unnecessary”. </p>
<p>This was the view of an <a href="https://www.homeaffairs.gov.au/reports-and-pubs/files/review-migration-system-final-report.pdf">expert panel</a>, commissioned by Home Affairs Minister Clare O'Neil, on Australia’s dysfunctional parent migration system. Parents wanting to migrate to Australia to join their children face extreme delays, even if they can afford a contributory visa, which costs almost $50,000 per person. </p>
<p><a href="https://scanloninstitute.org.au/sites/default/files/2023-07/FINAL%20Scanlon%20Foundation%20Research%20Institute%20Report%20%20NARRATIVE%2011%20%28002%29-compressed.pdf">My report</a> for the Scanlon Foundation Research Institute, published today, finds the backlog of applications for permanent parent visas is approaching 140,000 and has tripled in a decade. Wait times for a contributory visa are at least 12 years, or at least 30 years for a cheaper visa.</p>
<p>How can we fix this? Whichever way the government turns, it faces unpalatable policy choices with unwanted electoral consequences.</p>
<h2>The parent visa conundrum</h2>
<p>The parent visa pipeline includes 86,000 applications for so-called “<a href="https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/contributory-parent-143">contributory</a>” visas, and 51,000 for “<a href="https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/parent-103">non-contributory</a>” visas.</p>
<p>These are first- and second-class migration options, with price tags to match.</p>
<p>The $47,955 per person charge for a contributory visa is justified on the basis that these first-class parents “contribute” to the cost of the public services they will access as they age. But the Productivity Commission <a href="https://www.pc.gov.au/inquiries/completed/migrant-intake/report/migrant-intake-report-overview.pdf">argues</a> the revenue raised is “a fraction of the fiscal costs” that parents will impose, especially by drawing on health services.</p>
<p>The charge is better understood as a premium paid in return for “quicker” processing. Initially, this worked. When the Howard government first introduced contributory visas in 2003, well-off families were able to swiftly settle parents in Australia, usually within two years. But program numbers were capped from the start, and demand rapidly outstripped supply.</p>
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<img alt="" src="https://images.theconversation.com/files/540068/original/file-20230731-235681-z38cp9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/540068/original/file-20230731-235681-z38cp9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=398&fit=crop&dpr=1 600w, https://images.theconversation.com/files/540068/original/file-20230731-235681-z38cp9.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=398&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/540068/original/file-20230731-235681-z38cp9.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=398&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/540068/original/file-20230731-235681-z38cp9.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=500&fit=crop&dpr=1 754w, https://images.theconversation.com/files/540068/original/file-20230731-235681-z38cp9.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=500&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/540068/original/file-20230731-235681-z38cp9.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=500&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="attribution"><span class="source">Data to 2021-22 is from Home Affairs and its predecessor departments via annual reports on the migration program and the serial publication Population Flows: Immigration Aspects. Data for 2022-23 is to 30 May 2023, all other data is for 30 June</span>, <span class="license">Author provided</span></span>
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<p>In 2022-23, the Albanese government almost doubled the quota from 3,600 to 7,000 places.</p>
<p>Yet even with this higher cap, Home Affairs advises that a new application “may take <em>at least 12 years</em> to process” (their emphasis). The expert migration panel thought this an underestimate – its March <a href="https://www.homeaffairs.gov.au/reports-and-pubs/files/review-migration-system-final-report.pdf">report</a> put the wait time at 15 years.</p>
<p>The cheaper, non-contributory visa has a far lower cap – just 1,500 places last financial year – and so the wait for a visa is even longer. Home Affairs advises that a new application “may take at least 29 years to process”. Again, the expert panel reckons this is optimistic. It estimates processing time at more than 40 years.</p>
<p>Such waiting times are ludicrous.</p>
<p>Parents are generally at least 60 years old when they apply. About 60% of parent migrants are women and often want to settle in Australia while they’re still fit and healthy, so they can enjoy time with young grandchildren and support their Australian children as they build careers.</p>
<p>Alternatively, parents may be recently widowed, isolated or in need of care themselves.</p>
<p>In either scenario, even the shortest wait time of 12 years defeats the purpose of the visa.</p>
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<h2>Can we fix it?</h2>
<p>The panel recommended the government shift to a ballot system as <a href="https://www.immigration.govt.nz/about-us/media-centre/news-notifications/parent-resident-visa-restarts">New Zealand</a> is now doing now, and as <a href="https://www.cbc.ca/news/politics/lottery-parents-grandparents-immigration-1.4086527">Canada</a> did in 2015.</p>
<p>In Canada, for a limited time each year, families can lodge an expression of interest to <a href="https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/family-sponsorship/sponsor-parents-grandparents.html">sponsor</a> a parent or grandparent to migrate to Canada. Immigration authorities then pull enough names from the hat to fill the annual intake quota. Once an application is accepted, the processing time for a visa is about 2.5 years, and costs are modest.</p>
<p>In 2022, Canada <a href="https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/family-sponsorship/sponsor-parents-grandparents/tell-us-you-want-sponsor-parent-grandparent.html">offered</a> about 23,000 places from a pool of about 155,000 expressions of interest, meaning the odds of a winning ticket were about one in seven.</p>
<p>Is a lottery preferable to a queue? A ballot would be a fairer system than the two-tiered approach Australia operates, which provides a fast lane for the wealthy and a slow lane for everyone else (even though that “fast” lane is now clogged too).</p>
<p>The expert panel argued a ballot could eliminate massive application backlogs because the number of applicants chosen from the lottery would align with the number of available visa places. This obscures the fact that there are likely to be tens of thousands of families that enter the draw and fail to win.</p>
<p>Those families will try again the following year, and again in the years after that, but their chances of success will decline as ever more new hopefuls throw names into the hat. </p>
<p>These families may not be stuck in a queue, but they’re stuck in a disordered heap hoping to get lucky. Their situation wouldn’t be so different from the “cruel and unnecessary” plight of those families currently waiting for a visa that may never arrive. They would also be condemned to living with a mixture of hope, anxiety and uncertainty, unable to plan for the future.</p>
<p>In the outline of its <a href="https://immi.homeaffairs.gov.au/programs-subsite/files/migration-strategy-outline.pdf">migration strategy</a>, the Albanese government focused on skilled migration, and promised reform of the family program “will be considered separately”.</p>
<p>The current system is failing, but there are no easy answers for the government. </p>
<p>It could abolish permanent parent migration altogether, and upset overseas-born Australians, many of whom vote in key marginal seats.</p>
<p>Or it could attempt to <a href="https://ozvisa4parents.au/">clear the backlog</a> by increasing the cap on permanent parent migration by about 20,000 places annually. Amid an intractable housing crisis and unprecedented pressure on Australia’s health- and aged-care systems, this would hand the Coalition an emotive “big Australia” campaign stick to beat it with at the next election.</p>
<p>A ballot might look like a neat way of avoiding these two extremes, but it fails the key test of clarity. The slim chance of winning the visa lottery will leave families banking on dreams, rather than adjusting to the realities of their situation and fully settling in Australia.</p><img src="https://counter.theconversation.com/content/210631/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Peter Mares received funding from The Scanlon Foundation Research Institute to complete the research on which this article is based. He is an honourary fellow with the Centre for Policy Development, an independent policy institute.</span></em></p>Parents wanting to migrate to Australia to join their children face ludicrous delays, and if opting for a paid contributory visa, exorbitant fees.Peter Mares, Adjunct senior research fellow at Monash University's School of Media Film and Journalism, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1940012022-11-09T16:02:49Z2022-11-09T16:02:49ZManston holding facility: does the UK’s treatment of asylum seekers violate the law?<p>A woman held at the Manston holding facility in Kent is <a href="https://www.independent.co.uk/news/uk/home-news/manston-immigration-centre-legal-action-home-secretary-b2216948.html">taking legal action</a> against Home Secretary Suella Braverman. The asylum seeker claims that she was held unlawfully in “egregiously defective conditions” at the centre. Her case is supported by the organisation Detention Action, and another case is being put forward by the charity <a href="https://www.lbc.co.uk/news/charities-threaten-to-sue-government-over-egregiously-defective-migrant-conditio/">Bail for Immigration Detainees</a>.</p>
<p>Braverman has denied <a href="https://www.theguardian.com/uk-news/2022/oct/31/suella-braverman-says-never-ignored-legal-advice-housing-asylum-seekers">ignoring legal advice</a> about conditions at the centre, which is meant for a maximum of 1,600 people but was holding more than 4,000 and has <a href="https://www.theguardian.com/science/2022/oct/20/diphtheria-outbreak-confirmed-at-asylum-seeker-centre-in-kent">had outbreaks of norovirus, scabies and diphtheria</a>. Braverman has been accused of not making alternative arrangements, such as hotel bookings, to accommodate the additional people.</p>
<p>The Manston facility has become a flashpoint for criticism of the government’s current and past policies, and treatment of asylum seekers. But the situation at Manston is not just dismal, it is a violation of legal requirements in international law, domestic law and the government’s own policies.</p>
<p>Under the Immigration Act 2016, an asylum seeker is normally given <a href="https://www.gov.uk/government/publications/offender-management/immigration-bail-accessible-version">immigration bail</a> which permits them to live in the UK until their case is determined. During this period, people are supposed to be accommodated in suitable conditions, <a href="https://england.shelter.org.uk/professional_resources/legal/housing_options/asylum_seekers_accommodation_options/accommodation_for_asylum_seekers">provided by</a> local authorities, registered social landlords (housing associations) and private landlords. They might be briefly kept in a short-term holding facility (such as Manston) before they are transferred to asylum accommodation, but they are not supposed to be in immigration detention. </p>
<p>UK law does not dictate a maximum time limit that people can be detained.
However, detention is only supposed to be used when deportation is imminent, for example if someone’s asylum claim was rejected. The <a href="https://freemovement.org.uk/what-are-the-hardial-singh-principles/">Hardial Singh principles</a>, which stem from a <a href="http://www.bailii.org/ew/cases/EWHC/QB/1983/1.html">1983 detention case</a>, limit the government’s detention powers. Still, people have been found to be detained for weeks, months or even years.</p>
<h2>Short-term holding</h2>
<p>The people at Manston are not meant to be in detention at all. Government <a href="https://www.legislation.gov.uk/uksi/2018/409">rules</a> state that short-term facilities should only be used for transfers or short holding for a <a href="https://www.legislation.gov.uk/uksi/2018/409/note">maximum of seven days</a>. Manston is intended to accommodate people for <a href="https://www.gov.uk/government/news/new-secure-site-for-processing-illegal-migrants">a few days</a>, but some people have been held there for weeks. </p>
<p>The legal action against the Home Office asks Braverman to declare that anyone held at the centre for longer than 24 hours has been unlawfully detained. This is presumably because after 24 hours, people are supposed to be given <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/721583/STHF-rules-operational-guidance-v1.0-EXT.pdf">reasons</a> in writing for their detention. </p>
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Read more:
<a href="https://theconversation.com/the-uks-asylum-system-is-in-crisis-but-the-government-not-refugees-is-to-blame-193670">The UK's asylum system is in crisis, but the government – not refugees – is to blame</a>
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<p>Additionally, the <a href="https://www.echr.coe.int/documents/convention_eng.pdf">European Convention on Human Rights</a>, part of UK law under the Human Rights Act 1998, says that detention must be proportionate to the objective – such as imminent deportation. In Manston, there are particular concerns about the holding of children, including unaccompanied children, for whom there is a special duty of care under <a href="https://www.legislation.gov.uk/ukpga/2009/11/notes/division/5/4/3">the Borders, Citizenship and Immigration Act 2009</a>. </p>
<p>Deprivation of liberty must be pre-authorised by a specific provision of law in order to not amount to false imprisonment. In <a href="https://www.supremecourt.uk/cases/uksc-2018-0197.html">a 2019 case</a>, the Supreme Court found the Home Office liable to pay asylum seekers damages for false imprisonment when they were unlawfully detained for periods between five and 16 weeks. In <a href="https://www.supremecourt.uk/cases/uksc-2018-0140.html">another case</a> where an asylum seeker was unlawfully deported, his detention prior to deportation was also held to be unlawful. </p>
<h2>How did we get here?</h2>
<p>The chief inspector of prisons <a href="https://www.justiceinspectorates.gov.uk/hmiprisons/inspections/short-term-holding-facilities-at-western-jet-foil-lydd-airport-and-manston/">reported on</a> conditions at Manston and two other short-term holding facilities in August. While acknowledging progress had been made since earlier inspections, the report described “significant concerns” about the conditions and length of holding time at the centres.</p>
<p>People are being held for too long, in poor conditions and in large numbers because there is no space to accommodate asylum seekers in regular asylum accommodation. This is because of the massive <a href="https://www.refugeecouncil.org.uk/wp-content/uploads/2021/07/Living-in-Limbo-A-decade-of-delays-in-the-UK-Asylum-system-July-2021.pdf">asylum case backlog</a>, which has been years in the making.</p>
<p>The <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1092487/E02726679_ICIBI_Tug_Haven_and_Western_Jet_Foil_Web_Accessible.pdf">chief inspector of borders and immigration</a> also recently published a report on the government’s inability to handle the increase in small boat crossings, citing the Home Office’s “refusal to transition from an emergency response to what has rapidly become steady state, or business as usual.”</p>
<h2>Small boat arrivals</h2>
<p>Braverman has controversially referred to people arriving on boats <a href="https://www.bbc.co.uk/news/uk-politics-63475511">as an “invasion”</a>. The <a href="https://www.unhcr.org/uk/3b66c2aa10">1951 Refugee Convention</a> recognises that people fleeing persecution may have to use irregular means in order to escape and claim asylum in another country. At present there is no legal way to travel to the UK for the specific purpose of seeking asylum. The people who risk death during sea crossings are more likely to be fleeing horrific life situations than simply seeking better opportunities. Whether or not they have an asylum claim needs to be assessed through the proper channels.</p>
<p>The <a href="https://www.legislation.gov.uk/ukpga/2022/36/contents">Nationality and Borders Act 2022</a> complicates this by linking the support available for asylum seekers with their mode of entry. A refugee who is <a href="https://www.legislation.gov.uk/ukpga/2022/36/section/12/enacted#:%7E:text=12Differential%20treatment%20of%20refugees&text=(a)a%20refugee%20is%20a,is%20a%20Group%202%20refugee">considered to have entered unlawfully</a> may be restricted in their ability to get long term secure status and may have no recourse to public funds. Their family members may be prevented from joining them or remaining with them in the UK. </p>
<p>The government claims this is to prevent people from being trafficked via unsafe modes of <a href="https://www.parallelparliament.co.uk/bills/2021-22/nationalityandborders/debates">transportation</a>. Indeed, there are reports in the media about many channel crossers being <a href="https://www.theguardian.com/commentisfree/2022/nov/04/albanians-scapegoats-britain-failing-ideological-project-invaders?CMP=share_btn_tw">trafficked from Albania</a> rather than being asylum seekers. If that is true, and presumably not just from Albania, the focus should be on preventing trafficking and on consequences for traffickers – not <a href="https://www.theguardian.com/global-development/2020/oct/06/home-secretarys-dangerous-rhetoric-putting-lawyers-at-risk">improperly detaining</a> those who have been trafficked.</p>
<p>The <a href="https://www.theguardian.com/global-development/2020/oct/06/home-secretarys-dangerous-rhetoric-putting-lawyers-at-risk">legal liabilities</a> stemming from improper use of detention powers should not be a reason for <a href="https://www.bbc.co.uk/news/explainers-61782866">offshoring asylum processes</a> to countries like Rwanda. The focus should be on making the process fair and efficient here. Sending people far away only makes their plight less visible than when they are detained in facilities like Manston.</p><img src="https://counter.theconversation.com/content/194001/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Professor Devyani Prabhat received funding from ESRC in the past to research British Citizenship. This piece is not connected to that research. </span></em></p>UK law says that detention should only be used when deportation is imminent.Devyani Prabhat, Professor in Law, University of BristolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1860162022-06-30T20:54:22Z2022-06-30T20:54:22ZSupreme Court’s ‘Remain in Mexico’ ruling puts immigration policy in the hands of voters – as long as elected presidents follow the rules<figure><img src="https://images.theconversation.com/files/471942/original/file-20220630-5543-xzeo13.jpg?ixlib=rb-1.1.0&rect=0%2C41%2C5574%2C3663&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A migrant from Haiti waits with others at a clinic for migrants in Tijuana, Mexico.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/SupremeCourtAsylumWaitinginMexico/14efcaea327c43fdbc163c1c38b84b70/photo?Query=%22remain%20in%20mexico%22&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=129&currentItemNo=0">AP Photo/Gregory Bull</a></span></figcaption></figure><p>In the <a href="https://www.supremecourt.gov/opinions/slipopinion/21">very last decision of its latest term</a>, the Supreme Court released a major ruling that not only <a href="https://www.nytimes.com/2022/06/30/us/politics/biden-remain-in-mexico-scotus.html">clears a barrier</a> to ending a signature policy of the Trump administration but also signals that the future of immigration policy is in the hands of the electorate.</p>
<p>In <a href="https://www.oyez.org/cases/2021/21-954">Biden v. Texas</a>, the Supreme Court rejected an effort to prevent the current president’s rollback of a Trump-era policy that requires asylum seekers arriving at the U.S. southern land border to be returned to Mexico while their claims were being processed. </p>
<p>The <a href="https://www.supremecourt.gov/opinions/21pdf/21-954_7l48.pdf">5-4 decision</a> means that the case will be returned to the lower courts. But it also makes clear that whoever is control of the White House has the power to change directions in immigration policy – even drastic reversals of policy. It follows that presidents can do the same in other substantive legal areas as well, such as civil rights and environmental protection.</p>
<h2>The rights (and wrongs) of remain</h2>
<p>The issue in Biden v. Texas was whether the Biden administration could <a href="https://www.dhs.gov/migrant-protection-protocols">dismantle a Trump administration policy</a> formally known as <a href="https://www.dhs.gov/archive/migrant-protection-protocols-trump-administration">Migrant Protection Protocols</a> but widely referred to as the “Remain in Mexico” policy.</p>
<p>As part of an array of immigration enforcement measures, the Trump administration <a href="https://www.dhs.gov/news/2018/12/20/secretary-nielsen-announces-historic-action-confront-illegal-immigration">announced the policy in late 2018</a> in response to numbers of migrants arriving at the U.S.-Mexico border.</p>
<p>But the Migrant Protection Protocols <a href="https://www.axios.com/2022/06/22/remain-in-mexico-migrant-suicide-attempt">came under scrutiny</a> amid concerns over the <a href="https://www.americanoversight.org/investigation/conditions-in-migrant-detention-centers">safety and conditions</a> to which asylum seekers were subjected in camps under the supervision of Mexican authorities. Human Rights Watch <a href="https://www.hrw.org/tag/remain-mexico">found the policy</a> sent “asylum seekers to face risks of kidnapping, extortion, rape, and other abuses in Mexico” while also violating “their right to seek asylum in the United States.”</p>
<p>Yet an attempt by the Biden administration to eliminate the protocols was <a href="https://www.ca5.uscourts.gov/opinions/pub/21/21-10806-CV1.pdf">barred by the U.S. Court of Appeals</a> for the Fifth Circuit. The circuit judges found that the Biden administration had violated immigration law requiring the detention of asylum seekers.</p>
<p>The Supreme Court rejected this ruling. In a <a href="https://www.supremecourt.gov/opinions/21pdf/21-954_7l48.pdf">majority opinion</a> written by Chief Justice John Roberts – joined by Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor and Brett Kavanaugh – the court held that the Biden administration’s decision to terminate the Migrant Protection Protocols did not violate federal immigration law. The state of Texas had argued that ending the “Remain in Mexico” policy violated a provision that every asylum seeker entering the country be returned or detained. </p>
<p>In <a href="https://www.supremecourt.gov/opinions/21pdf/21-954_7l48.pdf#page=34">his dissent</a>, Justice Samuel Alito argued that the statute requires mandatory detention of migrants at the border. Justice Amy Coney Barrett’s <a href="https://www.supremecourt.gov/opinions/21pdf/21-954_7l48.pdf#page=53">dissent expressed</a> the view that the Supreme Court lacked the jurisdiction and that the case should be remanded back to the lower courts.</p>
<h2>Avoid the arbitrary, cease the capricious</h2>
<p>The Supreme Court’s decision means the case will be sent back to the lower court to decide, but with the removal of a major legal obstacle preventing Biden from ending the “Remain in Mexico” policy. The Supreme Court held that the immigration law does not require mandatory detention of all asylum seekers while their claims are being decided.</p>
<p>But moreover, the court made clear that the president has the discretion to change direction in immigration policy and continue, or end, policies of the previous president.</p>
<p>That might seem self-evident. But it comes after another 5-4 decision penned by Chief Justice Roberts – 2020’s <a href="https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf">Department of Homeland Security v. Regents of the University of California</a>, which held that a president could not act irrationally in changing immigration policy.</p>
<p>In that decision, the Supreme Court <a href="https://theconversation.com/supreme-court-ruling-on-dreamers-sends-a-clear-message-to-the-white-house-you-have-to-tell-the-truth-141099">found that the Trump administration had acted in an arbitrary and capricious fashion</a> in rescinding the Obama administration’s <a href="https://www.ice.gov/daca">Deferred Action for Childhood Arrivals</a> – or DACA – policy. That policy provided limited legal status and work authorization to undocumented migrants who came to the country as children, so-called Dreamers.</p>
<p>In the court’s view, the Trump administration had not adequately considered the interests of the migrant children in deciding to rescind the policy and had given inconsistent reasons about the basis for the rescission.</p>
<p>That ruling provided fuel for states to challenge the Biden administration when it attempted to roll back some Trump-era policies. For example, Arizona, along with other states, challenged Biden’s attempt to abandon a proposed rule change by the previous administration that would tighten the requirements on low- and moderate-income noncitizens seeking to come to the U.S. Although the Supreme Court initially accepted review of the case, it ultimately <a href="https://lawprofessors.typepad.com/immigration/2022/06/breaking-news-suprme-court-dismisses-state-efforts-to-defend-trump-administrations-proposed-public-c.html">dismissed the appeal and declined to decide the merits</a>.</p>
<p>In the end, the Supreme Court’s decision in Biden v. Texas stands for the simple proposition that presidential elections matter when it comes to government policy. As long as an incumbent administration follows the rules – including rational deliberation of the policy choices in front of it – it can, the Supreme Court has said, change immigration policy.</p><img src="https://counter.theconversation.com/content/186016/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kevin Johnson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In the last decision of the term, the Supreme Court cleared a barrier for the Biden administration to end a Trump-era policy returning asylum seekers arriving in the US to camps in Mexico.Kevin Johnson, Dean and Professor of Public Interest Law and Chicana/o Studies, University of California, DavisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1685562021-09-24T16:37:45Z2021-09-24T16:37:45ZHaitian migrants at the border: An asylum law scholar explains how US skirts its legal and moral duties<figure><img src="https://images.theconversation.com/files/423157/original/file-20210924-26-fj91z8.jpg?ixlib=rb-1.1.0&rect=0%2C5%2C3839%2C2975&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">U.S. envoy resigned over "inhumane" treatment of Haitian migrants</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/BorderHaitianRacism/698458add41b4d3997107a6663cd318f/photo?Query=Haitian%20AND%20migrants&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1071&currentItemNo=9">AP Photo/Felix Marquez</a></span></figcaption></figure><p>The U.S.’s top envoy to Haiti <a href="https://www.cnbc.com/2021/09/23/us-special-envoy-to-haiti-resigns-over-migrant-expulsions.html">resigned abruptly on Sept. 22, 2021</a>, over the Biden administration’s “inhumane” treatment of Haitian migrants crossing the border via Mexico into Texas.</p>
<p>The resignation came amid debate over the U.S. decision to <a href="https://fox8.com/news/thousands-of-haitian-migrants-deported-from-us/">deport thousands of Haitians</a> entering the U.S. in search of asylum or a better life. Criticism over the policy mounted as <a href="https://apnews.com/article/donald-trump-immigration-united-states-health-coronavirus-pandemic-083b5ac02cc17a1ce06b6ac0048e99ec">images of U.S. Border Patrol</a> <a href="https://www.reuters.com/world/us/us-homeland-security-chief-heads-border-removal-migrant-camp-accelerates-2021-09-20/">agents on horseback and carrying whip-like cords</a> while encountering migrants gained widespread media attention and criticism from the White House. Border <a href="https://www.dailymail.co.uk/news/article-10014399/Texas-border-agents-DENY-whipping-migrants-accuse-Biden-administration-deflection.html">agents denied using whips</a> on migrants.</p>
<p>The Conversation asked Karen Musalo, an <a href="https://www.uchastings.edu/people/karen-musalo/">expert on refugee law and policy</a>, to unpack what went on at the U.S. border and whether the Biden administration is shirking its moral and legal obligations in deporting the Haitian migrants.</p>
<h2>What’s behind the recent surge of Haitian refugees at the Texas border?</h2>
<p>Haiti is beset by extraordinarily desperate conditions of political chaos and natural disasters, as well as the COVID-19 pandemic. The assassination of President Jovenel Moïse in July 2021 catapulted the country into <a href="https://www.nytimes.com/2021/09/14/world/americas/haiti-henry-moise-assassination.html">political turmoil</a>. The post-assassination power struggle exacerbated <a href="https://www.hrw.org/world-report/2021/country-chapters/haiti">pre-existing political violence</a> and dysfunction. Violent gangs, often <a href="https://www.hrw.org/world-report/2021/country-chapters/haiti">with ties to the state</a>, are increasingly a threat.</p>
<p>In addition, Haiti suffered a devastating 7.2 magnitude earthquake in August, just two days before being hit directly by tropical storm Grace, with a <a href="https://disasterphilanthropy.org/disaster/2021-haiti-earthquake-and-tropical-storm-grace/">combined toll</a> of <a href="https://www.nbc12.com/2021/08/22/haiti-raises-earthquake-death-toll-passes-2200/">over 2,200 dead</a>, 12,000 injured and hundreds of thousands displaced, many in remote regions that have yet to receive aid. The pandemic has exacerbated these woes. Less <a href="https://ourworldindata.org/covid-vaccinations?country=OWID_WRL">than one-half of 1%</a> of the population has received even a first dose of a vaccine.</p>
<p>This has undoubtedly swelled the number of people trying to leave the nation. But many of the migrants arriving in the U.S. in recent weeks left Haiti before the recent turmoil. Haitian migrants have been <a href="https://cgrs.uchastings.edu/sites/default/files/A-Journey-of-Hope-Haitian-Womens-Migration-to%20-Tapachula.pdf">trapped in Mexico</a> for several years under various <a href="https://www.latimes.com/politics/la-na-pol-central-americans-asylum-protections-20190715-story.html">Trump-era policies that limited</a>, and then eliminated, the possibility for them to request asylum in the United States. At the same time, others who left Haiti in years past for countries in South America have suffered from <a href="https://www.houstonpublicmedia.org/articles/news/in-depth/2021/06/11/400406/many-haitians-are-migrating-to-the-u-s-after-facing-racism-poverty-in-latin-america/">deep antipathy and racism</a> in their host countries, living in perilous conditions with only precarious legal status at best.</p>
<p>It appears many asylum seekers in Mexico, including Haitians, took heed of Biden’s promises during the presidential election campaign <a href="https://joebiden.com/immigration/">to restore the asylum system</a>. That may have been a factor in their decision to present themselves at the Texas border seeking the <a href="https://ijrcenter.org/refugee-law/">protection guaranteed under law</a> for those fleeing persecution.</p>
<figure class="align-center ">
<img alt="A uniformed Mexican police officer talks with a Haitian migrant wearing a mask." src="https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/423180/original/file-20210924-25-jbvkju.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A Haitian migrant pleads with a Mexican police officer blocking access to the Rio Grande river.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/MexicoUSBorderMigrants/243ec96d0e9749eda7e7ccd02b18ef56/photo?Query=Haitian%20AND%20migrants&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=1071&currentItemNo=41">AP Photo/Felix Marquez</a></span>
</figcaption>
</figure>
<p>It should be remembered that the U.S. has long played a role in Haiti’s troubles. When Special Envoy for Haiti Daniel Foote resigned, coverage <a href="https://www.thedailybeast.com/daniel-foote-abruptly-quits-over-inhumane-deportation-of-haitian-migrants">focused on his protest</a> against what he described as the inhumanity of returning Haitians to a “collapsed state … unable to provide security or basic services.” Overlooked was his equally damning indictment of the <a href="https://www.washingtonpost.com/context/read-resignation-letter-from-u-s-special-envoy-for-haiti-daniel-foote/3136ae0e-96e5-448e-9d12-0e0cabfb3c0b/">U.S. as a puppet master</a> in Haiti’s political breakdown, for example by supporting the unelected prime minister and his political agenda.</p>
<h2>Doesn’t the US have a legal obligation to process asylum seekers?</h2>
<p>Both <a href="https://ijrcenter.org/refugee-law/">international</a> and <a href="https://www.law.cornell.edu/uscode/text/8/1158">U.S. law</a> recognize the basic human right to seek asylum. The U.S. has ratified two treaties, the <a href="https://www.kaldorcentre.unsw.edu.au/publication/1967-protocol">1967 Protocol Relating to the Status of Refugees</a> and the <a href="https://www.ohchr.org/en/professionalinterest/pages/cat.aspx">1984 Convention against Torture</a>, which prohibit the U.S. from returning people to countries where they risk persecution or torture. As a practical matter, this means that people must be able to request asylum at the U.S. border, or within U.S. territory, so that they have the opportunity to prove whether or not they fit within the category of persons legally protected from forced return.</p>
<p>This international legal framework has been codified in U.S. law, primarily through the <a href="https://www.acf.hhs.gov/orr/policy-guidance/refugee-act">Refugee Act of 1980</a>, along with later statutes and regulations. It is universally acknowledged, including <a href="https://www.justice.gov/file/23326/download">by the Supreme Court</a>, that in passing these laws Congress intended to bring U.S. law into conformity with the United States’ international treaty obligations.</p>
<p>It is entirely legal to approach U.S. borders and request asylum. Statements by the administration that <a href="https://www.bbc.com/news/world-us-canada-57387350">people should not come</a>, that they are doing something illegal when they seek protection, and that there is a right way and wrong way to seek asylum are, in my opinion, not only callous and cruel but also false statements of the law.</p>
<p>The <a href="https://www.whitehouse.gov/briefing-room/press-briefings/2021/09/23/press-briefing-by-press-secretary-jen-psaki-september-23-2021/">White House has asserted</a> that Haitians are not coming into the country through “legal methods,” which would indeed be impossible since all legal methods have been foreclosed to them.</p>
<p>As part of the Trump administration’s dismantling of the asylum system, the White House in March 2020 <a href="https://www.cdc.gov/coronavirus/2019-ncov/order-suspending-introduction-certain-persons.html">ordered the Centers for Disease Control and Prevention</a>, over the objections of its own scientists, to use a 1944 public health law known as “<a href="https://www.npr.org/2021/08/02/1023187217/title-42-foes-go-back-to-court-to-try-to-end-covid-measure-blocking-asylum-seeke">Title 42</a>” to bar asylum seekers from entering the United States. This law had never been used before to dictate the movement of people across U.S. borders, which is instead the province of immigration laws. And despite the Biden’s campaign promises to restore the country’s asylum system, the administration continues to rely on Title 42 – <a href="https://thehill.com/opinion/immigration/573016-why-is-the-biden-administration-turning-its-back-on-asylum-seekers?rl=1">despite most Americans now being vaccinated</a> – to keep asylum seekers out. </p>
<h2>Can you tell me a little more about Title 42?</h2>
<p>Even before COVID-19 struck, Trump administration aide <a href="https://www.hrw.org/news/2021/04/08/qa-us-title-42-policy-expel-migrants-border">Stephen Miller had inquired</a> about using the government’s public health authority to shut U.S. borders to people seeking asylum. He was told there was no legal authority to do so. The emergence of the pandemic provided a pretext for the unprecedented use of this little-known law dating back over 75 years. It formed part of the <a href="https://www.ssa.gov/policy/docs/ssb/v7n8/v7n8p15.pdf">Public Health Service Act of 1944</a> to allow for the quarantine of anyone, including a U.S. citizen, arriving from a foreign country. It was never intended, nor until 2020 was used, to expel noncitizens from the United States. In fact, when Congress enacted the initial version of this law, references to immigration were deliberately omitted precisely to avoid the use of its provisions to discriminate against immigrants.</p>
<p>But the March 2020 order by the Trump administration <a href="https://www.publichealth.columbia.edu/public-health-now/news/public-health-experts-urge-us-officials-withdraw-order-enabling-mass-expulsion-asylum-seekers">targets one group, and one group only</a>: noncitizens who lack documentation and arrive by land.</p>
<p>All other people arriving in the U.S., including American citizens, lawful permanent residents and tourists arriving by plane or ship, are exempt. As currently employed by the government, this public health law has displaced existing immigration law, which allows people to request asylum. And in doing so it has also eliminated the due process protections that are part of our immigration laws.</p>
<p>On Sept. 16, a federal court found the use of Title 42 to expel people seeking asylum to be a clear violation of U.S. law and <a href="https://cgrs.uchastings.edu/news/federal-court-blocks-title-42-expulsions-families-seeking-safety">granted a preliminary injunction</a> against the practice. The court stayed its own order for 14 days to allow the government an opportunity to appeal its decision.</p>
<h2>Is there a history of discriminatory US migration policy against Haitians?</h2>
<p>Haitians have suffered from <a href="https://www.washingtonpost.com/national/haitian-migrants-racism/2021/09/22/e400793e-1be1-11ec-bcb8-0cb135811007_story.html">discriminatory treatment in immigration</a> for decades, and it would, I believe, be naïve to attribute this adverse treatment to anything other than systemic racism, which pervades so many aspects of American society. Shortly after the U.S. enacted the <a href="https://www.govinfo.gov/content/pkg/STATUTE-94/pdf/STATUTE-94-Pg102.pdf">1980 Refugee Act</a>, it <a href="https://www.everycrsreport.com/reports/RS21349.html">began to stop</a> Haitians on the high seas and to return them to Haiti so that they could not apply for asylum in this country. This violation of international law was upheld by the Supreme Court in 1993, and the practice continues to this day. Before the border was closed to them, Haitians who reached the U.S. and applied for asylum were denied at a <a href="https://apnews.com/article/immigration-race-and-ethnicity-mexico-haiti-asylum-seekers-a81ac1148118db38824d2d8f62139b87">higher rate than just about any other nationality</a> – notwithstanding the dire human rights conditions in their country.</p>
<p>After Haiti’s catastrophic earthquake in 2010, the government gave <a href="https://www.federalregister.gov/documents/2010/01/21/2010-1169/designation-of-haiti-for-temporary-protected-status">Temporary Protected Status to Haitians</a> already in the United States, thus shielding them from removal. In 2017 the Trump administration <a href="https://www.nytimes.com/2017/11/20/us/haitians-temporary-status.html">terminated the status for Haitians</a>, giving them until July 2019 to leave or to face deportation.</p>
<p><em>Editor’s note: This story was updated on Sept. 26 to add a denial from border agents.</em></p><img src="https://counter.theconversation.com/content/168556/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Karen Musalo receives funding from the National Science Foundation,</span></em></p>The Biden administration has used a public health provision to deport thousands of Haitian migrants entering the US via Mexico.Karen Musalo, Professor of International Law, University of California College of the Law, San FranciscoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1428602020-07-17T13:06:19Z2020-07-17T13:06:19ZShamima Begum: what the legal ruling about her return to the UK actually means<p>Shamima Begum, who left the UK as a 15-year-old schoolgirl for Syria in 2015, should be allowed back so that she can effectively challenge the removal of her British citizenship, the <a href="https://www.judiciary.uk/wp-content/uploads/2020/07/WP-Begum-Judgment-NCN.pdf">Court of Appeal ruled</a> on July 16.</p>
<p>The decision – which the Home Office <a href="https://www.theguardian.com/uk-news/2020/jul/16/shamima-begum-wins-right-to-return-to-uk">announced it would appeal</a> – has been portrayed as a victory for Begum and a <a href="https://www.justsecurity.org/71460/judgement-in-the-begum-case-a-good-day-for-the-protection-of-human-rights/">win for human rights</a>. Opponents, such as the former home security Sajid Javid, <a href="https://www.standard.co.uk/news/uk/sajid-javid-deeply-concerned-shamima-begum-ruling-a4500471.html">criticised it</a> as a “lightning rod for both Islamist and far-right extremists”. </p>
<p>But neither portrayal of the case is wholly accurate. There is very little that Begum has actually gained from this decision – although it does have the potential to change the way in which counter-terrorism cases are reviewed by British immigration courts.</p>
<p>Despite the <a href="https://www.bbc.co.uk/news/world-middle-east-47286935">tens of thousands</a> of European and British nationals who travelled to Syria, Begum has been the prominent face of the British policy of removing British citizenship from those it suspects of joining Islamic State.</p>
<p>In February 2019 it emerged Begum was in a camp in Syria, soon after which the Home Secretary <a href="https://www.itv.com/news/2019-02-19/shamima-begum-has-uk-citizenship-revoked-by-british-government-itv-news-learns/">removed her citizenship</a>, arguing that she has eligibility for Bangladeshi citizenship and would not be left stateless. Her newly born child <a href="https://www.bbc.co.uk/news/uk-47500387">died soon after</a>. According to the new ruling, no substantial evidence has so far been presented to the courts of her engagement in terrorist activities while in Syria.</p>
<p>This case is actually an appeal about an appeal. Begum, who is still living in a camp in Syria, was appealing against a decision in June 2019 that refused her entry to the UK to make a separate appeal at the UK’s Special Immigration Appeals Commission.</p>
<p>Any gains she makes in the case will not automatically help her to restore her British citizenship – rather they will allow her to participate in an effective and fair manner in the immigration appeal.</p>
<p>In reality, the decision to give, and implement, a “leave to enter” order – which means somebody can enter the country – rests with the Home Office immigration officials <a href="https://www.lexisnexis.com/uk/lexispsl/immigration/document/393826/55KG-8PB1-F18H-62S5-00000-00/Leave_to_enter_and_remain_overview">who can refuse entry</a> even when somebody arrives at a British airport. So despite the new ruling, Begum has no guaranteed right of entry. Should she be refused entry or deported on arrival, the only recourse would be to bring yet another judicial review against the decision.</p>
<figure class="align-center ">
<img alt="Letter with Home Office logo" src="https://images.theconversation.com/files/348123/original/file-20200717-29-1ctr1c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/348123/original/file-20200717-29-1ctr1c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/348123/original/file-20200717-29-1ctr1c4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/348123/original/file-20200717-29-1ctr1c4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/348123/original/file-20200717-29-1ctr1c4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/348123/original/file-20200717-29-1ctr1c4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/348123/original/file-20200717-29-1ctr1c4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Home Office is trying to block Shamima Begum’s return to the UK.</span>
<span class="attribution"><span class="source">Ascannio/Shutterstock</span></span>
</figcaption>
</figure>
<h2>Immigration court responsibility</h2>
<p>In their decision, the judges reinvigorated the role of the Special Immigration Appeals Commission (Siac) in national security matters. The Court of Appeal reminded Siac that it is an appeals court which should conduct a full review by assessing all the facts in a case itself, rather than relying on the decisions of other courts or bodies. </p>
<p>In the past, Siac has rarely engaged with full factual analysis, at least in rulings which it makes public. My own research has shown how several human rights issues, such as the right to life, right to be free from torture and right to family life <a href="https://research-information.bris.ac.uk/ws/portalfiles/portal/102519926/rtfDefinitelyFinaldeprivationmay26submission.pdf">have not been fully evaluated</a> on their merits by Siac. Perhaps this new ruling could change this in future. </p>
<p>The new ruling points out that Begum should be allowed to enter the UK – and she could be arrested and tried should this be considered necessary for national security. She could also be placed under any necessary national security monitoring measures. However, if she is not allowed entry, her lawyers argued she remains unable to even communicate with her counsel from the camp where she’s living. The judges clearly found this convincing evidence that Begum would not be able to obtain a fair appeal in such circumstances.</p>
<h2>Not the end of the story</h2>
<p>But there is little else for human rights advocates to celebrate. The decision accepts the legal route taken by the government to cancel a person’s British citizenship for national security reasons. Human rights challenges to such laws are unlikely to be straightforward in this context. The judges were also clear that just because there may be lack of fairness if she is not present in the UK, Begum cannot win her Siac appeal solely on that basis.</p>
<p>There were, however, some guarded but sympathetic observations from the judges about how a teenager, who is likely herself a victim, had her citizenship removed. The Court of Appeal found that Siac is the best place to fully assess that, and also fully assess the risks that Begum faces after being deprived of her citizenship, such as to her life and liberty.</p>
<p>Begum’s immigration appeal is far from over – the proceedings are complicated and not easily resolved. But the ruling indicates that simply cancelling someone’s British citizenship will no longer be the end of the story for the Home Office. The government may have to answer additional legal questions about how the person is affected by such removal of citizenship.</p><img src="https://counter.theconversation.com/content/142860/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dr Devyani Prabhat received funding from the Economic and Social Research Council UK 2014-2017 for a project on British citizenship. </span></em></p>A legal expert analyses the significance of a Court Appeal ruling allowing Shamima Begum to return to the UK from Syria to fight an appeal against the removal of her British citizenship.Devyani Prabhat, Reader in Law, University of BristolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1332162020-04-06T19:11:40Z2020-04-06T19:11:40ZWhy Latino citizens are worrying more about deportation<figure><img src="https://images.theconversation.com/files/320283/original/file-20200312-111300-1ucf47g.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Rosa Gutierrez Lopez from El Salvador has been living in sanctuary in a church for a year due to a deportation order.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Immigration-Sanctuary/a606b88fb7684bdab1d0c693772e6273/56/0">AP Photo/Jacquelyn Martin</a></span></figcaption></figure><p>“You can’t deport a U.S. citizen,” said a friend recently. My friend is correct on the law. </p>
<p>But that doesn’t stop millions of U.S. citizens from fearing deportation anyway.</p>
<p><a href="http://www.pnas.org/cgi/doi/10.1073/pnas.1915460117">In a study</a> published on April 6, I found Latino U.S. citizens’ deportation fears to be on the rise. Whereas 41% worried about deportation in 2007, 48% did in 2018. This amounts to about 13.6 million Latino U.S. citizens fearing deportation. </p>
<p>My research, and that of several other scholars, outlines several reasons why Latino U.S. citizens might increasingly fear a form of punishment thought to be reserved for people who lack citizenship. </p>
<h2>Deportation fears</h2>
<p>The <a href="https://www.pewresearch.org/hispanic/2018/10/25/views-of-immigration-policy/">Pew Research Center regularly surveys Latino adults</a> who are U.S. citizens and noncitizens. Six times between 2007 and 2018, they asked different survey participants the same question: “Regardless of your own legal status, how much, if at all, do you worry that you, a family member, or a close friend could be deported? Would you say that you worry a lot, some, not much, or not at all?”</p>
<p>My analysis of these people’s answers reveals a surprising pattern. Latino noncitizens, encompassing undocumented and documented immigrants vulnerable to deportation, report a high, but stable, level of fear. </p>
<p>But U.S. citizens, including naturalized immigrants and those born in the country who are ostensibly immune to deportation, report increasing fears. </p>
<p>These changes don’t reflect increasing deportation rates nationwide, which are <a href="https://www.migrationpolicy.org/research/revving-deportation-machinery-under-trump-and-pushback">lower now</a> than they were for much of the Obama administration. Instead, U.S. citizens’ growing fears reflect heightened national attention to deportation policy and practice since the 2016 U.S. presidential election. </p>
<p><iframe id="loisY" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/loisY/6/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>Deportable family members</h2>
<p>Deportation touches U.S. citizens through deportable family members and loved ones. An analysis I received from the <a href="https://dornsife.usc.edu/csii">University of Southern California’s Center for the Study of Immigrant Integration</a> reveals to what extent.</p>
<p>Almost 9 million U.S. citizens, most of them children, have at least one undocumented family member. Four out of five of these U.S. citizens are Latino.</p>
<p>But this count captures only a fraction of U.S. citizens with deportable relatives. Millions more have household members with <a href="https://doi.org/10.1111/lasr.12460">provisional statuses</a> like a visa or green card. Some 20.5 million U.S. citizens – or one of every 13 U.S. citizens – have a relative who is deportable. Sixty percent of these U.S. citizens are Latino.</p>
<p>These Americans are not immune to the effects of the laws and policies targeting their families and communities. When U.S. citizens fear for their loved ones’ safety, they are less likely <a href="https://journals.sagepub.com/doi/full/10.3102/0002831219860816">to go to school</a>, to <a href="https://www.sciencedirect.com/science/article/pii/S0277953617301508">get routine medical care</a> and to <a href="http://raceandpolicing.issuelab-dev.org/resources/15261/15261.pdf">call the police</a> in an emergency.</p>
<h2>Mistaken as deportable</h2>
<p>Immigration law does not mention race, but the way it is enforced has racially unequal consequences. </p>
<p>A disproportionate share of Latino U.S. citizens have deportable relatives. Latin American noncitizens <a href="https://doi.org/10.1057/lst.2013.14">represent more than 90% of all deportations</a>, even though they account for 57% of all noncitizens. </p>
<p>When laws primarily affect a single racial group, federal immigration officials and everyday people can <a href="https://theconversation.com/a-long-running-immigration-problem-the-government-sometimes-detains-and-deports-us-citizens-119702">mistakenly recognize</a> U.S. citizens as deportable. For example, the federal government <a href="https://press.princeton.edu/books/paperback/9780691160825/impossible-subjects">deported about 200,000 U.S. citizens of Mexican descent</a> during the Great Depression, under the assumption they were undocumented. </p>
<p>This mistaken recognition is happening today too. Between 2007 and 2015, <a href="https://www.npr.org/sections/thetwo-way/2016/12/22/504031635/you-say-you-re-an-american-but-what-if-you-had-to-prove-it-or-be-deported">more than 1,500 U.S. citizens</a> – many Latino – were unlawfully detained for their suspected deportability. In a 2018 study, researchers found that <a href="https://journals.sagepub.com/doi/abs/10.1177/0003122418794635">white Americans most suspected Salvadoran and Mexican immigrants</a> of being undocumented – and least suspected Italians and Canadians. <a href="https://www.washingtonpost.com/nation/2019/07/23/francisco-erwin-galicia-ice-cpb-us-citizen-detained-texas/">Media reports</a> continue to depict cases of Latino U.S. citizens unlawfully detained for suspected immigration violations. </p>
<p>U.S. citizens are not deportable by law. But <a href="https://doi.org/10.1057%2Flst.2013.28">they still worry</a> about being misrecognized as deportable, given the racially unequal enforcement of contemporary immigration laws and policies. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/320284/original/file-20200312-111223-ygldce.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/320284/original/file-20200312-111223-ygldce.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/320284/original/file-20200312-111223-ygldce.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/320284/original/file-20200312-111223-ygldce.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/320284/original/file-20200312-111223-ygldce.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/320284/original/file-20200312-111223-ygldce.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/320284/original/file-20200312-111223-ygldce.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/320284/original/file-20200312-111223-ygldce.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Guatemalans who were deported from the United States arrive at La Aurora International airport in August 2019.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Guatemala-Immigration/cc76cad23318461c92ea4d5a6cba2c69/13/0">AP Photo/Moises Castillo</a></span>
</figcaption>
</figure>
<h2>Mounting obstacles to citizenship</h2>
<p>Growing uncertainty about just how much citizenship shields against deportation also contributes to U.S. citizens’ fears. Two recent events help illustrate this point.</p>
<p>The first is the Trump administration’s <a href="https://www.politico.com/newsletters/morning-shift/2020/02/24/public-charge-rule-takes-effect-today-785601">“public charge” rule</a>, recently allowed to move forward by the Supreme Court. Noncitizens have long been ineligible to receive public assistance for themselves. The new rule penalizes noncitizens who receive public assistance to temporarily support their eligible U.S.-citizen children. The penalty is that noncitizens cannot get a green card, a precondition for citizenship. </p>
<p>Although the rule affects <a href="https://www.migrationpolicy.org/news/public-charge-denial-green-cards-benefits-use">fewer than 1% of noncitizens</a>, the uncertainty it has created is already detaching fearful families, most of whom are low-income with origins in Latin America, from the social safety net. About one in seven adults in immigrant families – and one in five adults in poor immigrant families – <a href="https://www.urban.org/urban-wire/public-charge-rule-looming-one-seven-adults-immigrant-families-reported-avoiding-public-benefit-programs-2018">reported in a recent Urban Institute survey</a> that they or a family member avoided the social safety net for this reason. </p>
<p>Intensifying denaturalization efforts are also heightening fears. Denaturalization is the stripping of an immigrant’s acquired citizenship. Historically, it was <a href="https://www.upenn.edu/pennpress/book/15032.html">reserved</a> for immigrants who committed war crimes; today, it is increasingly used as a tool for federal immigration enforcement. </p>
<p><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3463902">One study</a> counts 421 denaturalization cases filed against U.S. citizens between 2013 and 2018. This number of cases is small when compared to the population of 20 million naturalized U.S. citizens. But <a href="https://www.vox.com/2018/7/18/17561538/denaturalization-citizenship-task-force-janus">ongoing efforts</a> that date back to the Obama administration risk adding to the number of denaturalization cases. The Justice Department <a href="https://www.nytimes.com/2020/02/26/us/politics/denaturalization-immigrants-justice-department.html">recently created</a> an official section within its immigration office to facilitate this process, <a href="https://www.justice.gov/opa/pr/department-justice-creates-section-dedicated-denaturalization-cases">due to</a> “the growing number of referrals anticipated from law enforcement agencies.”</p>
<p>Few naturalized citizens will ultimately lose their citizenship. But these publicized denaturalization efforts will <a href="https://www.rutgersuniversitypress.org/the-road-to-citizenship/9780813569536">exacerbate fears</a> that the rights and privileges of U.S. citizenship are tenuous for immigrants in the country. </p>
<p>In response to my friend’s reminder that U.S. citizens are not deportable by law, I say this: You’re right. But the law as it’s written doesn’t always match how it’s enforced. </p>
<p>[<em>Get the best of The Conversation, every weekend.</em> <a href="https://theconversation.com/us/newsletters/weekly-highlights-61?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=weeklybest">Sign up for our weekly newsletter</a>.]</p><img src="https://counter.theconversation.com/content/133216/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Asad L. Asad does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>About 48% of Latino US citizens fear deportation for themselves, their loved ones or their communities. That’s up from 41% in 2007.Asad L. Asad, Assistant Professor of Sociology, Stanford UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1266762020-02-23T13:13:49Z2020-02-23T13:13:49ZNew DNA test that reveals a child’s true age has promise, but ethical pitfalls<figure><img src="https://images.theconversation.com/files/314570/original/file-20200210-109943-1amwqvc.jpg?ixlib=rb-1.1.0&rect=71%2C8%2C1845%2C1057&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Epigenetic clocks are a fascinating new technology, but some potential applications are controversial.</span> <span class="attribution"><a class="source" href="https://pixabay.com/photos/fantasy-portrait-clock-time-2790666/">(Pixabay/Stefan Keller)</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span></figcaption></figure><p>Epigenetic clocks are a new type of biological test currently capturing the attention of the scientific community, private companies and governmental agencies because of their potential to <a href="https://www.wired.com/story/new-tests-use-epigenetics-to-guess-how-fast-youre-aging/">reveal an individual’s “true” age</a>.</p>
<p>Over the past two years, companies such as <a href="https://www.chronomics.com/">Chronomics</a> and <a href="https://www.mydnage.com/">MyDNage</a> have started to sell epigenetic age tests to the public online, and the life insurance company <a href="https://www.yousurance.com/">YouSurance</a> has announced that it would be testing the epigenetic age of their policy holders to assign them to risk groups. Forensic scientists are also contemplating how epigenetic clocks could help <a href="https://www.sciencedirect.com/science/article/pii/S0168952518300611">determine the age of suspected criminals</a>.</p>
<p>Recently, the <a href="https://cmmt.ubc.ca/kobor-lab/">Kobor Lab</a> developed the first <a href="https://www.pnas.org/content/early/2019/10/09/1820843116.short">pediatric epigenetic clock</a> designed specifically for testing the age of young people, with an eye towards its applications in research and medical settings. This test uses a small sample of cells collected cheaply and easily from a cheek swab, and can predict a child’s age with a degree of precision within approximately four months.</p>
<p>But pediatric epigenetic clocks are likely to have non-medical applications as well. They could soon be used in immigration cases to prove the age of undocumented <a href="https://www.nature.com/articles/d41586-018-06121-w">migrants seeking asylum as minors</a>. Other future uses can be imagined, such as for child labour and trafficking surveillance, or even for the identification of child combatants in armed conflicts. </p>
<p>As researchers in bioethics, sociology and medical genetics, we are interested in the potential benefits and risks of this fascinating yet controversial new technology for individuals and society.</p>
<h2>The science of epigenetics</h2>
<p>Epigenetic clocks emerge from the <a href="https://www.nature.com/articles/d41586-019-03877-7">field of epigenetics</a>, which examines how chemical marks can regulate gene expression and help us understand how aging and disease processes work.</p>
<p>Epigenetics is the study of small molecules that bind to DNA or to the proteins DNA wraps around, changing how genes are read. These small molecules don’t change the linear sequence of the DNA, but they can turn genes on or off by opening or closing the 3D structure of DNA.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/314562/original/file-20200210-109943-1t8x8yn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/314562/original/file-20200210-109943-1t8x8yn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/314562/original/file-20200210-109943-1t8x8yn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/314562/original/file-20200210-109943-1t8x8yn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/314562/original/file-20200210-109943-1t8x8yn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/314562/original/file-20200210-109943-1t8x8yn.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/314562/original/file-20200210-109943-1t8x8yn.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Small molecules cannot change the linear structure of DNA, but they can turn genes on and off by opening or closing the 3D structure of DNA.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/blue-dna-structure-isolated-background-3d-1238405779">(Shutterstock)</a></span>
</figcaption>
</figure>
<p>If we think of genes as light bulbs, epigenetic marks can nudge the dimmer switch up or down, but they can’t change the colour of the light.</p>
<p>Some epigenetic marks can change in response to a <a href="https://www.niehs.nih.gov/research/supported/health/envepi/index.cfm">person’s environment</a> or <a href="https://dx.doi.org/10.18632%2Faging.101168">lifestyle</a>. Epigenetic tests may provide information about individuals that a genetic test alone can’t reveal — such as exposures to trauma, stress, diet or pollutants.</p>
<p>Other epigenetic marks change in a very constant fashion as a person develops, grows and ages. These marks have enabled the development of different epigenetic age tests. Also known as epigenetic clocks, these tests are poised to be the first epigenetic tests ready for use.</p>
<p>However, most epigenetic tests have not yet been scientifically validated to confirm their precision and accuracy in different sub-groups of the population, and the <a href="https://doi.org/10.3389/fgene.2018.00202">ethical, legal and social implications of their use are not well understood</a>.</p>
<h2>Lessons from DNA testing</h2>
<p>Like genetic tests, epigenetic tests may eventually be used in law enforcement and immigration settings, as well as in research and medical contexts. The lessons learned from DNA testing highlight the need for caution and responsible implementation.</p>
<p>Genetic research and testing now have many uses beyond detecting disease risks and tracing ancestry. DNA tests are common tools in <a href="https://cen.acs.org/articles/95/i37/Thirty-years-DNA-forensics-DNA.html">police investigations</a> to identify suspects and victims of crimes, and they are increasingly used by <a href="https://doi.org/10.1093/jlb/lsx012">immigration agencies</a> to prove genetic relationships in family reunification efforts.</p>
<p>In 2018, the identification of the suspected <a href="https://theconversation.com/how-cops-used-a-public-genealogy-database-in-the-golden-state-killer-case-95842">Golden State Killer</a> made it clear that biological information shared with public genetic genealogy databases could be <a href="https://www.theatlantic.com/science/archive/2019/10/genetic-genealogy-dna-database-criminal-investigations/599005/">mined by law enforcement agencies</a>. This case <a href="https://www.nytimes.com/2018/04/27/health/dna-privacy-golden-state-killer-genealogy.html">raised public and legal concerns about the privacy of genetic information</a>, and the uses of DNA stored by private companies and in government databases. </p>
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Read more:
<a href="https://theconversation.com/dna-database-sold-to-help-law-enforcement-crack-cold-cases-128674">DNA database sold to help law-enforcement crack cold cases</a>
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<p>Due to the capacity of epigenetic tests to expose sensitive information about an individual’s developing environment, social conditions and life choices, the implementation of tests like the pediatric clock requires close attention to issues related to privacy, surveillance and basic human rights.</p>
<h2>Risks to basic human rights</h2>
<p>In an era of rising <a href="https://theconversation.com/citizens-in-the-west-should-care-about-discriminatory-immigration-policies-110312">xenophobic and protectionist immigration policies</a> across the globe, the benefits of gaining biological data should be critically considered against the risks to basic human rights inherent in the process of collecting another layer of information from a vulnerable population.</p>
<p>When genetic testing was proposed as a solution for family reunification for the thousands of children separated from their parents by U.S. Immigration and Customs Enforcement (ICE) raids and deportations, ethicists and advocacy groups <a href="https://www.vice.com/en_ca/article/evjwje/privacy-rights-group-sues-dhs-over-coercive-dna-tests-at-the-border">raised significant issues</a>, including the lack of informed consent and concerns about the long-term storage of DNA in either private databases or those previously used only for those accused of crimes.</p>
<p>The <a href="https://www.researchwithrutgers.com/en/publications/dna-testing-for-family-reunification-and-the-limits-of-biological">use of genetic tests to prove the biological relationship between family members seeking to re-unite in a country has also been criticized</a> for being ethically problematic for children in non-genetic families, and having potentially devastating consequences for members of genetic families if DNA test errors occur. These situations could impede the reunification of children with their primary caregivers.</p>
<p>Problems may also arise if epigenetic clocks are used in immigration cases before we fully understand and address their ethical, legal and social consequences.</p>
<p>For example, migrants who are minors may have been exposed to highly stressful experiences, malnutrition or medical conditions. Such exposures <a href="https://doi.org/10.1186/s13059-019-1824-y">can affect the results of epigenetic clock tests</a> which were developed based on the DNA of healthy children in developed countries. This makes their use in efforts to identify biological age problematic for both technical and ethical reasons.</p>
<h2>Responsible use of epigenetic clocks</h2>
<p>To date, there have been attempts but no official report of any police force or immigration agency successfully using an epigenetic clock test in solving a challenging criminal case or asylum claim.</p>
<p>However, it has come to our attention that researchers have been approached by governmental agencies interested in using the pediatric epigenetic clock in particular, and by migrants searching for ways to prove the age of their undocumented children in order to be granted access to legal privileges reserved only for minors.</p>
<p>The promises of epigenetics that <a href="https://doi.org/10.1093/eep/dvz019">circulate widely in public discourse</a> include the potential to control one’s genetic predisposition — such as disease risk — through lifestyle choices. With this type of attention, individuals in the general public may in fact be among the first interested in using these tests. Consumers gaining access to epigenetic tests online, and those seeking to use them to inform legal and policy decisions, should be aware of their current scientific limitations, as well as of <a href="https://doi.org/10.1038/s41576-020-0215-2">rising privacy and non-discrimination concerns</a>.</p>
<p><a href="https://doi.org/10.1038/s41597-019-0310-4">Standards of practice</a>, <a href="https://doi.org/10.1186/s13073-019-0646-6">ethical guidelines</a> and <a href="https://academic.oup.com/eep/article/5/3/dvz018/5571210">regulations</a> are critically needed to ensure the responsible use of epigenetic tests. Most urgently, there is a need to protect children and their caregivers from premature or socially inadmissible uses of pediatric epigenetic clock tests to ensure their promises are realized with their best interest in mind.</p>
<p><em>This is an updated version of a story originally published on Feb. 23, 2020. It clarifies the use of genealogy data in the Golden State Killer case.</em></p><img src="https://counter.theconversation.com/content/126676/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Charles Dupras receives funding from the Canadian Institutes of Health Research (CIHR) and the Office of the Privacy Commissioner of Canada (OPC). The content is solely the responsibility of the authors and does not necessarily represent the official views of the funding organizations.</span></em></p><p class="fine-print"><em><span>Martine Lappé receives funding from the National Human Genome Research Institute of the National Institutes of Health. Research informing this publication was supported by NIH Award Number R00HG009154: "Behavioral Epigenetics in Children: Exploring the Social and Ethical Implications of Translation." The content is solely the responsibility of the authors and does not necessarily represent the official views of the National Institutes of Health.</span></em></p><p class="fine-print"><em><span>Michael S. Kobor receives funding from the Canadian Institutes of Health Research (CIHR), Natural Sciences and Engineering Research Council of Canada (NSERC), Genome Canada, National Institutes of Health (NIH), National Science Foundation (NSF), Peter Wall Institute for Advanced Studies (PWIAS), Canadian Institute For Advanced Research (CIFAR), Networks of Centres of Excellence (NCE), and the R. Howard Webster Foundation. The content is solely the responsibility of the authors and does not necessarily represent the official views of the funding organizations.
</span></em></p>Pediatric epigenetic clocks have the potential to accurately assess biological age. However, possible applications in law enforcement and immigration raise ethical issues.Charles Dupras, Postdoctoral Fellow, Center of Genomics and Policy, McGill UniversityMartine Lappé, Assistant Professor of Sociology and Science, Technology, and Society, California Polytechnic State UniversityMichael S. Kobor, Canada Research Chair in Social Epigenetics and Professor, UBC Department of Medical Genetics, University of British ColumbiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1307752020-02-04T13:33:09Z2020-02-04T13:33:09ZLearn to trust immigrants by role-playing in their shoes<figure><img src="https://images.theconversation.com/files/312652/original/file-20200129-93023-19uddsz.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3751%2C2611&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A university class included a game that simulated aspects of the experience people like these would-be immigrants can expect in the U.S.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/US-Immigration-Border-Enforcement/4fea02ab58514cc9bc8343c676499187/2/0">AP Photo/Elliot Spagat</a></span></figcaption></figure><p>People fear and mistrust what they don’t know – including people of other racial and ethnic backgrounds. That <a href="https://doi.org/10.1016/j.jpubeco.2019.02.002">lack of trust</a> causes social and political <a href="https://www.pewsocialtrends.org/2018/05/22/how-urban-suburban-and-rural-residents-interact-with-their-neighbors/">divisions</a> <a href="http://doi.org/10.1016/j.ssresearch.2018.12.009">in</a> <a href="https://doi.org/10.1177%2F0894439319874052">the U.S.</a> and <a href="http://doi.org/10.1093/oxfordhb/9780190274801.013.13">around the world</a>, especially when it comes to immigrants.</p>
<p>Inspired by research in Hungary that found computer games could help players <a href="https://doi.org/10.1017/S0003055417000478">reduce their prejudice toward immigrants</a>, my colleague <a href="https://theconversation.com/profiles/patrick-a-stewart-459990">Patrick Stewart</a> devised a <a href="https://doi.org/10.1177/1461444819900557">role-playing game</a> as part of an American <a href="https://doi.org/10.1080/15512169.2018.1563550">national government course</a> at the University of Arkansas. <a href="https://scholar.google.com/citations?user=HCg5FPUAAAAJ&hl=en&oi=ao">I</a> helped to develop survey measures for tracking changes in trust during the game.</p>
<p>Our hope was that by playing the game over the course of a semester, students would come to understand a bit more about what immigrants go through in the U.S., and as a result, perhaps trust <a href="https://doi.org/10.1080/1369183X.2018.1490638">could develop</a>.</p>
<p>We found that it was possible for a role-playing game to help <a href="https://doi.org/10.1177/1461444819900557">simulate shared experiences</a> with immigrants, even in a group of mostly white, conservative students. This helped trust in immigrants to grow.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/312656/original/file-20200129-92987-1198vpy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/312656/original/file-20200129-92987-1198vpy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/312656/original/file-20200129-92987-1198vpy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/312656/original/file-20200129-92987-1198vpy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/312656/original/file-20200129-92987-1198vpy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/312656/original/file-20200129-92987-1198vpy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/312656/original/file-20200129-92987-1198vpy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/312656/original/file-20200129-92987-1198vpy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People about to be sworn in as U.S. citizens recite the Pledge of Allegiance in a citizenship ceremony.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Naturalization-Ceremony-Florida/84012240c7414949935185c50ba6fe11/13/0">AP Photo/Wilfredo Lee</a></span>
</figcaption>
</figure>
<h2>Creating an identity</h2>
<p>The game, called “Citizenship Quest,” was played in an online learning platform for the fall 2018 and spring 2019 semesters. Most of the students were freshmen and sophomores.</p>
<p>At the beginning of each semester, the students completed a survey about their interest in politics, while also answering questions about how much they trusted immigrants. They completed the same survey at the end of the semester, after the game was over, which allowed us to track changes in immigrant trust over time.</p>
<p>Once we had their initial results, we assigned each student to role-play as a character from Mexico, India or China, origins of the <a href="https://www.pewresearch.org/fact-tank/2019/06/17/key-findings-about-u-s-immigrants/">three largest immigrant groups in America</a>. The students got to pick their character’s gender, and a gender-appropriate name was assigned to them on the basis of the most popular names in their character’s country.</p>
<p>Next, the students created fuller back stories for their characters, fleshing out their work history, past residences and even physical characteristics such as hair and eye color.</p>
<h2>Learning about paperwork</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/312642/original/file-20200129-92954-cxzser.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/312642/original/file-20200129-92954-cxzser.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/312642/original/file-20200129-92954-cxzser.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=388&fit=crop&dpr=1 600w, https://images.theconversation.com/files/312642/original/file-20200129-92954-cxzser.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=388&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/312642/original/file-20200129-92954-cxzser.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=388&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/312642/original/file-20200129-92954-cxzser.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=487&fit=crop&dpr=1 754w, https://images.theconversation.com/files/312642/original/file-20200129-92954-cxzser.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=487&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/312642/original/file-20200129-92954-cxzser.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=487&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The start of the form seeking permanent residence in the U.S.</span>
<span class="attribution"><a class="source" href="https://www.uscis.gov/i-485">USCIS</a></span>
</figcaption>
</figure>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/312645/original/file-20200129-92954-e724ue.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/312645/original/file-20200129-92954-e724ue.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/312645/original/file-20200129-92954-e724ue.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=324&fit=crop&dpr=1 600w, https://images.theconversation.com/files/312645/original/file-20200129-92954-e724ue.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=324&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/312645/original/file-20200129-92954-e724ue.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=324&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/312645/original/file-20200129-92954-e724ue.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=408&fit=crop&dpr=1 754w, https://images.theconversation.com/files/312645/original/file-20200129-92954-e724ue.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=408&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/312645/original/file-20200129-92954-e724ue.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=408&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Want to work in the U.S.? Start here.</span>
<span class="attribution"><a class="source" href="https://www.uscis.gov/i-765">USCIS</a></span>
</figcaption>
</figure>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/312648/original/file-20200129-92964-5kq9yx.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/312648/original/file-20200129-92964-5kq9yx.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/312648/original/file-20200129-92964-5kq9yx.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=241&fit=crop&dpr=1 600w, https://images.theconversation.com/files/312648/original/file-20200129-92964-5kq9yx.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=241&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/312648/original/file-20200129-92964-5kq9yx.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=241&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/312648/original/file-20200129-92964-5kq9yx.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=303&fit=crop&dpr=1 754w, https://images.theconversation.com/files/312648/original/file-20200129-92964-5kq9yx.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=303&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/312648/original/file-20200129-92964-5kq9yx.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=303&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Becoming a U.S. citizen begins with this 20-page form.</span>
<span class="attribution"><a class="source" href="https://www.uscis.gov/n-400">USCIS</a></span>
</figcaption>
</figure>
<p>For the next phase of the game, each student applied for permission to live and work in U.S. on behalf of their character. We had them complete the proper paperwork, including the 18-page I-485 form “<a href="https://www.uscis.gov/i-485">Application to Register for Permanent Residence or Adjust Status</a>” and the seven-page I-765 form “<a href="https://www.uscis.gov/i-765">Application for Employment Authorization</a>.” They signed their character’s name to the forms as well.</p>
<p>We also asked them to submit a photograph of their hands, to imitate the fingerprinting process.</p>
<p>Finally, we had them simulate applying for U.S. citizenship. This meant filling out the 20-page N-400 form “<a href="https://www.uscis.gov/n-400">Application for Naturalization</a>,” and submitting another photograph of their hands.</p>
<p>All paperwork was uploaded to us through the course website – not to actual immigration authorities. And of course, we didn’t ask them to pay the US$2,445 in federal fees associated with filing those forms.</p>
<h2>Economic progress</h2>
<p>The game used a scoring system that functioned sort of like a currency, so we called it “coin.” All the players started with a modest sum, and they could earn more coin by completing weekly assignments such as chapter quizzes on time. The game included random positive events as well, like having their character receive a new letter of reference or <a href="https://doi.org/10.1080/15512169.2018.1563550">being profiled in the local newspaper as a volunteer</a>. These added to the player’s coin.</p>
<p>Players could also earn coin by either buying or preparing food from their character’s country and writing 150 words about their experience with the food and what they thought of it. They took a picture of the food as well, with at least one of their hands being clearly visible in the shot – as a means of <a href="http://doi.org/10.1108/OTH-09-2015-0061">reinforcing their personal connections to characters</a>. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/312649/original/file-20200129-92987-eu3b9v.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/312649/original/file-20200129-92987-eu3b9v.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/312649/original/file-20200129-92987-eu3b9v.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=800&fit=crop&dpr=1 600w, https://images.theconversation.com/files/312649/original/file-20200129-92987-eu3b9v.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=800&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/312649/original/file-20200129-92987-eu3b9v.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=800&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/312649/original/file-20200129-92987-eu3b9v.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1006&fit=crop&dpr=1 754w, https://images.theconversation.com/files/312649/original/file-20200129-92987-eu3b9v.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1006&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/312649/original/file-20200129-92987-eu3b9v.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1006&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A student’s hand, with a photo of a receipt and an Indian dish the student made to earn some in-game ‘coin.’</span>
<span class="attribution"><span class="source">Brandon Bouchillon</span>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span>
</figcaption>
</figure>
<p>The students could elect to spend some of their coin on in-game advantages like an immigration attorney, to help speed their applications along. Attorneys could also help to defend against the random negative events, such as application files getting lost in the mail or finding out a character’s name was on a list of people judged to be security threats. If students didn’t spend coin to defend against these possibilities, they ran the risk of losing some of their coin to the perils of the system.</p>
<p>At the end of the game, students took the <a href="https://www.uscis.gov/us-citizenship/naturalization-test">U.S. citizenship exam</a>, before retaking the survey about trust in immigrants. Their ability to complete the paperwork, do well on the citizenship exam and accumulate coin became part of their overall grade in the course.</p>
<h2>Trusting over time</h2>
<p>We found that students came to trust more in immigrants in general, and in immigrant groups they role-played as more specifically, by playing the game.</p>
<p>Student comments further suggest they came to grasp the frustrating nature of the citizenship process, even if unwillingly. One white male wrote, “Just because you want to show us how in real life there are unexpected factors that occur and cause setbacks doesn’t mean you should take away class points.” Another white male wrote that we should delete the game, because “it has nothing to do with U.S. Government. Role-playing is disgusting and busywork.” He reported that playing the game did not change his view of U.S. immigration policies either.</p>
<p>On the other hand, a Latina student mentioned that she had obtained citizenship herself in the past year, and said she “loved the thought process” at work behind the game. She pointed out that the game was still “much easier” than the real thing, but we were heartened to hear her recognize and appreciate its value.</p>
<p>In the end, we find evidence that role-playing as immigrants applying for citizenship is related to trusting them. Games can be used to acquaint citizens with the trials and tribulations immigrants go through, as a set of shared experiences upon which to build <a href="https://doi.org/10.1016/j.ssresearch.2018.12.009">connections and trust</a> in the future.</p>
<p>[ <em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/130775/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brandon Bouchillon does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Simulating some experiences of immigrant life can help nonimmigrants learn to understand, and even trust, people from other countries more.Brandon Bouchillon, Assistant Professor of Journalism, University of ArkansasLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1289652020-01-22T13:37:33Z2020-01-22T13:37:33ZWhen politicians turn immigration into a ‘crisis,’ they hurt their own people<figure><img src="https://images.theconversation.com/files/309518/original/file-20200110-97149-azqnlo.jpg?ixlib=rb-1.1.0&rect=5%2C0%2C3400%2C2124&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An Italian official gestures at migrants waiting to disembark in the Sicilian port of Catania in August 2018.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/an-official-wearing-a-protective-suit-gestures-towards-news-photo/1021751110">Giovanni Isolino/AFP via Getty Images</a></span></figcaption></figure><p>A massive influx of immigrants on the southern border led to <a href="https://www.pewresearch.org/global/2016/08/02/number-of-refugees-to-europe-surges-to-record-1-3-million-in-2015/">record numbers of people entering the country</a> without legal permission, <a href="https://www.reuters.com/article/us-europe-migrants/mediterranean-by-far-worlds-deadliest-border-for-migrants-iom-idUSKBN1DO1ZY">record numbers of migrant deaths</a> and the <a href="https://www.thenewhumanitarian.org/news-feature/2019/06/20/european-activists-fight-criminalisation-aid-migrants-refugees">criminalization of humanitarian workers and activists</a> who assist migrants. Residents have also experienced chronic stress and uncertainty, eroding their sense of security and well-being. </p>
<p>This isn’t the United States. It’s Italy – specifically the island of Sicily, where political restrictions on immigration are also controversial, and are taking their toll on local residents as well as immigrants. </p>
<p>In recent years, many people have <a href="https://theconversation.com/climate-not-conflict-drove-many-syrian-refugees-to-lebanon-127681">left the Middle East</a> and parts of Africa, seeking refuge from political and social instability and the possibility of more prosperous lives in Europe. Sicily is a common point of arrival, as it is a relatively short boat trip from North Africa. However, it is also a highly dangerous crossing, with <a href="https://www.iom.int/news/iom-warns-about-1000-deaths-mediterranean">more than 15,000 migrant deaths recorded since 2013</a>.</p>
<p><iframe id="1dHuV" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/1dHuV/1/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>Immigration restrictions harm residents</h2>
<p>In response to the influx, politicians in Italy and across Europe have expressed concern about the number of migrants and refugees. In 2018, they voted in favor of then-Interior Minister Matteo Salvini’s “<a href="https://www.ecre.org/salvini-decree-approved-by-italian-senate-amid-citizens-protests-and-institutional-criticism/">security decree</a>,” a restrictive policy that seeks to deter more immigrants from coming and limit the freedom to stay of those who have already arrived. The security decree significantly decreased funding to hundreds of migrant reception centers, forcing most to implement widespread layoffs or close entirely, and eliminated most forms of humanitarian protection for asylum-seekers. </p>
<p><a href="https://doi.org/10.1016/j.socscimed.2017.02.041">My research</a>, which has examined community responses to immigration in Sicily, has found that these policies don’t do much to affect the flow of immigrants, but they do hurt the Sicilians living in the communities where migrants first arrive. A common refrain among island residents is that “Italy and the EU have abandoned Sicily,” <a href="https://www.ncbi.nlm.nih.gov/pubmed/28274600">especially by withholding financial resources</a> in responding to migration. </p>
<p>Since early November 2019, Italians have taken to the streets and public piazzas to <a href="https://www.bbc.com/news/world-europe-50631217">proclaim their support for human rights</a> and their objections to restrictive immigration policies. In particular, they protested against the political rise of Salvini, an anti-immigrant nationalist from northern Italy and leader of a far-right party.</p>
<p>European and Italian leaders – as well as mainstream Italian media outlets – often describe migration as a “crisis” or humanitarian “<a href="https://www.ecfr.eu/article/humanitarian_emergency_in_the_mediterranean_ecfr_scorecard_briefing3004">emergency</a>” that they perceive to threaten various aspects of European society. Yet my research has found that the people who live in the communities receiving migrants in Sicily, and elsewhere in southern Europe, view their situation with much more nuance. Friends and research collaborators remind me that the island has always been a “melting pot,” “receiving migrants for centuries.” </p>
<p>People here frequently regale me with examples of how they share much more with North Africa in terms of their identity than they do with the rest of Italy. As one nonprofit director explained to me, “We do not want to police those arriving and serve as the border guard for Europe.” And, as <a href="https://palermo.gds.it/articoli/politica/2020/01/13/migranti-orlando-a-berlino-palermo-citta-piu-sicura-ditalia-rispettando-i-diritti-umani-24ef4ff6-abf3-451c-a7a1-37574aa9140e/">Palermo’s mayor, Leoluca Orlando, recently told a crowd in Berlin</a> while referring to his own city’s policy of welcoming migrants, “The only way to ensure security is to respect human rights.”</p>
<p><iframe id="XSSwJ" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/XSSwJ/2/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>Building a community-wide response</h2>
<p>Migration into Sicily from the Middle East and Africa has ebbed and flowed over the past two decades.</p>
<p>Each time there is an influx, local communities have to organize to respond, including preparing search-and-rescue efforts to find migrants whose boats are in bad repair or have sunk, and to help the people when they arrive on land. </p>
<p>Since the 2008 global financial crisis, the <a href="https://www.thelocal.it/20170718/italy-european-union-most-highest-percentage-neet-unemployed-young-people-millennials">youth unemployment rate in Sicily has exceeded 40%</a>. Many young Sicilians I spoke with had been <a href="https://gds.it/articoli/cronaca/2011/03/16/lampedusa-caruso-al-via-la-tendopoli--151183-905b5632-896d-4f98-8a29-5f9ada3dd40f/">relieved to find jobs</a> as humanitarian workers, translators, administrative staff and legal advocates helping to respond to the migrant influx that really picked up in 2011. They helped arriving migrants off the boats and gave them medical care. They processed individuals as they disembarked by recording their details and initiating applications for immigration status. And they took them to shelters where they could eat and sleep while awaiting decisions on their asylum or refugee applications.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/310346/original/file-20200115-134772-nx2i8a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/310346/original/file-20200115-134772-nx2i8a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/310346/original/file-20200115-134772-nx2i8a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/310346/original/file-20200115-134772-nx2i8a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/310346/original/file-20200115-134772-nx2i8a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/310346/original/file-20200115-134772-nx2i8a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/310346/original/file-20200115-134772-nx2i8a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/310346/original/file-20200115-134772-nx2i8a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Migrants disembark in a Sicilian port in 2018.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/migrants-disembark-the-italys-coastguard-ship-diciotti-at-news-photo/973077304">Fabrizio Villa/Getty Images</a></span>
</figcaption>
</figure>
<p>I observed this process during the summer of 2017, <a href="https://www.iom.int/news/mediterranean-migrant-arrivals-reached-171635-2017-deaths-reach-3116">a year when nearly 120,000 migrants arrived in Italy, primarily at Sicilian ports</a>.</p>
<p>The coast guard monitors maritime traffic and alerts local volunteer and professional aid groups hours or even days before a migrant ship arrives in a Sicilian port. Aid workers, health officials and local government staff then show up in droves to help compile personal data on each migrant who arrives, set up tents and temporary clinics, and distribute clothes, shoes, water and food. </p>
<h2>Layoffs, disconnection and confusion</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/309516/original/file-20200110-97140-2j7r98.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/309516/original/file-20200110-97140-2j7r98.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/309516/original/file-20200110-97140-2j7r98.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=830&fit=crop&dpr=1 600w, https://images.theconversation.com/files/309516/original/file-20200110-97140-2j7r98.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=830&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/309516/original/file-20200110-97140-2j7r98.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=830&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/309516/original/file-20200110-97140-2j7r98.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1043&fit=crop&dpr=1 754w, https://images.theconversation.com/files/309516/original/file-20200110-97140-2j7r98.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1043&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/309516/original/file-20200110-97140-2j7r98.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1043&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Former Italian Interior Minister Matteo Salvini.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Matteo_Salvini_Viminale_(cropped).jpg">Italian Ministry of the Interior/Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>When Salvini, then the interior minister, <a href="https://www.bbc.com/news/world-europe-44668062">banned migrants from coming ashore in Italy</a> starting in 2018, <a href="https://www.pri.org/stories/2019-07-31/after-budget-cuts-asylum-seekers-italy-forced-out-cities">government spending for migrant intake</a> plummeted. Reception centers across Sicily <a href="https://reliefweb.int/report/italy/italy-report-effects-security-decrees-migrants-and-refugees-sicily">closed</a>. Thousands of logistical and humanitarian workers lost their jobs. </p>
<p>A reception center worker I first met in 2017 was visibly distressed when I visited her in 2019 as she explained how budget cuts and changes to Italy’s immigration policies had led to layoffs among her coworkers and increased responsibility and pressure in her own position. Like many social and assistance workers in Italy’s migrant reception system, she was struggling with <a href="https://doi.org/10.1016/j.socscimed.2017.02.041">chronic stress and depression</a> and did not think she could continue in her job much longer. </p>
<p>Now that Salvini is out of office, migrants are arriving in Sicily again. The people and systems and processes that had been set up to help them have to be rebuilt, mostly from scratch. This <a href="https://messina.gds.it/articoli/cronaca/2019/11/24/migranti-la-nave-ocean-viking-e-arrivata-al-porto-di-messina-f2b5a96e-e283-4441-bccb-c12e7959c330/">scramble to organize people and supplies</a> creates a crisis for local residents as they must coordinate agencies and volunteers to receive migrants at port, identify options for transportation and housing, and locate and petition for the financial resources to sustain these activities.</p>
<p>[ <em>Insight, in your inbox each day.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=insight">You can get it with The Conversation’s email newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/128965/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Megan A. Carney does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Research in Sicily finds that anti-immigration policies don’t slow the flow of immigrants, but do hurt local residents in communities where migrants first arrive.Megan A. Carney, Assistant Professor of Anthropology, University of ArizonaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1274032020-01-15T13:54:26Z2020-01-15T13:54:26ZWho is born a US citizen?<figure><img src="https://images.theconversation.com/files/307247/original/file-20191216-124031-1ha3v1g.jpg?ixlib=rb-1.1.0&rect=0%2C165%2C2699%2C2635&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Some people are U.S. citizens at birth, like this baby born in California.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/newborn-baby-sophia-larson-wrapped-american-266006306">Joseph Sohm/Shutterstock.com</a></span></figcaption></figure><p>A recent court ruling about faraway American Samoa may have profound implications for a conflict that’s been going on for nearly 200 years: who gets to be an American citizen.</p>
<p>Debates over who gets citizenship and what kind of citizenship they get have always been intertwined with race in American history, as we have learned through our individual <a href="https://scholar.google.com/citations?user=niKIE0kAAAAJ&hl=en&oi=sra">research</a> on the <a href="https://works.swarthmore.edu/fac-poli-sci/371/">historical status</a> of <a href="https://library.villanova.edu/Find/Record/1360537/TOC">Native Americans</a> and <a href="https://www.press.umich.edu/94108/racial_union">African Americans</a> and the research we have done together on <a href="http://doi.org/10.1057/pol.2016.3">restricting Chinese immigration</a>. </p>
<p>Nonetheless, even in the highly racialized political environment of the late 19th century, the U.S. Supreme Court endorsed an expansive view of birthright citizenship – <a href="https://www.washingtonpost.com/news/monkey-cage/wp/2018/11/02/what-americans-really-think-about-birthright-citizenship/">the idea</a> that people born in a country are automatically citizens of that nation. In an 1898 ruling, the court decreed that the children of immigrants were citizens, regardless of their parents’ ancestry.</p>
<p>That decision laid the groundwork for the 21st-century ruling that people born in the U.S. Pacific island territory of <a href="https://www.scribd.com/document/439564853/Fitisemanu-v-United-States-D-Utah-Opinion">American Samoa are U.S. citizens</a>. If <a href="https://www.npr.org/2019/12/13/787978353/american-samoans-citizenship-status-still-in-limbo-after-judge-issues-stay">upheld on appeal</a>, the ruling would overturn more than a century of federal policy, including congressional refusal to grant American Samoans citizenship status. </p>
<p><iframe id="lzV9U" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/lzV9U/1/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>Citizenship by birth</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/309481/original/file-20200110-97183-4s9jtb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/309481/original/file-20200110-97183-4s9jtb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/309481/original/file-20200110-97183-4s9jtb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=773&fit=crop&dpr=1 600w, https://images.theconversation.com/files/309481/original/file-20200110-97183-4s9jtb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=773&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/309481/original/file-20200110-97183-4s9jtb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=773&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/309481/original/file-20200110-97183-4s9jtb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=971&fit=crop&dpr=1 754w, https://images.theconversation.com/files/309481/original/file-20200110-97183-4s9jtb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=971&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/309481/original/file-20200110-97183-4s9jtb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=971&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Dred Scott, around 1857, when he sued seeking freedom from slavery for himself, his wife and their two children.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Dred_Scott_photograph_(circa_1857).jpg">Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>Federal laws govern some people’s citizenship – such as those who seek to be <a href="https://www.uscis.gov/us-citizenship/citizenship-through-naturalization">naturalized</a> or <a href="https://www.uscis.gov/policy-manual/volume-12-part-h-chapter-3">people born overseas</a> with at least one parent who is a U.S. citizen; the law says they, too, may claim U.S. citizenship. Similarly, children from other countries who are <a href="https://www.uscis.gov/policy-manual/volume-12-part-h-chapter-3">adopted by U.S. citizens</a> become citizens themselves when the adoption is finalized.</p>
<p>But most citizens of the U.S. are born, not made. Before the Civil War, the U.S. had generally followed the English practice of granting citizenship to <a href="https://www.huffpost.com/entry/citizenship-and-the-const_b_8137670">children born in the country</a>.</p>
<p>In 1857, though, the Supreme Court had decided the Dred Scott v. Sandford case, with Chief Justice Roger Taney declaring that <a href="https://supreme.justia.com/cases/federal/us/60/393/">people of African descent living in the U.S.</a> – whether free or enslaved, and regardless of where they were born – were not actually U.S. citizens.</p>
<h2>Legal and constitutional transformation</h2>
<p>After the Civil War, Congress explicitly rejected the Dred Scott decision, first by <a href="https://history.house.gov/Historical-Highlights/1851-1900/The-Civil-Rights-Bill-of-1866/">passing legislation reversing the ruling</a>, and then by writing the 14th Amendment to the Constitution, which specified that “<a href="https://www.law.cornell.edu/constitution/amendmentxiv">[a]ll persons born or naturalized in the United States</a>, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” </p>
<p>This broad language intentionally included more than just the people who had been freed from slavery at the end of the Civil War: Members of Congress discussed the <a href="https://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=070/llcg070.db&recNum=603">potential inclusion of the children of other nonwhite groups</a>, like Chinese immigrants and those identified as Gypsies.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/309482/original/file-20200110-97126-kb2l38.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/309482/original/file-20200110-97126-kb2l38.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/309482/original/file-20200110-97126-kb2l38.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=443&fit=crop&dpr=1 600w, https://images.theconversation.com/files/309482/original/file-20200110-97126-kb2l38.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=443&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/309482/original/file-20200110-97126-kb2l38.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=443&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/309482/original/file-20200110-97126-kb2l38.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=557&fit=crop&dpr=1 754w, https://images.theconversation.com/files/309482/original/file-20200110-97126-kb2l38.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=557&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/309482/original/file-20200110-97126-kb2l38.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=557&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The Congressional Record shows the House and Senate votes on the 14th Amendment.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:14th_Amendment_Senate_%26_House_votes_June,_1866.jpg">Edward McPherson, Clerk of the House of Representatives of the United States/Wikimedia Commons</a></span>
</figcaption>
</figure>
<h2>Still barring some from citizenship</h2>
<p>However, this inclusive view of citizenship still had an area judges hadn’t made clear yet – the phrase “subject to the jurisdiction thereof.” In 1884, the Supreme Court had to interpret those words when deciding the case of a Native American who wanted to be a citizen, had renounced his tribal membership and attempted to register to vote. </p>
<p>The justices ruled that even though John Elk had been born in the U.S., he was <a href="https://www.law.cornell.edu/supremecourt/text/112/94">born on a reservation as a member of a Native American tribe</a> and was therefore <a href="https://ssrn.com/abstract=2610859">subject to the tribe’s jurisdiction at his birth</a> – not that of the United States. He was, they ruled, not a citizen. </p>
<p>In 1887, Congress did pass a law <a href="https://www.britannica.com/topic/Dawes-General-Allotment-Act">creating a path to citizenship</a> for at least some Native Americans; it took until 1924 for <a href="https://www.history.com/this-day-in-history/the-indian-citizenship-act">all Native Americans born on U.S. soil</a> to be recognized as citizens.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/309483/original/file-20200110-97158-1pjhzha.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/309483/original/file-20200110-97158-1pjhzha.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/309483/original/file-20200110-97158-1pjhzha.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=664&fit=crop&dpr=1 600w, https://images.theconversation.com/files/309483/original/file-20200110-97158-1pjhzha.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=664&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/309483/original/file-20200110-97158-1pjhzha.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=664&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/309483/original/file-20200110-97158-1pjhzha.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=835&fit=crop&dpr=1 754w, https://images.theconversation.com/files/309483/original/file-20200110-97158-1pjhzha.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=835&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/309483/original/file-20200110-97158-1pjhzha.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=835&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A U.S. immigration photo of Wong Kim Ark, taken in 1904.</span>
<span class="attribution"><a class="source" href="https://catalog.archives.gov/id/296479">U.S. National Archives</a></span>
</figcaption>
</figure>
<p>The text of the 14th Amendment also became an issue in the late 19th century, when Congress and the Supreme Court were deciding how to handle immigrants from China. An 1882 law had barred Chinese immigrants living in the U.S. from becoming naturalized citizens. A California circuit court, however, ruled in 1884 that these immigrants’ <a href="https://cite.case.law/f/21/905/?full_case=true&format=html">U.S.-born children were citizens</a>.</p>
<p>In 1898, the Supreme Court took up the question in United States v. Wong Kim Ark, ultimately ruling that children born in the U.S. were, in the 14th Amendment’s terms, “subject to the jurisdiction” of the United States, so long as their parents were <a href="https://cdnc.ucr.edu/?a=d&d=DAC18840928.2.3&e=-------en--20--1--txt-txIN--------1">not serving in some official capacity as representatives of a foreign government</a>. Therefore, those children <a href="https://www.law.cornell.edu/supremecourt/text/169/649">were U.S. citizens at birth</a>. </p>
<h2>The long reach of Wong Kim Ark</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/309485/original/file-20200110-97178-19dj8cv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/309485/original/file-20200110-97178-19dj8cv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/309485/original/file-20200110-97178-19dj8cv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/309485/original/file-20200110-97178-19dj8cv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/309485/original/file-20200110-97178-19dj8cv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/309485/original/file-20200110-97178-19dj8cv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/309485/original/file-20200110-97178-19dj8cv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/309485/original/file-20200110-97178-19dj8cv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">John Fitisemanu, born in American Samoa, was the lead plaintiff in a lawsuit seeking formal U.S. citizenship.</span>
<span class="attribution"><a class="source" href="https://twitter.com/johnfitisemanu">John Fitisemanu/Twitter</a></span>
</figcaption>
</figure>
<p>Since the Wong Kim Ark ruling, birthright citizenship rules haven’t changed much – but they are no less contentious. In 1900 and 1904, leaders of several Pacific islands that make up what is now American Samoa <a href="https://www.americansamoa.gov/history-of-american-samoa">signed treaties granting the U.S. full powers and authority</a> to govern them. These agreements, however, did not grant American Samoans citizenship. A State Department policy designates them as “<a href="https://web.archive.org/web/20200110170124/https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/us-citizenship/Certificates-Non-Citizen-Nationality.html">non-citizen nationals</a>,” which means they can freely live and work in the U.S., but cannot vote in state and federal elections.</p>
<p>Efforts to grant American Samoans citizenship in the 1930s <a href="https://www.civilbeat.org/2018/08/why-american-samoans-cant-run-for-office-or-even-vote/">passed the Senate but failed in the House</a>. In 2018, plaintiffs from American Samoa sued, <a href="https://www.npr.org/2019/12/13/787978353/american-samoans-citizenship-status-still-in-limbo-after-judge-issues-stay">seeking to be regarded as full U.S. citizens</a>. They asked a federal judge to decide whether they were covered by the 14th Amendment’s provision that they were born “within” the U.S., and therefore citizens. The judge agreed they were, looking to the Wong Kim Ark ruling as clear guidance that the 14th Amendment follows the <a href="https://www.scribd.com/document/439564853/Fitisemanu-v-United-States-D-Utah-Opinion">ancient rule of birthright citizenship</a>. </p>
<p>Policymakers and the public remain deeply interested in who gets citizenship and how they get it. President Donald Trump is just the <a href="https://genprogress.org/the-history-and-stereotypes-behind-the-term-anchor-babies/">latest in a long line of politicians who have objected</a> to the fact that Latin American immigrants who come to the U.S. without legal permission can <a href="https://abcnews.go.com/Politics/trump-plans-end-birthright-citizenship-babies-born-citizens/story?id=58845684">have babies who are U.S. citizens</a>. Nevertheless, the courts have continued to uphold the centuries-long history of birthright citizenship, dating back to before the Constitution itself and early American court rulings.</p>
<p>[ <em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/127403/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If upheld, a federal court ruling would solidify birthright citizenship as the law of the land, and overturn more than a century of federal refusal to grant American Samoans citizenship status.Carol Nackenoff, Richter Professor of Political Science, Swarthmore CollegeJulie Novkov, Professor of Political Science and Women’s, Gender and Sexuality Studies, University at Albany, State University of New YorkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1223112019-09-05T18:50:00Z2019-09-05T18:50:00ZMany sick and disabled people are refused permanent visas. We need compassion not discrimination<figure><img src="https://images.theconversation.com/files/290024/original/file-20190829-184229-tj7uxd.jpg?ixlib=rb-1.1.0&rect=0%2C79%2C998%2C586&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Australia has changed the way it decides whether children with Down syndrome, and other conditions, can migrate permanently to Australia. But the changes don't go far enough.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/cute-smiling-down-syndrome-girl-on-699733051?src=-1-0">from www.shutterstock.com</a></span></figcaption></figure><p>A three-year-old boy with haemophilia and an acquired brain injury <a href="https://www.sbs.com.au/news/boy-with-disabilities-who-could-die-if-he-leaves-australia-to-have-visa-rejection-reviewed">is facing removal</a> from the country because the home affairs department has ruled his medical costs would unduly burden Australian taxpayers.</p>
<p>Kayban Jamshaad’s case is before Perth’s <a href="https://www.aat.gov.au/">Administrative Appeal Tribunal</a> where his parents claim that removal to their home country of the Maldives would be a death sentence because he would lose the medical care he needs to survive.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-can-go-wrong-in-the-blood-a-brief-overview-of-bleeding-clotting-and-cancer-76400">What can go wrong in the blood? A brief overview of bleeding, clotting and cancer</a>
</strong>
</em>
</p>
<hr>
<p>The case <a href="https://www.sbs.com.au/news/hearing-impaired-bhutanese-teen-faces-world-of-isolation-as-deportation-from-australia-looms">highlights</a> <a href="https://www.sbs.com.au/news/this-single-mother-could-be-one-of-the-last-to-have-her-australian-visa-rejected-over-hepatitis-b">one</a> <a href="https://www.sbs.com.au/news/year-12-student-and-family-will-be-allowed-to-stay-in-australia-after-ministerial-intervention">example</a> of how a migrant’s health or disability can affect their visa status.</p>
<p>In this case, as with many others making the <a href="https://www.sbs.com.au/language/english/audio/senator-says-urgency-needed-to-stop-filipino-migrant-family-from-being-deported??&fbclid=IwAR0kjKkFIbGYmyvCiJafD5Dpgcc58vQiwE8C15PHTol0qiuNyB5HbW8BIJ4">news</a>, Kayban’s family had been living happy and productive lives in Australia on temporary visas.</p>
<p>Transitioning to permanent status, however, involves more onerous <a href="https://www.sbs.com.au/news/what-is-the-health-requirement-for-australian-visa-applicants-and-how-could-it-affect-you">health requirements</a> that deny visas to people likely to require care or use scarce community resources. Applicants are <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_reg/mr1994227/sch4.html">assessed</a> against their “deemed cost”, regardless of what health or community services they will actually use. </p>
<p>The immigration minister has the <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Former_Committees/minmig/report/c02">power</a> to grant someone a permanent visa if they fail any of the health tests, but only when intervention is in the “public interest”.</p>
<h2>Rules are discriminatory, obscure and unfair</h2>
<p>Complaints about the <a href="https://www.aph.gov.au/parliamentary_business/committees/house_of_representatives_committees?url=mig/disability/report.htm">migration health rules</a> have focused on their bluntly discriminatory nature and questionable service to Australia’s national interests. </p>
<p>The rules make no distinction between disease and disability: the assumption is both are equally burdensome. </p>
<p>No attempt is made to balance someone’s “cost” against his or her contribution to Australia. The algorithms used to determine cost, including projected costs over time, are also opaque. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/visa-policy-for-overseas-students-with-a-disability-is-nonsensical-and-discriminatory-89537">Visa policy for overseas students with a disability is nonsensical and discriminatory</a>
</strong>
</em>
</p>
<hr>
<p>Australia’s discriminatory treatment of migrants with diseases, such as HIV/AIDS, and disabilities is protected by caveats it has created under both domestic and international laws. </p>
<p>The Commonwealth Disability Discrimination Act 1992 exempts migration decisions from full compliance with that Act.</p>
<p>Australia has also lodged an “interpretive declaration” to Article 18 of the Convention on the Rights of Persons with Disabilities, which addresses liberty of movement. </p>
<p>Yet the central focus of both the Disability Discrimination Act and the Convention on the Rights of Persons with Disabilities is to acknowledge people with disabilities as rights bearers who are entitled to dignity and equal treatment before the law.</p>
<p>The UN Committee overseeing the Convention on the Rights of Persons with Disabilities has identified the migration health rules as a matter of concern. When Australia appears before the Committee <a href="https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/SessionDetails1.aspx?SessionID=1342&Lang=en">later this month</a> it will be asked to account for the measures. </p>
<h2>Tests for HIV and other infectious diseases</h2>
<p>In Australia, all visa applicants aged 15 or over <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_reg/mr1994227/sch4.html">must be tested</a> for HIV, tuberculosis and other diseases considered a public health risk.</p>
<p>Australia continues to test for HIV despite <a href="https://www.unaids.org/en/keywords/travel-restrictions">comparator countries</a> no longer doing so.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/290027/original/file-20190829-184211-9yuo7x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/290027/original/file-20190829-184211-9yuo7x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/290027/original/file-20190829-184211-9yuo7x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/290027/original/file-20190829-184211-9yuo7x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/290027/original/file-20190829-184211-9yuo7x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/290027/original/file-20190829-184211-9yuo7x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/290027/original/file-20190829-184211-9yuo7x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/290027/original/file-20190829-184211-9yuo7x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People with HIV are automatically considered a public health risk and cannot migrate to Australia permanently.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-illustration/diagonal-test-tubes-blood-blue-lids-1248512638?src=-1-40">from www.shutterstock.com</a></span>
</figcaption>
</figure>
<p>Australia has ignored recommendations from the <a href="http://halc.org.au/wp-content/uploads/2017/12/140729-Final-Report.pdf">UN Programme on HIV/AIDS and others</a> to soften its hard stance on people with HIV by abandoning mandatory testing and acknowledging the success and modest cost of available therapies. </p>
<h2>Some softening of the rules</h2>
<p>Persistent lobbying on the health rules themselves has seen some movement. Although, the government seems to have gone out of its way to ensure modest rule changes in July were made <a href="https://www.sbs.com.au/news/exclusive-government-quietly-relaxes-controversial-visa-policy-affecting-people-with-disabilities">quietly</a>. </p>
<p>In determining whether someone will incur health costs, officials consider a person’s age, state of health and (if relevant) their particular disease or disability. </p>
<p>Before July 2019, virtually all children born with conditions such as <a href="https://cerebralpalsy.org.au/our-research/about-cerebral-palsy/what-is-cerebral-palsy/">cerebral palsy</a>, <a href="https://www.downsyndrome.org.au/what_is_down_syndrome.html">Down syndrome</a> or <a href="https://www.autismspectrum.org.au/about-autism/what-is-autism">autism</a> faced exclusion.</p>
<p>This was because projected health costs were capped at A$40,000, assessed against life expectancy or visa duration. </p>
<p>Children with similar conditions are now tested against a A$49,000 cap over ten years. The changes are modest but offer some hope.</p>
<p>But applicants are still assessed against <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_reg/mr1994227/sch4.html">deemed cost</a> even if they do not access services.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-what-causes-cerebral-palsy-and-can-it-be-prevented-37742">Explainer: what causes cerebral palsy and can it be prevented?</a>
</strong>
</em>
</p>
<hr>
<h2>The future</h2>
<p>Australia can ensure immigration does not result in undue burden without ditching fairness and humanity. A good starting point would be “nett benefit” health rules that measure a migrant’s contributions as well as projected costs.</p>
<p>Allowing officials to weigh benefit against burden would also free the minister from endless petitions to personally intervene.</p><img src="https://counter.theconversation.com/content/122311/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mary Crock is a migration agent and an accredited law specialist in immigration law.</span></em></p>How Australia treats migrants with health conditions and disabilities is discriminatory, obscure and unfair, as the UN will hear later this month.Mary Crock, Professor of Public Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1197022019-07-08T11:09:14Z2019-07-08T11:09:14ZA long-running immigration problem: The government sometimes detains and deports US citizens<figure><img src="https://images.theconversation.com/files/282548/original/file-20190703-126360-1gycc9b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Entering a tent at the Homestead Temporary Shelter for Unaccompanied Children in Florida.</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Immigrant-Children-Detained/604180d1622546fe8b2bcef9493ca704/34/0">AP Photo/Wilfredo Lee</a></span></figcaption></figure><p>We are law professors who have studied <a href="https://www.nyulawreview.org/issues/volume-94-number-3/uncivil-denaturalization/">civil litigation involving citizenship disputes</a> and thousands of cases involving citizens caught up in immigration cases. </p>
<p>That includes the U.S. <a href="http://lawdigitalcommons.bc.edu/bclr/vol54/iss5/4">citizens who have been accidentally swept up</a> in the government’s immigration enforcement efforts since the <a href="https://www.irishtimes.com/culture/books/the-stories-of-irish-deportees-from-the-us-in-1800s-1.3059578">mid-19th century</a>. In many cases, they have been detained and even deported.</p>
<p>In fact, <a href="https://www.npr.org/sections/thetwo-way/2016/12/22/504031635/you-say-you-re-an-american-but-what-if-you-had-to-prove-it-or-be-deported">more than 1,500 U.S. citizens</a> spent time in immigration detention between 2007 and 2015 before the government acknowledged the mistake, federal records indicate. Northwestern University political scientist Jacqueline Stevens estimated that approximately <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1931703">1% of all immigration detainees</a> from more than 8,000 cases between 2006 and 2008 that she studied were U.S. citizens. </p>
<h2>Chinese Exclusion Act</h2>
<p>Following its founding and for more than a century, the United States allowed foreigners to voluntarily settle here. The <a href="https://theconversation.com/americas-mass-deportation-system-is-rooted-in-racism-73426">Chinese Exclusion Act</a> in 1882, the first of several measures designed to restrict immigration from China, <a href="https://fee.org/articles/nations-and-borders-can-exist-without-restricting-immigration/">limited immigration for the first time</a>. </p>
<p>The <a href="https://supreme.justia.com/cases/federal/us/253/454/">Supreme Court</a> made it clear in 1920 with a ruling related to those curbs on Chinese immigrants that it is illegal for immigration authorities to deliberately detain or deport U.S. citizens. The case resolved a dispute between <a href="https://caselaw.findlaw.com/us-supreme-court/253/454.html">Kwock Jan Fat</a>, a man born in California who was denied permission to return to the United States after a trip to China, and the immigration authorities.</p>
<p>The unanimous ruling included a warning about the risks of accidentally deporting citizens. “It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country,” Justice John Hessin Clarke wrote in the court’s opinion.</p>
<p>More than 75 years after the <a href="https://history.state.gov/milestones/1937-1945/chinese-exclusion-act-repeal">Chinese Exclusion Act’s repeal in 1943</a>, we believe that the court’s concerns about protecting the rights of U.S. citizens during immigration enforcement actions remain relevant.</p>
<p>Scholars like Francisco Balderrama of California State University in Los Angeles and Kelly Lytle-Hernandez at University of California, Los Angeles have researched what happened when hundreds of thousands of people of Mexican descent were rounded up and forced onto trains bound for Mexico during the mass deportations of the <a href="https://timeline.com/in-the-1930s-we-illegally-deported-600-000-u-s-citizens-because-they-had-mexican-heritage-f0c5d589a5c3">Great Depression</a> and <a href="https://theconversation.com/largest-deportation-campaign-in-us-history-is-no-match-for-trumps-plan-73651">the 1950s</a>. They have determined that many of the people expelled from this country were actually U.S.-born citizens.</p>
<h2>Hard to count</h2>
<p>More recent examples abound of the U.S. government detaining citizens after falsely accusing them of breaking immigration laws.</p>
<p>Immigration and Customs Enforcement authorities <a href="https://www.foxnews.com/us/marine-vet-with-ptsd-held-by-ice-for-3-days-before-agency-realized-he-was-citizen">reportedly detained for three days Jilmar Ramos-Gomez</a>, a veteran born in Grand Rapids, Michigan who served with the Marines in Afghanistan, in 2018 because the agency did not believe he was born here.</p>
<p>ICE also detained for <a href="https://www.aclu.org/legal-document/peter-sean-brown-v-richard-ramsay-complaint">more than three weeks</a> a <a href="https://www.washingtonpost.com/nation/2018/12/04/born-philadelphia-us-citizen-says-he-was-held-deportation-jamaica-ices-request/">man named Peter Brown</a> who was born in Philadelphia and lived in the Florida Keys in 2018 because the agency confused him with an undocumented Jamaican immigrant – who was also named Peter Brown.</p>
<figure>
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<figcaption><span class="caption">Peter Sean Brown, a U.S. citizen who lives in the Florida Keys, was locked up by ICE authorities who got him confused with a Jamaican immigrant with the same name.</span></figcaption>
</figure>
<p>In 2007, the government <a href="https://www.aclunc.org/our-work/legal-docket/kebin-reyes-v-alcantar">settled a lawsuit</a> arising from ICE’s detention of 6-year-old Kebin Reyes. ICE detained the California-born child for 10 hours when it picked up his undocumented father, even though his father immediately handed the authorities Reyes’ U.S. passport to prove the boy’s citizenship.</p>
<p>And Justice Department records obtained by the Los Angeles Times indicate that a <a href="https://www.latimes.com/local/lanow/la-me-citizens-ice-20180427-htmlstory.html">10-year-old boy</a> from San Francisco was mistakenly held in immigration detention in Texas for two months, according to his lawyer.</p>
<h2>Citizen misclassification</h2>
<p>The <a href="https://www.oig.dhs.gov/sites/default/files/assets/2019-07/OIG-19-51-Jul19_.pdf?fbclid=IwAR18HnbIV9zJUVGvxAPlmmIhM283E1lfSQBSuN93MnS1jbW10uABhgTHt-I">Department of Homeland Security’s internal watchdog</a> has released a report detailing “dangerous overcrowding” and “prolonged detention” in immigration detention facilities.</p>
<p>The Inspector General’s report <a href="https://www.oig.dhs.gov/sites/default/files/assets/2019-07/OIG-19-51-Jul19_.pdf?fbclid=IwAR18HnbIV9zJUVGvxAPlmmIhM283E1lfSQBSuN93MnS1jbW10uABhgTHt-I">details several ways</a> in which the detention facilities violate federal laws. For example, the law requires the government to move people out of border-control facilities within 72 hours. But 3,400 detainees were held for longer. Some adults stayed in standing-room-only conditions for up to a week.</p>
<p>There is no guarantee that U.S. citizens, <a href="https://www.cnn.com/2019/06/24/opinions/children-migrant-centers-at-border-long-austin-hillery/index.html">including children</a>, are not included among the detainees enduring those conditions. That’s because studies have shown that <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1931703">children are particularly vulnerable</a> to being wrongly subjected to immigration enforcement actions for two main reasons.</p>
<p>First, many adults who are detained and deported have <a href="https://publicintegrity.org/immigration/ice-data-tens-of-thousands-of-deported-parents-have-u-s-citizen-kids/">children who are U.S. citizens</a>.</p>
<p>Second, families of children born outside the United States – especially those born out of wedlock – may not even realize that their <a href="https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/us-citizenship/Acquisition-US-Citizenship-Child-Born-Abroad.html">child is a U.S. citizen</a> because the rules are complex. They vary according to year of birth, the amount of time the parents spent in the United States and the marital status of the parents. <a href="https://www.themarshallproject.org/2018/05/21/citizen-prove-it">Having a grandparent who became a naturalized citizen</a> could mean that a child born outside the U.S. also acquired citizenship at birth. </p>
<h2>Violating rights</h2>
<p>Even when someone knows their own citizenship status, it can be difficult to prove. <a href="https://www.ice.gov/sites/default/files/documents/Document/2017/16001.2.pdf">Federal regulations</a> require government officials to “carefully and expeditiously investigate and analyze the potential U.S. citizenship of individuals encountered by ICE.”</p>
<p>Proving citizenship can require <a href="https://www.themarshallproject.org/2018/05/21/citizen-prove-it">collecting a significant number of records</a>, including birth certificates from multiple generations, records of parents’ prior residence in the United States and affidavits from people who can confirm that information.</p>
<p>Even so, detaining and deporting citizens violates the constitutional right all Americans have to not be subjected to unreasonable searches and seizures under the <a href="https://www.law.cornell.edu/constitution/fourth_amendment">Fourth Amendment</a>.</p><img src="https://counter.theconversation.com/content/119702/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Children can be especially vulnerable to being wrongly subjected to immigration enforcement actions.Cassandra Burke Robertson, Professor of Law and Director of the Center for Professional Ethics, Case Western Reserve UniversityIrina D. Manta, Professor of Law and Director of the Center for Intellectual Property Law, Hofstra UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1195872019-06-28T14:03:59Z2019-06-28T14:03:59ZDemocrats debate the repeal of Section 1325 – what you need to know about the immigration law that criminalizes unauthorized border crossings<figure><img src="https://images.theconversation.com/files/281722/original/file-20190628-76743-ljduai.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3110%2C1228&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Julián Castro skewered the immigration provision during the first Democratic debate.
</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Election-2020-Debate/60867cef2e24499fad299603193fe61d/1/0">AP Photo/Wilfredo Lee</a></span></figcaption></figure><p>During the first Democratic presidential debate of the 2020 race, former Housing and Urban Development secretary <a href="https://www.nytimes.com/2019/06/26/us/politics/democratic-debate-transcript.html">Julián Castro challenged</a> all candidates to join his call for the repeal of a controversial immigration law.</p>
<p>The law, <a href="https://www.law.cornell.edu/uscode/text/8/1325">Section 1325 of Title 8 of the U.S. Code</a>, makes entering the United States “at any time or place other than as designated by immigration officers” a federal crime. </p>
<p>It’s among the most prosecuted federal crimes in the United States. Thousands of defendants are charged with violating Section 1325 <a href="https://trac.syr.edu/tracreports/bulletins/overall/monthlyapr19/fil/">each month</a>.</p>
<p>The government shouldn’t “<a href="https://www.thecut.com/2019/06/julian-castro-democratic-debate-2019.html">criminalize desperation</a>,” Castro argued. Instead, he advocated, it should treat the unlawful entry of undocumented migrants as “a civil violation.” That is, migrants who enter the United States without permission should be deported, not incarcerated.</p>
<p>Castro acknowledged that several other candidates on the stage in Miami, including Sen. Cory Booker, Washington Gov. Jay Inslee, and Sen. Elizabeth Warren, already agree with him. </p>
<p>But others, like former congressman <a href="https://www.texastribune.org/2019/06/26/julian-castro-and-beto-orourke-spar-over-immigration-democrat-debate/">Beto O’Rourke</a>, don’t support Section 1325’s repeal. </p>
<p>“I don’t think it’s asking too much for people to follow our laws when they come to this country,” <a href="https://www.nbcnews.com/politics/2020-election/full-transcript-first-democratic-primary-debate-2019-n1022816">O'Rourke said</a>.</p>
<p>During the second night of the debates, which featured a slate of <a href="https://www.washingtonpost.com/politics/2019/06/28/transcript-night-first-democratic-debate/">another 10 Democratic hopefuls</a>, most of the candidates on stage indicated their support for the measure’s repeal. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1144061112461213697"}"></div></p>
<h2>The backstory</h2>
<p>The United States placed few legal restrictions on crossing borders prior to the 1920s. Even then, entering the U.S. without authorization wasn’t a crime. Deportations could be effected through civil legal process. </p>
<p>With Section 1325, Congress made “<a href="https://codes.findlaw.com/us/title-8-aliens-and-nationality/8-usc-sect-1325.html">improper entry by alien</a>” a crime in 1929 – soon after imposing strict <a href="https://dp.la/browse-by-topic/immigration-since-1840/immigration-quotas-1920-1939">immigration quotas</a> based on national origin. </p>
<p>According to University of California Los Angeles historian <a href="https://theconversation.com/how-crossing-the-us-mexico-border-became-a-crime-74604">Kelly Lytle Hernandez</a>, white supremacist South Carolina Sen. <a href="https://news.google.com/newspapers?id=hO1gAAAAIBAJ&sjid=uWMNAAAAIBAJ&pg=3029,5898411">Coleman Livingston Blease</a> was its architect.</p>
<p>Criminal enforcement, however, remained rare for decades – even when the deportation of Mexican Americans surged in the <a href="https://www.npr.org/sections/codeswitch/2015/09/08/437579834/mass-deportation-may-sound-unlikely-but-its-happened-before">1930s, 1940s</a> and <a href="https://www.history.com/news/operation-wetback-eisenhower-1954-deportation">1950s</a>. Prosecutions based on Section 1325 only started <a href="https://trac.syr.edu/immigration/reports/336/">ramping up</a> in the first decade of this century, during President George W. Bush’s administration.</p>
<h2>Family separation</h2>
<p>Due to the Justice Department’s current “<a href="https://www.justice.gov/opa/press-release/file/1049751/download">zero tolerance</a>” policy, anyone who can be <a href="https://cliniclegal.org/resources/timeline-family-separations-under-zero-tolerance-policy">charged under Section 1325</a> should be charged with a misdemeanor. That has, in thousands of cases, included parents traveling with children. Once charged with this federal crime, parents must be taken into the custody of the U.S. Marshals – where children are not allowed.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/281720/original/file-20190628-76705-v2vndt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/281720/original/file-20190628-76705-v2vndt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/281720/original/file-20190628-76705-v2vndt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/281720/original/file-20190628-76705-v2vndt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/281720/original/file-20190628-76705-v2vndt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/281720/original/file-20190628-76705-v2vndt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/281720/original/file-20190628-76705-v2vndt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/281720/original/file-20190628-76705-v2vndt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Families with young children protested the separation of immigrant families at the Hart Senate Office Building in July 2018.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Immigration-Separating-Families/01237ac5a9dd4efebbba28168ac74cad/100/0">AP Photo/Jacquelyn Martin</a></span>
</figcaption>
</figure>
<p>The White House <a href="https://www.whitehouse.gov/presidential-actions/affording-congress-opportunity-address-family-separation/">publicly disowned this policy</a> in June 2018, just days before a U.S. District Court judge <a href="https://www.aclu.org/issues/immigrants-rights/immigrants-rights-and-detention/family-separation">ordered the government to reunify all separated families</a>. Yet this practice has <a href="https://www.vox.com/2019/2/21/18234767/parents-separated-children-families-border-trump-jails">continued at the border</a>.</p>
<p>Based on my research about the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2656568">federal prosecution of immigration crimes</a>, I’m confident that repealing Section 1325 would not increase the number of undocumented people living in the United States.</p>
<p>Anyone without authorization to live in this country would continue to be subject to deportation, a remedy <a href="https://supreme.justia.com/cases/federal/us/264/32/">the Supreme Court has called</a> “burdensome and severe.”</p>
<p>[ <em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/119587/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kit Johnson does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The 1929 immigration measure has become a focal point due to Trump’s crackdown on undocumented people, including families.Kit Johnson, Associate Professor of Law, University of OklahomaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1156072019-04-29T13:26:25Z2019-04-29T13:26:25ZSex discrimination in British immigration law is likely to get worse after Brexit<figure><img src="https://images.theconversation.com/files/271438/original/file-20190429-194630-l9vk7u.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Yakobchuk Viacheslave/EPA</span></span></figcaption></figure><p>The British government’s plans for migration control after Brexit may, if implemented, exacerbate existing sex discrimination in immigration law. My own <a href="https://doi.org/10.1177%2F0964663919839187">recent research</a> shows that men are significantly more likely than women to benefit from key migration opportunities – including the ability to work in the UK as skilled labour migrants. Not only do the <a href="https://www.gov.uk/guidance/immigration-rules">immigration rules</a> that distribute these opportunities disadvantage women, they may also unlawfully discriminate against them. It is these rules that the government plans to extend and build upon after Brexit. </p>
<p>In a <a href="https://www.gov.uk/government/publications/the-uks-future-skills-based-immigration-system/future-skills-based-immigration-system-executive-summary">white paper on immigration</a>, published in December 2018, the government promised to “reset the conversation on migration” after Brexit. It plans to achieve this by ending freedom of movement for EU citizens and replacing the current labour migration rules which apply to everyone else with a single, skills-based system. </p>
<p>This system would allow skilled and highly skilled migrants from EU and non-EU countries alike to work in the UK. Those considered low-skilled may be able to work in the UK for 12 months in a route for “temporary short-term workers”. Unlike the skilled workers whose migration the government seeks to encourage, the proposals seek to substantially limit the rights of short-term workers. These workers will not be able to extend their stay or remain here on a different basis. Nor will they be able to bring family members with them or make the UK their home.</p>
<p>Much <a href="https://migrationobservatory.ox.ac.uk/resources/commentaries/where-is-uk-labour-migration-policy-heading-after-brexit/">is still unknown</a> about how the system will work. But one question raised by the proposals is just how much of a “reset” of immigration law they represent.</p>
<h2>Migration hierarchies</h2>
<p>Non-EU migrants currently need permission to live and work in the UK. Yet, someone who seeks such permission does not receive a straightforward “yes” or “no” answer to their application. Instead, if they are successful, the Home Office will grant them one of a range of migration statuses which determines the length of time they may remain in the UK and for what purpose. It also determines what rights they have while in the country to be accompanied by their family, access welfare benefits and even open a bank account. </p>
<p>Different migration statuses bestow different bundles of rights – and obligations. Some are considerably more advantageous than others. <a href="https://www.gov.uk/tier-2-general">Skilled labour migrants</a>, for example, may work in the UK for up to five years, change employers, bring their families with them and potentially settle here. <a href="https://www.gov.uk/domestic-workers-in-a-private-household-visa">Domestic workers</a> have no such rights. They cannot change their employer – unless they have been trafficked – and they must leave the UK after just six months. So immigration law creates a status-based labour migration hierarchy which differentiates between labour migrants, advantaging some and disadvantaging others.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/271443/original/file-20190429-194630-1qgbzz8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/271443/original/file-20190429-194630-1qgbzz8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/271443/original/file-20190429-194630-1qgbzz8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/271443/original/file-20190429-194630-1qgbzz8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/271443/original/file-20190429-194630-1qgbzz8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/271443/original/file-20190429-194630-1qgbzz8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/271443/original/file-20190429-194630-1qgbzz8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Migration law establishes as status-based hierarchy.</span>
<span class="attribution"><span class="source">By Kseniya Lanzarote/Shutterstock</span></span>
</figcaption>
</figure>
<p>In my <a href="https://doi.org/10.1177%2F0964663919839187">research</a>, I reviewed information on the distribution of different migration statuses taken from over a ten year period to see how these hierarchies affect women. I supplemented public Home Office <a href="https://www.gov.uk/government/collections/immigration-statistics-quarterly-release%22%22">statistics</a> with data obtained by freedom of information request. </p>
<p>I found that certain key family and labour migration statuses are distributed differently to women and men – to the disadvantage of women. While three-quarters of those granted the advantageous status of “skilled” labour migrant are men, three-quarters of those granted the highly disadvantageous status of “domestic worker” are women. Nearly <a href="https://www.gov.uk/government/publications/immigration-statistics-year-ending-september-2018/why-do-people-come-to-the-uk-4-for-family-reasons">three-quarters</a> of those granted the relatively disadvantageous status of “partner” are women. </p>
<p>In contrast to family migration, labour migration is <a href="https://migrationobservatory.ox.ac.uk/resources/briefings/non-european-labour-migration-to-the-uk/">predominantly male</a> and men are more likely to be at the top of the labour migration hierarchy, as skilled migrants, than women. </p>
<h2>Stereotypes about ‘skills’</h2>
<p>The rules which distribute these migration statuses indirectly discriminate against women <a href="https://doi.org/10.1177%2F0964663919839187">because they are premised</a> on stereotypes. </p>
<p>Labour migration statuses are distributed on the basis of skill. Feminist analyses of the labour market have highlighted the sexed and gendered stereotypes that underlie the categorisations of certain types of work and worker as either <a href="http://compasanthology.co.uk/wp-content/uploads/2014/02/McDowell_COMPASMigrationAnthology.pdf">low- or high-skilled</a>. Such analyses have also questioned the idea that a person’s “skill” can itself be determined objectively. </p>
<p>Such stereotypes, that women are particularly suited to undertake caring work for example, or that such work is <a href="https://www.jstor.org/stable/1394973?seq=1#metadata_info_tab_contents">almost by definition</a>, low-skilled, affect almost every aspect of women’s participation in the job market. They are implicated in the <a href="https://gender-pay-gap.service.gov.uk/">gender pay gap</a>, and the <a href="http://sf.oxfordjournals.org/content/88/2/865.abstract">devaluation</a> in terms of pay and status of the work that women do, particularly <a href="https://journals.sagepub.com/doi/abs/10.1177/000271629956100103">caring work</a>.</p>
<p>As Eleonore Kofman, professor of social policy at Middlesex University, <a href="https://www.tandfonline.com/doi/abs/10.80/1369183X.2013.745234">argues</a> the immigration rules that rank “skills” appear to be gender-neutral, but they actually privilege certain types of knowledge, and discount others, in a highly gendered way. I argue that they do so because because the rules that determine who is “skilled”, or not, or who is a “partner” – and what type of relationship this involves – are rooted in stereotypical understandings of women’s and men’s roles and abilities. </p>
<h2>Another kind of reset required</h2>
<p>Debates about labour migration post-Brexit <a href="https://www.mirror.co.uk/news/politics/nhs-chiefs-warn-theresa-mays-14472112">are beginning</a> to consider the ability of the NHS and others to employ the staff they need if the proposals in the white paper are implemented. My research indicates that the consequences of these proposals could be more significant than is currently appreciated. The establishment of an even more segmented and hierarchical labour migration system which relies on stereotypes to differentiate between workers and which significantly disadvantages those it considers unskilled, is likely to have particularly negative consequences for women. </p>
<p>The ending of free movement will profoundly change the nature of migration to and from the UK. Just one of the potential consequences of this change, the replacement of EU law and the existing rules that enable non-EU labour migrants to work in the UK with a system which may reproduce and amplify those parts of the current system that disadvantage and discriminate against women, has yet to be fully explored. This is concerning not only for those whose right to remain in the UK is currently determined by British immigration law, but all those EU citizens who face being made subject to it following Britian’s departure from the EU.</p>
<p>A reset of British immigration law is required, but it’s not the one that the government is proposing.</p><img src="https://counter.theconversation.com/content/115607/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>This work was supported by an AHRC Doctoral Award (grant reference number AH/L503885/1). Catherine Briddick is a trustee of Asylum Welcome. </span></em></p>Why the government’s post-Brexit immigration proposals are particularly bad for women.Catherine Briddick, Martin James Departmental Lecturer in Gender and Forced Migration, University of OxfordLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1110432019-03-19T10:44:34Z2019-03-19T10:44:34ZFor Native Americans, US-Mexico border is an ‘imaginary line’<p>Immigration restrictions were making life difficult for Native Americans who live along – and across – the U.S.-Mexico border even before President Donald Trump <a href="https://www.msnbc.com/am-joy/watch/trump-declares-national-emergency-then-leaves-for-mar-a-lago-1443814979608">declared a national emergency</a> to build his border wall. </p>
<p>The traditional homelands of 36 <a href="https://www.federalregister.gov/documents/2018/01/30/2018-01907/indian-entities-recognized-and-eligible-to-receive-services-from-the-united-states-bureau-of-indian">federally recognized tribes</a> – including the Kumeyaay, Pai, Cocopah, O’odham, Yaqui, Apache and Kickapoo peoples – were split in two by the <a href="https://www.archives.gov/education/lessons/guadalupe-hidalgo">1848 Treaty of Guadalupe Hidalgo</a> and 1853 <a href="https://history.state.gov/milestones/1830-1860/gadsden-purchase">Gadsden Purchase</a>, which carved modern-day California, Arizona, New Mexico and Texas out of northern Mexico. </p>
<p>Today, tens of thousands of people belonging to U.S. Native tribes live in the Mexican states of <a href="https://www.indigenousalliance.org/copy-of-border-crossing-manual">Baja California, Sonora, Coahuila and Chihuahua</a>, my research estimates. The Mexican government does not recognize indigenous peoples in Mexico as nations as the U.S. does, so there is no enrollment system there.</p>
<p>Still, many Native people in Mexico routinely cross the U.S.-Mexico border to participate in cultural events, visit religious sites, attend burials, go to school or visit family. Like other “non-resident aliens,” they must pass through <a href="https://www.pbs.org/newshour/show/obama-signs-600-million-bill-to-boost-u-s-border-security">rigorous security checkpoints</a>, where they are subject to interrogation, inspection and <a href="https://www.denverpost.com/2018/08/29/us-denying-passports-to-americans-along-border/">rejection or delay</a>.</p>
<p>Many Native Americans I’ve interviewed for <a href="https://scholar.google.com/citations?user=KHsIs6YAAAAJ&hl=en">anthropological research on indigenous activism</a> call the U.S.-Mexico border “the imaginary line” – an invisible boundary created by colonial powers that <a href="https://theconversation.com/indigenous-people-invented-the-so-called-american-dream-85351">claim sovereign indigenous territories</a> as their own.</p>
<p>A <a href="https://www.usatoday.com/border-wall/story/tohono-oodham-nation-arizona-tribe/582487001/">border wall would further separate Native peoples</a> from friends, relatives and tribal resources that span the U.S.-Mexico border.</p>
<h2>Homelands divided</h2>
<p>Tribal members say that many Native Americans in the U.S. feel detached from their relatives in Mexico. </p>
<p>“The effect of a wall is already in us,” Mike Wilson, a member of the Tohono O'odham Nation, who lives in Tucson, Arizona, told me. “It already divides us.”</p>
<p>The Tohono O’odham are among the U.S. federal tribes <a href="http://www.tonation-nsn.gov/nowall/">fighting the government’s efforts</a> to beef up existing security with a border wall. In late January, the Tohono O'odham, Pascua Yaqui and National Congress of Indian Americans <a href="https://www.dailykos.com/stories/1815670">met</a> to create a proposal for facilitating indigenous border crossing. </p>
<p>The Tohono O'odham already know how life changes when traditional lands are physically partitioned. </p>
<p>By U.S. law, enrolled Tohono O’odham members in Mexico are eligible to receive educational and medical services in <a href="https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1118&context=ailj">Tohono O'odham lands in the U.S.</a></p>
<p>That has become difficult since 2006, when a <a href="https://www.npr.org/2019/01/23/685812553/native-american-leader-a-border-wall-is-not-the-answer">steel vehicle barrier</a> was built along most of the 62-mile stretch of U.S.-Mexico border that bisects the Tohono O’odham Nation.</p>
<p>Previously, to get to the U.S. side of Tohono O’odham territory, many tribe members would simply drive across their land. Now, they must travel long distances to official ports of entry. </p>
<p>One Tohono O'odham rancher told The New York Times in 2017 that he must travel several miles to <a href="https://www.nytimes.com/2017/02/20/us/border-wall-tribe.html">draw water from a well 100 yards away from his home</a> – but in Mexico. </p>
<p>And Pacific Standard magazine <a href="https://psmag.com/social-justice/a-closed-border-gate-has-cut-off-three-tohono-oodham-villages">reported</a> in February 2019 that three Tohono O'odham villages in Sonora, Mexico, had been cut off from their nearest food supply, which was in the U.S.</p>
<h2>Native rights</h2>
<p>Land is central to Native communities’ <a href="http://www.un.org/en/events/indigenousday/pdf/Backgrounder_LTNR_FINAL.pdf">historic, spiritual and cultural identity</a>. </p>
<p>Several international agreements – including the <a href="https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html">United Nations Declaration on the Rights of Indigenous Peoples</a> – confirm these communities’ innate rights to <a href="https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169">draw on cultural and natural resources</a> across international borders.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/263990/original/file-20190314-28499-1rf7g57.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/263990/original/file-20190314-28499-1rf7g57.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/263990/original/file-20190314-28499-1rf7g57.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=723&fit=crop&dpr=1 600w, https://images.theconversation.com/files/263990/original/file-20190314-28499-1rf7g57.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=723&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/263990/original/file-20190314-28499-1rf7g57.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=723&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/263990/original/file-20190314-28499-1rf7g57.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=908&fit=crop&dpr=1 754w, https://images.theconversation.com/files/263990/original/file-20190314-28499-1rf7g57.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=908&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/263990/original/file-20190314-28499-1rf7g57.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=908&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">An 1894 map of indigenous North American languages shows how Native homelands span modern-day national borders.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/britishlibrary/11227579796">British Library</a></span>
</figcaption>
</figure>
<p>The United States offers few such protections. </p>
<p>Officially, various federal laws and treaties affirm the rights of federally recognized tribes to cross between the U.S., Mexico and Canada. </p>
<p>The <a href="http://avalon.law.yale.edu/18th_century/jay.asp">Jay Treaty of 1794</a> grants indigenous peoples on the U.S.-Canada border the right to freely pass and repass the border. It also gives Canadian-born indigenous persons the right to live and work in the United States.</p>
<p>The <a href="https://www.govinfo.gov/content/pkg/STATUTE-92/pdf/STATUTE-92-Pg469.pdf">American Indian Religious Freedom Act</a> of 1978 says that the U.S. will protect and preserve Native American religious rights, including “access to sacred sites” and “possession of sacred objects.”
And the 1990 <a href="https://www.nps.gov/archeology/tools/laws/nagpra.htm">Native American Graves Protection and Repatriation Act</a> protects Native American human remains, burial sites and sacred objects. </p>
<p>United States law also requires that federally recognized sovereign tribal nations on the U.S.-Mexico border must be <a href="http://www.ncai.org/policy-issues/tribal-governance">consulted in federal border enforcement planning</a>. </p>
<p>In practice, however, the free passage of Native people who live across both the United States’ northern or southern border is curtailed by <a href="https://www.nytimes.com/2018/01/18/travel/is-your-id-approved-for-travel-these-are-the-latest-rules.html">strict identification laws</a>. </p>
<p>The United States requires anyone entering the country to present a passport or other U.S.-approved identification confirming their citizenship or authorization to enter. The Real ID Act of 2005 allows the Department of Homeland Security secretary to waive any U.S. law – including those protecting indigenous rights – that may impede <a href="https://psmag.com/environment/the-little-known-law-that-the-trump-administration-is-using-to-build-a-border-wall">border enforcement</a>. </p>
<p>Several standard U.S. tribal identification documents – including <a href="https://help.cbp.gov/app/answers/list/search/1/kw/Form%20I-872%20American%20Indian%20Card/suggested/1">Form I-872 American Indian Card</a> and enhanced tribal photo identification cards – are <a href="https://help.cbp.gov/app/answers/detail/a_id/998/%7E/travel-documents-for-native-americans%2C-including-u.s.%2C-canadian-and-mexican">approved travel documents</a> that enable Native Americans to enter the U.S. at land ports of entry. </p>
<h2>Arbitrary identity tests</h2>
<p>Only the <a href="https://help.cbp.gov/app/answers/list/search/1/kw/Form%20I-872%20American%20Indian%20Card/suggested/1">American Indian Card</a>, which is issued exclusively to members of the Kickapoo tribes, recognizes indigenous people’s right to cross the border regardless of citizenship. </p>
<p>According to the <a href="https://www.govtrack.us/congress/bills/97/hr4496/text">Texas Band of Kickapoo Act of 1983</a>, “all members of the Band” – including those who live in Mexico – are “entitled to freely pass and repass the borders of the United States and to live and work in the United States.” </p>
<p>The majority of indigenous Mexicans wishing to live or work in the United States, however, must <a href="https://www.usa.gov/enter-us">apply for immigrant residence and work authorization</a> like any other person born outside of the U.S. The relevant tribal governments in the U.S. may also work with Customs and Border Patrol to waive certain travel document requirements on a case-by-case basis for short-term visits of Native members from Mexico.</p>
<p>Since border patrol agents have expansive <a href="https://www.aila.org/File/DownloadEmbeddedFile/47306">discretionary power</a> to refuse or delay entries in the interest of national security, its officers sometimes make arbitrary requests to verify Native identity in these cases. </p>
<p>Such tests, my research shows, have included asking people to speak their indigenous language or – if the person is crossing to participate in a Native ceremony – to perform a traditional song or dance. Those who refuse these requests <a href="https://nointervention.com/archive/usa/border-wall/kumeyaay1812.html">may be denied entry</a>. </p>
<p>Border agents at both the <a href="https://www.amnestyusa.org/files/ai_inhostileterrain_final031412.pdf">Mexico</a> and <a href="https://missoulian.com/news/local/indians-seek-less-hassle-more-respect-at-u-s-/article_818b6420-5545-11e1-8260-0019bb2963f4.html">Canada borders</a> have also reportedly mishandled or destroyed Native ceremonial or medicinal items they deem suspicious.</p>
<p>“Our relatives are all considered ‘aliens,’” said the Yaqui elder and activist José Matus. “[T]hey’re not aliens. … They’re indigenous to this land.” </p>
<p>“We’ve been here since time immemorial,” he added.</p><img src="https://counter.theconversation.com/content/111043/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christina Leza does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The U.S-Mexico border runs through Native American territories. A wall would further divide these communities, separating children from schools, farmers from water and families from each other.Christina Leza, Associate Professor of Anthropology, Colorado CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1104822019-03-07T13:07:20Z2019-03-07T13:07:20ZMigrants granted bail left trapped in British immigration detention because of nowhere to go<p>Britain’s already Kafkaesque immigration detention system has reached new heights as it’s become clear that migrants who’ve successfully challenged their immigration detention are remaining incarcerated, simply for want of somewhere else to stay. </p>
<p>In 2018, a series of ostensibly obscure tweaks were made to the mechanisms for accessing public accommodation. Before the changes, people held in immigration detention centres who applied for bail but had no friends or family to live with on release, could apply for publicly-funded accommodation. </p>
<p>But under provisions introduced in 2018, the scope for obtaining accommodation shrank dramatically, in a climate of public housing austerity and hostile immigration policy. This has created an appalling situation where people remain trapped in detention despite being given bail. </p>
<p>In a ruling in early February 2019, a high court judge acknowledged that the bail accommodation system had been <a href="https://www.freemovement.org.uk/high-court-bail-accommodation-system-not-working/">shown “not to work”</a>. </p>
<p>Administrative incarceration is supposed to be only used for people whose removal is imminent and where there are strong legal grounds for depriving them of their liberty – not for accommodating people. The consequences of this erosion of the right to liberty are a real cause for concern for anyone who cares about human rights and social exclusion in contemporary Britain.</p>
<h2>Nowhere to go</h2>
<p>Examples of people who have fallen victim to the changes are abundant. One NGO worker detailed the case of Yusuf*, a failed asylum seeker from central Asia with acute mental health issues. After being detained for three months, Yusuf was granted bail by a judge but had no address that he could be released to. When he phoned to apply for Home Office accommodation he was told that, since he was in detention, he didn’t qualify, as he was not currently destitute. </p>
<p>With the NGO worker’s help, Yusuf filled in a long form for asylum support. In this case, the Home Office did officially grant him accommodation, indicating that he was considered a priority because he was recognised as a vulnerable person. But no actual physical address was found for him to be released to until the Home Office was ordered to find one following a successful judicial review – almost three months after he was granted bail. </p>
<p>Although the Home Office is only supposed to detain somebody in immigration detention when it can remove them within a “reasonable period”, it’s unclear what reasonable actually means. There is currently no time limit on immigration detention in the UK, despite <a href="https://www.theguardian.com/uk-news/2018/dec/05/immigration-minister-caroline-nokes-listens-to-calls-to-end-indefinite-detention">ongoing campaigning</a> to introduce one. Many people <a href="https://barcouncil.org.uk/media/623583/171130_injustice_in_immigration_detention_dr_anna_lindley.pdf">cannot be removed</a> promptly due to legal or logistical barriers – for example if they have an outstanding legal claim to remain in the UK on asylum or other human rights grounds, or if they don’t have the necessary travel documents. </p>
<p>Since 2015, annual government data consistently shows that <a href="https://www.gov.uk/government/publications/immigration-statistics-year-ending-september-2018/how-many-people-are-detained-or-returned">more than half</a> of those held in immigration detention were eventually released from detention, rather than removed from the UK. Detainees can be released on <a href="https://www.gov.uk/government/publications/application-for-secretary-of-state-immigration-bail">immigration bail</a> by the secretary of state or by a judge of what’s called the first tier tribunal. Tribunal bail, despite <a href="https://bailobs.org/resources/">various deficiencies</a>, remains a key route to release. </p>
<p>Tribunal judges <a href="https://www.judiciary.uk/wp-content/uploads/2018/05/bail-guidance-2018-final.pdf">expect</a> people to have a “stable address” if released on bail, though the person is no longer automatically required to live at the address, as long as they can be reliably contacted there. </p>
<p>A problem arises when bail applicants don’t have friends or family able to host them. Since January 2018, the new bail regime now makes it much harder for people to secure public accommodation from inside detention. Asylum seekers and refused asylum seekers can still apply, using a cumbersome <a href="https://www.gov.uk/government/publications/application-for-asylum-support-form-asf1">35-page application form.</a> Currently, such applications are often being refused, with the <a href="http://www.biduk.org/resources/76-bid-briefing-on-post-detention-accommodation">government arguing</a> that people in detention fail the “destitution test”, which requires them to demonstrate that they are destitute or likely to become destitute within 14 days. </p>
<p>In June 2018, the charity Bail for Immigration Detainees (BID) <a href="https://www.biduk.org/resources/76-bid-briefing-on-post-detention-accommodation">reported about</a> the case of an asylum seeker detained for ten months, who had obtained conditional bail with a residence condition. On applying for accommodation, the person was told that in the detention centre: “Your essential living needs, including accommodation, are being met in full.” The person was later told that administrative detention is: “Not dissimilar to emergency accommodation with lack of liberty being the main difference.” </p>
<p>The situation is even worse for those who have not made an asylum application, but may have other family-related human rights claims to remain in the UK. Officially the Home Office has the power to provide accommodation in such cases in <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/733313/immigration-bail-v3.pdf">“exceptional circumstances”</a>, but there is no official application form people can use, and requests are regularly refused. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/262231/original/file-20190305-48435-46bawt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/262231/original/file-20190305-48435-46bawt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/262231/original/file-20190305-48435-46bawt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/262231/original/file-20190305-48435-46bawt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/262231/original/file-20190305-48435-46bawt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/262231/original/file-20190305-48435-46bawt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/262231/original/file-20190305-48435-46bawt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Home Office: keeping people detained when they could be released.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/lesteph/4955426964/in/photolist-8xTRMW-pNVNS5-8xQQ3x-8v5DYp-qtnrmA-3K5WFe-7qJAdU-2dgN1MG-ei8daE-eidYrC-nUGrS-2ZWdga-atv8v3-bA5HcJ-9DnrDU-VZbCUF-5QSEgq-fxUT-apLuC9-fDR3YV-d4AkW3-5EqiGc-gjTaiq-oZQgdZ-2SSo3m-75dSQv-67sXxZ-d4Akww-2BK8QB-7xLSfH-d4Ak7d-82TVrz-co2KEj-3sSNA5-fDR13e-JebAB-25J9X-jYDAMM-73RPzG-dc1y4Y-cTMHCj-W2yMe8-7KqvKa-7b1tJL-4zcSBW-Je5v9-k3VawD-5JwiXv-5GAc38-fLY5Uf">Steph Gray/flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>Reluctant judges</h2>
<p>Lack of accommodation is turning into a major blockage at bail hearings, as judges are reluctant to release detainees to the streets. A key part of judges’ considerations in bail hearings is to assess whether someone will be able to comply with reporting requirements and work restrictions if they are going to be destitute when released. People who find themselves homeless on release can be <a href="https://www.amnesty.org.uk/node/53550">re-detained</a> for breaking these kinds of bail conditions. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/work-ban-forces-asylum-seekers-into-destitution-but-we-now-have-a-chance-to-change-this-policy-112254">Work ban forces asylum seekers into destitution – but we now have a chance to change this policy</a>
</strong>
</em>
</p>
<hr>
<p>At present, many people are granted bail by judges, subject to the Home Office providing accommodation – <a href="https://www.judiciary.uk/wp-content/uploads/2018/05/bail-guidance-2018-final.pdf">often within 14 days</a>. Yet, the Home Office is <a href="http://www.biduk.org/resources/76-bid-briefing-on-post-detention-accommodation">ignoring these requests</a> from the tribunal, meaning that often the initial grant of bail lapses and the person remains in detention. NGO workers are reporting that this situation even puts some people off applying for release. Meanwhile, <a href="https://www.biduk.org/resources/76-bid-briefing-on-post-detention-accommodation">BID reported</a> cases where the Home Office itself released people onto the streets – sometimes the same people for whom it has opposed bail only days before.</p>
<h2>Long-term damage</h2>
<p>It is hard to get a grasp of the scale of the problem from government statistics. However, the largest detention legal aid solicitors firm, Duncan Lewis, <a href="https://www.independent.co.uk/news/uk/home-news/asylum-seekers-held-removal-centres-home-office-emergency-housing-a8354731.html">reported</a> clients confronting refusals of accommodation, or delays of months, on a daily basis.</p>
<p>The depth of the harm caused is considerable. These accommodation blockages result in continued incarceration of people who should not be detained, against well-established evidence regarding the devastating, often lifelong <a href="https://www.bma.org.uk/collective-voice/policy-and-research/ethics/health-and-human-rights-in-immigration-detention">damage</a> that indefinite detention can cause to people’s mental and physical health. Many people enter detention sound of mind and leave with mental health issues. </p>
<p>If detention is being prolonged because of lack of accommodation, even for a matter of days, the Home Office may be breaking the law. If detention is not for the purposes of preventing unauthorised entry or effecting removal, it’s incompatible with <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/470593/2015-10-23_Ch55_v19.pdf">Article 5 of the European Convention on Human Rights</a>. It’s unacceptable that a person is deprived of their right to liberty because of a lack of resources or cumbersome practices on the part of the Home Office or its agencies. For example, in a recent case, the Home Office refused to house a former detainee in the north east for <a href="https://www.theguardian.com/uk-news/2018/sep/27/uk-asylum-seekers-refused-housing-over-social-cohesion-issues.">social cohesion reasons.</a></p>
<p>This nexus between detention and destitution arose from a series of ostensibly obscure tweaks to the immigration bail regime, dismantling earlier provisions which sensibly facilitated successful tribunal bail applicants’ transition from detention into public accommodation. The new provisions attack the human rights of people already made vulnerable by the immigration system, either prolonging detention or forcing them into destitution.</p>
<p><em>*Names have been changed to protect anonymity.</em></p><img src="https://counter.theconversation.com/content/110482/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anna Lindley has in the past received funding from the Bar Council of England and Wales and a British Academy/Leverhulme small grant to carry out research on detention-related issues.</span></em></p><p class="fine-print"><em><span>Clara Della Croce is affiliated with the Bail Observation Project (BOP) as a volunteer.</span></em></p>Changes to immigration rules have left migrants without family and friends in the UK trapped in immigration detention – despite being granted bail.Anna Lindley, Senior Lecturer in Migration, Mobility and Development, SOAS, University of LondonClara Della Croce, Senior Teaching Fellow, SOAS, University of LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1113442019-02-11T19:15:27Z2019-02-11T19:15:27ZWe don’t know how many asylum seekers are turned away at Australian airports<p>The immigration department doesn’t keep a record of how many people apply for asylum at Australian airports, and how many are turned away. Documents released under <a href="https://www.righttoknow.org.au/request/policies_and_procedures_regardin#incoming-14213">Freedom of Information</a> show a lack of accountability and oversight by Australian immigration officials with regard to people who request asylum at airports. </p>
<p>This means the ultimate decision to admit or deny an asylum seeker entry into Australia rests with the Border Force official who interviews them. Without oversight, an asylum seeker could be turned away and sent back to a country where they may be at harm, after being interviewed behind closed doors and without access to lawyers.</p>
<p>Last week, ABC’s Four Corners reported that two Saudi women were turned back at Sydney Airport after letting customs officers know they intended to apply for asylum. This has <a href="https://www.abc.net.au/news/2019-02-04/border-force-accused-of-targeting-saudi-women-traveling-alone/10768036">led to concerns</a> Australian Border Force officers may be deliberately targeting and blocking Saudi Arabian women, who they suspect may apply for asylum, from entering the country.</p>
<p>Until 2014, a person could apply for a <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040">permanent protection visa</a> before being cleared at customs, also known as immigration clearance. However, <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1415a/15bd040">amendments passed in 2014</a> mean those stopped before being cleared can only apply for a three-year temporary protection visa or a five-year safe haven visa.</p>
<p>Had the two women not disclosed their intention to seek asylum at the airport, they would generally have been cleared at customs and allowed to enter Australia. They would be able to apply for a permanent protection visa after leaving the airport.</p>
<p>But by making an asylum claim at the airport, they were subsequently detained and then deported from Australia without a chance to apply for protection, or access to lawyers, in violation of Migration Act.</p>
<p>The <a href="https://www.abc.net.au/news/2019-02-04/border-force-accused-of-targeting-saudi-women-traveling-alone/10768036">ABC report</a> suggested at least 80 Saudi women have sought asylum in Australia in recent years, many of them fleeing Saudi Arabia’s male guardianship laws, which allow their husbands, fathers, brothers, uncles and sons to control their lives.</p>
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Read more:
<a href="https://theconversation.com/are-women-escaping-family-violence-overseas-considered-refugees-109509">Are women escaping family violence overseas considered refugees?</a>
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<p>A response from the Department of Home Affairs to a Freedom of Information request for the number of individuals who have made protection claims before, or at, immigration clearance at airports since 2008, said:</p>
<blockquote>
<p>the location of the applicant in Australia at the time of lodgement … is not relevant to the assessment of the applicant’s asylum claims, and therefore is not recorded in the Department’s database. As such, the Department does not hold existing documents as falling in the scope of the request.</p>
</blockquote>
<p>But this can’t be correct given the disparity between the safeguards available before and after an asylum seeker clears customs. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/258179/original/file-20190211-174867-1nsfsmb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/258179/original/file-20190211-174867-1nsfsmb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/258179/original/file-20190211-174867-1nsfsmb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=387&fit=crop&dpr=1 600w, https://images.theconversation.com/files/258179/original/file-20190211-174867-1nsfsmb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=387&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/258179/original/file-20190211-174867-1nsfsmb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=387&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/258179/original/file-20190211-174867-1nsfsmb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=486&fit=crop&dpr=1 754w, https://images.theconversation.com/files/258179/original/file-20190211-174867-1nsfsmb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=486&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/258179/original/file-20190211-174867-1nsfsmb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=486&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Asylum seekers who have passed through customs can appeal their application for protection if it is rejected in the first instance.</span>
<span class="attribution"><span class="source">from shutterstock.com</span></span>
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</figure>
<p>Australia has non-refoulement obligations under the <a href="https://www.unhcr.org/1951-refugee-convention.html">1951 Refugee Convention</a>, various <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=11&cad=rja&uact=8&ved=2ahUKEwins8GohLPgAhUJaI8KHV2xDOIQFjAKegQICRAC&url=https%3A%2F%2Fwww.ohchr.org%2FDocuments%2FIssues%2FMigration%2FGlobalCompactMigration%2FThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf&usg=AOvVaw2OmHfjn4_PdtJdathcFztA">human rights treaties</a> and customary international law. These prohibit the return of asylum seekers to places where they would face certain types of persecution or harm. </p>
<p>This extends to returning asylum seekers to transit countries where they may fear harm, or be at risk of being returned to their home country where they fear harm.</p>
<p>As part of the non-refoulement obligation, Australia must fairly and efficiently assess the claims of any person who applies for asylum under its territory or jurisdiction. Australia may not remove, or refuse admission at the border to, an asylum-seeker while considering that individual’s claim. </p>
<p>The demarcation of immigration clearance zones, or international zones has no consequence to Australia’s obligations under international law.</p>
<p>The Department of Home Affairs sets out the procedures to follow when an asylum claim is made at immigration clearance. The policies – which cannot be accessed publicly, but we have provided <a href="https://imgur.com/a/81vHmiI">screenshots here</a> – require that “if the person raises protection related claims, the interviewing officer should interview the person for a second time and explore the protection claims”.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-how-australia-decides-who-is-a-genuine-refugee-72574">Explainer: how Australia decides who is a genuine refugee</a>
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<p>If the person “makes a <em>prima facie</em> protection claim that is not considered to be ‘far-fetched and fanciful’, they are considered to be a person who potentially engages Australia’s non‑refoulement obligations” and must be permitted to enter Australia.</p>
<p>We do not know whether the department followed its own policies in the case of the two Saudi women. The interviews took place behind closed doors, and the minister has not made a comment on the cases. Even if the policy was followed, it still leaves much discretion to the interviewing officer. </p>
<p>There are no clear standards that must be followed when determining whether a claim meets the threshold of not being “far-fetched and fanciful”. The words are not found in the <a href="https://www.legislation.gov.au/Details/C2019C00046">Migration Act</a>, or the <a href="https://www.legislation.gov.au/Details/F2018C00957">Migration Regulations</a>, which govern migration determinations.</p>
<p>If Australia returned these women without a proper consideration of their asylum claims, it will be in breach of its international obligations. The failure to keep or share these statistics compounds the lack of accountability.</p><img src="https://counter.theconversation.com/content/111344/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Asher Hirsch is a Senior Policy Officer at the Refugee Council of Australia.</span></em></p><p class="fine-print"><em><span>Daniel Ghezelbash is a Special Counsel at the National Justice Project.</span></em></p><p class="fine-print"><em><span>Regina Jefferies does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Australia’s immigration department doesn’t keep a record of the number of people applying for asylum at airports. This means there is no oversight over the treatment of those seeking protection.Asher Hirsch, PhD Candidate, Monash UniversityDaniel Ghezelbash, Senior Lecturer, Macquarie Law School, Macquarie UniversityRegina Jefferies, Scientia PhD Scholar, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.