{"id":2357,"date":"2018-09-17T23:24:32","date_gmt":"2018-09-17T23:24:32","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=2357"},"modified":"2018-09-17T23:24:32","modified_gmt":"2018-09-17T23:24:32","slug":"the-subject-was-muddy-and-wet-the-illegality-of-zero-tolerance","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2018\/09\/17\/the-subject-was-muddy-and-wet-the-illegality-of-zero-tolerance\/","title":{"rendered":"\u201cThe Subject Was Muddy and Wet”: The Illegality of Zero Tolerance"},"content":{"rendered":"The Form I-213 Record of Deportable\/Inadmissible Alien, created by officials of U.S. Customs and Border Protection after they detain migrants, can be among the less boring of bureaucratic forms. Although some officers complete the form tersely, others catalog remarkably broad ranges of physical dishevelment and disarray in the people caught crossing the Southern border. Signs of the long, dangerous journey just undertaken are in the descriptions of mud, sagging, and gashes, on both clothes and skin. One memorable I-213 that I saw several years ago stated dejectedly, \u201cthe subject was muddy and wet.\u201d Much more recently, I came across an I-213 regarding a child traveling as part of a group: \u201cthe subjects were wearing dirty, torn, and tattered clothing which is consistent with a person that has crossed the Rio Grande River.\u201d The disorder is a reminder of a grasping, struggling, messy attempt with no guarantee of successful entry, or even survival, by the end.\n\nThe creation of the Justice Department\u2019s \u201czero tolerance\u201d<\/a> <\/em>immigration policy\u2014which focuses on prosecuting all adults who enter the U.S. illegally \u2013 has also proven a grasping, struggling, messy attempt, but without any of the redemptive and sympathetic characteristics of people who flee violent death and grinding poverty. Amid colossal uproars about family separation and detention, immigration court backlogs, and the moral imperative of basic human compassion, the Justice Department in recent months has struggled to understand and redefine the contours of its own policy<\/a><\/em>. The administration\u2019s failures on zero tolerance, however, are not surprising considering the treatment that unlawful entry receives under basic U.S. immigration law provisions.\n\nOne unlawful entry, in and of itself, bars no one from a grant of asylum<\/a><\/em>. Certain victims of human trafficking<\/a> <\/em>can likewise apply for a T visa despite unlawful entry<\/a><\/em>. A grant of a U visa<\/a><\/em>\u2014relief for victims of certain categories of crimes committed in the U.S.\u2014is similarly not predicated on arrival by legal means. The same applies to seekers of Special Immigrant Juvenile Status<\/a><\/em>, as well as applicants under the Violence Against Women Act who are victims of extreme cruelty<\/a> <\/em>at the hands of U.S. citizen or lawful permanent resident spouses. All of these forms of relief are paths to lawful permanent resident status and U.S. citizenship.\n\nThen there are the family-based immigration benefits, also providing a path to permanent residency and citizenship. Beneficiaries of family-based petitions, for example spouses of U.S. citizens and parents of U.S. citizens over the age of twenty-one, can apply for lawful permanent resident status despite entry via illegal means. To be sure, there is a need to cure unlawful presence in the U.S. A provisional waiver<\/a> <\/em>application can be one method of doing this, by showing extreme hardship to a lawful permanent resident or U.S. citizen spouse or parent of the applicant. Alternatively, unlawful entry and unlawful presence will not be prohibitive in certain cases in which the beneficiary of the family-based petition was also the beneficiary of an immigrant visa petition or application for labor certification<\/a> <\/em>that was properly filed on or before April 30, 2001<\/a><\/em>.\n\nThe list of possible relief goes on to include certain parolees and applicants for cancellation of removal. Even a first-time federal misdemeanor charge for unlawful entry, pursuant to the zero tolerance policy, does not preclude migrants from seeking asylum, withholding of removal, or protection under the U.N. Convention Against Torture. This is by no means an exhaustive compilation of the rights to relief despite unlawful entry.\n\nNor is this an exhaustive compilation of the complications embedded in the application process. There is no guarantee of success by mere virtue of application. Discretionary components of the decision process add uncertainty and stress for applicants. To ignore or minimize the idiosyncrasies<\/a> <\/em>and difficulties<\/a> <\/em>of application and adjudication would be a disservice to migrants and their advocates. For example, multiple unlawful entries, as well as orders of removal or deportation<\/a><\/em>, can render migrants ineligible for relief. This is also not to say that U.S. immigration law has struck the perfect balance of inclusion through the rights it currently affords\u2014there are still many people who are arguably deserving of lawful status in the U.S. and still find themselves prima facie<\/em>ineligible to apply under current law. The details of each individual case should be reviewed by an attorney. However, the very fact that the opportunities above exist shows that U.S. immigration law has no place for zero tolerance, and that there is even room for growth to include additional groups of migrants.\n\nWith regard to asylum applicants, irregularities in manner of entry can actually strengthen a claim. The Ninth Circuit Court of Appeals held in Mamouzian v. Ashcroft<\/a> <\/em>that \u201cwhen a petitioner who fears deportation to his country of origin uses false documentation or makes false statements in order to gain entry to a safe haven, that deception \u2018does not detract from but supports his claim of fear of persecution. [ . . . ] \u201cAccordingly, it would be anomalous for an asylum seeker’s means of entry to render her ineligible for a favorable exercise of discretion.\u201d\n\nAuthor Aristide Zolberg<\/a> <\/em>summarizes U.S. immigration policy as an \u201celusive quest\u201d for cohesiveness in which \u201cthe government has tried to establish a \u2018front door\u2019 policy for legal immigration but has tolerated a \u2018back door\u2019 policy for unauthorized entry to meet demand for low-wage workers, as well as a \u2018side door\u2019 policy to admit refugees.\u201d According to Philip Kretsedemas<\/a><\/em>, \u201cthe implicit message being sent by these policy decisions is that immigration may not be desirable but it is most certainly necessary.\u201d The difficult policy decisions built into current immigration law combine the reluctance of some lawmakers and the wholehearted espousal of others.\n\nAt proceedings of the Senate<\/a> <\/em>on June 20, 2018, the day President Trump signed the executive order halting family separations at the border, Massachusetts Senator Ed Markey stated, \u201cZero tolerance really means zero refuge. Zero tolerance really means zero discretion. Zero tolerance really means zero humanity. [ . . . ] We do not criminalize asylum seekers. We welcome immigrants for their contributions. We seek immigrants for their talents. We proudly remember our own families who came across a border, whether land or water, knowing this country meant a new start.\u201d\n\n \n\nSuggested citation: Monica Ahmad-Yee, \u201cThe Subject Was Muddy and Wet”: The Illegality of Zero Tolerance<\/em>, <\/span>Cornell J.L. & Pub. Pol\u2019y, The Issue Spotter<\/span>, (Sept. 17, 2018), https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/the-subject-was-muddy-and-wet-the-illegality-of-zero-tolerance\/.<\/span>","protected":false},"excerpt":{"rendered":"

The disorder is a reminder of a grasping, struggling, messy attempt with no guarantee of successful entry, or even survival, by the end. <\/p>\n","protected":false},"author":1,"featured_media":2358,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[14,15,16,17,18,19,27],"tags":[794,809,816,1221,1299,1695],"class_list":["post-2357","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-archives","category-authors","category-blog-news","category-certified-review","category-feature","category-feature-img","category-recent-stories","tag-human-rights","tag-immigrant-rights","tag-immigration-law","tag-president-trump","tag-refugees","tag-zero-tolerance"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2357","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=2357"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/2357\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/2358"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=2357"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=2357"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=2357"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}