1ac

Asylum
Contention 1 is Asylum

Circuit courts have erroneously granted deference to the DHS’s interpretations of the
Asylum Statute and Section 212 of the INA in Guzman v. Sessions —that guarantees
expedited removal of asylum seekers before they’re granted the opportunity to apply,
causing cycles of death and abuse. Supreme Court intervention is necessary.
[AILA, Sep 27 2017, The American Immigration Lawyers Association (AILA) is the national association of
more than 15,000 attorneys and law professors who practice and teach immigration law. AILA member
attorneys represent U.S. families seeking permanent residence for close family members, as well as U.S.
businesses seeking talent from the global marketplace. AILA members also represent foreign students,
entertainers, athletes, and asylum seekers, often on a pro bono basis. Founded in 1946, AILA is a
nonpartisan, not-for-profit organization that provides continuing legal education, information,
professional services, and expertise through its 39 chapters and over 50 national committee "Brief
amicus curiae of American Immigration Lawyers Association in the Supreme Court of the United States
Guzman v. Sessions," http://www.scotusblog.com/wp-content/uploads/2017/09/17-302-cert-tsac-
AILA.pdf]//Rank

The Ninth Circuit’s erroneous application of Chevron deference carries disturbing implications for bona
fide refugees across the United States. As shown by the U.S. Commission on International Religious
Freedom (“USCIRF”), an independent bipartisan federal agency, as well as other independent observers,
DHS routinely issues expedited removal orders without conducting credible fear interviews or
notifying detained persons of their right to seek asylum, in violation of applicable federal law .6 The Petitioner’s
experience is a case in point. With expedited removal orders and reinstatement orders now constitut ing 84 percent of all deportations

occurring at or near the U.S. border, DHS’s failure to comply with these requirements undermines the
integrity of the U.S. immigration system.7 The Ninth Circuit’s decision exacerbates these failures in two
ways. First, it ignores the fact that DHS frequently denies bona fide refugees like the Petitioner a
credible fear interview, the opportunity to seek asylum, or both. In doing so, it ignores that Congress intended
the Asylum Statute to apply to “[a]ny alien who is physical present in the United States . . . irrespective
of such alien’s status . . .”8 Second, the Ninth Circuit’s deference allows DHS to preclude bona fide
refugees from seeking asylum based on expedited removal orders resulting from these prior oversights .
As a result, non-citizens seeking asylum in the Ninth Circuit can become subject to reinstatement orders despite
DHS’s prior mistakes and malfeasance. This is the case even if these refugees become subject to
persecution and torture after their removal from the United States . These outcomes subvert the
Asylum Statute while undermining the fair and impartial administration of the asylum process. As shown
by USCIRF and other observers, non-citizens who are improperly denied the right to seek asylum and
subjected to expedited removal proceeding are often returned to countries where murder, rape,
torture, and other abuses are endemic . Survivors frequently return to the United States, only to be
apprehended, detained, and removed under DHS reinstatement orders. The result is a Kafkaesque
nightmare, with the most vulnerable refugees caught in a perpetual cycle of flight and return with no
opportunity to seek asylum and no relief from the underlying persecution. ARGUMENT I. THE ASYLUM STATUTE PROTECTS ALL ASYLUM
SEEKERS REGARDLESS OF IMMIGRATION STATUS A. CONGRESS AND DHS ESTABLISHED PROTECTIONS FOR REFUGEES IN THE EXPEDITED REVIEW PROCESS. Congress first established the

expedited removal program under the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”).9 Prior to the IIRIRA, undocumented individuals who were previously removed from the
United States and subsequently returned were entitled to a hearing before an immigration judge . These
proceedings allowed them to seek asylum, withholding of removal, and other legal relief . Beginning in
1997, however, such individuals faced summary removal without such hearings . To ensure protection for
refugees fleeing persecution, torture, and other abuses, the Immigration and Nationality Act (“INA”) required immigration
officers to refer any undocumented individual who seeks asylum or expresses a fear of persecution to
an asylum officer for a credible fear interview.10 The purpose of this measure was to ensure that bona
fide asylum seekers could obtain refuge in the United States, even if they found themselves in expedited
removal proceedings.11 The DHS regulations governing expedited removal contain similar provisions. They require immigration officers to
inform non-citizens of their right to seek asylum and record their responses in writing .12 Associated DHS forms specifically ask
whether the foreign national has “any fear or concern about being returned to [his] home country or being removed from the United States”13 and contain mandatory statements explaining the credible fear interview process.14

Related DHS regulations specifically prohibit immigration officers from pursuing expedited removal before a
credible fear interview occurs.15 Together with the Asylum Act’s promise that “any alien” can seek
asylum regardless of his or her status,16 these measures guard against oversights and abuses in the
expedited removal process. None of these protections appears in this case. Although the petitioner sought sanctuary in the United States,
immigration officers overlooked his desire for asylum, ignored his expressed fear of return, and ultimately fail ed
to refer him for a credible fear interview. The result was the same scenario that Congress sought to prevent .
Rather than following the Asylum Statute and its own internal regulations, DHS expedited the
Petitioner’s removal without considering the Petitioner’s past persecution and bona fide asylum
claims. DHS ROUTINELY AND ILLEGALLY DENIES THESE PROTECTIONS DURING EXPEDITED REMOVAL PROCEEDINGS Rigorous longitudinal studies by bipartisan
U.S. Government commissions and nonpartisan research organizations demonstrate that DHS
routinely and illegally denies crucial protections to undocumented individuals during expedited
removal proceedings. Notable examples include the failure to inquire into a fear of removal, the failure
to advise non-citizens of their right to seek asylum, and the failure to refer these individuals for credible
fear interviews. While some of these oversights reflect sloppiness, poor training, and institutional inertia,
independent observers identify many instances where DHS officials purposely subverted the Asylum
Statute and corresponding regulations. 1. THE USCIRF REPORTS USCIRF’s studies are a case in point. After establishing this independent,
bipartisan commission under the International Religious Freedom Act of 1998,17 Congress asked USCIRF to examine whether immigration officers

exercising expedited removal authority were: (1) encouraging the withdrawal of asylum applications; (2)
failing to refer eligible non-citizens for credible fear interviews; (3) removing non-citizens to countries
where they faces persecution; or (4) improperly detaining non-citizens eligible to apply for asylum .
USCIRF’s 2005 report answered each of these questions in the affirmative .18 Drawing on direct observations of DHS immigration officers
conducting expedited removal proceedings, the commission found “serious problems” that exposed asylum seekers to improper removal to their native countries.19 At one port of entry, for example, researchers found that DHS
immigration officers used strong language to coerce individuals to withdraw their asylum applications, ultimately convincing half of the individuals observed to concede without referral to an asylum officer.20 At another location,
DHS officials informed asylum seekers that they could not present their cases due to their illegal entry, and warned others that they would be held in detention for over a month.21 While such statements may appear innocuous,
researchers noted that they could be construed as encouraging the individuals to withdraw their asylum claims.22 USCIRF found similar problems with mandatory notices and referrals to asylum officers. According to the
Commission’s 2005 report, immigration officers routinely led asylum seekers subject to expedited removal to believe that their only options were to withdraw their applications for admission without penalty or face expedited
removal with a five-year ban on returning. Only 50 percent of the officers observed informed non-citizens of their right to seek asylum despite the requirements enumerated in DHS regulations and the mandatory language

Even when non-citizens affirmatively expressed a fear of returning to their home

appearing in the accompanying forms.23

countries, immigration officers still failed to refer these individuals for credible fear determinations in
15 percent of the observed cases.24 USCIRF’s review of the records associated with those oversights found that more than half of the forms
completed by immigration officers incorrectly stated that the foreign national had no fear of return .25
Working from this basis, USCIRF concluded that DHS lacked sufficient controls to ensure that its officers referred non-citizens to asylum officers for credible fear interviews.26 Subsequent studies showed no discernable
improvement in DHS’s performance. In USCIRF’s 2007 progress report, for example, researchers found that DHS ignored most of the Commission’s previous recommendations and gave the agency a failing grade for disregarding
required credible fear interview referrals. 27 A third comprehensive study released by USCIRF in 2016 found no change in DHS practices, with immigration officers still failing to advise detainees of their rights or refer them for

credible fear interviews nearly eleven years later.28 The 2016 USCIRF Report is notable for two reasons. First, researchers traveled to
California, New York, New Jersey, Florida, Puerto Rico, and Texas to inspect and observe expedited
removal adjudications at five ports of entry, four Border Patrol stations, and five asylum offices. USCIRF
also inspected 15 immigrant detention facilities around the United States, met with DHS and facility
officials, and interviewed detainees seeking asylum during a three-year period between 2012 and 2015 .29
This methodology ensured direct access to immigration officers at facilities closed to the general
public. Second, the 2016 USCIRF report documented evidence indicating the DHS officials deliberately denied
individuals in expedited removal proceedings the opportunity to express a fear of persecution or torture. In one
instance, a Guatemalan asylum seeker in DHS custody informed USCIRF researchers that immigration officers

refused to give her “the opportunity to talk” and instead forced her to sign papers when she tried to
explain the reasons for her flight to the United States .30 Another Central American detainee reported that
immigration officers told him “whether you sign or not, we are going to deport you,”31 while other
undocumented individuals said that DHS agents told them that “it’s better if you just ask to be
deported” or “we’re going to throw you out .”32 Much like the 2005 USCIRF Report, these findings reflect systemic,
institutionalized indifference to the protections that the Asylum Statute and DHS regulations provide
for asylum seekers in expedited removal proceedings. The detention of one Bangladeshi asylum seeker and his companions is a case in point. Despite requesting
asylum from the first officer he encountered at a U.S. Customs & Border Protection (“CBP”) field office, the officer turned him and his two companions away, instructing them to seek asylum in Mexico. When the three Bangladeshis
returned to the same immigration officer an hour later to repeat their request for asylum, the officer ordered them to return to Mexico once again.33 The 2016 USCIRF Report also documented errors in DHS recordkeeping. These
included several instances where immigration officers incorrectly indicated that detainees had no fear of persecution on the relevant I-867B interview forms. In one instance, a Salvadoran detainee reported that immigration
officers failed to identify his credible fear of persecution despite discussing this issue with him and seizing a letter from a police officer explaining that gang members threatened the detainee.34 In another instance, immigration
officers falsely indicated that a Guatemalan woman came to the United States to seek employment despite the fact that she “had a good job in Guatemala but had to leave it because [she] needed protection.”35 Other detainees
reported similar mistakes, with immigration officers dismissing assertions of fear, recording “no” when detained answered “yes,” or refusing to write down information indicating a foreign national’s desire to seek asylum.36 The
similarities between these incidents and the Petitioner’s own treatment are striking. Like the Guatemalan woman described above, the Petitioner fled Guatemala to escape violent threats. Like the Salvadoran detainee, the
Petitioner expresses a fear of return. And like other Central Americans interviewed or observed by USCIRF, the Petitioner received no guidance regarding his right to seek asylum and no referral for a credible fear interview despite

Working from this basis, USCIRF’s research indicates that DHS does not – and
seeking sanctuary in the United States.

ultimately will not – view Guatemalans and other Central Americans as bona fide refugees. 2. OTHER REPORTS
Independent analysis by Human Rights Watch (“HRW”) confirms several of the findings identified in
USCIRF’s reports. Drawing on statistics published by DHS and interviews with detainees located in the United States or removed to Honduras, HRW found that less than half
of the detainees who expressed a fear of returning to their home countries received a credible fear
interview or reasonable fear interview, while virtually all of them were summarily deported under
expedited removal proceedings or reinstatement orders .37 HRW’s analysis of DHS data shows similar trends. Although some 80
percent of Hondurans detained by DHS undergo expedited removal or reinstatement proceedings, only
1.9 percent are flagged for credible fear interviews or reasonable fear interviews .38 This disparity is
remarkable given the fact that the data covered a period when Honduras had the highest recorded
murder rate in the world.39 Credible fear interview referral rates for Mexicans, Salvadorans, and
Guatemalans were equally low, ranging between 0.1 and 5.5 percent of the detained population.40
With the referral rate for all other countries averaging around 21 percent during the same period, these
figures indicate a tendency to disregard asylum claims made by Central American detainees while
favoring those articulated by other nationalities .41 Such patterns are inconsistent with the impartial enforcement of U.S. immigration law and may indicate an inherent bias
against Hispanic asylum seekers. Research conducted by other advocacy organizations found similar trends. In 2014, for example, AILA filed a formal complaint with DHS’s Office of Civil Rights and Civil Liberties (“CRCL”) on behalf of
non-citizens denied the opportunity to seek asylum due to flaws in the expedited removal process.42 Much like the USCIRF and HRW reports describe above, the AILA complaint documented immigration officers’ failure to advise
non-citizens of their right to seek asylum, to inquire regarding their fear of return, and to acknowledge such fear when expressed.43 In several instances AILA and its counterparts also documented instances where DHS officials
used intimidation or coercion to further the expedited removal process – including forcing undocumented individuals to sign removal orders.44 Coercion and intimidation appears in other studies as well, with researchers from the
American Civil Liberties Union (“ACLU”) finding that immigration officers ignored, dismissed, or openly mocked detainee claims regarding persecution and torture in their home countries.45 Other detainees surveyed for the same
study reported that immigration officers threatened them with lengthy detentions unless they signed removal orders,46 and forcibly pressed their fingers or thumb on official DHS forms to indicate their assent.47 The same study
found similar failings with respect to credible fear interviews and reasonable fear interviews as well. Among the detainees interviewed by ACLU attorneys, 55 percent reported that they were never asked about their fear of
persecution, or else never received such a question in a language they understood.48 Another 40 percent affirmatively told immigration officers that they feared persecution in their home countries, only to be summarily removed

or reasonable fear interview. Significantly, only 28 percent reported that immigration

without a credible fear interview

officers asked about their fear of persecution despite the fact that DHS regulations and expedited
removal forms mandate such inquiries.49 These failings carried serious consequences. In one instance ,
immigration officers told an illiterate Guatemalan mother seeking refuge that she was “worthless” and a “criminal” who “[did not have the right to anything…” despite being targeted for extortion by a Guatemalan gang
members.50 DHS later removed the woman to Guatemala despite her refusal to sign expedited removal orders, where she was subsequently raped and shot by gang members.51 In another case, immigration officers concluded
that a transgender Mexican woman had no fear of removal and issued an expedited removal order despite memorializing her account of a recent gang attack.52 She subsequently faced repeated attacks and sexual assaults

DHS placed a Guatemalan

following her removal to Mexico.53 The ACLU report also described the persecution endured by detainees subject to reinstatement orders. In one notable instance,

woman in Reinstatement Proceedings despite her clearly articulated fear of removal.54 Immigration
officers refused to refer her case to an asylum officer and ultimately concluded that her prior removal
precluded any asylum claim.55 After returning to Guatemala, the woman was gang-raped and shot by police due to her political beliefs.56 II. THE NINTH CIRCUIT’S ERRONEOUS DECISION
PRODUCES HARMFUL AND ARBITRARY RESULTS A. PRECLUDING ASYLUM APPLICATIONS EXACERBATES PRIOR ERRORS AND HARMS BONA FIDE REFUGEES The last case described above illustrates how the Ninth

Circuit’s erroneous Chevron deference exacerbates DHS errors and harms bona fide refugees. Like the Petitioner in
this case, the Guatemalan woman described above entered the United States, failed to receive a credible fear interview, and was removed under an expedited removal order. Like the Petitioner, she subsequently returned to the
United States and articulated a credible fear of return based on the threats against her in Guatemala. And like the Petitioner, DHS issued a reinstatement order despite the credible and continuing threat of persecution. In both

Granting Chevron deference to a DHS

instances, a ministerial review of each individual’s prior immigration history trumped any consideration of the violence they would face.

regulation that does not purport to address the Asylum Statute subverts the asylum process in two
ways. First, allowing DHS to preclude future asylum petitions on the basis of past removal orders
presumes that immigration agents carefully and consistently apply the protections Congress created to
safeguard bona fide refugees in expedited removal proceedings. As demonstrated by USCIRF and other
observers, however, DHS routinely denies noncitizens who possess or express a credible fear of return
the opportunity to apply for asylum.57 Under these circumstances, DHS’s failure to comply with the
Asylum Statute and its own internal regulations during expedited review denies eligible individuals
access to the asylum process both in the first instance and in every other instance thereafter. And
because there is no evidence that DHS ever considered these outcomes from a policy perspective, the
Ninth Circuit’s decision delegated vital questions of statutory interpretation to the same immigration
officers that consistently fail to enforce the law. Second, the Ninth Circuit’s erroneous deference to
DHS’s regulation addressing the Reinstatement Statute disregards persecution occurring after an
individual’s removal from the United States. In doing so, it presumes that social and political conditions in
foreign countries will remain static, and that there are no future circumstances where non-citizens
subject to removal orders might merit relief . This comfortable fiction flouts the plain text of the Asylum Statute58 while ignoring the invasions, insurrections, and repressions
that dominate contemporary world events. After 2011, for example, many Syrians faced persecution and torture perpetrated by

the Syrian Government on political, religious, and ethnic grounds.59 After 2014, Iraqis living in Mosul
and surrounding regions faced similar horrors at the hands of the Islamic State of Iraq and Syria
(“ISIS”).60 And after 2016, lawyers, activists, and minority groups in China experienced a new wave of
arbitrary arrests, brutal beatings, forced confessions, and other outrages as part of the Chinese
Communist Party’s new campaign to stifle internal dissent .61 Each of these recent examples demonstrates
how swiftly conditions in foreign countries change . And like the Petitioner’s experience in Guatemala, they show how severe the resulting persecution can be. Yet despite
these changed circumstances, undocumented individuals in the Ninth Circuit who receive removal orders and suffer persecution

and torture after their departure currently have no right to seek asylum, no prospect of securing
asylum, and almost no hope of finding refuge in the United States. The same is equally true in each of
the other federal circuits granting precedence to the Reinstatement Statute. This preclusion flouts Congress’s efforts to protect bona
fide refugees caught in expedited removal proceedings. 62 It also applies arbitrarily – including in those instances where a foreign

national’s previous flight to the United States invites new persecution on political or religious grounds.
PRECLUSION TREATS VULNERABLE ASYLUM SEEKERS LESS FAVORABLY AND PRODUCES ABSURD RESULTS In addition to perpetuating the false presumptions described above, precluding asylum applications under the
Reinstatement Statute treats unsuccessful asylum seekers more favorably than bona fide refugees who were previously denied an opportunity to apply. Under the Asylum Statute, non-citizens may seek asylum whenever “changed
circumstances materially affect the applicant’s eligibility. . . .”63 Those present in the United States may submit application years or even decades after the U.S. Government denies their initial petition, and may do so even if they
previously sought to reopen their cases.64 This measure is consistent with the Asylum Statute’s language authorizing any foreign national in the United States to seek asylum regardless of their immigration status.65 When read
together, the two provisions show that Congress sought to protect bona fide refugees suffering persecution as the result of changed circumstances and rejected the notion that prior applications should bar future relief. The result

Granting Chevron deference to a DHS

was a pragmatic, facially neutral process emphasizing an applicant’s ability to demonstrate either a credible or reasonable fear of persecution.

regulation addressing the Reinstatement Statute sabotages this system in two ways. First, the Ninth Circuit’s
decision favors individuals possessing valid visas over those subject to expedited removal proceedings.
This approach establishes an arbitrary distinction between asylum seekers based on their prior
immigration status rather than the substantive merits of their claims. More seriously, it privileges
individuals with the time, resources, and relationships necessary to obtain legal status in the United
States, while precluding some of the most vulnerable refugees from seeking the relief Congress
intended. The result is a system that tends to favor wealthier asylum seekers arriving at international
airports while penalizing poorer Central American refugees crossing the southern border. Second, the
Ninth Circuit’s erroneous application of Chevron deference produces absurd results. Under the
Reinstatement Statute, for example, a prior removal order cannot be reinstated unless an
undocumented individual leaves the United States and subsequently returns.66 This means that non-
citizens who remain in the United States illegally after receiving a removal order can seek asylum, while
those complying with a removal order cannot. In this manner, the Ninth Circuit and other circuits
granting precedence to the Reinstatement Statute favor individuals that that violate U.S. law above the
bona fide refugees that Congress sought to protect . These arbitrary outcomes carry profound
implications for the asylum process. Resolving these issues in favor of the Asylum Statute will save
lives and reunite families while guarding against the systemic and thoroughly-documented abuses in
the expedited removal program. Neglecting them, by comparison, will reward errors, foster abuses,
and circumvent Congressional intent. Absent this Court’s intervention, the Petitioner and other
similarly-situated refugees will remain trapped in a twilight zone between the homeland they must
flee and the sanctuary they can never have.

The plan’s spills over to general court protection? for asylum-seekers. Limiting
deference is key to the asylum process.
[Maureen A. Sweeney, 7-24-2018, Law School Associate Professor, University of Maryland Francis
King Carey School of Law "Enforcing / Protection: The Danger of Chevron in Refugee Act Cases,"
https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?
referer=https://www.google.com/&httpsredir=1&article=2603&context=fac_pubs]//Ran
k

The last thirty years have seen an evolution of the rhetoric around and the way people think about immigration in the United States. Political candidates and
successive administrations alike have transformed the complex dynamics of human migration —the constellation
of such push and pull factors as family, opportunity, physical danger, political movements, poverty, economic markets, natural disasters, social dynamics and personal initiative— into a

simplistic question of law and order. “What part of ‘illegal’ don’t you understand?” Immigration—specifically immigration
enforcement—has become one of the most potent political issues of the day, wielded often by politicians who have no deep
experience with the realities of immigration or the communities most affected by it, but who recognize the power the issue has to mobilize political support by defining a clear “us” in

Anyone in unlawful immigration status is deemed to be irredeemably a “lawbreaker.”

opposition to a clear “them.”

The immigration agencies, under intense political pressure and with the justification that they are
“restoring law and order”, focus on combating fraud and on detaining, expelling or removing anyone
who is out of lawful immigration status. Under the past three administrations, this has even included
dedication of considerable Justice Department resources to actually criminally prosecuting tens of
thousands of unauthorized border crossers, culminating in the Trump administration’s “zero tolerance”
commitment to criminally prosecute every unauthorized crosser . With regard to refugee protection
specifically, this criminalization of immigration has highlighted longstanding dilemmas inherent in a
system that entrusts humanitarian protection to the very agencies charged with the hyper-politicized
task of enforcing border control. The dilemmas arise because border entry laws are not the totality of our immigration law. The INA requires the protection of
vulnerable refugees just as much as it prohibits unlawful entry. We need the same kind of rigor in enforcing the treaty-based obligation to protect as we see in enforcing entry restrictions; that

asylum and withholding provisions are less open to executive

obligation is equally part of a “lawful” immigration system. If anything,

interpretation as a constitutional matter than other parts of the INA, because they reflect treaty
obligations, which are—indisputably when they have been incorporated into a federal statute—the “supreme law of the land.” And yet the executive
agencies have few political incentives to rigorously enforce the protection of these vulnerable people,
who have no vote and little influence in the political system. To the contrary, agencies and
administrations have very powerful incentives to run roughshod over this protection, to reap the benefit
of public perceptions of strong border control. The Chevron Court’s fundamental concern was for the proper balance of powers between the branches
of government. Since 1984, the Court has recognized that executive deference does not automatically extend to every agency on every type of question. Where there are reasons to doubt that

on the
Congress would have intended to give an agency unchecked power over a particular question, the Court has recognized the important judicial role of rigorous review. And

question of humanitarian protection under the Refugee Act, there are indeed a number of reasons to
believe that Congress did not intend to delegate unchecked interpretive power to the immigration
enforcement agencies. First, there is reason to believe that Congress would not have entrusted unchecked authority over
the protection of the fundamental human rights of vulnerable and politically powerless migrants to the
very enforcement agencies charged with combating irregular migration . The Immigration Court system is
located firmly within the Department of Justice, one of the principal immigration enforcement agencies,
and it is under the direct institutional control of the Attorney General, the nation’s chief law
enforcement officer—and a politically appointed Cabinet member closely tied to the President . The Attorney
General has both the power and the political incentives to shortchange asylum seekers in favor of border control. Attorney General Sessions’ recent decision

in Matter of A-B- is a clear attempt to cut off asylum protection—as that has been recognized through
the regular adjudicatory process of the Board, no less—for survivors of domestic violence and gang
related violence. Sessions has articulated a priority of limiting access to the asylum process and has
tied this priority explicitly to the political mandate he sees President Trump as having received in the
election—to shut down irregular migration at the border. I do not intend with this argument to question the good faith of many of the
individual attorneys, judges and Board Members who work within the Immigration Court system day after day. Many fight valiantly to ensure due process and a fair application of the law to

the thousands of individuals who appear before them. But it is worth noting that the structure of their agency contributes to the difficulty of
their performing their jobs well rather than mitigating it. The conflict of interest in asylum cases is not, for
the most part, personal—it is fundamental to the institutional structure of a politicized executive agency . This structural

conflict is at the heart of the National Association of Immigration Judges’ advocacy for a truly independent immigration court system. It is also at the crux of why courts

should not defer to the Justice Department on matters of asylum and withholding. The agency’s principal immigration
charge is understood as enforcing restrictions against irregular migration, and it is therefore unreasonable as a matter of government

structure to believe that Congress would have entrusted unchecked power to that enforcement agency
to interpret the terms of asylum eligibility . And while majoritarian political accountability is often considered an advantage on true questions of policy, it is a
distinct disadvantage in any attempt to protect the fundamental rights of politically vulnerable minorities. These are all reason that it is unlikely that Congress would have assigned unchecked

courts should decline to

power over such individual protection to the whims of any given executive’s politicized decisions on immigration enforcement. As such,

exercise Chevron deference on asylum and withholding decisions by the Attorney General and the
BIA. Furthermore, Congress clearly, affirmatively intended to protect refugees when it passed the Refugee Act
and incorporated the Refugee Convention’s obligations into the INA’s asylum and withholding of
removal provisions. The determination of the content of those obligations, as reflected in statute, is a process of legal interpretation that belongs to the courts under Marbury v. Madison, the Charming Betsy canon of statutory interpretation, and Chevron
Step One. It is thus the courts’ responsibility under the Constitution to determine what the law of asylum is, that is, how Congress intended to define the word “refugee” when it imported that definition from the Refugee Convention. The essentially “law-like” nature of this interpretive
exercise, together with the lack of expertise within the BIA on the interpretation of international and comparative law, supports this preference for the courts to do this interpretation. And the fact that the obligations arise from such an authoritative external source means that they are
not negotiable “policy” questions on which the political branches might be free to impose their preferences. Full enforcement of the law requires full enforcement of provisions that grant protection as well as provisions that restrict border entry. This is the part of “enforcement” that the

The agency’s fundamental commitment to controlling unauthorized immigration

Department of Justice is not equipped to fully understand.

does not allow it a neutral, open position on asylum questions. The foundational separation and balance
of powers concerns at the heart of Chevron require courts to recognize that inherent conflict of interest
as a reason Congress is unlikely to have delegated unchecked power on refugee protection to the
prosecuting agency. In our constitutional structure, the courts stand as an essential check on the executive power to
deport and must provide robust review to fully enforce the congressional mandate to protect
refugees. If the courts abdicate this vital function, they will be abdicating their distinctive role in
ensuring the full enforcement of all of our immigration law—including those provisions that seek to
ensure compliance with our international obligations to protect individuals facing the danger of
persecution.
The deportation process alone dehumanizes asylum seekers – the culture of
vindictiveness is not incidental, it’s an ideological apparatus of the carceral U.S. state
Brotherton and Tosh, 18 - “The Sociology of Vindictiveness and the Portable Alien”, David C. Brotherton,
Professor of Sociology, Urban Education, and Criminal Justice at John Jay College, CUNY and Sarah Tosh,
The Graduate Center, PhD Candidate in Sociology, CUNY in Immigration Policy in an Age of Punishment:
Detention, Deportation, and Border Control, April 2018, eds. Brotherton and Ketsedemas

deportation hearing as
IMMIGRATION HEARINGS AS PLAYS OF VINDICTIVENESS In a previous work, I described the theater of cruelty an exile play and likened the dramas of this process to Artaud’s concept.26 In such

we see all the norms and rituals expected of protocols embedded in legal codes of behavior and
hearings,

discourse before an audience of family members and friends of

performed by a range of players— judges, lawyers, deportable subjects, translators, correctional officers— usually

the deportable individual . Outwardly, the hearing appears as an example of due process, as lawyers pitch their claims for and against the deportable alien and the judge presides over the contest, using his or her best judgment and good faith to

these laws
make an interpretation of the law and its limits. As we have previously noted, these laws come from another branch of the government and are supposedly indicative of the checks and balances of a functioning, healthy democracy. But as we have also noted,

are anything but neutral edicts affecting all equally; rather, they are an effort to restore or maintain a
constructed social order in what is presumed to be an open society Such laws were designed . , as we witness in these hearings,

to weed out the “bad” immigrant from the “good,” the filth that despoil the sanitized nation- state,
which is the ideological and historical source of their vindictiveness They are based in the “inherently .27

performative nature of the concept of homeland security, with a focus on the constitutive role of the migrant as outsider.”28 Consequently, the hearings, since they are both legally
and morally predicated on highly contradictory reasoning and antihumanistic premises, naturally become messy encounters between the aggrieved, imperiled transgressor and his or her lawyer and those state agents dedicated to upholding a certain type of social order no matter the

cost. In the following, a former detainee who was recently released due to the threat of domestic violence if she is returned talks about her recent experience in a hearing. At the time of this informal interview, she was at another hearing in support of a
friend who was about to be exiled. In this case, the judge is clearly performing his role as moral arbiter in the firm belief that drugs brought into the country and those who transport them are a scourge on society, as befits the theater of fear and condemnation in the long- standing war-

has been “othered” as the subject- object of dramatized evil

on- drugs campaign. Ms. D. , and the same is happening to her friend B., who has been held for six months in detention

During the detention period, B. lost one of her children to a former husband who
based on her conviction as a drug mule ten years previously.29 ,

filed a complaint saying she was unfit due to her being incarcerated an “ ” mother ; her other child was placed in the care of another family member. Ms. D. attends this

the trials and tribulations she has already suffered due to her
hearing with another friend, both of whom were locked up for months with B. and know her story intimately, including

family life being completely upended by the deportation regime . The immigration lawyer in this case knows well the dramaturgy involved in all these cases and has pleaded
repeatedly to the judge to release B. on bond so that she may return to her teenage children, both of whom have been severely affected by the trauma of being separated from their mother. The following are field notes taken from the time we are waiting to enter the court. Remarkably
in this case, the drama of the courtroom worked in B.’s favor. The pews were filled with B.’s friends and family, and the lawyer was extremely well prepared, seemingly more so than the government lawyer, who did not muster the usual objections to releasing the deportable subject on
bond. B. said very little in her defense but implored the judge that she needed to get back to her children, which appeared to cause the judge some discomfort. In this particular setting, the performance of vindictiveness had its limits. The humanism of the moment finally outweighed the
essentialist presumptions built into the laws and the obligations of judges to be loyal defenders of the nation’s imaginary social and cultural borders. The messiness of social life finally got the upper hand in the courtroom, and the judge sided with ambiguity rather than with the binary

constructions inserted by that Texas congressman and his allies more than two decades ago. Ms. M. discusses her recent experiences in a detention facility on the East Coast,
where she spent four months. It was not a private facility run by a vast global security company like CoreCivic (formerly the Corrections Corporation of America) but rather a state prison facility— paid for by and operated on behalf of taxpayers— that leases out part of its space to ICE. Ms.

as a form of trauma, an experience so emotionally jarring and psychologically invasive that

M. recounts her time spent there

she requires ongoing therapy to recover from it . She also refers to the prevalence of solitary confinement as a form of punishment used to enforce social control in this setting. In another interview

According to all the

carried out within the same facility, Mr. P. concurred with Ms. M.’s experiences and sentiments, but since the interview was done in situ, his words carry feelings of dread, pain, and suffering that are more immediate.

testimonies of the detainees, these spaces of detention are rife with vindictive practices by guards,
administrators, and even lawyers, some of whom enter the facility and tell the subjects they have no
way out of their removal proceedings so they had better accept their fate .30 This is Mr. C. after be- ing released from the same fa cil i ty as Ms. M. and Mr. P. A

the treatment of detainees as prison inmates

number of researchers and investigative journalists have written about these spaces, emphasizing the lack of oversight that continues to be the norm,

instead of subjects in administrative limbo , and the push to extract profits in privately run facilities as corporations reduce the costs of detention and thus reduce the services and treatment offered to their

Rather than simply serving the legal purpose of administrative confinement, the 250 or so facilities
charges.31

around the United States where immigrants are detained function as spaces of vindictiveness, where
immigrants are punished in myriad ways for the crime of being the other . The fact that Congress has put in place a bed mandate of thirty- four thousand

The punitive function of

detainees per day speaks to the symbolic significance of immigrant detention in delineating immigrant detainees as criminals and emphasizing the government’s prioritization of their punishment.32

immigration detention is further underscored by the conditions of the spaces themselves . About one- third of detainees are held in
detention centers run by ICE or private companies, with the other two- thirds held in county and city jails contracted by ICE.33 Detention standards are not mandatory, and those that do exist are based on those created for jails and prisons.34 Furthermore, “while ICE is nominally in

Detainees not only feel the punitive force of

control, the often disparate practices of dif fer ent member agencies and facilities result in a general lack of coordina- tion in policies.”35

separation from their families but report physical violence and dehumanizing searches by guards, as well
as insufficient and inedible food, unhygienic conditions, uncomfortable temperatures, steady
disregard of routine medical care, and failure of facilities to respond to urgent medical situations .36 It is worth

What we see essentially in these settings is

noting that until now, there has not been a single ethnographic account of any of these facilities, even though they have been in existence for more than two de cades.

the same vindictive culture and set of practices that characterize and are symptomatic of the entire
deportation regime These spaces are the result of the penal institutional approach that the state has
.

specifically chosen to apply to detained subjects we encounter similar displays of authoritarian . Therefore,

power that are the norm in most prisons organized as total institutions In other western European .

countries, such detention facilities are run on completely different premises , with more attention paid to the human rights of the subjects and to the

But in the United States, these detention spaces mimic the punitive culture that has
collateral consequences for families.

infiltrated many other social institutions apart from prisons A hallmark of this culture is the .

dehumanization of the incarcerated subject, just as we see the pathologization of deportable subjects
in immigration hearings and the fetishization of judicial rules and rituals . Based on her research in Ecuador with the families of detained mi grants and previously

a dehumanizing culture runs throughout the detention and deportation

detained deport- ees, human geographer Nancy Hiemstra concurs that

process these spaces are “structured in such a

, from the way that administrators refer to detainees as “bodies” to the way that authority figures treat immigrants in actual spaces of detention. She reports that

way that anyone with power over detainees can become a ‘petty sovereign with discretion to make ,’ ”

decisions that lead to the neglect of detainees’ basic needs , and that employees display negative perceptions of detainees’ worth; ste reo types of mi grants as immoral, dishonest, and

and the perception that migrants “get what they deserve

criminal; .”37 Detainees’ bodies are marked as criminal by facility uniforms, and they arrive in court wearing these uniforms and

Despite their legal status as civil detainees, subjects in detention become extensions of the
with their hands manacled.

imprisoned multitude . What purpose does it serve to place such subjects in solitary confinement, for example? Why separate so many subjects from their families? Why are so many subjects incarcerated to begin with when they could be living with

There is no rational necessity behind such practices, which grow out of a par ticular political
their family and friends?

and social order and its ideologies of containment Such ideologies are infused with the same vindictive .

assumptions that have been applied historically to othered populations but that get recycled and
expanded by new generations of agents of the security state These mechanisms for internal social .

control among primarily nonwhite immigrant populations increasingly rely on interlocking systems of
policed segregation, digital surveillance, physical terror, and eventual mass exile These practices of .38

vindictiveness are simply other forms of legal violence that have developed extraordinary crossover
possibilities, whether it be raiding homes in Long Island under the auspices of ridding society of violent
gangs or the rejection of Central American children at the Texas border to show other refugees that the
United States will “defend” its borders .39 Immigration lawyer #4 sums up the deportation regime’s vindictive culture and practices through recounting the experience of his latest case. The female deportable subject he is
referring to is in her late thirties and was diagnosed in her early twenties with paranoid schizophrenia. She had suffered enormously from various physical and mental ailments over the last fifteen years, had been committed three times to mental health institutions, had been mostly cared
for by her mother when out, and had a long history of serious drug use and physical abuse by men. Several years before, she had been gang raped and left for dead on a beach near Coney Island, thereafter spending a month in a coma after being diagnosed with post- traumatic stress
disorder before being released back to her elderly mother. Almost two years ago she was picked up for “turning tricks” in South Brooklyn, and then somehow ICE intervened and she was suddenly in deportation proceedings, which she simply could not comprehend. I attended two of her
hearings, during which she cried continuously on seeing her mother, and it was clear to all in the court that this was a person in serious distress and if exiled would be dead in a very short time. Nonetheless, she was held in a detention facility for eighteen months against the very explicit
advice of two social workers and a psychiatrist who examined her, all warning of a serious deterioration in her mental health. At each of the six hearings, the government lawyer opposed her receiving bond and called for her expedited removal. This is the sociology and culture of

The deportable subject is dehumanized, caught in impossible legal entanglements,

vindictiveness in all its various aspects and dynamics.

and moved from space to space under conditions of extreme du- ress, while family and friends suffer
irreparable collateral damage, and for what? the majority of deportees are in As we read in the works of so many authors in this book,

proceedings for minor transgressions despite the insistence of Obama and Trump that we are , Presidents

targeting the “criminals” among the immigrant population This was — those who do not deserve the privilege of staying in the United States. claim

particularly ironic from Obama, who admits that the criminal justice system systematically
President

overincarcerates, racially profiles, hands down irrational sentences, and is in need of serious reform . In this

There is really no legitimacy

chapter, we argue fundamentally that the system of forced repatriation is irrational, is inhuman, and reproduces social practices and norms that have little to do with a functioning, open democratic society.

left to countenance the continuation of the deportation regime which is why it relies so heavily on the ,

culture of vindictiveness it produces to give it life while ignoring the bloody mess of so- called border
control it leaves in its wake .
 Charming Betsy
U.S. judicial practice currently makes human rights treaties unenforceable, even with
Congressional action, but Charming Betsy can restore the Court’s ability to produce
immigrant relief.
Schoenholtz, 11 - Andrew Schoenholtz, Law Professor at Georgetown and Director of the Human
Rights Institute, July 5, 2011, Judicial Implementation of Human Rights Treaties in the United States, The
following resources were created as part of a partnership between CLINIC and the Institute for the Study
of International Migration at Georgetown University to encourage the use of international law
arguments in U.S. immigration cases, https://cliniclegal.org/sites/default/files/Judicial
%20Implementation%20of%20Human%20Rights%20Treaties%20in%20the%20US%20DRAFT%20July
%202011.pdf

For the time being, human rights treaties will not be the basis of private causes of action to provide
relief from deportation. Courts have been unanimous in their rejection of finding causes of action or
private rights of action in the ICCPR and other human rights treaties. This memo provides a complete overview of the methods
by which courts have struck down arguments that base claims in such human rights treaties. First, the Senate has attached non-
selfexecuting reservations to the ICCPR and most other human rights treaties, rendering them generally
unenforceable directly by the judiciary without implementing legislation. Second, courts have come up with all manner of reasons why
private rights of actions are not created by the ICCPR: because the ICCPR is non-self-executing and Congress has not passed implementing
legislation; courts lack subject matter jurisdiction over such claims ; individual citizens lack standing to make
such a claim; and the ICCPR lacks the force of law. Nevertheless, there is space for practitioners to defend their clients
from government action while relying on rights guaranteed in human rights treaties to which the United
States is a party. The Charming Betsy canon dictates that, “A treaty will not be deemed to have been abrogated or modified by
a later statute unless such purpose on the part of Congress has been clearly expressed.”114 This principle of interpretation justifies why
courts should take into consideration human rights treaties even though Congress has passed a statute
on the same subject matter after the treaty went into force . Advocates should embrace the Charming
Betsy canon, a two hundred year old tool of statutory construction, as the avenue through which to encourage judges
to interpret U.S. statutes in a manner consistent with U.S. obligations under ratified human rights
treaties. By fleshing out the purpose, history and long-acceptance of the canon, advocates can influence judges to use the
Charming Betsy canon more broadly in a way that may help an immigration client use provisions of
human rights treaties defensively. By definition, the Charming Betsy canon is only applicable where Congress has passed a later
statute. Therefore, the important hurdle for practitioners to overcome is convincing a court not to summarily employ the last in time rule to
allow that later statute without analyzing if the later statute actually „repeals‟ the earlier treaty. The
Supreme Court in Breard v.
Greene has provided a useful model for the type of clear action that courts should require from Congress before later
congressional action is allowed to supersede earlier treaty obligations. Congress has often acted with such clear intent, such as in the tax field,
providing practitioners with examples of the application of the Breard v. Greene model at lower court level. Practitioners can construct
arguments using Breard v. Greene and other reasons why U.S. treaty obligations should be honored, provided in this memo, in order to
convince courts to at least take prior treaties into consideration when construing the statute on which the government bases its action.

Using this canon is necessary to bring the US into compliance with international
obligations. Application on asylum removal is key
[Chemerinsky et al., September 27, 2017, Erwin Chemerinsky is the Dean of Berkeley Law School
and the Jesse H. Choper Distinguished Professor of Law. Prior to joining Berkeley, he was the founding
Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, at
University of California, Irvine School of Law, with a joint appointment in Political Science. He is the
author of ten books, including the leading casebook and treatise on constitutional law and treatise on
federal court jurisdiction, and more than 200 law review articles. In January 2017, National Jurist
magazine again named Dean Chemerinsky as the most influential person in legal education in the United
States "Brief amicus curiae of SCHOLARS OF IMMIGRATION AND INTERNATIONAL LAW in the Supreme
Court of the United States Guzman v. Sessions," http://www.scotusblog.com/wp-
content/uploads/2017/09/17-302-cert-tsac-scholars-of-immigration.pdf]//Rank

By allowing Section 1231 to prevent refugees from seeking asylum based on a prior removal, the Ninth
Circuit adopted an interpretation of the immigration laws that violates the United States’
obligations under the Refugee Protocol. The Charming Betsy doctrine requires the opposite result. A. Section 1158 Codifies Treaty Obligations; Section 1231 Does Not. The
United States’ system of asylum is derived from the United States’ international treaty obligations, and, based on
those obligations, allows a refugee to apply for asylum “irrespective of such alien’s status.” 8
U.S.C. § 1158(a)(1). There are two principal instruments establishing refugee rights under international law: The Refugee Convention and the Refugee Protocol. The Refugee Convention sets forth a rights regime, which the Refugee
Protocol incorporates. (The Refugee Protocol also updated slightly the definition of “refugee” to eliminate geographical and temporal restrictions.) As this Court has recognized on multiple occasions, “[i]n 1968 the United States
acceded to the [Refugee] Protocol,” which “bound parties to comply with the substantive provisions of Articles 2 through 34 of the [Refugee] Convention * * * with respect to ‘refugees’ as defined in Article 1(2) of the Protocol.”
INS v. Stevic, 467 U.S. 407, 416 (1984); see INS v. Cardoza- Fonseca, 480 U.S. 421, 429 (1987) (describing same); 19 U.S.T. 6223, 6259-6276, T.I.A.S. No. 6577 (1968).4 Section 1158, implemented by the Refugee Act of 1980 (Pub. L.

Court has remarked that “[i]f one thing is clear

No. 96-212, 94 Stat. 102), codifies the United States’ obligations with respect to the Refugee Protocol. This

from the legislative history of the new definition of ‘refugee,’ and indeed the entire 1980 Act, it
is that one of Congress’ primary purposes was to bring United States refugee law into
conformance with the [Refugee Protocol].” Cardoza-Fonseca, 480 U.S. at 436. Consistent with the Refugee
Convention and Protocol, Section 1158 allows refugees to apply for asylum “irrespective of such
alien’s status.” 8 U.S.C. § 1158(a)(1). That provision is required to conform with Article 31(1) of the Refugee
Convention, which prohibits penalizing an individual based on unlawful entry or presence: “The
Contracting States shall not impose penalties, on account of their illegal entry or presence, on
refugees who * * * enter or are present in their territory without authorization .” App., infra, 21a (Art. 31(1)). This
mandate reflects the reality that refugees, by definition, are fleeing persecution (see 8 U.S.C. § 1101(a)(42)) and cannot
be expected to remain at risk in their home country while trying to obtain refugee status
from abroad. E.g., James C. Hathaway, THE RIGHTS OF REFUGEES UNDER INTERNATIONAL LAW 406 (2005). Section 1231, by contrast, makes no
reference to the United States’ treaty obligations . It was enacted through the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA ) (Pub. L. No. 104- 208, Div. C, 110 Stat. 3009 (1996)) as a method to
streamline deportations. It purports to bar any individual with a reinstated removal order from
obtaining “any relief” under the INA. 8 U.S.C. § 1231(a)(5). Nothing in the text or history of IIRIRA, however, suggests that Congress sought to limit, or act contrary to, the United
States’ Refugee Protocol obligations.5 Indeed, the Department of Homeland Security has elsewhere recognized that Section 1231’s bar on “any relief” was not meant to displace treaty obligations. For example, DHS still allows
individuals subject to reinstated removal orders to seek withholding of removal and protection under the Convention Against Torture. See Pet. App. 14 (citing 8 C.F.R. § 1208.31(e); 8 C.F.R. § 1208.16(c)(4)).

Withholding of removal and protection under the Convention Against Torture stem from
international obligations and remain available to refugees subject to reinstated removal orders
precisely because Congress and DHS recognized that the United States must respect its
international obligations. E.g., Cardoza-Fonseca, 480 U.S. at 440 (“[W]ithholding of deportation, or nonrefoulement, * * * corresponds to Article 33.1 of the [Refugee] Convention.”); Regula- tions
Concerning the Convention Against Torture, 64 Fed. Reg. 8478-01, 8478 (Feb. 19, 1999) (interim rule with request for comments) (relief from removal made available under the Convention Against Torture “to implement United

the same international treaty obligations motivating these

States obligations under Article 3” of that Convention). As amici next explain,

exceptions to Section 1231’s bar on “any relief” require permitting refugees to seek asylum. B.
. Under the Charming Betsy doctrine, a
The Charming Betsy Doctrine Requires Interpreting The INA To Permit Refugees Subject To Reinstated Removal Orders To Seek Asylum. 1

statute “ought never to be construed to violate the law of nations if any possible construction remains .”
Courts have a consequent obligation to interpret statutes in a manner
Schooner Charming Betsy, 6 U.S. (2 Cranch) at 118.

consistent with treaty obligations, as long as Congress has not clearly expressed a contrary
intention. This Court has described the Charming Betsy doctrine as “a firm and obviously sound canon of construction against
finding implicit repeal of a treaty in ambiguous congressional action .” Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984); see
also, e.g., Weinberger v. Rossi, 456 U.S. 25, 32 (1982) (Charming Betsy doctrine applies to treaty obligations); Chew Heong v. United States, 112 U.S. 536, 550 (1884) (“[T]he stipulations of treaties should be observed” with

This doctrine advances important goals of international security, commerce, and comity . See Chew
“inviolable fidelity.”).

Heong, 112 U.S. at 539-40; see also United States v. Thomas, 893 F.2d 1066, 1069 (9th Cir. 1990) (Charming Betsy doctrine applied “out of respect for other nations”). This Court has accordingly

applied the Charming Betsy doctrine throughout the centuries in a wide variety of contexts . See, e.g., Trans World
Airlines, 466 U.S. at 251-53 (holding that Warsaw Convention provisions were enforceable despite a later conflicting statutory enactment, in part because of international considerations); Weinberger, 456 U.S. 25 (1982) (applying
Charming Betsy to international treaty obligations); Clark v. Allen, 331 U.S. 503, 517 (1947) (explaining that where rights to succession of property under state law conflict with treaty provisions, “the state policy must give way”);
McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963) (National Labor Relations Act should not be interpreted contrary to a “wellestablished rule of international law that the law of the flag state
ordinarily governs the internal affairs of a ship”); Liberato v. Royer, 270 U.S. 535 (1926) (Pennsylvania Workmen’s Compensation Act should not be construed to conflict with a treaty); Chew Heong, 112 U.S. at 550 (construing a
statute consistent with treaty obligations); United States v. Forty-Three Gallons of Whisky, 108 U.S. 491, 496 (1883) (“The laws of congress are always to be construed so as to conform to the provisions of a treaty, if it be possible to

Notwithstanding the Charming Betsy doctrine’s long-established pedigree as a tool of statutory

do so.”). 2.

construction, the court below did not apply the doctrine and instead deferred to an agency
interpretation of the INA that violates the United States’ treaty obligations. That interpretation violates
several different Articles of the Refugee Convention. Most clearly, it violates Article 31’s prohibition on penalizing refugees for their

illegal entry or presence: “The Contracting States shall not impose penalties, on account of their
illegal entry or presence, on refugees who * * * enter or are present in their territory without
authorization.” App., infra, 21a (Art. 31(1)). This duty requires contracting states “to exempt
refugees fleeing persecution from sanctions that might ordinarily be imposed for breach of the
asylum state’s general migration control laws.” Hathaway, supra, at 405-06; see generally Gregor Noll, ART 31 1951 CONVENTION, IN THE 1951 CONVENTION
RELATING TO THE STATUS OF REFUGEES AND ITS 1967 PROTOCOL 1243 (Andreas Zimmermann ed., 2010); Guy Goodwin-Gill and Jane McAdam, THE REFUGEE IN INTERNATIONAL LAW (2007). Article 31

prohibits such penalties because a refugee “is rarely in a position to comply with the
requirements for legal entry,” including passport and visa requirements—indeed, the very
nature of being a refugee may require crossing borders covertly to access protection . Hathaway, supra, at 406
(quoting UN Ad Hoc Committee on Refugees and Stateless Persons, AD HOC COMMITTEE ON STATELESSNESS AND RELATED PROBLEMS, STATUS OF REFUGEES AND STATELESS PERSONS - MEMORANDUM BY THE SECRETARY-
GENERAL, 3 January 1950, E/AC.32/2); see also Noll, supra, at 1248. A state party is not required to formally amend its laws to comply with the Refugee Convention and Refugee Protocol; rather, it may comply by interpreting its

existing immigration laws to comport with its duties under the Convention and Protocol. Hathaway, supra, at 405-06. Interpreting Section 1231 to categorically bar
applications for asylum imposes a penalty of the type the Refugee Convention and Refugee
Protocol proscribe. If applied to asylum seekers, Section 1231 purports to prevent refugees from
seeking asylum in this country because they entered without authorization for a second time,
regardless of the individual’s actual entitlement to refugee status . This Court has previously recognized that Section 1231 penalizes “the
alien’s choice to continue his illegal presence, after illegal reentry.” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 44 (2006). Thus, the only reason for closing the door on the

ability to seek asylum is the individual’s second unlawful entry and continuing presence, not
because of a substantive failure to qualify as a refugee. That result constitutes the type of
immigration penalty that Article 31 of the Refugee Convention prohibits (see Hathaway, supra, at 405- 08)—put
another way, that interpretation improperly levies a generic immigration penalty against a
refugee without regard to the individual’s status as a refugee . See App., infra, 21a (Art. 31(1)). Without addressing Article 31, the
court below suggested that the availability of withholding of removal and CAT protection
justifies denying refugees like petitioner eligibility for asylum . Pet. App. 26-29. But withholding of removal
and CAT relief fail to cure the penalty problem—and in fact also fail to secure other rights
guaranteed by the Refugee Convention. For example, Article 17 guarantees to refugees unrestricted
access to employment: specifically, “the most favourable treatment accorded to nationals of
a foreign country in the same circumstances, as regards the right to engage in wage-earning
employ ment.” App., infra, 15a (Art. 17(1)). Yet recipients of withholding of removal must apply for work
authorization on an annual basis (8 C.F.R. § 274a.12(a)(10)), and lengthy processing times mean that many lose
the right to work in the meantime. See also Garcia, 856 F.3d at 47 (Stahl, J., dissenting) (“Such aliens must apply for [authorization] before it expires, often encountering long
processing delays, and cannot work legally unless and until the authorization document is renewed.”). Likewise, recipients of withholding of removal
cannot get a travel document to travel outside of the United States, yet Article 28 secures that
right for refugees: “Contracting States shall issue to refugees lawfully staying in their territory
travel documents for the purpose of travel outside their territory.” App., infra, 20a (Art. 28).6 Far from being permitted to travel
internationally, an individual granted withholding of removal must still be ordered removed (Matter of I-S- & C-S-, 24 I. &

N. Dec. 432, 433-34 (BIA 2008)), and any departure from the United States would constitute self-deportation (8 C.F.R. §

241.7). Thus, as Judge Stahl put it, preventing refugees like petitioner from seeking the opportunity to apply for

asylum and thereby potentially obtain a travel document “is a per se violation of the
Convention.” Garcia, 856 F.3d at 57 (Stahl, J., dissenting); see also UNHCR, THE REFUGEE CONVENTION, 1951: THE TRAVAUX PRÉPARATOIRES ANALYSED WITH A COMMENTARY BY DR. PAUL WEIS 194 (1995)
(Article 28 is “a mandatory obligation”).7 Moreover, even if withholding of removal or CAT protection provided all substantive

rights guaranteed by the Refugee Convention and Protocol (which they do not), a refugee is required to
meet a much higher evidentiary burden to obtain those forms of relief than to obtain asylum . To
be eligible for asylum, an individual need only show “a wellfounded fear of persecution.” Cardoza-
Fonseca, 480 U.S. at 444. This means “it need not be shown that the situation will probably result in persecution”; rather, “it is enough that persecution is a reasonable possibility.” Id. at 440 (quoting Stevic, 467 U.S. at 424-25).

Withholding of removal, by contrast, requires demonstrating a “clear probability” of persecution— i.e.,

that it is “more likely than not that the alien would be subject to persecution .” Stevic, 467 U.S. at 424. And CAT
protection similarly requires establishing that one is “more likely than not” to be tortured if
returned to the proposed country. 8 C.F.R. § 1208.16(c)(2). In other words, the decision below requires those
with reinstated removal orders to prove they are “super-refugees” by showing a probability of
persecution or torture—a heightened evidentiary burden not supported by the Refugee
Protocol. See James C. Hathaway & Anne K. Cusick, REFUGEE RIGHTS ARE NOT NEGOTIABLE, 14 Geo. Immigr. L.J. 481, 485-86 (2000). Nor, finally, is it responsive to the
above concerns to say, as the court below did, that asylum is a discretionary form of relief . Pet. App. 26.
While the ultimate grant of asylum is discretionary, asylum is the only vehicle under U.S. law that delivers the substantive

rights required by the Refugee Protocol. A refugee who enters this country without being allowed to apply for asylum has no opportunity to obtain the full substantive rights
that the Refugee Protocol mandates its signatories provide. As a result, preventing a refugee from the opportunity to even seek asylum

and obtain those corresponding rights does not comport with the Refugee Protocol . In short,
withholding of removal and CAT protection alone are not enough to comply with the United
States’ treaty obligations. A refugee who is prevented from seeking asylum but obtains
withholding of removal is still penalized on account of his illegal entry or presence. 3. For the
above reasons, the court below should have applied the Charming Betsy doctrine and held that there
is only one permissible way to interpret the two statutes at issue to uphold the United States’ treaty
obligations: Give full meaning to Section 1158’s authorization for individuals to apply for
asylum “irrespective of such alien’s status” (8 U.S.C. § 1158(a)(1) (emphasis added)) and harmonize the statutes by
interpreting “relief” in Section 1231 not to include asylum . That interpretation is consistent
with the language, structure, and history of the two statutes for the reasons petitioner explains .
See Pet. 24-28. It is also the proper construction in light of international law: Limiting the reach of the bar

in Section 1231 avoids penalizing refugees based on unlawful entry or presence, and
consequently avoids violating the United States’ obligations under the Refugee Convention and
Protocol, including Article 31. See pages 10-14, supra.
Applying Charming Betsy in the case of nonrefoulment reinforces human rights
treaties. PLUS all the deference arguments are wrong in this case.
Farbenblum, 11 - Bassina Farbenblum, Senior Lecturer in Law and Director, Migrant and Refugee
Rights Project, University of New South Wales, Duke Law Journal, Vol. 60, No. 5, February 2011,
EXECUTIVE DEFERENCE IN U.S. REFUGEE LAW: INTERNATIONALIST PATHS THROUGH AND BEYOND
CHEVRON, https://www.researchgate.net/publication/228162137

B. Chevron Step Two and Other Canons of Statutory Construction In

cases in which a court is unwilling or unable to
determine that a particular Refugee Act provision reflects clear congressional intent to implement a
parallel provision of the Convention, it may nevertheless deny deference to a Convention-incompatible
BIA construction by applying other canons of statutory construction— either directly or under the second step of
Chevron. As an initial matter, courts may invoke the rule of lenity227 or the principle of constitutional avoidance228 to read immigration
statutes in a manner that, although not explicitly rights-protective, frequently accords with U.S. obligations under the Convention.229 Indeed,
the Supreme Court has given the constitutional avoidance canon precedence over Chevron deference.230 Alternately, courts may find a
Convention-incompatible BIA construction unreasonable under the second step of Chevron because it is inconsistent with general congressional
intent to bring U.S. immigration law into conformity with the Convention, even if that intent is not perceived as sufficiently clear on the face of
a particular provision to warrant deference.231 A court could also find the interpretation unreasonable by applying the canon of statutory
interpretation that presumes that acts of Congress are consistent with U.S. treaty obligations and, absent a clear contrary statement by
Congress, should be interpreted as such.232 More broadly, it
could apply the centuries-old Charming Betsy principle ,
which requires that an act of Congress be construed so as not to conflict with international law unless no
other construction is fairly possible.233 International law in this case would include both the Protocol and
the nonrefoulement obligation under customary international law .234 In Negusie’s case, for example, if the BIA
were to reach the same interpretation on remand, a reviewing court could reject that interpretation as
unreasonable under Chevron step two. In light of its inconsistency with international law,235 the BIA’s interpretation would be
unreasonable because (a) it would be inconsistent with congressional intent that U.S. law be interpreted consistently with the scope of the
nonrefoulement obligation under the Convention; (b) it would violate the presumption that Congress intended the statute to be interpreted
consistent with the nation’s treaty obligations under the Protocol; and (c) applying the Charming Betsy principle, refugee
provisions of the INA should be interpreted, insofar as is possible, consistently with the Convention and
with the nonrefoulement obligation under customary international law . This last proposal is on safer
doctrinal ground than it may first appear. Over the past decade, several commentators have grappled with the
relationship between Chevron and canons of statutory construction , described by Professor Curtis Bradley in 2000 as
“one of the most uncertain aspects of the Chevron doctrine.”236 In his seminal article on Chevron deference and foreign affairs, Bradley
concluded that, in general, the Charming Betsy canon should not trump Chevron deference.237 He reasoned that if
Charming Betsy were to trump Chevron, “it must be because Congress itself rather than administrative agencies should deliberate on whether
to violate international law.”238 Bradley rejected this possibility, concluding that the executive branch’s foreign relations expertise—including
its knowledge of “international facts”—combined with the president’s political accountability to make the executive branch better suited than
Congress or the courts to determine a potential conflict with international law.239 In an important qualification, however,
Bradley acknowledged that it may not make sense to apply this conclusion to agencies that do not have
the foreign affairs expertise that the president or State Department have , or that do not have the political
accountability that derives from acting as a direct agent of the president.240 Writing in 2007, Professors Eric Posner and Cass Sunstein
extended Bradley’s position with admitted radical implications .241 Observing that the case law remained unsettled,
they argued that as a normative matter, courts should permit the executive to interpret ambiguous statutes inconsistently with international
law, even outside the traditional Chevron context of rulemaking and adjudication of agency-administered statutes.242 They
articulated a
“consequentialist theory,” which explains that courts apply international relations canons because the benefits to U.S. interests
outweigh the costs.243 For example, the Charming Betsy canon reflects an assessment that compliance with
international law provides a net benefit to the United States because other states protected by the law
might otherwise retaliate against the United States , and because compliance with international law might have long-term
foreign relations benefits.244 The argument for deference, according to Posner and Sunstein, is that because the executive has greater
expertise and accountability than the courts concerning foreign relations,245 it is better positioned to make consequentialist judgments about
the risks and value to American interests of interpreting statutes inconsistently with international law.246 These contentions, even if
justified, would not undermine the basic thesis of this Article. Most importantly, they concern only executive
interpretations made in the absence of clear congressional intent ; they do not countermand the
conclusion that courts ought to reject Convention-inconsistent interpretations under Chevron step one
because of clear congressional intent that U.S. asylum provisions be interpreted consistently with the
Convention. But even if courts do not find clear congressional intent in a particular provision, three
further considerations demonstrate why the Posner-Sunstein contentions do not undercut doctrinal and
normative bases for courts’ rejection, under Chevron step two, of BIA statutory interpretations that are
inconsistent with the Convention . First, Bradley, Posner, and Sunstein agree that only reasonable executive
interpretations deserve deference.247 But they do not consider how reasonableness might intersect with
international comity. Recognizing the fundamental connection between U.S. asylum provisions and
international refugee law, the Supreme Court confirmed in Negusie that—at least in the asylum context
— international law “may be persuasive in determining whether a particular agency interpretation is
reasonable.”248 This is not the first time courts have recognized international law as a potential basis for
rejecting an inconsistent BIA statutory interpretation. In several notable exceptions to the general
tendency to disregard international law , the BIA249 and federal courts have applied the Charming Betsy
canon in immigration appeals,250 including as a basis for construing asylum provisions consistently with the Convention.251
Second, whatever merit the consequentialist theory might have in relation to international law
governing state interests, human rights treaties demand a different calculus . Because the rights
regulated are primarily those of individuals rather than states, the decision of whether to comply with
international law goes beyond a foreign relations cost-benefit analysis . The next Part explores this issue in greater
detail as a substantive concern in relation to the application of the Chevron framework to the asylum context.252 Finally, as Bradley alluded,
neither the foreign-relations expertise nor the political-accountability rationale for deference applies to
the BIA and the immigration courts. The next Part explores this issue in detail as well, arguing that the Supreme Court should
consider boldly addressing the broader question of whether, in light of the Convention’s application and current problems with BIA
adjudication, the Chevron framework is suitable in the asylum context at all.
Bringing US domestic law in line with international obligations is critical to remedy a
litany of impacts — racial discrimination, police brutality, inequity in voting rights, gun
violence, and criminal justice damages
ABA 16. American Bar Association, “The United States and Human Rights Treaties: Can We Meet Our
Commitments?” Feburary 10, 2016.
https://www.americanbar.org/publications/human_rights_magazine_home/2015--vol--41-/vol--41--no--
2---human-rights-at-home/the-united-states-and-human-rights-treaties--can-we-meet-our-com/

Despite these deficiencies, the United States thinks too highly of itself to treat international human rights law —at
least when applied to us—as law. We ratify few human rights treaties. We attach multiple conditions (called “reservations, understandings, and declarations”) to those we do ratify. We
declare even those treaties “not self-executing,” which renders them generally unenforceable in our courts (although they can still be used as interpretive guides for U.S. laws). And we

decline to accept individual complaint procedures or clauses referring disputes under the treaties to the International Court of Justice. That said, a trio of treaties ratified during the terms of the

first President Bush and President Clinton commit the United States internationally to respect and protect a wide

range of human rights. Two decades later, however, Washington is unwilling or unable to live up to key
promises it made under those treaties, at least in the view of the committees of international experts
set up to oversee them. The three treaties are the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination
(CERD), both joined by the United States in 1992; and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), joined by the United States in 1994. (We have ratified other human
rights treaties on specific topics, such as the Genocide Convention and Protocols on child soldiers and child trafficking.) Civil and Political Covenant The ICCPR requires each of its 168 state parties “to respect and to ensure to all
individuals within its territory and subject to its jurisdiction” a menu of civil and political rights, without discrimination. For example, the ICCPR protects the rights to life, liberty, humane treatment, fair trial, and privacy. States must
also ensure that victims of violations have an effective remedy. In grave public emergencies, certain ICCPR rights, including liberty and due process—but not freedom from torture—may be restricted. However, both the emergency
and the restrictions (called “derogations”) must be formally notified to the UN. The restrictions must also be limited to the extent and duration strictly required. The United States has never derogated from the ICCPR.

Convention against Race Discrimination CERD’s 177 state parties are barred from allowing distinctions
based on race, color, descent, or national or ethnic origin, whose “purpose or effect” is to nullify or
impair the equal exercise of human rights. Parties undertake to pursue a policy to eliminate racial
discrimination. They must ensure equal treatment with respect to a broad range of rights, such as the
right to vote and the right to security against police violence . Victims of violations must have effective
remedies, including “just and adequate reparation.” Affirmative action—within limits—is encouraged. CERD authorizes “special measures” for the purpose of securing
“adequate advancement” of certain racial groups, so long as the measures do not lead to the “maintenance of separate rights” and do not continue after their goals are achieved. The CERD expert

committee (see below) interprets this as an “obligation” to adopt special measures when warranted to
eliminate “persistent” racial disparities. Convention against Torture CAT categorically prohibits torture:
“No exceptional circumstances whatsoever , whether a state of war or a threat of war, internal political instability or any other public emergency, may be

invoked as a justification of torture .” Each of CAT’s 158 state parties is mandated to take effective measures to prevent, punish, and redress torture. Treaty Reporting and Expert
Committees All three treaties require state parties to submit periodic reports on compliance to committees of

experts. The committees also receive “shadow reports” from nongovernmental groups—from scores of groups in the case of the United States. After public hearings in which
committee members question and dialogue with government delegations, the committees issue
“concluding observations” and ask that follow-up reports be submitted one year later. The committees have long had
distinguished U.S. members. The current U.S. member of the Human Rights Committee, which oversees the ICCPR, is Professor Sarah Cleveland of Columbia Law School. The U.S. member of the CERD committee is Professor Carlos
Vázquez of Georgetown Law, and of the CAT committee, Felice Gaer, director of the Jacob Blaustein Institute. CAT committee chair Claudio Grossman, the Chilean member, is dean of Washington College of Law at American
University. Treaty Norms vs. U.S. Norms In 2014, all three committees issued concluding observations on U.S. reports. They began by commending positive steps taken by the United States since the previous round of reporting,
such as the Supreme Court decision in Roper v. Simmons, 543 U.S. 551 (2005), ruling the juvenile death penalty unconstitutional; President Obama’s 2009 executive order prohibiting torture; his ongoing efforts to close

Each committee then elaborated its

Guantanamo; and the 2010 Fair Sentencing Act, which reduced racial sentencing disparities for crack cocaine versus powdered cocaine.

“concerns.” From a U.S. perspective, one might group them in three broad categories: (1) U.S. rejection of treaty norms for reasons that many U.S. human
rights lawyers would applaud; (2) U.S. rejection of treaty norms for reasons deeply embedded in U.S. legal and political

culture; and (3) U.S. violations of treaty norms, even where they are consistent with American culture and values. In the first category—laudable U.S. departures—one might place overbroad bans on hate speech. CERD
requires criminalization of “all dissemination of ideas based on racial superiority or hatred.” The ICCPR bans all “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” The
United States adopted reservations to these provisions on First Amendment grounds. Nonetheless the CERD committee urges the United States to consider criminalizing racist hate speech, even when it does not incite imminent
violence or “true threats” of violence. Many U.S. human rights lawyers would support the U.S. position to allow hate speech that falls short of such incitement. In the second category—norms incompatible with embedded U.S.
culture—one might place the Human Rights Committee’s call for the United States to consider acceding to an Optional Protocol to the ICCPR abolishing the death penalty. Another candidate might be the CERD committee’s call for
the United States to redefine racial discrimination across the board in order to meet CERD’s “purpose or effect” definition. The Supreme Court has held that the test for violating constitutionally mandated equal protection of the

This reality
law is a purpose test, not an effects test. While some U.S. laws use a “disproportionate impact” test, most do not. U.S. law is unlikely to move toward an “effects” test anytime soon.

neutralizes many CERD committee recommendations to the United States. CERD committee concerns
rest on disproportionate impact in such areas as denial of voting rights to convicted felons, gun
violence, aspects of criminal justice and juvenile justice, and inadequate legal aid. While there are
serious racial gaps in all these areas, and CERD may help focus attention by placing them under an
international spotlight, the United States is more likely to treat them as policy problems than as
unlawful discrimination. On the other hand, CERD concerns about disparate racial impacts in housing—resulting
from urban environmental pollution, criminalization of homelessness, and mortgage-lending practices
and foreclosures—may prove to be in sync with the “disparate impact” test under the U.S. Fair Housing Act as recently interpreted by
the Supreme Court in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015). Fair housing may thus potentially fit within the third category of issues, where human rights
treaties are consistent with both U.S. national values and our legal culture. In these areas, Washington should live up to our international commitments without delay. The following are illustrative: Torture and Accountability CAT
requires the United States to: prevent torture “in any territory under its jurisdiction”; criminalize all acts of torture; make these offenses punishable by penalties that “take into account their grave nature”; establish jurisdiction over
torture by U.S. nationals; ensure a “prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction”; ensure that victims of torture
obtain redress and fair and adequate compensation; and refrain from sending someone to a country if there are “substantial grounds for believing that he would be in danger of being subjected to torture.” Since 2001, the United
States has violated all these treaty commitments. In December 2014, the U.S. Senate Select Committee on Intelligence released a 500-page executive summary of its report on CIA detention and interrogation. In a foreword,
Committee Chair Dianne Feinstein expressed her “personal conclusion that, under any common meaning of the term, CIA detainees were tortured.” She was correct. The Committee found, for example: “Sleep deprivation involved
keeping detainees awake for up to 180 hours, usually standing or in stress positions, at times with their hands shackled over their heads. At least five detainees experienced disturbing hallucinations . . . .” “The waterboarding
technique was physically harmful, inducing convulsions and vomiting.” One detainee “became ‘completely unresponsive, with bubbles rising through his open, full mouth.’ Internal CIA records describe the waterboarding of
[another prisoner] as . . . a ‘series of near drownings.’” Techniques such as slamming detainees against a wall were used “with significant repetition for days or weeks at a time” “in combination, frequently concurrent with sleep
deprivation and nudity.” One detention facility was a “dungeon,” the chief CIA interrogator said. Detainees were “in complete darkness and constantly shackled in isolated cells with loud noise or music and only a bucket to use for
human waste. Lack of heat . . . likely contributed to [a detainee’s] death.” The Committee also found that the CIA repeatedly misled the Justice Department about interrogation techniques and confinement conditions. The CIA’s
“inaccurate and incomplete” information impeded effective oversight by the White House and Congress. CIA misinformation “complicated, and in some cases impeded” the national security work of the FBI, Director of National
Intelligence, and State Department. Against this backdrop, the United States should heed the recommendations of the CAT committee. The first set of recommendations concerns inadequate legislation. The U.S. Code criminalizes
torture abroad but not in the United States. The CAT committee “regrets that the specific offense of torture has not yet been introduced at the federal level.” Even where torture is a crime, the committee “regrets” that the United
States restrictively interprets CAT by narrowing the definition of “mental harm” that can qualify as torture (although the Senate Committee findings reveal that the CIA tortured even by that narrower definition). Legislation is
critical. The CAT committee welcomed the United States’ “unequivocal commitment to abide by the universal prohibition of torture and ill-treatment everywhere,” as well as U.S. assurances that its personnel are legally barred
from committing torture and ill-treatment “at all times and in all places.” However, this bar rests in part on executive orders overturnable at the stroke of a pen. The committee recommended that the United States amend its laws
and withdraw its reservation implying a territorial limitation on CAT applicability. In November 2015, President Obama signed into law, as part of the FY 2016 defense authorization bill, the McCain-Feinstein amendment to
effectively prohibit torture by U.S. government agencies. Even so, the new law does not address the CAT committee’s concern for lack of accountability and redress. No CIA or military personnel have been prosecuted for torture
per se (although low-ranking military personnel have been prosecuted for lesser offenses). Nor has there been civil redress. In 2014, the D.C. Circuit ruled that Congress had barred a civil damages remedy for a detainee allegedly
tortured at Guantanamo. Janko v. Gates, 741 F.3d 136 (D.C. Cir. 2014), cert. denied, 135 S. Ct. 1530 (2015). Secret Detention For at least five years after 2001, the CIA held detainees in secret “black sites” overseas. While a 2009
Executive Order directed that the CIA close its sites and not open any new ones, that order is not embodied in legislation. The CAT committee recommended that the United States “[e]nsure that no one is held in secret detention
anywhere under its de facto effective control.” The committee reiterated that secret detention is a per se CAT violation. Indefinite Detention without Trial The CAT committee reminded the United States that “indefinite detention
without trial constitutes, per se, a violation” of CAT. It noted that during the period under review nine deaths occurred at Guantanamo, including seven suicides, as well as repeated suicide attempts and mass hunger strike protests.
In March 2015, the United States reported to the UN Human Rights Committee that of the 122 prisoners still at Guantanamo, 56 were cleared for transfer, had not yet been transferred, and had no immediate relief in sight; 10
were involved in some form of criminal justice; and the remaining 56 were “eligible for review” by the Periodic Review Board—i.e., they are still detained indefinitely without trial. The Human Rights Committee expressed concern
that detainees at Guantanamo “are not dealt with through the ordinary criminal justice system after a protracted period of over a decade, in some cases.” It recommended that the United States should “ensure either their trial or
their immediate release.” Military Commission Trials In March 2015, the United States reported to the Human Rights Committee that 10 Guantanamo detainees were currently facing charges, awaiting sentencing, or serving
sentences imposed by military commissions. Although the United States contends that military commission trials are fair, the Committee recommended that the United States ensure that any criminal cases against detainees at
Guantanamo be “dealt with through the criminal justice system rather than military commissions.” Drone Deaths As highlighted by President Obama’s recent apologies to families of two American hostages killed in drone attacks,
the use of armed drones endangers innocents and raises serious questions under international law. The Human Rights Committee recommended that the United States: “revisit its position regarding legal justification”; ensure
compliance with the principles of “precaution, distinction and proportionality”; disclose, subject to operational security, the criteria for drone strikes, the legal basis for specific attacks, the process of target identification, and the
circumstances in which drones are used; provide “independent supervision and oversight” of drone attacks; take “all feasible measures to ensure the protection of civilians” in specific attacks; track and assess civilian casualties;
investigate and bring to justice anyone responsible for violations of the right to life; and provide victims with effective remedies and compensation. Intelligence Surveillance The Human Rights Committee expressed its concern over
NSA surveillance, including the bulk phone metadata surveillance program. It recommended that the United States ensure that interference with privacy comply with “principles of legality, proportionality and necessity, regardless
of the nationality or location of the individuals whose communications are under direct surveillance.” While the recently enacted USA Freedom Act is a step toward that goal, more safeguards are needed. See, e.g., Neema Singh

Guliani, What’s Next for Surveillance Reform after the USA Freedom Act, ACLU (June 3, 2015), https://www.aclu.org/blog/washington-markup/whats-next-surveillance-reform-after-usa-freedom-act. Police KillingsThe
CERD committee expressed “concern at the brutality and excessive use of force by law enforcement
officials against members of racial and ethnic minorities, including against unarmed individuals .” It
recommended improved investigations, reporting, and redress. Criminal Justice The Human Rights Committee and CERD committee expressed a range
of concerns about racial disparities in the criminal justice system, including racial profiling, stop-and-frisk arrests, and racial disparities in sentencing, including the death penalty. Voting The Human Rights

Committee expressed concern over obstacles to voting , including burdensome voter identification and
eligibility requirements. It recommended that voting rights be restored to felons who have completed
their sentences, and that states “review automatic denial of the vote to any imprisoned felon, regardless
of the nature of the offence.” Conclusion The foregoing is only a sampling of treaty committee
recommendations, constrained by limitations of space. Interested readers can find the full committee reports and extensive documentation at
http://www.ohchr.org/EN/HRBodies/Pages/HumanRightsBodies.aspx. For anyone concerned about human rights in the United States, the

inquiry is well worth the effort.

CERD challenges the inadequacies of U.S. remedies for racial injustice – key to solve
structural racism and human dignity
Saito 14 (Natsu Taylor Saito, Professor of Law, Georgia State University, “Tales of Color and
Colonialism: Racial Realism and Settler Colonial Theory,” Florida A & M University Law Review, Vol. 11,
2015, Forthcoming, Originally from 2014)
A large body of international law deals with the rights of "minorities," a term that encompasses national minorities as well as racial, ethnic and
religious groups. 451 I have argued throughout this article that the institutionalized racism of settler colonial society cannot be effectively
redressed by assimilationist measures designed to more effectively incorporate "minorities." Nonetheless, struggles
for racial justice
are a necessary part of maintaining human dignity within settler society and enabling communities of
color to move past the most basic struggles for survival to envisioning and implementing structural
change. In this effort, international human rights law can help us see that the principle of non-discrimination
need not be limited by the constraints we encounter within the U.S. legal system. The prohibition on racial
discrimination is articulated in the United Nations Charter and the 1948 Universal Declaration of Human Rights (UDHR), as well as the two
major human rights treaties, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social
and Cultural Rights (ICESCR). 452 It is regarded by many to be not only customary international law-and therefore binding on all states-but also
a jus cogens or preemptory legal norm. 453 The Convention on the Elimination of All Forms of Racial Discrimination (CERD), a treaty with
177 states parties, defines racial discrimination as any distinction, exclusion, restriction or preference based on race, colour, descent, or
national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing,
of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. 454 This body of law
prohibiting racial discrimination moves
significantly beyond the United States' formal commitment to equal
protection in several important ways. First, it recognizes the right of ethnic, religious or linguistic
minorities, "in community with the other members of their group," to maintain their own identity and culture . 455
Assimilation must be truly voluntary, and equal treatment may not be conditioned on assimilation . Thus,
for example, in 2007, the Committee charged with monitoring compliance with the CERD observed that
"policies of forced assimilation amount to racial discrimination and constitute grave violations of the
convention." 456 Second, as illustrated by the "purpose or effect" language of the CERD's definition, the prohibition is not
limited to discriminatory intent but encompasses disparate impact as well. 457 In 2014, the CERD Committee noted
its concern that U.S. law does not comport with the Convention, "which requires States parties to prohibit and eliminate racial discrimination in
all its forms, including practices and legislation that may not be discriminatory in purpose, but are discriminatory in effect." 458 Illustrating
its recognition of the need to address structural racism, the Committee's 2014 report on U.S. compliance noted its
concerns with, among other problems, illegal government surveillance and monitoring, the use of excessive force by law
enforcement, the "school-to-prison pipeline," and inadequate access to legal aid in both civil and criminal contexts,
and recommended that the United States "adopt a National Action Plan to combat structural racial discrimination." 459 A third point of note is
that international law acknowledges the necessity of "special measures" (what we might broadly think of as
affirmative action) to enable a minority group to achieve political, economic, and social equality while, if it
desires, maintaining its cultural and ethnic identity .460 In contrast to current U.S. jurisprudence , the CERD
explicitly states that such special measures are not to be considered a form of racism, 461 and the United
States has been criticized for placing "increasing restrictions on the use of special measures as a tool to eliminate persistent disparities in the
enjoyment of human rights and fundamental freedoms based on race or ethnic origin."462 Thus, although
international human
rights law continues to be criticized for inadequately addressing the structural underpinnings of racial
hierarchy, 463 its insistence that equal protection not be conditioned on assimilation , its broad
understanding of what is encompassed within the construct of racial discrimination , and its
promulgation of remedial measures that go beyond formal equality help us to think critically about the
constraints imposed on us by equal protection jurisprudence , as well as the plenary power doctrine . This
broader framing of rights can help us better analyze how U.S. legal doctrine continues to be used to
subordinate peoples of color, and provides opportunities to empower our communities by bringing
claims to the international bodies that will acknowledge the inadequacies of U.S. remedies for racial
injustice. 464
 Plan
Thus the plan: The United States federal government should substantially reduce its
restrictions on previously removed asylum-seekers by establishing, according to the
Charming Betsy canon, that subsection (9) of section 212 of the INA does not render
asylum-seekers ineligible for asylum.
 Framing
Contention Three is Framing –

First is Risk Calculus –

Be aware of the conjunctive fallacy. Each internal-link is misleading and reduces the
probability of the next, so you should have a low threshold for zero-risk.
Piattelli 96 – Dr. Massimo Piattelli-Palmarini, Professor of Cognitive Science, Linguistics, Psychology at Arizona State University,
Doctorate in Physics at the University of Rome, Founder and Director of the Department of Cognitive Science at the Scientific Institute San
Raffaele, Former Principal Research Scientist at the Center for Cognitive Science of MIT, Inevitable Illusions: How Mistakes of Reason Rule our
Minds, p. 134-137

Here is deadly sin number 7 in its most blatant form, in that our
judgment of probability allows itself to be influenced by
fictions, including scenarios that we know to be the fruit of pure invention. I call this the Othello effect. You may
remember that the lustful and thwarted Iago sets out to make Othello believe his beloved wife, Desdemona, is unfaithful to him. Iago makes up
a scenario involving Desdemona’s handkerchief. This plausible but fallacious scenario convinces Othello of Desdemona’s betrayal, and in a fury
of passion, Othello kills her. Such fictitious scenarios can be taken advantage of by any shrewd and unscrupulous Iago. But before we seek to
save Desdemona, let us go back a few years to when Tversky and Kahneman ran their experiment on the Polish
situation. Let’s imagine a much stranger possibility than the withdrawal of the U.S. ambassador to the Soviet Union. How likely do
you think it is that the United States might invade Poland? Here the chances are in the order of one in a
million or less. But supposing we ask our respondents to consider the following sequence of events (you
have to think yourself back into those times): Strikes in Poland intensify; crowds are fired on; Lech Walensa is
imprisoned; the pope goes to Warsaw on a peace mission and is arrested; world public opinion is
inflamed; the United States sends a specialist force to free the Pope… As the narrative unfolds one
event is linked with another, making for a script that seems plausible—always admitting, of course, that
each stage has really been preceded by another. In the end, don’t we think that the probability of a U.S. invasion is somewhat
higher than one in a million? Here we leave statistics behind and enter the domain of pure fiction. Look a bit closer, and
one can see that we are not yet out of the realm of cognitive science, for these questionaire- experiments , just like real life, have
countless times shown us that a plausible and well-told story can lead us to hold as “objectively”
probable events that, just minutes before, we would have considered totally improbable. The notorious
“Protocols of Zion,” a pure fabrication of the czar’s anti-Semitic propaganda taken up by the Nazi regime raised an Anti-Semitic storm. It did
little good to show that it was a pure invention. What the propagandists sought to do, in order to seize power, was
to make
imaginatively presentable the probability of a worldwide Jewish conspiracy, and in doing so they succeeded
admirably, at least in the minds of those uncritically committed to hatred. I will not waste space on other instances, but
limit myself to the purely cognitive aspects of the phenomenon. Offering a “plausible” sequence of events that are
causally linked one to another has the effect of immediately raising our estimate of probability. It suffices
that the links between these “events” should hold from one to the next for our minds to approach the
final link in the chain. For, as we have seen, that which we can readily imagine is ipso facto more probable.
Even if the probability of the very first link in this chain is very low, the fact is soon forgotten. Say “Let’s
suppose that…” and we’re off, putting together a series of consequences , all of them “plausible” enough. I put
“plausible” in quotation marks because true plausibility, in effect, depends wholly on that initial “Let’s suppose…” Once the first link in the chain
of our script is “supposed,” then all the rest of the links “hold” one to another. Rationally speaking, however, and having
regard to the calculation of probabilities, we are in the domain of what is known as “compound probabilities,”, or, more
restrictively, “conditional probabilities.” (What is the likelihood that B will be true, supposing that A has to be true?) The
probability of the last link in the chain being true is calculated on the basis of a series of conditional
probabilities being true, and that in turn is obtained by combining the probabilities of each link in the
chain, from the first to the last. Probabilities being, by their nature, less than one, the probability of the
entire chain (or the last link) being true is always and without exception less probable than the probability of the
least probable link in the chain. We fail to notice this progressive attenuation of probability. The story
takes over from reality. The last link seems ever truer to our mind, and our increased facility in
representing or imaging makes that last link seem ever more probable. The trick—which is one of the
oldest in the book—is to find the narrative path by which the last, and most implausible , link can be
made imaginatively compelling. My Othello effect depends on this perverse use of the imagination. If by chance one or two of the
intervening links in this chain should come true, then poor Desdemona will indeed die. A narrative chain put together with art by some
cunning Iago, and “resting” on a pair of intermediate links that come true (though only true for quite different reasons, and
for reasons that no one may know), becomes irresistible. Poor us! The narrative then becomes an impregnable
“logical” demonstration. Iago can transform doubt into certainty. Iago is not acting in good faith, and Othello, truth to tell, is no
Sherlock Holmes. A rational, rigorously deductive man, knows perfectly well that the deductive inferences Iago makes about Desdemona’s
fidelity don’t amount to much. His “indications,” hints, and “proofs”could all be explained without the infidelity hypothesis. Bayes’ law, or for
that matter any sensible use of compound probability calculations, can save Desdemona from a horrible and unjust fate. Instead, reinforced
by our cognitive illusions and dark passions, by a single imaginary chain of “plausibilities,” and by a pair of
intermediate links that for totally unrelated reasons are true, Desdemona’s tragic death is set into motion. The implausible becomes
plausible, indeed certain. Give us a little story, a script, something born of our own imagination, and our own natural
tendencies, cognitive or emotional, do the rest. Isn’t this really the deadliest of our deadly sins?

Extinction first logic fails

Kessler 08 (Oliver; April 2008; PhD in IR, professor of sociology at the University of Bielefeld, and professor of history and theory of IR at
the Faculty of Arts; Alternatives, Vol. 33, “From Insecurity to Uncertainty: Risk and the Paradox of Security Politics” p. 211-232)

The problem of the second method is that it is very difficult to "calculate" politically unacceptable losses. If the risk of
terrorism is defined in traditional terms by probability and potential loss, then the focus on dramatic terror attacks leads
to the marginalization of probabilities. The reason is that even the highest degree of improbability becomes
irrelevant as the measure of loss goes to infinity.^o The mathematical calculation of the risk of terrorism thus
tends to overestimate and to dramatize the danger. This has consequences beyond the actual risk assessment
for the formulation and execution of "risk policies": If one factor of the risk calculation approaches infinity (e.g., if a
case of nuclear terrorism is envisaged), then there is no balanced measure for antiterrorist efforts, and risk management
as a rational endeavor breaks down. Under the historical condition of bipolarity, the "ultimate" threat with nuclear weapons
could be balanced by a similar counterthreat, and new equilibria could be achieved, albeit on higher levels of nuclear overkill. Under the new
condition of uncertainty, no such rational balancing is possible since knowledge about actors, their motives and
capabilities, is largely absent. The second form of security policy that emerges when the deterrence model collapses mirrors the
"social probability" approach. It represents a logic of catastrophe . In contrast to risk management framed in line with
logical probability theory, the logic of catastrophe does not attempt to provide means of absorbing
uncertainty. Rather, it takes uncertainty as constitutive for the logic itself; uncertainty is a crucial precondition
for catastrophes. In particular, catastrophes happen at once, without a warning, but with major implications for the world polity. In
this category, we find the impact of meteorites. Mars attacks, the tsunami in South East Asia, and 9/11. To conceive of
terrorism as catastrophe has consequences for the formulation of an adequate security policy. Since
catastrophes hap-pen irrespectively of human activity or inactivity, no political action could possibly prevent
them. Of course, there are precautions that can be taken, but the framing of terrorist attack as a catastrophe points to
spatial and temporal characteristics that are beyond "rationality." Thus , political decision makers are
exempted from the responsibility to provide security —as long as they at least try to preempt an attack. Interestingly enough,
9/11 was framed as catastrophe in various commissions dealing with the question of who was responsible and whether it could have been
prevented. This makes clear that under the condition of uncertainty, there are no objective criteria that could serve as an anchor for measuring
dangers and assessing the quality of political responses. For ex- ample, as much as one might object to certain measures by the US
administration, it is almost impossible to "measure" the success of countermeasures. Of course, there might be a subjective assessment of
specific shortcomings or failures, but there is no "common" currency to evaluate them. As a consequence, the framework of the
security dilemma fails to capture the basic uncertainties. Pushing the door open for the security paradox, the main problem of
security analysis then becomes the question how to integrate dangers in risk assessments and security policies about which simply nothing is
known. In the mid 1990s, a Rand study entitled "New Challenges for Defense Planning" addressed this issue arguing that "most striking is the
fact that we do not even know who or what will constitute the most serious future threat, "^i In order to cope with this
challenge it would be essential, another Rand researcher wrote, to break free from the "tyranny" of plausible scenario planning. The decisive
step would be to create "discontinuous scenarios ... in which there is no plausible audit trail or storyline from
current events"52 These nonstandard scenarios were later called "wild cards" and became important in the current US strategic discourse. They
justified the transformation from a threat-based toward a capability- based defense planning strategy.53 The problem with this kind of risk
assessment is, however, that even the most absurd scenarios can gain plausibility. By constructing a chain of
potentialities, improbable events are linked and brought into the realm of the possible, if not even the
probable. "Although the likelihood of the scenario dwindles with each step, the residual impression is one of
plausibility. "54 This so-called Othello effect has been effective in the dawn of the recent war in Iraq. The connection between
Saddam Hussein and Al Qaeda that the US government tried to prove was disputed from the very beginning. False
evidence was again and again presented and refuted, but this did not prevent the administration from presenting as
the main rationale for war the improbable yet possible connection between Iraq and the terrorist network and the improbable yet
possible proliferation of an improbable yet possible nuclear weapon into the hands of Bin Laden. As Donald Rumsfeld famously said:
"Absence of evidence is not evidence of absence ." This sentence indicates that under the condition of genuine uncertainty,
different evidence criteria prevail than in situations where security problems can be assessed with relative certainty.

Dominant moral calculus always prioritizes future suffering in the face of ongoing
structural violence.
Olson 2015 – prof of geography @ UNC Chapel Hill (Elizabeth, ‘Geography and Ethics I: Waiting and
Urgency,’ Progress in Human Geography, vol. 39 no. 4, pp. 517-526)

Though toileting might be thought of as a special case of bodily urgency, geographic research suggests that the
body is increasingly
set at odds with larger scale ethical concerns, especially large-scale future events of forecasted suffering . Emergency
planning is a particularly good example in which the large-scale threats of future suffering can distort moral reasoning.
Žižek (2006) lightly develops this point in the context of the war on terror, where in the presence of fictitious and real ticking clocks and warning
systems, the urgent body must be bypassed because there are bigger scales to worry about: What does this all-
pervasive sense of urgency mean ethically? The pressure of events is so overbearing, the stakes are so high, that they nec essitate a suspension
of ordinary ethical concerns. After all, displaying moral qualms when the lives of millions are at stake plays into the hands of the enemy. (Žižek,
2006) In the presence of large-scale future emergency, the urgency to secure the state, the citizenry, the economy, or the climate creates new
scales and new temporal orders of response (see Anderson, 2010; Baldwin, 2012; Dalby, 2013; Morrissey, 2012), many of which treat the
urgent body as impulsive and thus requiring management. McDonald’s (2013) analysis of three interconnected discourses of ‘climate security’
illustrates how bodily urgency in climate change is also recast as a menacing impulse that might require exclusion from moral reckoning. The
logics of climate security, especially those related to national security, ‘can encourage perverse political responses that not only fail to respond
effectively to climate change but may present victims of it as a threat’ (McDonald, 2013: 49). Bodies
that are currently suffering
cannot be urgent, because they are excluded from the potential collectivity that could be suffering
everywhere in some future time. Similar bypassing of existing bodily urgency is echoed in writing about violent securitization, such
as drone warfare (Shaw and Akhter, 2012), and also in intimate scales like the street and the school, especially in relation to race (Mitchell,
2009; Young et al., 2014). As large-scale urgent concerns are institutionalized, the urgent body is increasingly obscured
through technical planning and coordination (Anderson and Adey, 2012). The predominant characteristic of this
institutionalization of large-scale emergency is a ‘built-in bias for action’ (Wuthnow, 2010: 212) that circumvents contingencies. The
urgent body is at best an assumed eventuality, one that will likely require another state of waiting, such as triage (e.g. Greatbach
et al., 2005). Amin (2013) cautions that in much of the West, governmental need to provide evidence of laissez-faire governing on the one
hand, and assurance of strength in facing a threatening future on the other, produces ‘just-in-case preparedness’ (Amin, 2013: 151) of
neoliberal risk management policies. In the US, ‘personal ingenuity’ is built into emergency response at the expense of the poor and vulnerable
for whom ‘[t]he difference between abjection and bearable survival’ (Amin, 2013: 153) will not be determined by emergency planning, but in
the material infrastructure of the city. In short, the urgencies of the body provide justifications for social exclusion of the most marginalized
based on impulse and perceived threat, while large-scale future emergencies effectively absorb the deliberative power of urgency into the
institutions of preparedness and risk avoidance. Žižek references Arendt’s (2006) analysis of the banality of evil to explain the current state of
ethical reasoning under the war on terror, noting that people who perform morally reprehensible actions under the conditions of urgency
assume a ‘tragic-ethic grandeur’ (Žižek, 2006) by sacrificing their own morality for the good of the state. But his analysis fails to note that bodies
are today so rarely legitimate sites for claiming urgency. In the context of the assumed priority of the large-scale future emergency, the
urgent body becomes literally nonsense, a non sequitur within societies, states and worlds that will always be
more urgent. If the important ethical work of urgency has been to identify that which must not wait, then the capture of the power and
persuasiveness of urgency by large-scale future emergencies has consequences for the kinds of normative arguments we can raise on behalf of
urgent bodies. How, then, might waiting compare as a normative description and critique in our own urgent time? Waiting can be categorized
according to its purpose or outcome (see Corbridge, 2004; Gray, 2011), but it also modifies the place of the individual in society and her
importance. As Ramdas (2012: 834) writes, ‘waiting … produces hierarchies which segregate people and places into those which matter and
those which do not’. The segregation of waiting might produce effects that counteract suffering, however, and Jeffery (2008: 957) explains that
though the ‘politics of waiting’ can be repressive, it can also engender creative political engagement. In his research with educated unemployed
Jat youth who spend days and years waiting for desired employment, Jeffery finds that ‘the temporal suffering and sense of ambivalence
experienced by young men can generate cultural and political experiments that, in turn, have marked social and spatial effects’ (Jeffery, 2010:
186). Though this is not the same as claiming normative neutrality for waiting, it does suggest that waiting is more ethically ambivalent and
open than urgency. In other contexts, however, our descriptions of waiting indicate a strong condemnation of its effects upon the subjects of
study. Waiting
can demobilize radical reform, depoliticizing ‘the insurrectionary possibilities of the present
by delaying the revolutionary imperative to a future moment that is forever drifting towards infinity’
(Springer, 2014: 407). Yonucu’s (2011) analysis of the self-destructive activities of disrespected working-class youth in Istanbul suggests that this
sense of infinite waiting can lead not only to depoliticization, but also to a disbelief in the possibility of a future self of any value. Waiting, like
urgency, can undermine the possibility of self-care two-fold, first by making people wait for essential needs, and again by reinforcing that
waiting is ‘[s]omething to be ashamed of because it may be noted or taken as evidence of indolence or low status, seen as a symptom of
rejection or a signal to exclude’ (Bauman, 2004: 109). This is why Auyero (2012) suggests that waiting creates an ideal state subject, providing
‘temporal processes in and through which political subordination is produced’ (Auyero, 2012: loc. 90; see also Secor, 2007). Furthermore,
Auyero notes, it is not only political subordination, but the subjective effect of waiting that secures domination, as citizens and non-citizens find
themselves ‘waiting hopefully and then frustratedly for others to make decisions, and in effect surrendering to the authority of others’ (Auyero,
2012: loc. 123). Waiting
can therefore function as a potentially important spatial technology of the elite and powerful,
mobilized not only for the purpose of governing individuals, but also to retain claims over moral urgency .
But there is growing resistance to the capture of claims of urgency by the elite, and it is important to note that even in cases where the material
conditions of containment are currently impenetrable, arguments based on human value are at the forefront of reclaiming urgency for the
body. In detention centers, clandestine prisons, state borders and refugee camps, geographers point to ongoing struggles against the ethical
impossibility of bodily urgency and a rejection of states of waiting (see Conlon, 2011; Darling, 2009, 2011; Garmany, 2012; Mountz et al., 2013;
Schuster, 2011). Ramakrishnan’s (2014) analysis of a Delhi resettlement colony and Shewly’s (2013) discussion of the enclave between India and
Bangladesh describe people who refuse to give up their own status as legitimately urgent, even in the context of larger scale politics. Similarly,
Tyler’s (2013) account of desperate female detainees stripping off their clothes to expose their humanness and suffering in the Yarl’s Wood
Immigration Removal Centre in the UK suggests that demands for recognition are not just about politics, but also about the acknowledgement
of humanness and the irrevocable possibility of being that which cannot wait. The continued existence of places like Yarl’s Wood and similar
institutions in the USA nonetheless points to the challenge of exposing the urgent body as a moral priority when it is so easily hidden from view,
and also reminds us that our research can help to explain the relationships between normative dimensions and the political and social
conditions of struggle. In closing, geographic depictions of waiting do seem to evocatively describe otherwise obscured suffering (e.g. Bennett,
2011), but it is striking how rarely these descriptions also use the language of urgency. Given the discussion above, what might be accomplished
– and risked – by incorporating urgency more overtly and deliberately into our discussions of waiting, surplus and abandoned bodies? Urgency
can clarify the implicit but understated ethical consequences and normativity associated with waiting, and encourage explicit discussion about
harmful suffering. Waiting can be productive or unproductive for radical praxis, but urgency compels and requires response. Geographers could
be instrumental in reclaiming the ethical work of urgency in ways that leave it open for critique, clarifying common spatial misunderstandings
and representations. There is good reason to be thoughtful in this process, since moral outrage towards inhumanity can itself obscure
differentiated experiences of being human, dividing up ‘those for whom we feel urgent unreasoned concern and those whose lives and deaths
simply do not touch us, or do not appear as lives at all’ (Butler, 2009: 50). But when the urgent body is rendered as only waiting, both materially
and discursively, it is just as easily cast as impulsive, disgusting, animalistic (see also McKittrick, 2006). Feminist theory insists that the urgent
body, whose encounters of violence are ‘usually framed as private, apolitical and mundane’ (Pain, 2014: 8), are as deeply political, public, and
exceptional as other forms of violence (Phillips, 2008; Pratt, 2005). Insisting
that a suffering body, now, is that which cannot
wait, has the ethical effect of drawing it into consideration alongside the political, public and exceptional scope of
large-scale futures. It may help us insist on the body, both as a single unit and a plurality, as a legitimate scale of normative priority and
social care. In this report, I have explored old and new reflections on the ethical work of urgency and waiting. Geographic research suggests a
contemporary popular bias towards the urgency of large-scale futures, institutionalized in ways that further obscure and discredit the urgencies
of the body. This bias also justifies the production of new waiting places in our material landscape, places like the detention center and the
waiting room. In some cases, waiting is normatively neutral, even providing opportunities for alternative politics. In others, the technologies of
waiting serve to manage potentially problematic bodies, leading to suspended suffering and even to extermination (e.g. Wright, 2013). One of
my aims has been to suggest that moral reasoning is important both because it exposes normative biases against subjugated people, and
because it potentially provides routes toward struggle where claims to urgency seem to foreclose the possibilities of alleviation of suffering.
Saving the world still should require a debate about whose world is being saved, when, and at what cost –
and this requires a debate about what really cannot wait. My next report will extend some of these concerns by reviewing
how feelings of urgency, as well as hope, fear, and other emotions, have played a role in geography and ethical reasoning. I conclude, however,
by pulling together past and present. In 1972, Gilbert White asked why geographers were not engaging ‘the truly urgent questions’ (1972: 101)
such as racial repression, decaying cities, economic inequality, and global environmental destruction. His question highlights just how much the
discipline has changed, but it is also unnerving in its echoes of our contemporary problems. Since White’s writing, our moral reasoning has been
stretched to consider the future body and the more-than-human, alongside the presently urgent body – topics and concerns that I have not
taken up in this review but which will provide their own new possibilities for urgent concerns. My own hope presently is drawn from an
acknowledgement that the temporal characteristics of contemporary capitalism can be interrupted in creative ways (Sharma, 2014), with the
possibility of squaring the urgent body with our large-scale future concerns. Temporal alternatives already exist in ongoing and emerging
revolutions and the disruption of claims of cycles and circular political processes (e.g. Lombard, 2013; Reyes, 2012). Though calls for urgency
will certainly be used to obscure evasion of responsibility (e.g. Gilmore, 2008: 56, fn 6), they may also serve as fertile ground for radical critique,
a truly fierce urgency for now.

Second is Link Uniqueness –

The Supreme Court already ruled on prior removal orders in favor of the non-citizen
less than three months ago in Pereira v. Sessions
[AIC, 8-20-2018, American Immigration Council, "Strategies and Considerations in the Wake of Pereira
v. Sessions Practice Advisory," American Immigration Council and The Catholic Legal Immigration
Network, Inc.,
https://www.americanimmigrationcouncil.org/sites/default/files/practice_advisory/final_pereira_adviso
ry_-_7.20.2018_-_aic_clinic.pdf]//Rank

*Note the actual decision came on June 21 st 2018

In Pereira v. Sessions, __ U.S. __, 138 S. Ct. 2105 (2018), the U.S. Supreme Court held that service of a putative charging
document that does not specify the time and place of removal proceedings does not meet the statutory
definition of a Notice to Appear (NTA) under 8 U.S.C. § 1229(a) and, therefore, does not cut off a noncitizen’s ability
to accrue the time in the United States required to qualify for cancellation of removal. Although the government is
attempting to cabin the ruling’s impact to the cancellation of removal context, practitioners can apply the rationale underlying the Court’s

interpretation of § 1229(a) to a wider variety of challenges . Furthermore, practitioners can file motions to
reconsider and/or reopen prior removal orders predicated on defective NTAs within 30 to 90 days of the decision or as soon as practicable after
learning of the decision.
Dimaya vs Sessions non-uniques and disproves every DA
Michael Kagan 4-26-18 -- Michael Kagan is professor of law at the University of Nevada, Las Vegas.
(“Immigration Cases Make Strange Bedfellows. But Is It a Long-Term Relationship?”
https://www.lawliberty.org/2018/04/26/immigration-cases-make-strange-bedfellows-but-is-it-a-long-
term-relationship-dimaya-sessions-neil-gorsuch/) mba-alb

In an immigration case with important long term

The big news at the Supreme Court last week was that Justice Neil Gorsuch seemed to make some new friends.

implications, Justice Gorsuch voted with the four liberal justices (Breyer, Ginsburg, Kagan, and Sotomayor) to invalidate a crime-
based deportation provision because it was void for vagueness, and thus unconstitutional . The optics of
this new alliance on the High Court generated a great deal of confused excitement in the
media. Almost immediately two major distortions took hold. First, that Gorsuch’s decision in this case was surprising. Second, that this decision
was a rebuke to President Trump by the justice who he had placed on the Court. There should have been
no surprise. Gorsuch’s reasoning in this case was entirely predictable given the opinions he had issued
less than two years earlier when he was a circuit court judge. Nor should anyone have been shocked
that he could be persuaded to rule in favor of an immigrant fighting deportation. He did exactly that in his most notable decision as a
lower court judge, the one which probably earned him his nomination to the Supreme Court. This decision also should not be thought of as a blow specifically to the Trump agenda, given that it began under the Obama
Administration. The case will be remembered as Sessions v. Dimaya, but that is only because current Attorney General Jeff Sessions subbed in for his predecessor. Back in 2016, when the case was known as Lynch v. Dimaya, it was

The
the Obama Justice Department that asked the Supreme Court to put the case on its docket. Nevertheless, the Trump Administration was not pleased by the result, and issued alarmist warnings in response.

Department of Homeland Security issued a statement declaring: “By preventing the federal government
from removing known criminal aliens, it allows our nation to be a safe haven for criminals and makes us
more vulnerable as a result.” It is true that the ruling will prevent the deportation of some legal residents who have felony convictions. But it is not clear exactly how many cases will be directly
affected, for two reasons. First, immigrants who enter the country illegally or who overstay visas can usually be deported even if they do not have a criminal conviction. Second, this decision only struck down one of many criminal
grounds that can lead to the deportation of a legal resident. DHS can still seek the removal of legal immigrants who have convictions for crimes involving moral turpitude, felony crimes of theft, burglary, sexual abuse of children,
domestic violence, rape, and any felony that involves violence or threats of “physical force against the person or property of another.” That’s just a partial list of deportable crimes left untouched by the Dimaya decision. How the

Dimaya is a milestone simply because the Court struck down a provision of immigration law.
Government Lost Dimaya

That has not happened often in American history. At a minimum, this is yet another indicator that the Supreme
Court sees real constitutional limits on federal power over immigrants inside the United States,
especially in terms of due process of law. But that’s just the start of it. Dimaya has the potential to be a foundation for
even bigger milestones in the future — especially if Gorsuch and his new friends can find a way to forge a sustainable liberal-conservative alliance. To understand why that is possible,
we have to get into the weeds of what this case was actually about. Sessions v. Dimaya concerned a catch-all definition of a crime of violence that would make deportable an immigrant who was convicted of a felony “that, by its
nature, involves a substantial risk that physical force … may be used.” That is different from crimes like assault with a deadly weapon, where violence is intrinsic to the crime itself. The problem with the catch-all definition is almost

. In
any criminal activity could conceivably lead to violence. For example, if a person tries to steal someone else’s handbag, it might conceivably lead to a physical struggle, but that’s not part of the definition of the crime of theft

a previous decision by Justice Scalia, the Supreme Court had invalidated — in a criminal case — a very
similar catch-all definition of a crime of violence as void for vagueness. The critical question the Supreme
Court faced in Dimaya was whether the same constitutional vagueness standard applied in the
immigration context. This is the question that forged a tenuous alliance between Gorsuch and his four liberal colleagues. The government’s primary argument was that the vagueness standard should be
more relaxed in an immigration context than it would be in a criminal case because deportation is a civil matter. In Dimaya, the majority of the Supreme Court found

the civil-criminal distinction unpersuasive . That may be a big deal. For more than a century, the civil-criminal
distinction has been the primary justification for limiting immigrants’ due process rights. This is the
argument usually given to explain why immigrants facing deportation do not get appointed counsel to
defend themselves in Immigration Court, for example . And yet, Justice Gorsuch referred derisively to “the happenstance that a law is found in the civil or criminal part
of the statute.” To be clear, this case was only about the void for vagueness question. But look for that line to be quoted many times in briefs arguing

for more expansive due process protections for immigrants challenging the Department of Homeland
Security. The Elephant in the Room The potential implications of Dimaya go well beyond immigration. This is illustrated by the way in which
Gorsuch and the other four justices in the majority did not agree completely. Justice Kagan (no relation to this author) wrote that the civil-criminal distinction did not help the government because the “grave nature of deportation”

he
required the more stringent standards normally used in criminal cases. But Justice Gorsuch did not sign that part of the opinion. Writing only for himself, Gorsuch agreed about the severity of deportation. But

objected to the implication that deportation is unique: “grave as [deportation] may be, I cannot see why
we would single it out for special treatment when so many civil laws today impose so many similarly
severe sanctions.” Why could these justices not come together, when they seemed at least to agree about the case in front of them? There is an elephant in the room
here, and its name is Chevron deference . Before he reached the Supreme Court, Justice Gorsuch was best known for critiquing this rule, which requires judges to defer to executive
branch agencies about how laws enacted by Congress should be interpreted. Chevron deference does not normally apply to criminal statutes,

which is why Justice Gorsuch’s broad attack on the civil-criminal distinction is, as George Will wrote,
“a scythe sharp enough to slice through many practices of the administrative state .” But this may also be why Justice Gorsuch
could not convince any of his colleagues to sign onto his opinion. While Chevron increasingly has critics on the Court, it is not clear how many of the justices are yet ready to blow up the central doctrine of modern administrative
law, especially in a case that does not require doing so. I have written before in this space that immigration cases offer an opportunity to build a bridge between conservative critics of Chevron and liberal jurists who normally might
be predisposed to defend it. Dimaya shows this potential, but also the challenges to building a durable left-right alliance on this issue. By seeming to want an exception just for deportation cases, Justice Kagan could be accused of
promoting a form of immigration exceptionalism. But Justice Gorsuch could be accused of being too greedy. He seemed to be demanding that his colleagues agree to a sweeping ruling applicable in nearly all civil contexts, when the
case before them in fact only concerned only one such context. It would have been helpful if Justice Kagan had been willing to say more clearly that deportation is one example where the civil-criminal distinction is unpersuasive,
but it might not be the only example. That might have left more room for Gorsuch to sign on. And it would have been helpful if Gorsuch had been more willing to proceed case by case, as judicial restraint dictates. That would have

On Monday, the Supreme

been a principled and modest approach for both sides, but they couldn’t quite get there. But this is just the beginning. Tests of this relationship will come very quickly.

Court heard arguments in another immigration case where Chevron deference is the central issue,
Pereira v. Sessions. I have written elsewhere that the Court tends to apply Chevron in certain kinds of immigration cases, but not in others, but typically without announcing a clear rule about why it is doing
so. This case gives Justice Gorsuch another opportunity to press his colleague to directly reconsider

Chevron. An even more dramatic test may come through the many cases in lower courts challenging the way immigration arrests are carried out today. A straight-forward application of the Fourth Amendment as it
applies in criminal contexts would say that many, if not most, immigration arrests are unconstitutional because they are not backed by judicial findings of probable cause. The Department of Justice relies on the formally civil nature
of immigration enforcement to defend the validity of immigration arrest procedures. When this question reaches the Supreme Court, immigrants will hope that the Gorsuch-liberal coalition in Dimaya rejects the civil-criminal
distinction once again. Basically, Justice Gorsuch and the four liberal justices have gone on a first date. It might not amount to anything. It could be the beginning of a longer term relationship, but it might have been just a one night
stand.

Third is reform
Small changes to asylum law are the only path to radical change. Rejection of policy
details cedes agency to Trumpian restrictionism
Rennix, 17 – Senior Editor of Current Affairs, works in immigration law (Brianna, “WHAT WOULD
HUMANE IMMIGRATION POLICY LOOK LIKE?”, 12-10-17, Current Affairs,
https://www.currentaffairs.org/2017/12/what-would-humane-immigration-policy-actually-look-like)

In a previous article, “Can We Have Humane Immigration Policy?” I outlined what I believe to be a fundamental hurdle to real
immigration reform: namely, the fact that Democrats have very few clear, long-term ideas of what “reform”
should even look like. The right has a very straightforward restrictionist agenda, and from this have derived a
set of policies that they believe (rightly or wrongly) will be effective in restricting immigration. In its worst iteration, this restrictionism is
pure, ethnostate-style xenophobia; in its “best” iteration, it reduces individuals to a number that
symbolizes their economic value, and allows immigration only when it stands to benefit native-born,
“real” Americans. The left, by contrast, vaguely believes that immigration is an inherently Good Thing,
but has no clear idea of how much immigration is desirable, or how it ought to be regulated. Democrats
have historically very often defaulted to the “admitting immigrants based chiefly on their economic
usefulness” position, partly because it has seemed superficially reasonable to them, partly because they hoped to compromise with
Republicans, and partly for lack of any better ideas. Now that “points-based immigration” has been touted by the Trump administration,
thankfully, more people are finally beginning to understand what an ugly and inadequate idea it actually is. But what
scheme of
immigration regulation should the left actually pursue, then? In my view, we’ve dithered on this question
long enough, and made far too many inhumane concessions in the process : now that we have arrived at a
moment where favoring immigration and opposing Trump are becoming increasingly merged in the
public imagination, it’s time to go big or go home. Our position should be simple, and ambitious. In the long term—and I don’t think we
should hide the ball about this—our goal should be to ensure that anybody who wants to come to the U.S. and
live and work peaceably should be allowed to do so. If an immigrant has been in the U.S. for some
period of time and want to settle here permanently, they should be able to do that, too. I do not think
being pro-free movement or pro-open borders as a general matter means committing to the position
that a region can never restrict immigration under any circumstances . Almost every argument adduced
for limiting immigration to wealthy countries is utterly specious—the U.S., in particular, is the world’s
third-largest country geographically and its 179th-most densely populated, so the idea that we “can’t”
take more people is a ludicrously transparent lie—but nevertheless, every region does have some
genuine resource constraints. There may be situations of political unrest, natural disaster, or economic
crisis that are so serious that admitting more population is actually dangerous. For example, Lebanon is currently
hosting 172 Syrian refugees for every 1000 of its citizens: that means that a full 30% of its population are refugees. This is a pretty big burden
for any small state to shoulder, and the situation cannot possibly go on indefinitely, especially if Lebanon finds itself spiraling towards
governmental collapse, or under attack by a neighboring country. Though it’s hard to imagine how an exactly parallel situation could ever arise
in the U.S., due to its sheer size, there may, someday, be other disaster scenarios that would qualify in the U.S. context. The point is, we
should treat immigration restrictions as time-limited responses to specific, articulable conditions, not
as a default mode. To the extent that immigration might need to be restricted or regulated more closely
in certain emergency circumstances, our concern must be to admit immigrants primarily on the basis
of need, and the direness of the situation they will face if returned, not according to factors like nationality, wealth,
education, or ability, which is how our U.S. system presently operates. All this, however, is the long game. We
certainly can’t arrive
at a more open immigration system overnight, and I think that there’s a hierarchy of
intermediary policy goals that would alleviate some of the most unconscionable effects of our
present system, while laying the groundwork for a future immigration system that looks
entirely different. Here, I’ll outline several policy changes that would benefit immigrants who are already present in the U.S., and
individuals who face serious dangers in their home countries. (Stay tuned for part three, which will deal with visa allotments, employment-
based immigration, and admissions more generally.) FIDDLY LEGISLATIVE FIXES Given
how messed-up our immigration
system is on a large scale, it’s worth asking how much time we ought to devote to tinkering with the
finer points of laws that we would be better off scrapping wholesale . Some people might say that
these kinds of small fixes are a waste of energy, like rearranging the deck chairs on the Titanic . But I
disagree. In a disaster of this scale, you want some of your people making repairs to the leaky
lifeboats, and other people working to contact bigger rescue vessels, because who knows
which avenue will prove more successful before the whole mess slides into the sea . What I
mean by “fiddly legislative fixes” are legal changes that wouldn’t result in any immediate, sweeping
changes to what categories of people are eligible for immigration relief: rather, they might slightly
alter the boundaries of those categories, and also ensure that people who are eligible for immigration
relief aren’t barred from getting it for reasons that are totally outside their control. The only area of immigration
law with which I have any minute familiarity is asylum
law, and there are certainly a number of small
procedural changes in this field that could make a huge difference to an asylum-seeker’s
chances of success. For example, Congress passed a catastrophically bad immigration bill in 1996 which, among many other things,
included a requirement that all asylum applicants file their applications within one year of their last entry to the United States. (Supposedly, this
rule is supposed to “prevent fraud,” because fraudsters are notoriously bad at reading calendars, or something.) Unfortunately, though not
surprisingly, a lot of people with asylum claims don’t manage to file on time. Most people in deportation proceedings don’t have attorneys;
many of them are traumatized; some of them may be sitting in immigration detention on the day of the deadline; their first-ever court hearings
after entering the U.S. may even end up being scheduled past their one-year anniversary; the application form is absurdly complicated and the
questions are all in English; etc., etc. You can try to file late, of course, but your application won’t be accepted unless you can prove some very
specific extenuating circumstances. According to a 2010 study, nearly one in five failed asylum applications were rejected by the court solely
because they were filed after the one-year deadline. Changing this rule would give a lot more immigrants access to the asylum process, and
No doubt there are numerous other boring,
save asylum lawyers a lot of time wasted writing one-year deadline memos.
wonkish policy changes of this kind that could be slipped into larger bills with comparatively little
fanfare. A more ambitious but indispensible short-term goal, which would have huge implications for the success of immigrants’ legal cases,
is getting guaranteed access to lawyers for immigrants in deportation proceedings. Because immigration is a “civil,” not a “criminal” offense,
people in immigration proceedings aren’t entitled to a lawyer. This is despite the fact that deportation is effectively a penalty of exile, which is
at least as severe as incarceration, and in some cases (for example, when the individual is being deported back to life-threatening violence)
even more severe. There are even restrictions on when federal legal aid funding can be used to aid non-citizens in immigration proceedings,
which means that the sorts of legal organizations that would typically try to provide pro bono assistance to immigrants are significantly
hampered in their ability to do so. My impression, based on my conversations with friends and family, is that the fact that immigrants have no
guaranteed access to legal representation is not widely known, even among liberals. The Democratic position should clearly be that if
deportation is on the table as a possible outcome, all immigrants should be guaranteed a lawyer. In the lead-up to this larger goal of universal
representation, if we can even manage to secure mandatory lawyers for certain classes of especially vulnerable immigrants—such as minor
children and people with diagnosed PTSD and other forms of mental illness—that would already make a significant difference. There have been
a number of bills before Congress proposing exactly this, but they have rarely made it past the committee stage. The Democratic Party needs
to start publicizing this as a major problem in our justice system, highlighting especially that the vast
majority of people in deportation proceedings have not committed any crimes , beyond simply existing in our
country without a specific piece of paper. It is also vitally, urgently important that Democrats begin calling for
legislation to end expedited removal, a process under which immigrants who cannot affirmatively prove
that they have been in the country continuously for the past two years may be immediately deported
from the U.S. with no opportunity to appeal their deportation in front of a judge. This egregious practice
—another unfortunate legacy of the 1996 immigration “reform” legislation signed by Bill Clinton—
regularly results in the deportation of, among others, asylum-seekers and U.S. citizens.
2ac
 2ac – T refugees
C/I Restrictions on legal immigration include raising quotas and changing terms of
admissibility for the five paths to LPR including asylum -
Tasoff, 16 - Certified Specialist in Immigration Law (State Bar of California Board of Legal Specialization)
since 1985 and has exclusively practiced immigration law for over 40 years. He was a past chair of the S.
Calif. Chapter of the American Immigration Lawyers Association (AILA) and is a partner in the Law Firm
of Tasoff and Tasoff (“Immigration Law After Trump” https://www.tasoff.com/Immigration-
Information/Immigration-Law-After-Trump.pdf

A Short Overview of Immigration Law. The Immigration

and Nationality Act1 (the “Act”) has four primary goals: family
unification, allowing skilled individuals to work in the U.S. while protecting the jobs of American workers,
refugee/asylee relief and diversity2 . With apparent simplicity, it divides all of humanity into U.S. citizens and noncitizens. Under
the 14th Amendment of the U.S. Constitution “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside.”3 Congress has additionally provided citizenship for certain children of U.S.
citizens born abroad. The Act then subdivides the class of noncitizens into immigrants and nonimmigrants.
Immigrants are people who are allowed to live and work in the United States permanently although there are
a myriad of ways to lose that status. Referred to in the Act as lawful permanent residents (LPR’s) they receive a noncitizen
registration card also known as a “green card”4 . Nonimmigrants Nonimmigrants are individuals who are allowed to
legally enter the United States for a temporary period of time to pursue specific goals or activities.
Nonimmigrant categories include visitors for pleasure or business, professional workers, treaty investors,
intracompany transferees and crime victims (and family members) who have suffered substantial mental or physical
injury who are willing to assist law enforcement (ex.: domestic violence victims). Please refer to the accompanying chart for a list of common
visas – including several that allow for employment authorization. Trump has nominated Senator Sessions to be Attorney General. He
has long been a legal immigration restrictionist and there is a possibility that several categories of nonimmigrant working visas will
be reduced or eliminated. In particular, the H-1B visa which is utilized by many high tech professionals to work in the U.S. Deferred Action and
Temporary Protected Status In
the last few years a third category of noncitizens has become prominent: those
legally allowed to temporarily stay in the United States for humanitarian reasons. This category includes
“temporary protected status” (TPS) and “deferred action for childhood arrivals” (DACA) status. Deferred
action status – a form of prosecutorial discretion – has long been part of immigration law and has been used by Presidents from
Eisenhower to Obama for various groups of noncitizens. Programs have included people who escaped from Cuba and El Salvadorians and
Guatemalans in the U.S. after Hurricane Mitch hit those countries in 1998. However the number of DACA recipients – also known as “dreamers”
- is now over 750,000. By definition, these are noncitizens that were brought to the U.S. before they turned 16 years old and have lived here
since June 15, 2010 and have no serious criminal record. Recipients are given employment authorization documents and the status can be
renewed every 2 years. Since this program was created by an Executive Order from President Obama it can just as easily be canceled by one
from President Trump. Quantitative and Qualitative Restrictions on Legal Immigration There are two barriers
stopping the masses from legally immigrating to the U.S. First there are quantitative
restrictions, quotas, which limit the
number of people who can come to the U.S. in any one category of eligibility or from a specific
country5 . Second, there are qualitative restrictions – people that Congress has determined should not be
allowed to live here due to a myriad of reasons ranging from criminal convictions and health issues to membership in terrorist
organizations6

[Footnote 6 Starts]

See section 212 of the Act for the grounds of inadmissibility – the rules that prevent noncitizens from
receiving visas and/or entering the U.S. Similar but different in significant ways, is Section 237 of the Act, the grounds of removal,
which allow DHS to remove people who are already in the U.S.

[Footnote 6 Ends]
. Although there are waivers for some grounds, most require a showing of extreme hardship to a close U.S. citizen or LPR relative. The
various categories of noncitizens that Congress has given a path to LPR status can be basically broken
down into five groups: family based immigration, employment based immigration, refugees/asylees,
investors and successful applicants to a “diversity” lottery selection process. See the accompanying Chart for
more details regarding the family and employment based categories. There is a multitude of ways that a noncitizen, including a LPR, can
become subject to removal or barred from reentering the U.S. after a trip abroad. The most common reason is a criminal conviction. However,
some of the grounds of removal found in section 237 of the Act apply to activities that are not so serious, especially for crimes involving
controlled substances (including marijuana), firearms and domestic violence. For instance, the violation of a civil protective order is considered
a removable offense. Even the act of remaining abroad for over one year continuously may result in “abandonment” of LPR status and
confiscation of a noncitizen’s green card. For LPR’s, the discovery of a removable offense might occur when the person is arrested and booked
for any offense and a fingerprint check reveals a criminal record. Others, after traveling abroad without incident for many years, find out upon
being routinely inspected at an airport that CBP official have access to new data bases. And others are caught upon applying for naturalization
or renewal of their green cards which like passports expire every 10 years.

Specifically process of receiving LPR is T

Deardoff, 1 – US Census Bureau staff (Kevin, “Evaluating Components of International Migration:
Estimates of the Foreign-Born Population by Migrant Status in 2000”
https://census.gov/content/dam/Census/library/working-papers/2001/demo/POP-twps0058.pdf

The Immigration and Nationality Act defines legal immigration as the process by which a non-citizen of
the United States is granted legal permanent residence. A non-citizen with legal permanent residence
status may remain in the country, be employed, travel freely, and seek naturalization to become a U.S.
citizen. Legal immigrants, as categorized by the Census Bureau, include new arrivals to the United
States, people adjusting their migrant status to legal permanent resident (including Special Agricultural
Workers (SAWs) and pre-1982 entrants (LAWs)), asylees, and refugees (Perry et al., 2001).

Passel and Fix doesn’t assume IRAIRA which entirely changed the system
Lind, 16 – Senior Reporter for Vox who has covered immigration in some form for about a decade
(Dara, “The disastrous, forgotten 1996 law that created today's immigration problem”, Vox, 4-28-16,
https://www.vox.com/2016/4/28/11515132/iirira-clinton-immigration)//mba-jah
What '90s immigration reform did: made more people deportable and fewer people legalizable There was no single provision of the 1996 law
that was as dramatic as the 1986 "amnesty" law, signed by President Reagan, which is why he gets credit for the last major immigration reform.
But the
'96 law essentially invented immigration enforcement as we know it today — where
deportation is a constant and plausible threat to millions of immigrants. It was a bundle of provisions with a single
goal: to increase penalties on immigrants who had violated US law in some way (whether they were unauthorized immigrants who'd violated
immigration law or legal immigrants who'd committed other crimes). Most
immigration wonks call the 1996 law IIRIRA
(pronounced "Ira-Ira") — and it's far from beloved by them. Here are some of their most significant complaints: More
people became
eligible for deportation. Legal immigrants — including green-card holders — can be deported if they're
convicted of certain crimes (which cover a broad umbrella of offenses, some of which aren't violent). But in 1996, Congress
radically expanded which crimes made an immigrant eligible for deportation. And they made these
changes retroactive. "Overnight," says law professor Nancy Moravetz of NYU, "people who had formed their lives here — came here
legally or had adjusted to legal status, were working here, building their families, had ordinary lives in which they were on the PTA and
everything else — suddenly, because of some conviction, weren't even allowed to go in front of a judge anymore. They were just fast-tracked to
deportation." It
got easier to deport people. Immigrants convicted of crimes weren't the only ones stripped
of the ability to argue their case before a judge before getting deported. So did anyone apprehended
within 100 miles of the border. And IIRIRA required the government to hold more immigrants in
detention before deporting them — making it substantially harder for them to get lawyers. These
changes drastically reduced the amount of leeway that immigration judges and the executive branch
had to exercise discretion in whether or not to deport an immigrant. "Discretion was taken away from district
directors and immigration judges almost entirely," says Doris Meissner, who was head of the Immigration and Naturalization Service at the
time. "And so deportations started to go up, people were deported who otherwise would not have been deported." The change to the
law was so drastic that after a high-profile deportation of an immigrant over a minor crime led to
public outcry, Republican members of Congress — including the lead author of IIRIRA — wrote the
Clinton administration asking them to back down. It got a lot harder for unauthorized immigrants to
"get legal." For much of the 20th century, it was possible for at least some unauthorized immigrants to obtain legal status once they'd been
in the US for a certain amount of time. Before 1996, for example, immigrants who'd been in the US for at least
seven years could get legal status as long as they showed it would cause them "extreme hardship" to get
deported. These standards weren't easy to meet. But IIRIRA made them essentially impossible. It limited
"cancellation of removal" to immigrants who'd been in the US for at least 10 years. Instead of having to show that the immigrant herself would
suffer "extreme hardship" if she was deported, she'd have to show that a US citizen (like her spouse or child) would suffer "exceptional and
extremely unusual hardship." The simple fact that the family would be separated if she were deported wouldn't count. And the US could only
grant this to 3,000 immigrants each year. That
essentially eliminated an existing back door to legal status. But
IIRIRA did even more. It locked a front door to legal status, too. Marrying a US citizen or permanent resident makes
you eligible to apply for a green card. So does having an immediate relative who's a US citizen (like a child), as long as the citizen's over 18.
These are true whether or not you already live in the US. And before IIRIRA, it was true regardless of whether or not you were legal to begin
with. Starting after IIRIRA passed in 1996, though, an unauthorized immigrant couldn't directly apply for legal status — even if he had married a
US citizen, or qualified for a green card through a relative. Immigrants were banished for at least three years if they'd lived in the US without
papers for six months; the banishment lasted 10 years if the immigrant had lived in the US without papers for a year or more. You could waive
these bars if you could show that your spouse or child would suffer "extreme hardship" — but you had to leave the country to do it, triggering
the ban before you found out if you'd gotten the waiver. Many immigrants understandably felt it wasn't worth the risk. The provision became
known as the "3- and 10-year bars" — a technical-sounding term that is so widely known and reviled among immigrants that Hillary Clinton
uses it in stump speeches. This
law laid the framework for modern spikes in deportation "I don't think people
fully appreciated what those laws had done," says Nancy Morawetz, referring to both IIRIRA and the other 1996
laws that affected immigration. In some ways, they're "still being sorted out today." But one effect
was clear: After IIRIRA, deportation from the United States went from a rare phenomenon to a
relatively common one. "Before 1996, internal enforcement activities had not played a very significant
role in immigration enforcement," sociologists Douglas Massey and Karen Pren have written. "Afterward, these activities
rose to levels not seen since the deportation campaigns of the Great Depression." This particular law was passed
during an era where Congress and the Clinton administration were both working to increase the amount of spending and agents on the US–
Mexico border. And
after 9/11, the way the federal government handled immigration changed in two major
ways. The bureaucracy was reorganized — and moved from the Department of Justice to the
Department of Homeland Security. And the funding for immigration enforcement got put on steroids.
The combination of those gave rise to what Meissner and the Migration Policy Institute have called a "formidable machinery" for immigrant
deportations — a machinery that took the US from
deporting 70,000 immigrants in 1996 to 400,000 a year though
the first term of the Obama administration. But that machine was built on the legal scaffolding of the options IIRIRA opened
up. "Both of those things have had so much more force because of this underlying statutory framework
that they were able to tap into," says Meissner. In retrospect, "it was sort of a perfect storm."
 2ac – Settler colonialism
the border’s enforcement criminalization regime is a manifestation of settler
colonialism and antiblack technology – universal categories fail to explain continencies
Paperson 17 La, also K. Wayne Yang, an associate professor of ethnic studies at the University of
California, San Diego. “A Third University Is Possible” June 2017.

The “slave” describes how blackness is transfigured into enslavability and murderability. The “slave”
should not be analyzed as a category of labor that “reduces Blackness to a mere tool of settlement”
but rather as an ontology of total fungibility and unending property constitutive of the very world
order of settler colonialism.[15] That is, the logic of racial capital creates an indefinite being of property
to be exchanged, to be shipped or stored, to be parted out, to be disposed. The technologies of
antiblackness create ontological illegality or criminal presence, landlessness, lethal geographies,
carceral apparatuses, trafficking and abduction, nonpersonhood, and so on. Obviously, technologies of
antiblackness circulate onto non-Black bodies. In a U.S.–Mexican borderland context, for example, we
see the condensation of antiblack and anti-Indigenous technologies to dispose of brown bodies and to
create frontier space—a militarized zone of policing and death. In North American ghetto contexts, we
see the wide-scale application of antiblack technologies upon whole communities who can be of mixed
ethnicities. However, one incomparable technology of antiblackness is the production of the Black body
as in itself the preeminent site for antiblackness.[16] Whereas settler technologies can focus on space,
and technologies of Indigenous erasure can focus on land, technologies of antiblackness have a
corporeal priority. Technologies Are Trafficked Thinking about technologies moves us a little bit out of
the trap of thinking about specific identities as well-defined colonizers or as the fixed targets of
necropolitics. Instead, we can see the transit of empire as involving a commute of technologies and a
translation of ideologies and logics—a moving cross hair. This is also why we can analyze the
technologies of whiteness, antiblackness, and Indigenous erasure in contexts where there is no
apparent white colonizer or phenotypically black person, or ostensibly where “everyone is
indigenous” to a country. Technologies of land dispossession are in wide circulation today even in
places where we do not see white settler emplacement. For example, the privatization of land in China
employs settler colonial technologies, creating indebted dispossessed people by erasing any pre-state
land rights. Indeed, Mao Zedong claimed that Indigenous peoples’ rights were irrelevant in China,
because the revolution resolved all such dilemmas. In China as well as in Mexico, revolutionary
nationalisms claim innocence from colonial processes by claiming a “new future starting now”—
conveniently ignoring that its revolution is predicated upon nation-state technology. In Mexico, the
concept of mestizaje was transfigured by Mexican neocolonial statecraft into a universal transcendental
race, by such luminary statebuilders as José Vasconcelos. In such cases, the settler nation appropriates
indigeneity to manufacture a national “ethnicity” that serves dual ends of Indigenous appropriation
domestically and a way of exporting a distinct, national “tradition” abroad. Stating that “all of us”
Mexican nationals are Indigena en parte is another way of saying that your Indigeneity is not special,
that none of you are truly Indigenous anymore. In South Korea, where ostensibly all Koreans are
“indigenous” to the peninsula, we witness Indigenous displacement in the logic of neoliberal expansion :
the people are increasingly removed from their ancestral homelands and plugged in to the growing
South Korean transnational corporate machinery.
You should consider settler colonialism a set of technologies not a monolith – radical
pragmatism solves the K better
Paperson 17 la, also K. Wayne Yang, an associate professor of ethnic studies at the University of
California, San Diego. “A Third University Is Possible” June 2017.

The scyborg’s medium is assemblage. When we take assemblages seriously as both analytical of power
and as the medium for it, then the question becomes, how do you hack assemblages? The scyborg is a
sculptor of assemblage—s-he splices one machine to another, de/links apparatuses from/to one
another, places machines to work in making new machines, disassembles and reassembles the machine .
The scyborg can connect Black radical thought to the paper-producing academic–industrial complex
and set the print command to “manifesto.” The scyborg is like R2D2 in the Death Star, opening escape
tunnels, lowering and raising doors to new passageways, making the death machine run backward,
and ultimately releasing the plans for its destruction. The scyborg is an artist in the un/patterning of
relations of power.[19] The scyborg loves dirty work.[20] Scyborgs do not care whether the assemblage
they are retooling is first, second, or third world. Categorical thinking is not the point. Nothing is too
dirty for scyborg dreaming: MBA programs, transnational capital, Department of Defense grants.
Scyborgs are ideology-agnostic, which creates possibilities in every direction of the witch’s flight—not
just possibilities that we like. This is why some of you are not always decolonial in behavior. Thankfully, your newly assembled
machine will break down. Some other scyborgs will reassemble the busted gears to drive decolonial
dreams. To dream it is to ride the ruin. Scyborgs are creating the free university. Scyborg desires are
connecting the neoliberal motor that drove President Obama’s campaign for tuition-free community
college to antipoverty organizing and to critical education. One of the interesting ways this is being
done is by connecting free universities to the rhetoric of democracy and citizenship. Democracy is not
decolonization. Democratization will expand, at best, the normative class of citizens through
reinvestments in settler colonialism and new articulations of antiblackness . However, “democracy” as
a discourse was also ready material for assemblage, a gear to attach to build the free university. The
dream of universal education is born from the reality of exclusive schooling. This dream may shift as
educational expansion creates new imbalances, such as inflated credentials, the devaluing of
unschooled knowledge, new gaps between educational training and employment, or gaps between the
trained workforce and the available supply of jobs. However, in building the free university assemblage
and watching it fall apart, perhaps something unpredictable will come of its ruin. As to what, and
whether the free university will be decolonizing, will be answered in scyborg assemblage. To be very clear, I
am not advocating for rescuing the university from its own neoliberal desires but rather for
assembling decolonizing machines, to plug the university into decolonizing assemblages. Close to my heart,
Roses in Concrete Community School opened its doors in 2015 in Ohlone, what some call Oakland,
California. This school is part of a larger self-determination project for a mostly Black and Brown
community, in which we hope for a pre-K–16 educational institution, community-based economies,
and land.[21] Also in 2015, also in what is now called Oakland, longtime Indigenous educators and
activists Corrina Gould (Chochenyo/Karkin Ohlone) and Johnella LaRose (Shoshone Bannock) created the first women-led
urban Indigenous land trust built upon “the belief that land is the foundation” that can bring all peoples
together in “the return of Chochenyo and Karkin Ohlone lands . . . to Indigenous stewardship.” Sogorea Te’
Land Trust also reworks Western concepts of “land tax,” nonprofit status, and inheritance.
Decolonizing land relations is the heart that reworks this machinery. Sogorea Te’ not only calls on but indeed provides an
avenue for people living in Ohlone lands “to heal from the legacies of colonialism and genocide, to remember
different ways of living, and to do the work that our ancestors and future generations are calling us to
do.”[22] Nearby Roses in Concrete is an abandoned U.S. Navy base the size of a small town. California community colleges are talking expansion, while the
tuition-free college movement had nearly found a federal reality under President Obama. A scyborg might connect these pieces—might imagine how the

machines of freedom schools and free community colleges could purchase land, land that could
become part of an Indigenous land trust. Roses in Concrete has a sister school in Aoteroa that
originated from a Māori bilingual program Te Whānau o Tupuranga (Centre for Māori Education) and
Fanau Pasifika (Centre for Pasifika Education), which became a school in 2006 and then became Kia
Aroha College in 2011. Similar to Roses, Kia Aroha College is built on a holistic “scholar warrior” culture that developed the school over twenty-five
years into a “culturally-located, bilingual learning model based in a secure cultural identity, stable positive relationships, and aroha (authentic caring and love).”[23]
This craft of creating Indigenous space in an urban colonial context requires a constant rearrangement
of settler law, Indigenous rights, state educational ministry systems, built schooling environments,
and community systems of Indigenous education. Furthermore, these associations between school
makers in Māori/Pasifika and in U.S. ghetto colonial contexts produce new shared scyborg flight plans.
These technologies are driven and repurposed by scyborg desires. Where I am now, on Kumeyaay land at UC San Diego,
we are at the confluence of the engineering apparatus, the naval and sea industries, the U.S.– Mexican
border, the white utopian project of Black exclusion, the settler project of Native disappearance, the
transnational project of international (read model Asian) recruitment . Scyborgs might reorganize these
technologies into third university organisms with decolonizing programs: a project of water, a project
of transnational/Indigenous solidarity, a project of Black assertion, a project of islands. As I write, Eve
Tuck and K. Wayne Yang (my other I) are supporting a collective of collectives, the Land Relationships Super Collective, that connects

different land-based movements across North America with one another to share strategies,
resources, learnings, and so on. As Eve and I are both university professors, the university plays into this as an
institution that must be refused, and yet also as an organism, an assemblage of machines, that we can
make work, make space in, make liquid enough to allow us to contribute to land rematriation projects
directly. The third world university will be built by scyborg labor. This is not a revolutionary call for
scyborgs of the world to unite. This is a call to gear-in and do the dirty work of desiring machines.
Through desires’ dirty work, we might recommission these first world scraps into a third world
machine.

The alt’s autonomous project fails causing fill in—rights aren’t inherently exclusionary
and can be transformative
King, 16—has been active in campaigning for refugee rights and against border controls for over a
decade, has taught at the University of Nottingham and worked as a caseworker with the British Refugee
Council (Natasha, No Borders: The Politics of Immigration Control and Resistance pg 39-42, dml)

But to what extent are these experiments in autonomy ever entirely autonomous? In response to Richard Day’s
book on the newest social movements, Richard Thompson argues that it’s unrealistic to talk about creating wholly
autonomous social structures because ‘[t]he second they’re consequential is the second they’ll be
noticed [by the state]. At that point, it becomes impossible to break the cycle of antagonism by will
alone. They will come after us’ (Thompson n.d., emphasis added). In other words, experiments in autonomy are rarely
(if ever) entirely free from a relation to the state, or from state antagonism, and we are rarely able to ignore
that antagonism. We may antagonize the state, but we are forced also to respond to the state, as a
form of self-defence. This has happened time and time again, from the steady illegalization of
squatting in Europe, and the tightening of laws around private property, to the infiltration by the CIA
of the Black Panther movement, to the struggle between the Zapatistas and the Mexican state. We see
this in the struggle for the freedom of movement when, continuing with the examples above, the EU employs Frontex special missions on the
Turkish/Greek borders, or when the living spaces of people without papers are raided or destroyed.

Whether people have been forced to, or they have seen it as the best strategy , the history of struggles
for liberation has been one that included demands on the state. Often this has taken the form of
engagement in a politics of rights and/or recognition. From the movement of the Sans Papiers in France, to ‘a Day without
Migrants’ in the USA; from campaigns that fight against the detention and deportation of people without
papers, to struggles against police violence, resistance through forms of visible collective action have
been central to struggles against the border. In most cases such struggles have made demands on the
state, particularly through seeking recognition as a group, and through making claims to rights. But to
what extent are demands for rights and/or recognition part of a no borders politics?

Demands for rights and recognition have played a big part in the struggle for the freedom of movement. Yet there has been a long history of
criticism over the politics of citizenship. Rights claims, for example, have been seen as essentially reinforcing the
role of the state as the benefactor and grantor of rights, and reinforcing the notion that rights
represent entitlements applicable to those who fit certain descriptions of being a human (cf. Arendt 1973
[1951]; Barbagallo and Beuret 2008; Bojadžijev and Karakayali 2010; Elam 1994). From this perspective, demands for rights and
representation amount to disputes over the allocation of equality and therefore can only ever achieve a redistribution of that equality, rather
than undermining the idea that equality is somehow qualified in the first place. As Imogen Tyler says, ‘ [c]itizenship
is a famously
exclusionary concept, and its exclusionary force is there by design. The exclusions of citizenship are
immanent to its logic, and not at all accidental. Citizenship is meant to produce successful and
unsuccessful subjects. Citizenship, in other words, is “designed to fail”’ (Tyler, quoted in Nyers 2015: 31).

Similar variations of this critique have appeared in the autonomy of migration debate. Representation
can also be thought of as
a bordering technology that seeks to pacify and discipline expressions of autonomy (or attempts at escape)
(Papadopoulos et al. 2008). In other words, the politics of citizenship is problematic because it only ever brings
people into the state. ‘Of course migrants become stronger when they become visible by obtaining rights, but the demands of migrants
and the dynamics of migration cannot be exhausted in the quest for visibility and rights’ (ibid.: 219).

I have a lot of sympathy with these arguments , and because of them am extremely suspicious of a politics of citizenship. But
when it comes to actual practices of struggle against the border, a resolute stand against such
strategies seems naïve, and insulting to those who have taken part. Migrant-led struggles have often
been claims for rights, and ultimately I don’t want to dismiss such practices because they are
philosophically problematic. In fact, sometimes to appeal to rights or recognition is the only available
strategy in situations of extreme vulnerability, where people’s options are highly limited. Recognizing
that we are in relations of power right now means also recognizing that our situation is imperfect and
that we have to struggle in our (imperfect) reality. Youssef, a long-time activist for the freedom of movement in Greece,
himself of North African descent, talked about the need for pragmatism in tactics; that sometimes we must engage with the
state in order to bring about greater freedoms now. ‘Today, in Creta, in Chania, they will catch five people. How can I take
them from the jail? I have something in the police station, OK. I have to talk with them today. OK? But tomorrow I can fuck him. He’s not my
friend. He’s not my comrade. OK. We are talking today. Tomorrow we are fucking’ (interview, Youssef). His statement reflects how many
practices that refuse the border often come out of necessity. In other words they’re rarely part of some intentional or ‘noble’ act to become a
rights-bearer, say, and more often pragmatic decisions based on the need to alleviate immediate situations of oppression.

A no borders politics seeks to go beyond claims to representation and rights that ultimately stand to
reinforce the state. But claims to representation and rights can sometimes do this too. Building on Foucault’s
idea that power can be both positive and empowering or negative and dominating, Biddy Martin and Chandra
Mohanty suggest that fighting oppression involves seeing power in a way that refuses totalizing visions of it
and can therefore account for the possibility of resistance , as in creating something new, within existing power
relations (Martin and Mohanty 2003: 104). Suggesting that representation only ever brings people into power
therefore means rejecting a vast range of moments when the oppressed have voiced their refusal to be
reduced to non-beings outside of politics (Sharma 2009: 475). In other words, resistance is not only or always a reaction to the
constraining effects of dominating power, but can also express power as something positive and liberating. From the Black Panthers
to the Sans Papiers, demands for representation, when carried out by minority groups for themselves, can challenge
the role of dominant power over that group and create new, emancipated subjectivities (Goldberg 1996;
Malik 1996). Depending on who it is that acts, then, in some cases demands for recognition/rights can be a radical and
transformative political act (Nyers 2015. See also Butler and Spivak 2007; Isin 2008; Nyers and Rygiel 2012). As Nandita Sharma
suggests, in response to Papadopoulos et al.’s book Escape Routes,

we must recognise that making life and fashioning our subjectivities are intimately intertwined and making ‘new social bodies’ … is not the
same as bringing people back into power through identity politics (or identity policing). It is important to recognise that there are significant
qualitative differences between subjectivities. There are those that Papadopoulos et al. rightly discuss as bringing us directly back into power –
and which account for most of the subjectivities that people hold today (‘race’, ‘nation’, ‘heterosexual’, ‘homosexual’, ‘native’ and so on) – but
there are also those that are born of practices of escape. (Sharma 2009: 473, emphasis in original)

The atrocities at the border demand political organizing – details and empathy key
Rennix, 17 – Senior Editor of Current Affairs, works in immigration law (Brianna, “CAN WE HAVE
HUMANE IMMIGRATION POLICY?”, 10-30-17, Current Affairs,
https://www.currentaffairs.org/2017/10/can-we-have-humane-immigration-policy)//mba-jah

This is a depressing time to be an immigrant in the United States. In the White House, we have a fickle
narcissist surrounded by a volatile rotating cast of xenophobes, nativist populists, and homeland security
hawks. In Congress, we have an Ayn Rand-style Republican wing that despises the poor generally, and the immigrant poor especially: and,
spearheading the efforts against them, the most ineffectual and untrustworthy Democratic leadership imaginable. The Democrats have been
screwing up on immigration for decades, and they’re showing no signs of changing course now. Their playbook on immigration, with some
minor variations, has always gone something like this: Republicans propose something completely demented and inhumane re. immigration.
Democrats ask for something slightly less demented and inhumane. Republicans refuse. Democrats offer to increase border security.
Republicans agree to the slightly less horrifying version of their original plan, plus border security. Democrats hail this as a political victory, and
hint that their willingness to compromise will pave the way for more substantive immigration reforms in the future, which IT NEVER, EVER
DOES. This dreary pantomime has repeated itself over and over throughout the Clinton, Bush, and Obama years. Time after time,
Democrats have agreed to more border security and gotten virtually no concessions in return. We see it
happening again now: Trump has proposed to build a gigantic, impenetrable border wall, slash refugee
admissions, and revoke protections for the Dreamers, the single-most sympathetic and least
controversial group of immigrants in the country. A more absurd and gratuitously cruel set of
immigration proposals is hard to imagine. So the Democratic congressional leadership sat down with
Trump, schmoozed him a bit over Chinese food, and, in exchange for a vague promise to “enshrine DACA protections
in law”—which, taken literally, could well leave the Dreamers still vulnerable to deportation and without any path to citizenship, as is the
case under the current DACA executive orders—agreed to more goddamn border security for the billionth time. They say they won’t allow “the
wall” to be built, of course, but what they will end up agreeing to is likely to be even worse: aerial drones and motion sensors, a more heavily-
armed Border Patrol, more and more immigration jails along the border. Hearing
Schumer and Pelosi crow about this “deal”
as a “major victory”—assuming Trump even follows through with it—is infuriating . To put it in biblical terms, the
Democrats are constantly selling their birthright for messes of pottage, and then shamelessly standing in front of reporters in their pottage-
smeared bibs, bragging about how they finished all of their supper. But just because things are dismal now doesn’t
absolve us of our responsibility to plan for the future. How would we change our immigration system,
if we ever had a competent Democratic leadership? We hear a lot of talk about “comprehensive immigration reform,”
but not much about what the substance of the reforms would be. Historically, “comprehensive immigration reform” as
advertised by Democratic lawmakers, has entailed beefed-up border security, status for Dreamers, and some squishily-defined “amnesty”
(which may or may not include a “path to citizenship”) for certain other undocumented people who are currently present in the U.S. Up till this
point, we’ve done a remarkable job with the border security piece, and made virtually no progress with the other two goals. It’s very clear that
we must decisively abandon this bargaining model. Increased militarization of the border and more enforcement in the interior is in no sense a
reasonable trade-off for “amnesty” for undocumented people who entered after an arbitrary cutoff date. That vague promise of “amnesty,”
moreover, is just kicking the can down the road. Every
single day, hundreds of people are crossing our land borders
without documentation; every day, hundreds more are overstaying their visas. That’s the reality. So long
as factors like violence, poverty, and family separation exist, people will continue trying to come to the
U.S., and everyone who arrives after the amnesty cut-off date will be in the same situation as the
undocumented population now. We need real reforms that won’t need to be redone again in ten
years, that address the reality of how immigration flows actually work. To do this, we need to think
strategically about the problems in our current system, how to humanely fix those problems,
and how to rally voters and legislators to care about the issue. This means getting left-leaning voters to
understand why the “enforcement plus amnesty” model of reform, which sounds superficially reasonable to the uninformed, is actually a very
bad idea. In a forthcoming series on the Current Affairs website, I’ll be putting forth ideas about some concrete immigration policy proposals
that I think the left should consider rallying behind. Here, I want to talk more generally about how we might change the public conversation
around immigration. My belief is that any
immigration strategy that aims to be durable in the long term must
make genuine attempts to win over at least some groups of presently immigration-anxious voters.
This means taking seriously—up to a point—the instinctive objections that some people have to less
restrictive immigration policies. There are, of course, a number of people who object to immigration for
purely racist reasons, or because of totally irrational and baseless fears. There are also people who
object to immigration for motives that are reasonable, or at any rate sound reasonable. Some of these
people can be swayed, and we must attempt to sway them: not by making political concessions to their
fears, but through good old-fashioned persuasion, and appeals to human decency. GETTING ON THE SAME
PAGE: what is the actual purpose of regulating immigration? To many people, the idea that the government would regulate immigration is self-
evident: of course you would need to make sure people weren’t just wandering in and out of the country whenever they pleased! To
immigrants and immigration advocates who see on a daily basis what “regulation” looks like up close, feelings about this general mandate are
much more troubled. But it’s certainly true that there’s little point in romanticizing the long millennia of human history when borders were
effectively nonexistent. We are a pretty bloody species, and our annals are filled with tales of invasion, and migrations that morphed into
invasions, and the subjugation of people with fewer resources, or more scruples, by enemies with bigger weapons who gave fewer damns. At
the same time, to the extent that these atrocities happened more frequently in the past, it’s difficult to say that this was because there were
fewer borders: there were a hell of a lot of other factors in play. In reality, it
seems far more plausible that the ability to
closely police borders and control migratory flows are a result, not the cause, of a nation’s surplus
wealth and internal stability. The intensity of regulation and monitoring of immigration that we see now
in the United States is certainly unprecedented in our history. Nonetheless, borders are not going away
anytime in the near future, and so we must deal with them. They are not all bad, necessarily. We can
posit two reasonably humane purposes for the existence of regulated borders. One is purely
administrative: borders define the particular unit of geographical space that a national or subnational
government is responsible for, and so it’s important to have some idea of who is living in which territory
at any given time. The second purpose is defensive: a border is the logical place where you would repel
an aggressor. From these uses, we might posit two compelling reasons to restrict entry across a border.
One would be if the state of internal affairs in your territory was so dire that additional population might
trigger some kind of societal collapse. Another would be if you had convincing reason to believe that the
person seeking to enter your territory intended to physically harm somebody within your borders.
Obviously, these are speculative and subjective assessments, and would always need to be argued over;
even in the best of all possible immigration systems, civil liberties watchdog groups would be needed to
keep an eye on how any standards relating to these two purposes were being applied. But what’s the point of
talking about the purposes of borders in such an idealized and abstract way, you might ask? After all, there’s little immediate
prospect of our throwing out our existing immigration system in its entirety and creating a new one
from whole cloth. Nonetheless, it’s important to rhetorically highlight the legitimate goals of immigration regulation. The reasons why
many people believe that immigration regulation is obviously necessary are tied to fears, which, if they were plausible—and in some contexts
they are—would be legitimate reasons to restrict immigration. Armed invasions, terrorist massacres, and sudden economic collapse are all be
very bad outcomes, and if there were ready means of preventing them, any sensible polity would do so. This is why appeals for a “strong
border” sound inherently reasonable to many people. One
task of anybody seeking to craft better immigration policies,
therefore, is to treat these public fears both seriously and realistically. This will then give us more
credibility when we attempt to demonstrate that the vast majority of our current immigration policies
are actually geared towards restricting the movements of peaceable people, forcibly removing people
from their homes, and ripping people away from their families and shipping them across the globe. When
it comes to the thornier problem of how to deal with would-be immigrants who seem as if they might be dangerous, or who, having entered
the country, have committed some kind of violent crime, it’s
much better to direct the debate towards figuring
what policies would actually be practically effective in averting future violence—and publicly
acknowledging the fact that violence in countries besides the U.S. is something we must care about,
from both a moral and a global security perspective— rather than getting sidetracked into
metaphysical questions about whether the person has the “right” to be in the U.S. or not .
BUILDING A VOTER BASE THAT SEES PROTECTIONS FOR IMMIGRANTS AS A MORAL IMPERATIVE Immigration is an especially difficult issue to
develop an organizing strategy around, because most immigrants—and certainly the most vulnerable classes of immigrants, for whom
deportation is a constant threat—cannot vote. Among those immigrants who can vote, there’s a wide diversity of cultural and class
backgrounds, meaning that their opinions on an optimum immigration policy might differ widely. Naturalized citizens who came to the U.S. by
“legal” means often have limited sympathy, or even hostility, for immigrants who came here “illegally”; and naturalized citizens may favor
increased immigration by certain groups of people (say, white-collar professionals), but not others (say, poor people with limited education).
Political commentators often try to use massive, vaguely-delineated census categories like “the Latino vote” as a proxy for the number of
people in the U.S. who are likely to treat a liberalized immigration policy as a primary voting concern, but this is a crude approximation at best.
(Note, for example, that “the Asian vote” is never used as a proxy for a pro-immigration vote, even though there are just as many immigrants in
the U.S. who hail from “Asia” as from “Latin America.”) Not all people who self-describe as “Latino” are interested in less restrictive immigration
policies—nearly 30% of Latinos voted for Trump, and at least 50% of the Border Patrol is Latino—and even among those who are, there’s likely
to be further diversity of opinion about which sorts of immigrants these policies should favor. Non-votingimmigrants can, and do,
organize on their own behalf, but since they’re not a voting constituency, their ability to apply pressure
on their legislators is even more limited than an average citizen’s. Working-class undocumented people
theoretically have a lot of power, because so many of them work in areas like agriculture, construction,
and domestic labor, where their loss would be quickly felt if they all went on strike— but organizing
strikes on a national scale, when people are living under threat of deportation, is extremely hard .
Ultimately, if there’s to be any hope of meaningful reform, more voting U.S. citizens—who, at the very
least, need not worry about being whisked off to another country at a moment’s notice—must join
the cause. So how do we get more voters to support good immigration policy, or at any rate, not actively oppose it when it’s on the table? I
think a big part of our approach ought to focus on working to generate more public empathy for the
most vulnerable immigrants: namely, people fleeing violence and extreme poverty, and
undocumented people, especially the undocumented poor. Creating empathy isn’t merely a stratagem
to get people behind immigration reform in the short term: we must realize that no legal reforms will
be durable unless they are accompanied by a real attitudinal shift on immigration. Immigration policies can be
changed rapidly, and enforcement can be arbitrary, so immigrants will continue to be easy scapegoats for economic and social ills if we don’t
make a serious attempt to push back against the mentality that differentiates people’s worth based on their place of birth. The U.S.’s legally
irreproachable prerogative to manage its immigration policies in its own interest has produced morally monstrous results. Our deportation
policies have destabilized entire countries, and resulted in the deaths or permanent exile of real human beings, many of whom are the parents,
spouses, and children of current inhabitants of the U.S., who may be our neighbors, coworkers, employees, or friends. Our immigration system
is bewilderingly byzantine, and the significant majority of the U.S. population whose lives are not directly impacted by immigration laws know
almost nothing about them. My own observation is that many people who are strongly in favor of restrictive immigration policies are
unreflective individuals with a strong reverence for rule-following in the abstract. Asked to explain their views, they frequently fall back on stock
phrases like “well, we can’t help everyone” or “we’re a nation of laws.” To some extent, this mindset can be disrupted by correcting people’s
erroneous assumption that our immigration laws make any damn sense. For example, many Americans mistakenly believe that it’s possible for
an ordinary, law-abiding person to immigrate to the U.S. if they simply fill out the correct paperwork, or that undocumented people
apprehended in the U.S. can avoid deportation by showing good character. One highly-circulated news story in the wake of the 2016 election
described the deportation of an undocumented immigrant named Roberto Bernstain, whose U.S. citizen wife and friends had voted for Trump,
and were shocked when Roberto was subsequently targeted by ICE. These are people who might have been persuaded to vote differently if
they had had a better command of the facts, if they had realized that there is very little mercy in the law for undocumented people, no matter
how good a husband you are, or how much your children love you, or how long you’ve held down your job. For other people, however, who
have little direct contact with immigrants, these kinds of facts won’t have much personal context and are less likely to be compelling. Somehow,
we need to find ways to make the struggles faced by immigrants feel real to non-immigrants. Creating relationships within communities
between immigrants and non-immigrants can be effective. I’ve known several quite conservative people to take a sharp left turn on
immigration because they lived and worked closely with undocumented people who became their good friends. For people who are already
vaguely-disposed to favor less-restrictive immigration policies, but simply haven’t given the issue very much thought, they are likely to need
even less of a nudge. Figuring out how to foster more face-to-face interactions between immigrants and non-immigrants is something that can
be done on a municipal, even a neighborhood level; good strategies are best worked out by people operating on a local scale who know their
neighbors and what appeals they are likely to respond to. Film and narrative are also meaningful ways to create emotional engagement. Most
people have hearts that can be touched, especially where, say, children are concerned. My feeling about left rhetoric in general is that we need
to talk about children a lot more—the sooner everyone drops the hip cynical posery and goes into full-throated Save The Children mode, the
better. We should all be yammering ceaselessly about children separated from their parents by deportation policies, children being torn from
their homes and sent to countries they don’t even remember, children being picked up at the border and locked in detention centers, children
who are trapped in violent homes while their relatives in the U.S. desperately try to send for them. There
appears to be a real
pessimism these days about our ability to change each other’s minds. But I don’t think we’re trying
very hard, honestly. Facts certainly have an important place; but narrative and emotion are equally
important. Most people want to think of themselves as good people. The trick is getting them to
realize that a good person could not do otherwise than care about the plight of vulnerable
immigrants.

Reject settler colonialism as a structural analytic --- forecloses an analysis of dynamic

and contingent relations that elide its binary
Manu Vimalassery 16, Assistant Professor of American Studies at Barnard College, Juliana Pegues,
Alyosha Goldstein, “On Colonial Unknowing”, Theory & Event, 19(4),
https://muse.jhu.edu/article/633283

The theorization of “settler colonialism” is indicative of these tensions. Activists and academics have increasingly taken up
settler colonialism as an analytic to address the particular ways in which colonialism operates and persists in places such as Canada,
Australia, New Zealand, and the United States, as well as Israel/Palestine. To a considerable extent, much of the work that has recently become
associated with settler colonial studies has already been underway in Native American and Indigenous studies, as well as other fields including
ethnic studies and colonial discourse studies. Our contention is that the particular ways in which settler colonialism has
assumed predominance as an analytic risks obscuring or eliding as much as it does to distinguish
significant features of the present conjuncture .22 Indeed, we suggest that when settler colonialism is deployed
as a stand-alone analytic it potentially reproduces precisely the effects and enactments of colonial unknowing that
we are theorizing in this introduction. Approaches to the analysis of settler colonialism, as isolated from
imperialism and differential modes of racialization , are consequences of the institutionalization of this work as a distinct
subfield, which is claimed and consolidated through analytic tendencies that foreclose or bracket out interconnections and
relational possibilities. Settler colonial histories, conditions, practices, and logics of dispossession and power must necessarily be
understood as relationally constituted to other modes of imperialism, racial capitalism, and historical formations of social difference. The key
insights of settler colonial studies into the particularity of settlement as a manner of colonial power have also led to a tendency to focus
on this distinction as constituting a discrete and modular form or ensemble of practices — such as Patrick Wolfe’s often
cited contention that “settler colonialism destroys to replace”23—that can be applied across differences of geography or time. As such,
settler colonialism appears as a self-contained type rather than a situatedly specific formation that is co-
constituted with other forms and histories of colonialism, counter-claims, and relations of power. For
instance, in the U.S. context, settler colonialism as a singular manner of colonialism entirely misses the ways in which the abduction and
enslavement of Africans and their descendants was a colonial practice that, while changing in its intensities and modes of organization over
time, was co-constitutive of colonialism as a project of settlement rather than a supplement that demonstrates the taking of land and labor as
distinct endeavors. Wolfe’s description of settler colonialism as a structure, and not an event, has by now
achieved the status of a truism in analyses of settler colonialism.24 Wolfe’s work has been crucial in bringing further attention to the
fact that colonialism is an ongoing fact of life for indigenous peoples more than fifty years after the advent of the so-called era of
decolonization. His scholarship insightfully underscored historical continuities in the shifting regimes and policies of settler states in relation to
indigenous peoples, and challenged a certain produced ignorance about the “post” colonial character of societies like the U.S., Canada,
Australia, and New Zealand.25 Yet drawing an absolute distinction between structure and event, and as a result,
discarding a focus on the historicity of settler colonialism, neglects some of the ways Wolfe distinguishes
between the binary terms structure/event in the service of further analysis. For example, Wolfe emphasizes how
settler colonialism is a “complex social formation” with “structural complexity” that emerges through process.26 When taken up as a
modular analytic that travels without regard to the specificities of location or social and material relations, a
categorical event/structure binary banishes deeply engaged historical knowledge from the landscape, turning
away from historical materialism, devolving into a scholastic debate over identities and standpoints that are
reduced to structural essences and divorced from politics or contingency. Emphasizing structure over
event also limits the analysis of settler colonialism itself into a descriptive typology, orienting our vision narrowly
within the technical perspective of colonial power (in the white Commonwealth countries), away from geographies from below,
such as a hemispheric perspective of the Americas, with their multiple and distinct modes of colonialism ,
thus replicating the conditions of unknowing.27 Foregrounding structure against event might also divert attention away
from imperialism. This binary perpetuates taking what Lisa Lowe calls the “colonial divisions of humanity” as given. Situating this
compartmentalization as a consequence of imperial formations calls attention to how, as Lowe writes, “The operations that pronounce colonial
divisions of humanity—settler seizure and native removal, slavery and racial dispossession, and racialized expropriations of many kinds—are
imbricated processes, not sequential events; they are ongoing and continuous in our contemporary moment, not temporally distinct now as yet
concluded.”28 If the analytic project is reduced to naming and delimiting settler colonialism as a distinct structure of power that exists in
specific places, primarily the settler peripheries of Anglo imperium, we lose focus on the Caribbean and the Americas as the grounds of modern
imperialism, abdicating the hard-won horizon of anti-imperialism. An emphasis on structure over event is symptomatic of the stabilization of
colonial unknowing through binaries and schematic modes of thought. As Wolfe writes, “Territoriality is settler colonialism’s specific, irreducible
element.”29 However, Wolfe’s cartographic model is that of the frontier, in which “the primary social division was encompassed in the relation
between natives and invaders.”30 The frontier is a linear model, a binary opposition between civilization and savagery, reflecting both a
colonizing subjectivity and its state form. What
socio-spatial imaginaries, and concomitant critical models, might
become visible if we thought from other spatial forms, such as circles or spirals, spatial forms that are often more relevant
to indigenous epistemologies than straight lines? If we remapped the colonial condition through circular or spiraling forms, what new insights
might we gain on the decolonial imperative? For one, we
might be able to better grasp colonial, racial, and imperial
simultaneities, as well as positions that do not easily fit into a settler/native binary . As Wolfe writes, “Settler-
colonists came to stay. In the main, they did not send their children back to British schools or retire ‘home’ before old age could spoil the
illusion of their superhumanity. National independence did not entail their departure.”31 Moreover, to inflect these insights through the lens of
negritude produces a considerably more complex set of possibilities, where the verbs come and stay do not carry any simple or easily
recoverable trace of agency or consent.32 As Iyko Day writes, “the logic of antiblackness complicates a settler colonial binary framed around a
central Indigenous/settler opposition.”33
Haunting is a deadly trope. When liberals in debate vote for a phenomenology of
“haunting,” they perform an intellectual dance whereby they play and replay their
complicity in settler colonialism
Emilie Cameron ‘8, Doctoral candidate in the Department of Geography at Queen’s University,
Kingston, Canada, “Indigenous spectrality and the politics of postcolonial ghost stories,” Cultural
Geographies 2008, 15: 383–393, http://journals.sagepub.com/doi/abs/10.1177/1474474008091334

What does it mean, then, to be ‘haunted’ in a decolonizing settler colony like British Columbia? Who is haunted in these stories, and who
or what is doing the haunting? What kind of future might these hauntings demand? Do they signal, as Derrida intended, a recognition of the always unfinished and
unfinishable in our relation to the present and past and, by extension, a sense of generosity and hospitality towards ghosts? Or do they, as Sarah Ahmed55 has
argued in relation to white guilt in postcolonial Australia, constitute yet another self-referential engagement with the
colonial past, in which the experiences and desires of the settler occlude consideration of other desires
and possibilities? This is the reason for my wariness in the face of haunting tropes, for I fear that postcolonial ghost stories
risk perpetuating a kind of endless ‘dancing around a wound’ 56 that Daniel David Moses identifies among liberal, left-
leaning Canadians, anxiously replaying their complicity in an ugly colonial past while neglecting to mobilize

effectively for change in the present. The ghosts of the 389 390 cultural geographies 15(3) Stein do not seem to me to represent
the Nlaka’pamux with very much dignity or agency, and surely any postcolonial trope we might mobilize ought at the very least to

figure Indigenous peoples with dignity. In Haraway’s terms, it seems to me that ‘haunting’ has the potential to
function as a particularly ‘deadly’ trope, one that requires the death and immateriality of Indigenous peoples to
make an e/affective claim on non-Indigenous British Columbians.
1ar
 1ar – T refugees
Kandel goes aff
Kandel, 18 – analyst in immigration policy at the Congressional Resource Service, evidence is from a
CRS report, meaning that it goes directly to Congressional members and Committees in a nonpartisan
basis (William, “Permanent Legal Immigration to the United States: Policy Overview,” 5-11-18, CRS,
https://fas.org/sgp/crs/homesec/R42866.pdf)//mba-jah

Summary Four major principles currently underlie U.S. policy on legal permanent immigration: the
reunification of families, the admission of immigrants with needed skills, the protection of refugees and
asylees, and the diversity of immigrants by country of origin. These principles are embodied in the
Immigration and Nationality Act (INA) and are reflected in different components of permanent
immigration. Family reunification occurs primarily through family-sponsored immigration. U.S. labor
market contribution occurs through employment-based immigration. Humanitarian assistance occurs
primarily through the U.S. refugee and asylee programs. Origincountry diversity is addressed through
the Diversity Immigrant Visa.