Law & Policy

Op-Eds are organized chronologically, with the most recent publications listed first.

The Biden administration has an opportunity to reinvent a long-broken immigration system. But only if it learns lessons from the past, breaks from the liberal law and order status quo and pushes legislators to make amends for the wrongs of previous Democratic and Republican administrations.

As long as deportations remain central to the federal immigration bureaucracy’s mission, the United States cannot claim to be a welcoming nation — no matter which party is in power or who sits at the head of DHS.

“The asylum provision in the Refugee Act clearly reflects Congressional intent to establish a uniform process for asylum seekers, which cannot be squared with the strained and inaccurate claim from the Trump administration that an unrelated provision in a subsequent law justifies the return to Mexico of asylum seekers.”

American Historical Association | August 21, 2020

Mae Ngai

The policies that regulate refugee admissions and asylum also originated in the Cold War but rely on a different concept: universal human rights—rights that transcend the prerogatives of nation-states. The 1947 United Nations Universal Declaration of Human Rights, conceived in the aftermath of the Second World War, includes the rights to exit and to be free from persecution and torture. But it has no enforcement mechanism, and the right to exit one’s own country did not come with the right to enter another.

“The Vijayakumar Thuraissigiam case revolves around the issue of whether a Sri Lankan man who crossed the border without authorization and was detained 25 feet inside the United States should be considered to be within the territory of the United States or still on the threshold of the country. In a 7-2 decision, the Court decided that Thuraissigiam should be imagined to be outside of the country and therefore not have 5th and 14th Amendment due process protections that would allow him to challenge his detention in court.”

Erika Lee

The United States is known as a nation of immigrants, but another tradition of xenophobia has too often compromised our welcome of immigrants and refugees.

Our fear and hatred of foreigners and those identified as outsiders has been embedded in our history, economy, politics, and culture. It has been perfected under the Trump administration. From the Muslim ban to the wall, the government has restricted almost every type of immigration with a cruelty and racism that has few historical parallels.

TPS, DED, and humanitarian parole are only temporary accommodations for select and small groups of people. They are an inadequate response to the humanitarian crisis that will develop in the decades to come. Scientists forecast that in an era of unmitigated and accelerated climate change, sudden-onset disasters will become fiercer, exacerbating poverty, inequality, and weak governance, and forcing many more people to seek safe haven elsewhere—perhaps in the hundreds of millions over the next half-century.”

This abolitionist vision requires the repeal of laws and policies that treat migration as a crime. For example, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act hardened punishments for immigration infractions. It increased the number and criminal penalties for immigration-related offenses and created expedited deportations that have few due process rights.

The debate over these sanctuary policies limiting cooperation between local law enforcement and immigration authorities often misconstrues what they actually do. Sanctuary laws like Oregon’s simply protect members of our communities, some long-standing, from racial profiling, detention and deportation. But anti-immigrant activists, emboldened by President Trump’s nativist rhetoric and policies, have branded these policies as dangerous to Americans, part of a multi-front attack on immigrant rights.

MINNPOST | December 12, 2018

Erika Lee & Others

Ostensibly, the justification for the proposed changes to the public charge rule is to reduce expenditures on public welfare benefits by reducing the likelihood that immigrants admitted on a permanent basis will use these benefits...Many non-citizens currently living in the U.S. would undoubtedly withdraw from the benefit programs targeted by the proposed public charge rule, significantly reducing their access to adequate nutrition, housing and healthcare. Because benefits are often received at the household level, many of the millions of households with a mixture of non-citizens and citizens will likely disenroll from benefit programs as a unit.

The Washington Post | August 9, 2018

Mae Ngai, Torrie Hester, Mary Mendoza, and Deirdre Moloney

“A crucial component of the public charge provisions for deportation (specified in 1891 and in each subsequent law) was that a person could be deported only if he or she became a public charge from causes existing prior to his [or her] landing in the United States and within a time limit of one to five years after entry...

...Our immigration public-charge policy has always recognized two principles: first, the nation’s desire for immigrants who are able-bodied and employable, capable of supporting themselves and their families; and second, our commitment to assist members of our communities who fall on hard times.”

Hidetaka Hirota & Natalia Molina

“The experiences of Irish Americans in the 19th century and Mexican Americans in the 20th century demonstrate the fragility of citizenship rights, as well as the ways nativist and racist ideas have long been used to attempt to undermine them. Narrowing the scope of birthright citizenship is less about shifting patterns of immigration and more about allowing prejudice and intolerance to run loose. And in the end, the triumph of a nativist political agenda hurts all citizens.”

For months, Trump has been peppering speeches and tweets with complaints about chain migration,a term that erases the humanity of people who migrate and disguises its true intent: to make it more difficult or impossible for family members of U.S. citizens to join them in the United States. This effort is particularly troubling because it is rooted in a desire to dramatically limit the immigration of black and brown people. One analysis shows that the White House’s proposal, if implemented, could keep whites in the majority for several more years — a goal in line with Trump’s other policies.

The Hill | January 31, 2018

Carly Goodman

Trump seems unable to recognize foreign-born people, particularly black and brown people, as American, regardless of residency or citizenship. He understands whiteness as a necessary feature of American identity.

Trump confirmed this in his comments that the U.S. should admit more immigrants from places like Norway rather than from African countries. This is a disturbing echo of our country’s history of using racist criteria to determine immigration policy.

The New York Times | July 29, 2017

Mae Ngai

Although the United States purports to promote family unification in its immigration policy, it has usually defined family as narrowly as possible, limited to the nuclear family of two heterosexual parents and their children. (Only recently have we recognized same-sex spouses.) But the nuclear family is not the normative family unit in much of the world — or for many in the United States, for that matter.

The Nation | November 2, 2015

Mae Ngai

Euro-American ethnics enjoyed both a greater sense of power and, perhaps, a greater sense of outrage over the injustice of the quotas. A movement for full and equal inclusion sprung up, targeting immigration restrictions along with discrimination in employment, college, and law-school admission quotas, and exclusion from private clubs. Immigration reformers drew inspiration from and marched in solidarity with African-Americans’ fight against Jim Crow segregation

Al Jazeera America | August 7, 2015

Tanya Golash-Boza

“Under the banner of deporting felons not families, the priority program creates a false binary by drawing a dividing line between deserving and undeserving immigrants, a stance that has long been decried by immigration advocates. For example, the priority enforcement program singles out undocumented immigrants with DUI convictions for deportation. True, drinking and driving puts people’s lives at risk, but deportation and permanent separation from one’s family is a high price to pay for this relatively minor infraction.”

Boston Review | March 22, 2013

Adam Goodman

By pushing enforcement-first policies and failing to reform the visa allocation process the federal government also furthers Mexican drug cartels’ control over migration to the United States. In recent years the cartels have gained, maintained, and extended their control over northbound migration routes. The Mexican government’s failure to combat the cartels and ensure migrants’ safety exacerbates the problem. Rampant corruption within the Mexican migration service and local police forces doesn’t help either.

The New York Times | January 30, 2013

Mae Ngai

The federal government continues to pour billions of dollars into border control and to impose punitive sanctions on undocumented workers, and the immigration-detention system has swelled. These approaches are not only inhumane but misguided.

“Comprehensive immigration reform must mean a return to the tradition of welcoming immigrants who come here to work, and giving them the opportunity to become Americans.”

Salon | March 29, 2012

Adam Goodman

Young activists, including many potential beneficiaries who are known as DREAMers, organized, rallied, held sit-ins, and undertook hunger strikes. A small group even marched from Florida to Washington, D.C., to press for its enactment. But it failed in Congress. Since then, students like Chairez and Lee are dreaming bigger and bolder. They aren’t just arguing that DREAMers like themselves — college students with clean records whose parents brought them to the U.S. when they were children — should be given a path to citizenship. They are helping to break down the artificial divisions — including those made by people who consider themselves immigrant advocates — between “model immigrants (i.e., DREAMers) and others.

Dissent | October 3, 2012

Adam Goodman

By using ‘illegal instead of undocumented or another term, the Times and AP are implicitly privileging the way in which the federal immigration bureaucracy defines immigrants over the way immigrants define themselves. Too frequently journalists and scholars accept these definitions out of hand without questioning them. How, why, and by whom are these definitions created? As law enforcement agencies that justify their yearly budgets and very existence by the number of people they apprehend, detain, and deport, do the Border Patrol and Immigration and Customs Enforcement have a vested interest in defining immigrants as illegal?

Los Angeles Times | May 16, 2006

Mae Ngai

To really tackle the problem, we might consider updating other policies from the nation’s past. Reinstituting a statute of limitations on deportation would limit the numbers of undocumented people in the country. We could also raise the ceiling on legal admissions—or eliminate it, especially for neighboring countrieS.