The Refugee Dilemma and the Broader Immigration Debate

—Shoba Sivaprasad Wadhia

Last week, the New Yorker ran a heartbreaking piece titled The Refugee Dilemma sharing the story of Nelson Kargbo, a former child story from Sierra Leone who upon entering in the United States as a refugee endured a series of joys that included his role as a father and sorrows that included a lengthy term in prison and in solitary confinement, which according to this psychiatrist, worsened a predisposition to psychosis. The story of Kargbo tells a larger story about the complexity of the U.S. immigration system and the real impact of immigration law and enforcement on people who have fled extraordinary conditions before arriving to the United States.

To arrive in the United States as a refugee like Kargbo and his family is no simple task. Refugees include people who have been persecuted or face persecution in their home country because of race, religion, nationality, political opinion or membership in a particular social group. While the politics of refugee resettlement are volatile in the wake of the Syrian refugee crisis and the anti-Muslim sentiment that has emerged after bloodshed around the world and inside the United States, the reality is that refugees are  the most rigorously screened immigrant populations in the United States.

As Karbo did, refugees apply for permanent residency (a green card) one year after arrival — after five years, refugees may apply for United States citizenship. Importantly, having a green card does not provide total security. The Department of Homeland Security or DHS has the authority to arrest, detain and deport a wide range of noncitizens including those who fail to file a change of address card on time; commit certain crimes; and overstay their visas to name a few.

The method by which Kargbo moved from the criminal system into the immigration system after ICE (one enforcement arm in DHS) placed a “hold” on him is a recurring theme in immigration enforcement. The question about whether local law enforcement should cooperate with ICE has been a controversial as it implicates public safety at the local level and undercuts trust with immigrant communities.

Kargbo was placed in a courtroom process known as “removal proceedings” which itself is an adversarial hearing at which an ICE attorney serves as the prosecutor and where the noncitizen acts as the “respondent” or defendant before an immigration judge who is part of the Department of Justice’s Executive Office for Immigration Review. At the removal hearing, noncitizens respond to the immigration charges against them and apply for qualifying forms of relief such as asylum, cancellation of removal and adjustment of status. As highlighted by Kargbo’s story, limited relief is available for people who have committed certain crimes in part because Congress has removed much of the discretion judges once held to factor in individual equities.

Importantly, most people are deported (removed) do not have a removal proceeding or opportunity to tell their story to an immigration judge.  The law contains expedited procedures for people who arrive in the United States without papers or false papers; those living in the United States without a green card who have committed certain crimes and those who reentered the United States have a removal order. In fiscal year 2013, more than 75% of removals were executed through one of these “speed deportation” programs.

Kargbo’s journey also highlights the limits of the U.S. immigration system. Many noncitizens are forced to navigate the immigration removal process without an attorney because there is generally no court-appointed counsel. One has to wonder whether Kargbo would have received the protection he was legally eligible for without hours and expertise from his pro bono attorneys and the specialists who were able to document his mental health and prospects for care in Sierra Leone. The restrictions on court appointed counsel are universal which means that young people, individuals with mental health complications, asylum seekers with significant language and cultural barriers and other vulnerable populations have no right to court appointed counsel.

Importantly, DHS has enormous power to decide who to arrest, detain and deport. With 11.3 million people living in the United States without authorization and thousands more individuals like Kargbo charged with removal as a green card holder, DHS must manage its enforcement wisely. Enter in prosecutorial discretion. When prosecutorial discretion is exercised favorably, DHS has made a choice to limit or refrain from enforcing the immigration law against a person. This discretion has functioned in the immigration system for many years and is crucial because the agency has the resources to deport less than 4% of the millions eligible for removal. Beyond the economics are the humanitarian reasons behind prosecutorial discretion- young people, those with serious medical conditions and those with strong family ties in the United States are among the kinds of people who have been granted prosecutorial discretion historically. A prosecutorial discretion grant is a temporary reprieve at best and leaves the person in an immigration purgatory as opposed to a more secure status like lawful permanent residency.  While Kargbo received a semi-secure form of protection under the United Nations Convention Against Torture, his story leaves the discussion door open for the role of prosecutorial discretion in the scores of cases where formal protection under the law is unavailable. DHS can and should use prosecutorial discretion to protect individuals with compelling equities and imperfect histories.

Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and the Director of the Center for Immigrants’ Rights at Pennsylvania State University Dickinson School of Law. Previously, Wadhia was Deputy Director for Legal Affairs at the National Immigration Forum and an associate with Maggio Kattar P.C., both in Washington, D.C. She is the author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press, 2015).