E.N. Thompson Forum - Facing Immigrant Exclusion: Then and Now

Shoba Sivaprasad Wadhia Author

11/03/2021 Added

161 Plays

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Wadhia is Associate Dean for Diversity, Equity, and Inclusion, Samuel Weiss Faculty Scholar and Clinical Professor of Law at Penn State Law in University Park. Her research focuses on the role of prosecutorial discretion in immigration law and the intersections of race, national security and immigration. Wadhia will talk about immigration reform, and the need to adopt a legal and policy framework that considers the factors driving disparate immigration enforcement–policies that affirm and include, as opposed to punish or exclude.

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[00:00:00.091](upbeat music)
[00:00:06.944]Today, you are part
[00:00:08.110]of an important conversation about our shared future.
[00:00:12.020]The E.N. Thompson Forum on World Issues
[00:00:14.190]explores a diversity of viewpoints
[00:00:16.370]on international and public policy issues
[00:00:18.960]to promote understanding and encourage debate
[00:00:21.800]across the university and the State of Nebraska.
[00:00:25.220]Since its inception in 1988,
[00:00:28.140]hundreds of distinguished speakers
[00:00:29.930]have challenged and inspired us,
[00:00:32.270]making this forum one of the preeminent speaker series
[00:00:36.670]in higher education.
[00:00:39.440]It all started when E.N. Jack Thompson
[00:00:42.850]imagined a forum on global issues
[00:00:45.330]that would increase Nebraskans' understanding
[00:00:47.600]of cultures and events from around the world.
[00:00:50.790]Jack's perspective was influenced by his travels,
[00:00:54.180]his role in helping to found the United Nations,
[00:00:56.980]and his work
[00:00:57.813]at the Carnegie Endowment for International Peace.
[00:01:02.120]As president of the Cooper Foundation in Lincoln,
[00:01:05.130]Jack pledged substantial funding to the forum,
[00:01:08.310]and the University of Nebraska
[00:01:10.110]and Lied Center for Performing Arts agreed to co-sponsor.
[00:01:14.650]Later, Jack and his wife Katie
[00:01:16.870]created the Thompson Family Fund
[00:01:19.460]to support the forum and all their programs.
[00:01:22.610]Today, major support is provided
[00:01:25.840]by the Cooper Foundation,
[00:01:27.920]Lied Center for Performing Arts,
[00:01:30.000]and University of Nebraska-Lincoln.
[00:01:32.850]We hope these talks
[00:01:34.230]spark an exciting conversation among you.
[00:01:36.942](upbeat music)
[00:01:39.500]And now, on with the show.
[00:01:41.661](upbeat music)
[00:01:46.321](audience applauding)
[00:01:50.930]Good evening and welcome to the second event
[00:01:53.760]of the E.N. Thompson Forum on World Issues this season.
[00:01:58.610]My name is Kevin Ruser,
[00:02:00.100]and I'm the director of clinical programs
[00:02:02.480]and a professor at the University of Nebraska-Lincoln
[00:02:05.300]College of Law.
[00:02:07.080]I'm pleased to welcome all of you,
[00:02:09.210]both those of you watching virtually,
[00:02:11.460]as well as those of you who could join us here
[00:02:13.810]at the Lied Center this evening.
[00:02:16.320]Since 1988, the Thompson Forum
[00:02:19.480]has brought us critical thinkers, policy makers,
[00:02:23.290]and leaders who are shaping our global society
[00:02:26.260]to discuss issues that affect us all.
[00:02:29.410]We are grateful to the Cooper Foundation,
[00:02:31.640]which provides the major funding for the forum,
[00:02:34.920]to the late Jack Thompson who conceived this series,
[00:02:38.470]and the Thompson family for their continued support.
[00:02:42.410]We would like to acknowledge
[00:02:43.560]the Lied Center for Performing Arts for their support,
[00:02:48.020]the University Honors Program, and the College of Law
[00:02:51.450]for their partnership on today's event
[00:02:53.770]with Shoba Sivaprasad Wadhia.
[00:02:57.420]And finally, thank you to our media sponsor KZUM.
[00:03:02.390]This season's theme, "Moments of Reckoning:
[00:03:05.020]Global Calls for Racial Equity and Action"
[00:03:08.510]is meant to promote an important and timely discussion
[00:03:12.470]and further our understanding of the challenges
[00:03:15.240]relating to equity in a myriad of ways.
[00:03:19.140]This evening, we will focus on immigration
[00:03:21.880]in the context of historical and current exclusion.
[00:03:26.870]I would like now to introduce Dr. Colette Yellow Robe,
[00:03:30.500]an enrolled member of the Northern Cheyenne Tribe,
[00:03:33.970]and originally from the Winnebago Indian Reservation
[00:03:37.150]in Nebraska.
[00:03:38.880]Dr. Yellow Robe holds a PhD
[00:03:39.758]from the Teaching, Learning and Teacher Education Department
[00:03:45.490]in the College of Education and Human Services
[00:03:48.000]at the University of Nebraska-Lincoln.
[00:03:51.090]Dr. Yellow Robe is an active member of the community
[00:03:55.820]who's committed to social justice and alleviating poverty.
[00:04:00.860]As the retention specialist
[00:04:02.450]for the Student Support Services program
[00:04:04.790]and instructor in the ALEC Department at UNL,
[00:04:09.820]her work focuses primarily on first-generation
[00:04:12.840]low-income and disabled college students.
[00:04:16.230]Currently, she serves as co-leader
[00:04:18.700]on the Chancellor's Anti-Racism Journey at UNL,
[00:04:22.850]the Chancellor's Commission on the Status of People of Color
[00:04:26.890]and the Mayor's Multicultural Advisory Committee
[00:04:30.020]for the city of Lincoln.
[00:04:31.770]We are pleased to have Dr. Yellow Robe
[00:04:33.670]perform a Land Acknowledgement ceremony
[00:04:36.340]before we begin our program.
[00:04:42.280](audience applauding)
[00:04:45.812]Naish, Kevin, thank you.
[00:04:48.080]Greetings, everybody.
[00:04:50.512](Dr. Yellow Robes peaking in foreign language)
[00:04:52.610]That means my name is Ceremonial Woman in Cheyenne,
[00:04:55.570]and I'm joining you today from Lincoln, Nebraska.
[00:04:59.450]A Land Acknowledgement is a formal recognition
[00:05:02.480]of the Indigenous Tribal Nations
[00:05:04.810]as the original stewards of the land.
[00:05:07.550]It is a sign of respect and gratitude
[00:05:10.510]for the ongoing relationships
[00:05:12.460]between Tribal Nations and the land.
[00:05:15.810]A Land Acknowledgement works to undo racism
[00:05:18.750]throughout hundreds of years.
[00:05:21.260]I would like to acknowledge the ancestral,
[00:05:23.570]present and future homelands
[00:05:25.490]of Indigenous Tribal Nations and Peoples
[00:05:27.900]upon which the University of Nebraska-Lincoln was founded.
[00:05:32.390]The university spans across several areas.
[00:05:35.450]So I'm honored to include our original stewards of the land,
[00:05:38.900]especially as UNL works in gratitude,
[00:05:42.040]as it strives to develop positive and ongoing relationships
[00:05:46.490]with our Indigenous Tribal Nations
[00:05:49.110]and the rich tribal diversity in the State of Nebraska.
[00:05:52.980]Today, there are four federally recognized tribes
[00:05:55.950]in Nebraska, the Omaha Tribe, the Ponca Tribe,
[00:05:59.180]the Santee Sioux Nation or Santee
[00:06:01.730]and the Winnebago Tribe of Nebraska, where I grew up.
[00:06:05.730]We also recognize the territorial lands
[00:06:08.760]of the Pawnee, Oto-Missouria,
[00:06:11.420]Lakota, Arapaho,
[00:06:13.330]Tsitsista, Suhtai or Cheyenne,
[00:06:16.000]and the Kaw Peoples or Kansa,
[00:06:18.320]Ioway and Sac and Fox Peoples.
[00:06:21.740]Next, I'd like to invite Professor Kevin Ruser
[00:06:24.970]back to the podium to introduce our keynote speaker.
[00:06:28.210]Naish, thank you.
[00:06:31.416](audience applauding)
[00:06:36.690]Thank you, Dr. Yellow Robe.
[00:06:39.090]Tonight's forum will address insights into historical,
[00:06:42.390]as well as current exclusionary immigration practices,
[00:06:46.670]and how this affects immigrants and our communities,
[00:06:50.170]as well as the need to adopt a legal policy framework
[00:06:54.360]that considers the factors
[00:06:55.880]driving disparate immigration enforcement policies
[00:06:59.680]that affirm and include
[00:07:01.340]as opposed to those that are used to punish and exclude.
[00:07:06.420]I am pleased to announce that this event is a partnership
[00:07:09.410]with the University of Nebraska-Lincoln's College of Law.
[00:07:12.940]And as a note, after the discussion,
[00:07:14.980]you will have an opportunity to ask questions
[00:07:17.870]by texting ent918 to 22333,
[00:07:24.400]or going to the website
[00:07:26.340]on the screen pollev.com/ent918.
[00:07:33.060]And now I'd like to introduce our speaker for the evening.
[00:07:36.669]Shoba Sivaprasad Wadhia
[00:07:39.680]is an Associate Dean for Diversity, Equity, Inclusion
[00:07:43.860]Samuel Weiss Faculty Scholar,
[00:07:46.090]and clinical professor of law
[00:07:48.290]at Penn State Law in University Park.
[00:07:51.430]She is also the founder and director
[00:07:53.710]of the Center for Immigrants' Rights Clinic,
[00:07:56.520]where she supervises students in legal support
[00:07:59.800]for individual immigration cases,
[00:08:02.380]policy work, and community outreach.
[00:08:05.410]Her research focuses on the role of prosecutorial discretion
[00:08:09.250]in immigration law and the intersections of race,
[00:08:13.010]national security, and immigration.
[00:08:15.900]Please join me in giving a warm welcome
[00:08:18.470]to Professor Wadhia.
[00:08:20.828](audience applauding)
[00:08:32.390]Good evening.
[00:08:35.940]Thank you to the University of Nebraska
[00:08:38.630]for inviting me to deliver these remarks
[00:08:42.000]facing immigrant exclusion then and now.
[00:08:46.960]It is an honor.
[00:08:50.040]On March 16th, 2021,
[00:08:53.030]Robert Aaron Long, a 21-year-old white man,
[00:08:57.130]went to a store and bought a handgun,
[00:09:00.160]and then went on a shooting spree.
[00:09:03.580]In less than two hours, eight people were killed.
[00:09:08.890]Six were Asians, females.
[00:09:13.690]In the year leading up to this Atlanta massacre,
[00:09:17.060]we saw thousands of hate incidences
[00:09:20.390]against Asian-Americans and Pacific Islanders.
[00:09:24.990]We had a president who called COVID-19 the Chinese virus,
[00:09:30.780]and kung flu.
[00:09:33.260]While the events of the last year and a half
[00:09:36.070]against the Asian community have been remarkable,
[00:09:40.610]they cannot be viewed in isolation.
[00:09:44.300]They are deeply intertwined to a history
[00:09:48.210]that traces back until at least the 19th century,
[00:09:52.810]beginning with the Page Act of 1875,
[00:09:56.540]which banned Chinese prostitutes
[00:09:59.070]from entering the United States on the stereotype
[00:10:02.890]that they were a threat to American society.
[00:10:10.550]Next slide.
[00:10:14.890]Seven years after the Page Act,
[00:10:17.320]Congress passed the Chinese Exclusion Act of 1882,
[00:10:21.960]which blocked the entry of Chinese laborers
[00:10:25.070]from entering the United States,
[00:10:27.300]but spared those who were already here,
[00:10:30.260]so long as they had a certificate
[00:10:32.800]when they left and came back.
[00:10:35.630]But eventually, even those who had certificates were banned.
[00:10:41.430]And this became the subject of a lawsuit
[00:10:44.710]involving a plaintiff named Chae Chan Ping,
[00:10:48.310]who had lived in the United States for over a decade
[00:10:52.270]who had traveled to China to visit his family,
[00:10:56.830]and who upon return was still expelled,
[00:11:00.680]despite having a certificate
[00:11:02.940]and despite following all of the rules.
[00:11:06.740]This case went all the way to the U.S. Supreme Court.
[00:11:10.060]And the Supreme Court held
[00:11:12.430]that the political branches of government,
[00:11:16.480]the executive branch and the legislative branch
[00:11:21.070]have the power to regulate immigration,
[00:11:25.010]the power to decide who should be included
[00:11:28.950]and who should be excluded, this time based on race.
[00:11:34.900]This doctrine that was applied
[00:11:37.160]is called the plenary power doctrine.
[00:11:42.120]I'm gonna move to the next site.
[00:11:47.310]Congress extended and expanded the Chinese Exclusion Act
[00:11:51.500]with the Geary Act.
[00:11:53.300]And this time, it applied to Chinese residents
[00:11:57.130]already living in the United States.
[00:11:59.980]And by doing so,
[00:12:01.250]it said that you must register and carry a certificate,
[00:12:05.150]or you must tell the government why you don't have one,
[00:12:08.610]and with proof through at least one credible white witness.
[00:12:14.880]Once again, applying the plenary power doctrine,
[00:12:19.030]the Supreme Court held that the federal government
[00:12:22.510]has the power to deport Chinese residents
[00:12:26.680]already living in the United States.
[00:12:30.860]The Chinese exclusion cases have never been overturned,
[00:12:36.410]and they are crucial to understanding modern exclusion.
[00:12:43.020]Exclusion, as we'll see in the next slide,
[00:12:46.130]based on nationality and race continued in the 20th century.
[00:12:51.150]One of the most significant changes happened in 1924
[00:12:56.410]with the Johnson-Reed Act named after Representative Johnson
[00:13:00.990]from the State of Washington
[00:13:02.940]and Senator Reed from the State of Pennsylvania.
[00:13:07.130]What this act did was to significantly lower
[00:13:11.270]immigration to the United States
[00:13:14.140]and to place an absolute bar on Asian immigration.
[00:13:19.080]And the way this happened is that the language itself
[00:13:23.090]made those who are ineligible for citizenship,
[00:13:27.120]naturalization, prohibited from entering the United States.
[00:13:32.140]And laws at the time had made those of Asian lineage
[00:13:37.860]ineligible for naturalization.
[00:13:41.470]Said David Reed in the article you just saw on this slide.
[00:13:45.250]He said, "No law passed by Congress
[00:13:48.330]within the last half century
[00:13:50.410]compares in importance with the one today.
[00:13:54.960]It will mean a more homogenous nation.
[00:13:58.710]More self-reliant.
[00:14:00.770]More self-dependent."
[00:14:04.400]The historian Jia Lynn Yang,
[00:14:06.730]who traces the legislative history
[00:14:09.060]leading up to the 1924 Act, and through 1965
[00:14:14.090]identified the 1924 law as a watershed moment.
[00:14:19.760]One that really changed everything forever.
[00:14:26.810]Moving to the next slide.
[00:14:28.700]It was only 40 years later with the passage
[00:14:31.920]of the 1965 Immigration and Nationality Act
[00:14:36.040]that we saw the end
[00:14:37.670]of national origin discrimination quotas.
[00:14:40.790]And keep in mind, this took place on the heels
[00:14:44.650]of the landmark Civil Rights Act and Voting Rights Act.
[00:14:49.720]President Lyndon B. Johnson signed this bill into law
[00:14:53.960]and he shared a well-known passage by President Kennedy
[00:14:58.370]during his inaugural address,
[00:15:01.050]which said, "A nation that is built by immigrants
[00:15:04.710]of all lands can now ask those who are seeking admission
[00:15:09.900]what can you do for your country?
[00:15:13.380]But we should not be asking in what country were you born?"
[00:15:19.190]The 1965 Immigration and Nationality Act
[00:15:23.000]also included a non-discrimination clause
[00:15:26.570]that exists in the statute today.
[00:15:29.280]It says that no person should be given a preference
[00:15:33.110]or priority or discriminated against based on their race,
[00:15:37.620]their gender, their place of birth,
[00:15:40.280]or their place of residence.
[00:15:43.990]While Congress was successful
[00:15:45.820]in ending the national origin quotas with the 1965 act,
[00:15:51.610]it had an unintended consequence
[00:15:54.480]of curtailing legal pathways for Mexican nationals.
[00:15:59.560]And that's because it's set for the first time
[00:16:03.050]quotas on immigration from the Western hemisphere.
[00:16:09.920]Moving to the next slide,
[00:16:12.310]the 1965 act changed the racial landscape in America.
[00:16:19.730]It increased Asian immigration multifold,
[00:16:24.160]and opened doors for families like mine.
[00:16:29.240]My parents were raised in India,
[00:16:32.120]and after their marriage, moved to the United States.
[00:16:36.040]My father worked as a physician at the VA in Dayton, Ohio
[00:16:42.570]from the beginning of the AIDS virus.
[00:16:46.230]When he first learned about the AIDS virus,
[00:16:48.640]there was no treatment available.
[00:16:51.740]My father told me it was like a death sentence.
[00:16:57.070]Eventually, my father would become a U.S. citizen in 1979.
[00:17:02.660]He remembers the ceremony.
[00:17:04.880]There were lots of people.
[00:17:06.850]I was excited.
[00:17:08.550]I thought this was the fulfillment of the American dream.
[00:17:14.290]My mother never thought she would come to the United States,
[00:17:18.540]until she was introduced to my father.
[00:17:22.560]She had a visa interview in New Delhi
[00:17:25.690]and was able to obtain one and enter the United States
[00:17:30.310]as the spouse of a Green Card holder.
[00:17:33.690]My mother imagined buying a home,
[00:17:37.100]owning a station wagon,
[00:17:39.320]and going to school after having kids.
[00:17:43.060]Eventually, she earned her master's in computer science,
[00:17:47.600]while my sister and I were still young.
[00:17:51.050]It was our American dream.
[00:17:57.560]Some migration journeys are more arduous, more complex,
[00:18:02.830]and sometimes triggered by the need to survive.
[00:18:06.900]I have listened to or represented many people,
[00:18:11.380]mothers, children,
[00:18:14.100]cooks, scientists,
[00:18:17.010]refugees from around the world.
[00:18:20.430]Some flew on an airplane and came to the United States
[00:18:24.860]with a passport and a visa.
[00:18:28.480]Others swam,
[00:18:31.500]walked,
[00:18:33.080]arrived in the United States without papers.
[00:18:37.640]Some of my clients were detained the moment they arrived.
[00:18:43.410]These experiences had a profound effect on the way I think
[00:18:48.710]about inclusion and the accident of birth.
[00:18:54.080]Even after the 1965 Act,
[00:18:57.410]America's relationship with immigration
[00:19:00.910]has been complicated.
[00:19:03.090]We are a nation of immigrants,
[00:19:05.470]but we continue to have policies that exclude based on race.
[00:19:11.880]One sharp example is September 11th, 2001.
[00:19:18.610]As I move to the next slide,
[00:19:20.800]let me tell you the story of where I was on that day.
[00:19:25.020]I was working as an immigration attorney
[00:19:27.730]in Downtown Washington, D.C.
[00:19:30.400]And on a walk home from work,
[00:19:33.420]I saw spray-painted on a wall, "Deport Arabs."
[00:19:39.330]These words really became a symbol
[00:19:42.240]for lasting changes to immigration,
[00:19:46.070]and a defining moment in my career.
[00:19:49.420]It propelled me into policy work,
[00:19:52.470]which began with being thrown into the legislative debate
[00:19:57.030]around the creation
[00:19:58.710]of a new Department of Homeland Security.
[00:20:02.960]There were many impassioned debates
[00:20:06.320]about where to put immigration.
[00:20:08.900]Should it stay outside the department?
[00:20:12.090]Should it all be housed in one location?
[00:20:15.690]Eventually, most immigration functions
[00:20:19.340]ended up disparately located,
[00:20:22.100]but within the Department of Homeland Security.
[00:20:26.740]And on the next side,
[00:20:28.350]you'll see the three main functions of DHS.
[00:20:33.320]Customs and Border Protection
[00:20:35.660]handles enforcement at the border,
[00:20:38.240]like an inspection at an airport.
[00:20:41.470]Immigration and Customs Enforcement,
[00:20:44.040]this is an agency responsible
[00:20:46.100]for enforcement on the inside of the United States,
[00:20:50.070]like detention and removal.
[00:20:53.570]And finally, U.S. Citizenship and Immigration Services,
[00:20:58.190]or USCIS is responsible for processing applications
[00:21:03.460]and petitions such as for asylum,
[00:21:06.830]a Green Card, and citizenship.
[00:21:10.480]20 years later, I am struck by this idea
[00:21:15.690]that newcomers interact and engage
[00:21:19.610]with an agency called Homeland Security.
[00:21:25.160]After 9/11, the former attorney general said everywhere,
[00:21:30.667]"Let the terrorists be warned.
[00:21:33.810]If you overstay your visa, even by one day,
[00:21:38.360]we will arrest you."
[00:21:42.470]Next slide.
[00:21:44.160]And these words,
[00:21:45.550]they've resulted in significant changes to policy,
[00:21:49.680]and changes that used national security
[00:21:54.100]as the justification for discriminatory immigration changes.
[00:22:00.610]One policy included a roundup of roughly 1,200 men
[00:22:06.760]of Muslim and South Asian descent.
[00:22:10.730]They were broadly labeled as September 11th detainees.
[00:22:17.460]One way a detainee was labeled as such
[00:22:20.580]was because there was a tip called in to the FBI.
[00:22:25.530]And the tip said,
[00:22:27.147]"There's this person who works at a convenience store
[00:22:31.940]that's operated by Middle Easterns,
[00:22:35.140]too many people in one shift."
[00:22:38.770]According to the Department of Justice,
[00:22:41.030]many of these September 11th detainees
[00:22:44.230]were held in abusive conditions
[00:22:47.080]and without basic due process.
[00:22:51.541]In the next slide, I wanna share another 9/11 policy
[00:22:55.120]called Special Registration or NSEERS.
[00:22:59.850]This was a registration program
[00:23:02.340]that sought to track certain people going and coming,
[00:23:07.340]as well as those already in the United States.
[00:23:11.660]It was rolled out in a speech
[00:23:13.770]by the former attorney general,
[00:23:15.840]as well as in publications called the Federal Register,
[00:23:20.280]which is the U.S. Government's official newspaper.
[00:23:24.600]The most controversial part of Special Registration
[00:23:28.140]was this piece that called men
[00:23:32.470]already living in the United States
[00:23:35.130]who came from 25 countries,
[00:23:38.210]Muslim majority, all but one,
[00:23:40.830]to go to a local immigration office
[00:23:43.660]for interrogations, photographs, and fingerprints.
[00:23:48.870]Some of the questions that those who went were asked
[00:23:52.940]included how often do you travel to the Middle East?
[00:23:57.170]How often do you pray?
[00:23:59.660]And for those who remember VHS,
[00:24:03.640]where did you rent your last video and what was it?
[00:24:09.020]I recall vividly standing
[00:24:11.780]in front of a local immigration office to protest NSEERS.
[00:24:17.120]And I remember conducting Know Your Rights sessions
[00:24:20.350]inside of mosques to impacted communities.
[00:24:25.250]I learned a few things at that time.
[00:24:28.190]First, that most people don't read the Federal Register.
[00:24:34.458](audience laughs)
[00:24:35.510]How many here read the Federal Register?
[00:24:40.210]Second, that protest can be a powerful form of solidarity.
[00:24:47.350]And third, that one must educate a community
[00:24:51.840]about their rights and responsibilities
[00:24:54.860]in a place where they feel safe and welcome.
[00:24:59.388]NSEERS was full of challenges.
[00:25:02.090]A lack of notice about the policy itself,
[00:25:05.670]a lack of resources in local immigration offices.
[00:25:09.880]And the result?
[00:25:11.700]The result was that almost 14,000 men who came forward
[00:25:16.960]were not convicted of terrorism,
[00:25:20.240]but instead, were served with charging documents
[00:25:24.250]called Notices to Appear and placed in removal proceedings.
[00:25:29.670]The NSEERS program was a failed national security experiment
[00:25:35.180]because it relied on this premise
[00:25:38.040]that singling out Muslim men
[00:25:40.690]already in the United States
[00:25:43.040]would somehow improve national security.
[00:25:47.580]Said counter-terrorism expert Juliette Kayyem,
[00:25:51.267]"The pure accumulation
[00:25:53.540]of just massive amounts of data is not necessarily helpful.
[00:25:59.210]Basically what this has become is an immigration sweep."
[00:26:07.940]So NSEERS turns a corner,
[00:26:10.000]as you'll see in the next side.
[00:26:13.380]Over time, in 2011, it was discredited,
[00:26:18.460]but it would take many more years
[00:26:21.360]for NSEERS to be dismantled for good.
[00:26:25.810]It would take resistance.
[00:26:28.900]It would take storytelling.
[00:26:31.750]Imagine years later, a Saudi national
[00:26:35.370]who is married to a U.S. citizen
[00:26:39.090]and in his green card interview and denied a green card
[00:26:43.870]because he didn't read the Federal Register seven years ago.
[00:26:51.100]Another reason that pushed NSEERS to the end was fear.
[00:26:56.780]We had a presidential candidate
[00:26:58.840]who was calling for a Muslim registry.
[00:27:02.900]And then finally, and importantly,
[00:27:05.890]and I say this not only because I'm a law professor,
[00:27:09.730]ordinary law played a role in the end of NSEERS,
[00:27:14.980]because one needed to have a sound legal basis
[00:27:20.210]for dismantling the regulation for good.
[00:27:23.980]And the ordinary tool used in this case
[00:27:27.560]was something called a final rule.
[00:27:31.780]In the final days of the Obama administration,
[00:27:35.100]community leaders and experts who had lived
[00:27:38.250]through NSEERS from the beginning, had one last chance
[00:27:43.820]to convince the Department of Homeland Security
[00:27:46.980]and the White House
[00:27:48.870]why NSEERS should be ended, and how it should end.
[00:27:55.200]I was one of those individuals in the Oval Office
[00:27:59.340]surrounded by such powerful leaders
[00:28:03.590]in our community and beyond.
[00:28:06.470]And I too, made the plea.
[00:28:09.310]And you know what?
[00:28:11.470]It was a success story.
[00:28:13.810]A Christmas present in December, 2016,
[00:28:17.810]the Obama administration ended NSEERS for good.
[00:28:23.870]But as we'll see in the next side,
[00:28:27.760]history repeats itself.
[00:28:30.490]While a candidate on the campaign trail,
[00:28:33.160]former President Trump published a statement
[00:28:36.260]on preventing Muslim immigration,
[00:28:39.110]and called for a total and complete shutdown to immigration.
[00:28:44.730]Muslim immigration.
[00:28:46.270]Seven days after his inauguration,
[00:28:49.140]an executive order was signed,
[00:28:51.810]suspending the entry of nationals from seven countries
[00:28:56.860]with the Muslim populations of 90% or more.
[00:29:01.710]These countries included Iran, Iraq,
[00:29:04.880]Libya, Somalia, Sudan, Syria, and Yemen.
[00:29:10.290]The image and chaos of lawyers and policymakers
[00:29:15.260]and protests are vivid to this day, as was the uncertainty.
[00:29:21.510]That first weekend,
[00:29:23.630]no guidance had been provided
[00:29:26.020]to Customs and Border Protection.
[00:29:28.610]Green card holders were being turned away.
[00:29:32.960]Families were being detained.
[00:29:36.720]And you'll see in this next slide,
[00:29:38.750]that the chaos spread well beyond the airports.
[00:29:42.920]I fielded scores of phone calls
[00:29:45.500]from affected individuals and families.
[00:29:48.917]"Can my mother come for my graduation?"
[00:29:52.047]"My spouse is stranded in Iran.
[00:29:55.500]How can he get on an airplane?"
[00:29:58.740]The pedagogy for my students
[00:30:00.870]at the Center for Immigrants Rights
[00:30:03.320]was lawyering in the fire.
[00:30:05.900]The first executive order dropped on a Friday at 4:30 p.m.
[00:30:11.260]and we spent the weekend
[00:30:13.070]triaging with our partner organizations,
[00:30:16.090]like the American-Arab Anti-Discrimination Committee,
[00:30:19.500]as well as producing fact sheets in plain language
[00:30:23.480]for the community.
[00:30:25.600]On the slide you just saw
[00:30:27.260]was the first of many community forums
[00:30:30.190]that we held just days after the first Muslim ban.
[00:30:35.160]And that was a forum that had two overflow rooms
[00:30:39.310]and over 200 people at our Law School.
[00:30:44.150]Now, eventually, the first executive order was blocked
[00:30:48.090]through a fancy word called an injunction,
[00:30:51.720]which is basically a stop.
[00:30:54.200]But that did not stop the delivery
[00:30:57.060]of a second executive order issued by President Trump
[00:31:01.940]with the same countries, except for Iraq.
[00:31:07.130]It too, was blocked through litigation.
[00:31:10.990]But finally, we saw a third version of this banned.
[00:31:15.740]It was issued as a presidential proclamation
[00:31:19.460]and it indefinitely banned certain nationals
[00:31:22.850]from eight countries.
[00:31:25.260]These countries were ostensively chosen
[00:31:27.970]because of the perceived threat they posed.
[00:31:32.630]Working with families and individuals impacted by the ban
[00:31:37.780]brought me closer to the human suffering.
[00:31:41.400]Note, it was individuals
[00:31:43.310]in a legally qualifying relationship, like my parents,
[00:31:48.500]who were blocked from entering the United States
[00:31:52.160]because of where they were born.
[00:31:55.890]One attorney I spoke to told me,
[00:31:59.017]"The common thread I see in every person
[00:32:01.610]who walks through my office is
[00:32:03.930]I need my mom because I'm gonna be in labor
[00:32:07.010]and I can't do this without her,"
[00:32:09.700]or, "I am the first person in my family to get my PhD
[00:32:15.380]and it would make the world for my parents
[00:32:18.690]to be there at my graduation."
[00:32:21.230]Or, "I have fallen in love and I'm getting married
[00:32:25.630]and I would really love my parents
[00:32:28.110]to meet my future husband."
[00:32:31.420]These are milestones.
[00:32:34.230]These are events that are normally shared with family,
[00:32:39.220]all swept away because of the ban.
[00:32:44.257]In the next slide you'll see the cover page of a brief
[00:32:48.510]that I filed as co-counsel
[00:32:50.810]on behalf of immigration law scholars
[00:32:53.600]to the U.S. Supreme Court, because eventually,
[00:32:56.810]that's where the presidential proclamation landed,
[00:33:00.020]and re-argued how the 1965 immigration laws
[00:33:05.940]had sought to end the national origin quotas
[00:33:09.620]and reunite families.
[00:33:12.030]We argued that by excluding people from receiving a visa
[00:33:17.070]and entering the United States
[00:33:19.380]for no other reason than place of birth,
[00:33:23.460]we were ushering ourselves into a pre-1965 era
[00:33:29.040]in defiance of the immigration statute
[00:33:32.040]and the legislative history leading up to 1965.
[00:33:39.470]But as you'll see in the next slide,
[00:33:42.140]at least symbolically, the Supreme Court found
[00:33:46.080]that there was a national security rationale
[00:33:49.380]for the proclamation,
[00:33:51.070]and Chief Justice Roberts who wrote the opinion
[00:33:54.940]relied on the statutory section in the immigration statute
[00:33:59.270]that allows the president
[00:34:01.000]to suspend the entry of certain non-citizens,
[00:34:05.260]if such entry is detrimental to the interests of the U.S.
[00:34:09.580]But what's important here
[00:34:11.330]is that Chief Justice Roberts found
[00:34:14.000]that the language of that suspension clause
[00:34:17.390]exuded deference to the president in every clause.
[00:34:24.240]The proclamation included a waiver process,
[00:34:28.400]which means that if you were covered by the ban,
[00:34:32.270]you could apply in theory,
[00:34:34.890]for a waiver by showing that denying entry
[00:34:39.480]would cause hardship,
[00:34:41.660]that your entry was in the national interest,
[00:34:44.580]and that your entry would not pose
[00:34:46.850]a national security threat.
[00:34:49.870]But many people, myself included,
[00:34:54.060]were concerned about whether the waiver process
[00:34:57.940]was meaningful or to borrow the words of Justice Breyer,
[00:35:04.030]whether this process was merely window dressing.
[00:35:10.400]While public attention to the Muslim ban faded,
[00:35:14.040]the human consequences endured.
[00:35:17.330]As of January 1st, 2019,
[00:35:20.400]more than 9,000 spouses and minor children
[00:35:25.170]of U.S. citizens had been barred.
[00:35:28.660]The Muslim ban is perhaps the greatest untold story
[00:35:33.910]of family separation.
[00:35:38.080]In 2020, President Trump through a proclamation,
[00:35:41.720]added more countries to this proclamation,
[00:35:45.210]including for example, Eritrea,
[00:35:49.400]Myanmar, Tanzania, Sudan.
[00:35:53.360]These are the changes that led to the band's label
[00:35:58.210]as a Muslim and African ban.
[00:36:02.030]Resistance to the ban was significant.
[00:36:05.020]It showed itself inside consulates, on the streets,
[00:36:10.680]in the courts, as well as in the halls of Congress
[00:36:15.480]with the introduction of the NO BAN Act,
[00:36:19.380]which if enacted, would have set limits
[00:36:22.560]on that suspension clause that I mentioned,
[00:36:26.190]and also rescinded the bans that I just described.
[00:36:33.110]The multidimensional lawyering and advocacy
[00:36:37.180]to challenge the ban was profound.
[00:36:41.380]It's an important part of our history,
[00:36:43.870]and it is one that I hope lands in the history books
[00:36:48.880]of our children and our grandchildren.
[00:36:53.610]The resistance was also an endurance test
[00:36:57.470]conducted in volatile situations.
[00:37:02.320]On January 20th of this year,
[00:37:04.940]President Biden rescinded the Muslim and African ban.
[00:37:10.070]It's a moment that the movement savored,
[00:37:14.390]even knowing that there would still be ongoing work to do
[00:37:19.580]to bring people home.
[00:37:24.240]So up until this point, I have been talking about history,
[00:37:31.240]law and policy that has excluded in explicit ways,
[00:37:37.760]like based on nationality or place of birth or gender.
[00:37:46.410]But our immigration law and policy,
[00:37:48.670]and we see it today as well,
[00:37:51.900]can also look facially neutral,
[00:37:55.850]but exclude in significant ways.
[00:38:00.120]So in the next slide,
[00:38:01.570]I wanna start with refugees and asylum seekers.
[00:38:07.110]Because exclusion has reached this population
[00:38:11.810]who historically we have welcomed
[00:38:15.430]or have been perceived as welcoming.
[00:38:18.970]Refugees outside the United States
[00:38:22.070]have to meet the legal definition
[00:38:24.800]of showing they have been persecuted
[00:38:27.440]or would face persecution in their home country
[00:38:30.600]because of race, religion, nationality, political opinion,
[00:38:35.310]or a membership in a particular social group.
[00:38:38.260]And this chart is very important
[00:38:41.790]because it highlights the enormous discretion
[00:38:46.440]that the president has in setting refugee numbers each year.
[00:38:53.660]And you'll see in the orange line
[00:38:56.290]that the actual number of admissions is usually lower
[00:39:00.980]because of security checks and just the actual process,
[00:39:05.900]which can take up to two years
[00:39:08.460]a refugee must go through before their admission.
[00:39:13.920]In the last four years,
[00:39:15.720]we saw historically low refugee numbers.
[00:39:19.350]We saw 30,000 as the cap for 2019,
[00:39:24.840]and 18,000 as the ceiling for 2020.
[00:39:29.890]Said one former INS official I spoke to,
[00:39:33.577]"To define refugees as a national security threat,
[00:39:38.370]we haven't thought that way in decades."
[00:39:42.220]After enormous pressure,
[00:39:44.060]President Biden raised a refugee cap
[00:39:46.950]for this next fiscal year to 125,000.
[00:39:51.960]But as told by one refugee advocate,
[00:39:54.690]this will be largely symbolic,
[00:39:56.930]unless there's more resources and more personnel
[00:40:00.960]to make the process more efficient.
[00:40:05.980]Meanwhile, as you'll see in the next slide,
[00:40:09.210]at least as a visual,
[00:40:11.160]Afghans have arrived on evacuation flights from Afghanistan
[00:40:17.390]or after traveling to a third country.
[00:40:21.550]Many have arrived not through the refugee program,
[00:40:25.580]but through other means, such as parole,
[00:40:30.060]which is a legal term that refers to someone's lawful entry
[00:40:35.920]to the United States.
[00:40:37.600]It is not itself a formal legal status.
[00:40:42.180]Many Afghans who have arrived will apply for asylum.
[00:40:48.540]Asylum is a law that governs people
[00:40:52.760]who are already in the United States.
[00:40:56.290]And the law is plain that a person,
[00:40:59.010]regardless of how they entered the United States
[00:41:01.970]and regardless of their immigration status, may apply.
[00:41:06.820]They too have to meet the definition of a refugee.
[00:41:12.410]The changes made by the Trump administration
[00:41:15.880]to our asylum system were profound.
[00:41:18.910]Some of the policies included
[00:41:21.630]making someone ineligible if they arrive at the border
[00:41:26.850]other than a port of entry.
[00:41:29.000]Making someone ineligible for asylum,
[00:41:31.530]if they transit through a third country
[00:41:34.410]before arriving at the border.
[00:41:38.040]Making certain people wait in Mexico
[00:41:41.730]in extraordinary conditions
[00:41:44.190]until their hearing is scheduled.
[00:41:47.930]Many of these policies were blocked by the courts.
[00:41:52.370]But the expulsion of asylum seekers persists
[00:41:56.150]with a disparate impact on Haitians arriving at the border.
[00:42:01.920]Instead of being allowed to enter
[00:42:05.530]and be screened for asylum,
[00:42:07.970]many have been expelled to Mexico or Haiti
[00:42:12.750]under a deeply controversial policy called Title 42,
[00:42:18.470]which is a 70-year-old public health statute
[00:42:21.700]that prohibits the introduction of an individual,
[00:42:25.780]if the CDC believes they pose a communicable disease
[00:42:30.960]to the United States.
[00:42:33.290]Title 42 continues to be used
[00:42:36.450]against thousands of asylum seekers at the border,
[00:42:40.630]even though essential travelers are allowed to travel
[00:42:45.300]between and at these same borders.
[00:42:48.370]And even though in a few weeks,
[00:42:50.830]even vaccinated travelers
[00:42:53.270]who are going on non-essential travel
[00:42:56.660]will be able to enter.
[00:42:59.100]Some have really questioned whether Title 42
[00:43:04.630]is really about public health.
[00:43:08.700]Said America's top physician, Dr. Anthony Fauci,
[00:43:13.777]"Let's face the reality here.
[00:43:16.750]The problem is within our own country.
[00:43:20.110]Focusing on immigrants, expelling them
[00:43:23.730]is not the solution to an outbreak."
[00:43:31.130]In the next side,
[00:43:33.060]I want to talk about how immigrant exclusion
[00:43:37.800]can perpetuate not when policy is being made,
[00:43:43.040]but when Congress is not acting at all.
[00:43:47.160]To illustrate the legal categories
[00:43:49.890]in our immigration statute
[00:43:52.270]for the number of permanent visas available, for example,
[00:43:57.370]have not been changed in 35 years.
[00:44:02.840]Meanwhile, the DREAM Act, which was first introduced in 2001
[00:44:09.060]has prevented, because it hasn't been enacted,
[00:44:12.530]more than 1 million people who came to the United States
[00:44:16.610]as youth from accessing legal status
[00:44:20.040]through our immigration laws.
[00:44:22.650]Meanwhile, more than two thirds
[00:44:26.030]of our undocumented population
[00:44:28.750]have lived in the United States for well over a decade,
[00:44:33.870]have built families, have laid down roots, have worked,
[00:44:38.920]and despite these connections
[00:44:41.710]are unable to access the American dream.
[00:44:47.600]Congressional action is crucial.
[00:44:50.360]Our immigration statute does not match our reality
[00:44:55.780]for why people enter the United States,
[00:44:59.840]and why people remain.
[00:45:01.990]And so, many remain in the shadows, outside the law.
[00:45:07.610]I had the opportunity to witness in
[00:45:10.480]and participate as an attorney and an advocate
[00:45:14.760]in different cycles of what people call
[00:45:17.700]comprehensive immigration reform.
[00:45:21.430]So much legislative drafting.
[00:45:24.610]Primary amendments, secondary amendments,
[00:45:28.070]meetings with legislators, grassroots activity,
[00:45:33.250]and information and conversation
[00:45:37.230]about why immigration reform matters.
[00:45:40.810]And yet, we haven't seen it enacted.
[00:45:44.230]The closest we really came was in 2006,
[00:45:49.000]when the Senate passed an Immigration Bill.
[00:45:54.150]In addition to the lack of action by Congress
[00:45:58.850]are the changes Congress has made
[00:46:02.800]to perpetuate exclusion, primarily beginning in 1996.
[00:46:08.690]And the way that Congress did this was not explicitly,
[00:46:14.090]but rather by making criminality
[00:46:18.370]the centerpiece for immigration enforcement.
[00:46:22.450]For example, Congress expanded the term
[00:46:25.800]aggravated felony in 1996.
[00:46:29.600]This applies to a range of conduct.
[00:46:32.980]Sometimes conduct that is neither aggravated, nor a felony.
[00:46:40.180]If you're convicted of an aggravated felony,
[00:46:43.340]you are more likely to be detained
[00:46:46.230]and more likely to be permanently deported.
[00:46:50.170]I once represented a client
[00:46:52.930]whose convictions for writing bad checks
[00:46:56.680]placed him in the aggravated felony category
[00:46:59.960]and resulted in him being incarcerated by ICE
[00:47:04.270]for more than two years.
[00:47:08.040]Because the 1996 immigration laws make it possible
[00:47:12.940]for someone who encounters the criminal system
[00:47:16.350]to be detained and deported at higher rates,
[00:47:20.230]what this results in too,
[00:47:22.470]are great racial disparities in our immigration system.
[00:47:27.690]Data from DHS shows that initial admissions to detention
[00:47:32.250]involve nationals from Guatemala,
[00:47:34.740]Mexico, Honduras, El Salvador, and Cuba.
[00:47:39.990]Black immigrants are also impacted differently.
[00:47:44.050]According to one source,
[00:47:45.960]nearly half of families detained in 2020
[00:47:50.190]were from Haiti,
[00:47:52.010]and 24% of immigration detainees
[00:47:56.210]held in solitary confinement
[00:47:58.730]were from Africa and the Caribbean.
[00:48:02.610]I have witnessed these disparities firsthand
[00:48:06.920]from the first time I represented
[00:48:09.440]a detained asylum seeker from Liberia,
[00:48:13.290]to more recently in a family detention center,
[00:48:16.920]while working with a family from Haiti.
[00:48:21.260]They had endured several death threats
[00:48:24.400]in their home country.
[00:48:26.040]They went through a multi-hour hearing
[00:48:29.530]inside of a small room,
[00:48:31.760]while holding their child in a jail
[00:48:35.810]with the asylum officer and an interpreter on the telephone.
[00:48:45.640]In the next side, I wanna impress one point,
[00:48:49.950]if you remember nothing else.
[00:48:52.840]It doesn't have to be this way.
[00:48:55.800]I focus my scholarship and research on discretion.
[00:49:02.470]And one key question
[00:49:05.040]is how and who the federal government decides
[00:49:10.110]to arrest, detain, and deport.
[00:49:15.050]Prosecutorial discretion refers to a choice
[00:49:18.790]made by the government
[00:49:20.500]about whether enforcement action should be taken at all.
[00:49:26.260]And there are different theories
[00:49:27.760]for discretion in immigration.
[00:49:30.290]One is economic.
[00:49:31.930]There are limited resources, so choices have to be made
[00:49:36.600]who are you going to prioritize
[00:49:39.100]and who are you going to protect?
[00:49:42.700]A second theory that informs prosecutorial discretion
[00:49:46.760]in immigration is compassion.
[00:49:49.600]If we look at the history,
[00:49:51.920]those who are protected through discretion
[00:49:54.970]have equities or reasons to be here,
[00:49:59.750]like family or long-term residents
[00:50:03.300]or a serious medical condition
[00:50:06.330]requiring treatment in the United States.
[00:50:10.500]I sometimes describe prosecutorial discretion
[00:50:14.620]as a heart in the human body,
[00:50:18.670]because it's a way to think about how essential it is
[00:50:23.110]to a functioning immigration system.
[00:50:27.990]This kind of discretion also exists in the criminal context.
[00:50:32.720]Prosecutors don't bring charges
[00:50:35.440]against every single person who fishes without a license.
[00:50:40.590]Why?
[00:50:41.750]There are bigger fish to fry.
[00:50:45.290]That pun was intended.
[00:50:48.070]Importantly, prosecutorial discretion
[00:50:50.680]is a temporary reprieve.
[00:50:53.160]It does not provide an independent pathway
[00:50:56.630]to a green card or citizenship.
[00:50:59.380]It does not guarantee
[00:51:01.810]full participation in American society.
[00:51:06.600]During the Trump administration,
[00:51:08.300]it was really hard to see
[00:51:10.610]humane discretion being carried out.
[00:51:13.810]Executive orders expanded the priorities,
[00:51:17.780]news articles called it open season on immigration.
[00:51:22.800]The former ICE had said,
[00:51:25.077]"There is no population off the table.
[00:51:28.230]If you're in the country illegally, we are looking for you."
[00:51:34.500]I spoke to an immigration advocate
[00:51:36.470]during the Trump administration
[00:51:38.460]and she told me, "Everyone is a priority.
[00:51:42.500]It doesn't matter if you've been in the country 20 years
[00:51:46.220]and you've never committed a crime
[00:51:48.440]and you're on your way to Sunday school.
[00:51:51.740]You are a priority."
[00:51:54.400]And in the next slide,
[00:51:56.860]in August, 2019,
[00:51:59.000]let me share the story of the Trump administration
[00:52:03.030]trying to end a prosecutorial discretion policy
[00:52:07.000]called a medical deferred action.
[00:52:09.890]This kind of protection is an important safety valve
[00:52:13.740]for patients, as well as for American healthcare,
[00:52:18.680]because often, these patients are in clinical trials.
[00:52:23.090]Before the House Oversight Committee,
[00:52:25.610]I had the honor of testifying
[00:52:28.120]about the history of deferred action.
[00:52:31.410]My empirical work on the number of deferred action cases
[00:52:36.480]that had been granted based on a serious medical need
[00:52:41.000]or for a caregiver taking care of someone with the same.
[00:52:46.780]Sitting to my right was a teenager from Honduras.
[00:52:51.890]He was 16-years-old
[00:52:54.200]and his life depended on deferred action.
[00:52:59.080]Sitting to my left was a physician
[00:53:02.340]talking about the crucial need for medical deferred action
[00:53:07.150]to clinical trials and America.
[00:53:12.740]It was an emotional three-hour plus hearing.
[00:53:17.760]10 days later,
[00:53:19.440]I was getting off the subway in New York City
[00:53:22.580]and my phone rang.
[00:53:24.290]And it was Representative Ayanna Pressley,
[00:53:27.000]one of the leaders opposing
[00:53:29.440]the end to medical deferred action.
[00:53:33.080]She called to inform me that USCIS had reversed course
[00:53:39.070]and would reinstate the program.
[00:53:41.877]"We did this," she said,
[00:53:44.290]speaking of the movement against its end.
[00:53:48.710]And all I can say, especially given its timing,
[00:53:53.240]is that it was a rare win during a war against immigrants.
[00:54:01.304]In the next slide and this helpfully,
[00:54:03.500]puts the DACA population in context,
[00:54:07.860]and other group that has benefited from deferred action
[00:54:13.050]include those who are recipients of DACA,
[00:54:17.140]a policy announced in 2012 by the Obama administration
[00:54:21.720]and implemented by the Secretary of Homeland Security.
[00:54:25.770]It allows those who entered the United States
[00:54:28.310]before the age of 16, who are in school or graduated
[00:54:32.810]and meet certain requirements
[00:54:34.730]to request deferred action and apply for work authorization.
[00:54:40.460]DACA is by all accounts an American success story,
[00:54:45.380]with people going to school, working,
[00:54:49.340]with 30,000 in the front lines of American healthcare.
[00:54:55.430]And yet, in 2017,
[00:54:59.040]the former attorney general announced an end,
[00:55:03.310]a wind-down to DACA.
[00:55:06.380]In a press conference,
[00:55:07.950]the former attorney general called DACA recipients
[00:55:11.750]illegal aliens, and called DACA unlawful.
[00:55:17.170]I spoke to a DACA recipient
[00:55:19.630]about the volatility and uncertainty around DACA.
[00:55:24.530]And he talked to me about the mental toll.
[00:55:28.570]He said, "I think it's not so much
[00:55:31.320]the effect of the policies that are being enacted,
[00:55:34.570]which are dangerous and poisonous to our democracy,
[00:55:38.600]but it's the psychological warfare
[00:55:41.980]that we are subjected to on a daily basis.
[00:55:46.170]The president can just pick up the phone,
[00:55:49.200]send out a tweet,
[00:55:51.080]and then we spend the whole day deciphering it.
[00:55:55.130]How bad is it?
[00:55:56.920]How bad isn't it?"
[00:56:00.030]The uncertainty of DACA endures
[00:56:03.340]with attempts by the former administration to end it,
[00:56:07.310]but also because of pending litigation.
[00:56:12.240]Meanwhile, and just adding
[00:56:14.960]to the complex landscape we are in,
[00:56:18.320]we have a president who is committed to fortify
[00:56:22.190]and sustain DACA, as well as support a permanent solution,
[00:56:27.890]which requires congressional action.
[00:56:33.215]In the next side and on discretion more broadly,
[00:56:36.710]the Biden administration at the end of September,
[00:56:40.060]finalized its guidance on prosecutorial discretion.
[00:56:44.920]It states that undocumented status alone
[00:56:48.810]will not be a reason to take enforcement action.
[00:56:53.320]And importantly says that criminality
[00:56:56.650]should not categorically deny a person protection
[00:57:01.660]through discretion.
[00:57:04.890]But the use of discretion in immigration enforcement
[00:57:08.820]in the first year of the Biden administration
[00:57:12.010]has been challenging,
[00:57:14.940]especially as it relates to Title 42,
[00:57:18.470]as well as expansions to immigration detention.
[00:57:22.490]One of those expansions is down the road from where I live
[00:57:27.950]and can house up to 1,800 immigrants.
[00:57:33.040]Instead of expelling and excluding
[00:57:35.900]those coming at the border,
[00:57:38.060]the administration can use its discretion
[00:57:41.920]to allow the same to enter the United States
[00:57:45.640]and apply for asylum.
[00:57:47.960]Discretion can also be used to protect individuals,
[00:57:53.230]such as arriving Afghans and Haitians
[00:57:56.750]who may not qualify for asylum,
[00:58:00.130]but who have a humanitarian reason to be protected
[00:58:04.630]because of extraordinary conditions in their home country.
[00:58:09.750]Protection is a crucial part of inclusion,
[00:58:15.040]and with profound consequences on the rule of law.
[00:58:21.770]In the end,
[00:58:23.720]understanding modern day exclusion
[00:58:27.840]requires an understanding of a history
[00:58:31.590]that is often left out of history books.
[00:58:36.150]Over and over, national security is used as a tool
[00:58:41.830]for immigration policies,
[00:58:43.990]which explicitly exclude based on race or country of birth,
[00:58:49.590]as seen with the Chinese Exclusion laws,
[00:58:53.000]with NSEERS and the Muslim ban.
[00:58:57.030]Modern day exclusion can also be less visible,
[00:59:00.860]as seen with the second class citizenship
[00:59:03.940]bore by millions who are victims of congressional inaction,
[00:59:09.290]higher rates of detention and deportation
[00:59:12.640]for those who encounter the criminal system.
[00:59:16.000]And most recently, Title 42.
[00:59:20.640]Modern day exclusion is also informed
[00:59:24.280]by the climate we're in.
[00:59:26.440]The climate of othering,
[00:59:29.880]of racial polarization and marginalization.
[00:59:35.120]DACA, America's success story,
[00:59:39.150]is under attack.
[00:59:42.060]Asians are to blame for the virus,
[00:59:45.850]and are being killed.
[00:59:48.260]Haitians are a public health threat.
[00:59:52.360]Muslims are terrorists.
[00:59:55.500]These policies and conditions are not accidental,
[01:00:00.270]and they go beyond immigration.
[01:00:02.930]They should force conversation about history,
[01:00:06.900]intersectionality, and racial justice.
[01:00:11.010]50 years after the 1965 Act,
[01:00:14.950]20 years after 9/11,
[01:00:18.500]history will continue to repeat itself,
[01:00:22.740]unless we do something different.
[01:00:26.610]And that requires a rejection
[01:00:29.600]of a blanket label of national security
[01:00:33.650]or public health to justify exclusion.
[01:00:38.150]That requires changing course
[01:00:40.700]when immigration enforcement or discretion
[01:00:44.440]produces unequal outcomes.
[01:00:47.930]And it requires envisioning an immigration policy
[01:00:52.570]that is truly inclusive and one that works for everyone.
[01:00:59.500]Thank you.
[01:01:00.761](audience applauding)
[01:01:14.850]Thank you, Professor Wadhia.
[01:01:16.380]We really appreciate it.
[01:01:19.500]Now is time for you to ask questions.
[01:01:24.064]As we go into the Q&A,
[01:01:25.400]you can ask questions by texting to that number
[01:01:30.670]or going to that website on a computer,
[01:01:33.250]if you would like to do that.
[01:01:36.380]And while I wait for questions to come in, Professor Wadhia,
[01:01:39.920]as I promised you,
[01:01:40.980]I have a question for you to get things started,
[01:01:43.390]which is if Congress came to you tomorrow and said,
[01:01:47.497]"We will adopt immigration reform,
[01:01:50.320]but only with respect to two topics,"
[01:01:53.780]which ones would you prioritize and why?
[01:01:57.890]So that's a big question.
[01:01:59.900]Thank you for it.
[01:02:01.160]And I suppose I can give you the broadest spectrum
[01:02:05.710]in terms of topic, as I wish.
[01:02:09.520]I wanna start with our existing immigration statute.
[01:02:14.350]It's been compared second in complexity
[01:02:17.040]to the U.S. tax code, for those like taxes.
[01:02:20.970]But it's a framework that really hasn't changed,
[01:02:24.340]as I mentioned, in over three decades.
[01:02:28.050]And it's really striking,
[01:02:30.010]because if you think about any other system
[01:02:33.870]or infrastructure, right?
[01:02:35.900]What if we lived in a 20th century structure
[01:02:41.210]and tried to respond to 21st century demands?
[01:02:47.490]And I think that's what we are facing,
[01:02:50.430]unless we make significant changes to our quotas
[01:02:55.700]and ceilings for family-based
[01:02:58.640]and employment-based immigration,
[01:03:00.940]and really think about the legal categories
[01:03:04.310]that simply don't exist,
[01:03:06.520]but for which there is great demand
[01:03:09.100]or a reason for why people enter and why people remain.
[01:03:14.760]So I'd really like to see those changes to the framework.
[01:03:20.350]And when I think about equity and inclusion
[01:03:26.110]and the number I shared earlier
[01:03:28.190]about how many people have been living in the United States
[01:03:32.240]without documentation,
[01:03:35.560]I'd really like to see a proposal
[01:03:38.240]that puts them on a more expeditious path to a green card.
[01:03:42.740]I think the time you spend
[01:03:45.090]really also goes to the routes that are laid
[01:03:49.770]and the relationships and the families that are built.
[01:03:54.080]So those are two of the changes that I'd love to see.
[01:04:00.250]Here's the first question that came in.
[01:04:01.900]It says, "Can you speak on the immigration policies
[01:04:04.980]that affect international students,
[01:04:06.780]such as F-1, J-1 visa holders
[01:04:10.170]in relation to the dehumanization of this group
[01:04:12.830]based on policies?
[01:04:14.120]Are they viewed as more valuable to the U.S.
[01:04:17.310]due to their skills
[01:04:18.230]demonstrated through academic achievements
[01:04:20.810]or the perception of them as cash cows?"
[01:04:26.000]That's a provocative question.
[01:04:27.912](all laughing)
[01:04:29.110]Well, you'll see some of the other ones.
[01:04:30.440]And I appreciate it.
[01:04:32.820]And I too, am on a campus
[01:04:35.060]with a very large international student
[01:04:38.700]and scholar population
[01:04:40.300]and see the contributions and the benefits every day.
[01:04:46.800]So if one question
[01:04:50.860]is about whether they bring monetary benefit
[01:04:54.530]to the United States,
[01:04:56.240]the short answer to that question is yes.
[01:04:59.800]When it comes to policy,
[01:05:02.300]we saw some attempts to change policy
[01:05:07.150]in the previous administration
[01:05:09.370]that didn't quite make it to the finish line.
[01:05:12.520]So during COVID-19,
[01:05:14.840]there was an attempt to block students
[01:05:19.440]who were taking a full-time online course of study,
[01:05:24.630]because of the ways that the rules are written.
[01:05:27.700]But there were significant pushback.
[01:05:29.590]And I think this resistance is important
[01:05:32.090]to your question too,
[01:05:34.290]because the universities and corporations
[01:05:38.340]and companies stepped up and stood up to be vocal
[01:05:44.250]about how profound the contributions are
[01:05:48.630]of students and scholars to not just the American economy,
[01:05:53.910]but to our educational institutions.
[01:05:56.670]And I think that pressure really caused ICE in some ways,
[01:06:01.680]to back off.
[01:06:03.540]We saw another rule in the Trump administration
[01:06:07.160]to make it more challenging
[01:06:10.030]for students to complete their full course of study.
[01:06:13.830]And again, that's a rule
[01:06:15.850]that received over 30,000 public comments.
[01:06:19.530]Again, that shows that the public cares,
[01:06:23.370]but eventually, was never finalized
[01:06:26.250]because of the change in administrations.
[01:06:29.570]But to a question that came up in discussion this morning
[01:06:34.150]in Lincoln, we talked about this rule about intent.
[01:06:39.160]Because today, if you're a student,
[01:06:42.090]you have to show that you have non-immigrant intent.
[01:06:47.070]And so one change I'd like to see,
[01:06:49.100]if you give me a third shot at telling you about reform,
[01:06:55.000]is to really do away with that doctrine
[01:06:58.580]and make it more flexible and nimble for a student
[01:07:01.840]or a scholar to apply for a green card after their study.
[01:07:10.260]What country is doing immigration well,
[01:07:12.537]and what can we learn from that country?
[01:07:16.920]Well, it's hard to talk about what countries
[01:07:19.760]are doing well in the world of a global pandemic, right?
[01:07:26.190]Just because even as a practical matter,
[01:07:29.450]even for those who are legally able to move and migrate,
[01:07:36.820]there are quite a few limitations because of the pandemic.
[01:07:42.340]But I might answer that by suggesting
[01:07:46.320]that since I'm not an comparative scholar,
[01:07:49.740]that the United States has a lot of opportunity
[01:07:53.530]to do immigration well.
[01:07:55.930]So we are actually in this moment
[01:08:00.010]and in a very important moment of the Biden administration
[01:08:04.790]to really think about what the next step looks like.
[01:08:11.400]How can you blame immigration issues on President Trump,
[01:08:15.180]if you mentioned they have been an issue
[01:08:16.720]since the 19th century?
[01:08:20.840]So, I don't at any point,
[01:08:26.980]blame a person for my storytelling about exclusion.
[01:08:33.540]But I think there are moments where,
[01:08:36.280]for example, Chinese Exclusion was an act of Congress.
[01:08:42.540]The Muslim ban was the act of one person
[01:08:46.610]who signed an executive order.
[01:08:48.760]So just on a very fundamental level,
[01:08:51.150]how law and policy is made matters when telling the story.
[01:08:58.540]And so that's really my goal
[01:09:00.700]and explaining how exclusion has evolved
[01:09:07.010]since the 19th century and naming the fact
[01:09:11.370]that with measures like the proclamation,
[01:09:16.610]we've seen it done in a more unilateral way,
[01:09:20.810]as opposed to collectively or legislatively.
[01:09:27.260]A lot of immigration problems
[01:09:29.100]stem from a country's instability in terms of political,
[01:09:32.940]economic, and social turmoil.
[01:09:35.260]How can we address migration problems at the root?
[01:09:41.640]So this is another big question.
[01:09:45.430]And one way to do that might be the investments
[01:09:48.500]that the United States might make into those countries
[01:09:53.110]that are suffering from political or economic turmoil.
[01:09:57.820]But I also think and envision a U.S. immigration policy
[01:10:02.420]that welcomes and includes
[01:10:05.320]those who are here or are leaving their countries
[01:10:11.240]because of those extraordinary conditions.
[01:10:13.960]And I think there are significant steps we can take
[01:10:17.400]as a matter of domestic immigration policy
[01:10:21.630]when it comes to those who are suffering.
[01:10:26.833]What would you say is the greatest barrier
[01:10:29.170]to convincing Congress to enact inclusive immigration reform
[01:10:33.680]and what are the opportunities to overcome that?
[01:10:39.490]So if I had a crystal ball or 10,
[01:10:44.790]and I knew the answer to that question,
[01:10:48.272]I don't know that I would be a law professor anymore.
[01:10:53.170]But here's what I can share from my experience,
[01:10:57.440]because I was able to witness
[01:11:00.060]bipartisan immigration reform debate
[01:11:05.790]over many years while working in Washington.
[01:11:10.420]And what I can tell you the barrier that does not exist
[01:11:15.430]is the absence of a policy, right?
[01:11:19.260]We have content, we have policy.
[01:11:23.080]We have a time where Senators Kennedy and McCain
[01:11:28.090]worked together on a holistic immigration bill.
[01:11:32.490]It may need to be updated to really interrogate
[01:11:37.520]the ways in which our immigration enforcement is racialized,
[01:11:43.090]because I think there's been a heightened awareness.
[01:11:46.280]So I don't think it's the substance.
[01:11:49.340]It's the political will or the...
[01:11:54.900]You can't explain immigration in a sound bite, right?
[01:11:58.973]So some of it also is education
[01:12:02.640]and understanding about how
[01:12:06.680]a change that happens inside the beltway
[01:12:10.120]affects real people and communities.
[01:12:15.658]What should the guiding principles be
[01:12:17.390]for the use of prosecutorial discretion
[01:12:20.070]in the immigration removal context?
[01:12:23.760]Well, thank you for whoever asked me that question,
[01:12:27.420]because I can talk about prosecutorial discretion
[01:12:31.240]for a long time.
[01:12:33.000]So, you know, and I am not shy in my position
[01:12:39.240]that compassion and our shared humanity
[01:12:44.340]should be guiding principles
[01:12:46.660]to inform prosecutorial discretion.
[01:12:50.270]And we actually have a history of applying it in this way,
[01:12:56.420]but if we reframe or think about its application
[01:13:01.700]through a lens that is humanitarian,
[01:13:05.760]we will inevitably build a more inclusive policy.
[01:13:13.140]Now, as I said, this kind of discretion
[01:13:17.300]does not provide full access to the American dream,
[01:13:22.120]but it is a crucial step, especially when conditions
[01:13:27.510]in and around the world are extraordinary.
[01:13:33.000]From your perspective,
[01:13:34.500]how can we begin to change the narrative of immigrants
[01:13:37.680]as threats to national security,
[01:13:40.120]especially within our day-to-day interactions
[01:13:42.610]in a non-legal space and the American public's perception?
[01:13:49.710]A lot of it is about unlearning, right?
[01:13:52.370]We just talked about all the ways that national security
[01:13:57.060]has actually been the tool
[01:13:59.670]used to make immigration policy.
[01:14:03.410]So part of my goal is for people to learn the history
[01:14:09.320]and understand how it can be a tool,
[01:14:14.160]but how it can also be a proxy.
[01:14:17.100]So that's step one.
[01:14:19.950]But I also go back to our shared humanity,
[01:14:24.170]because you and I, and you and I, right?
[01:14:28.450]When we know about a story or we hear stories,
[01:14:33.410]that can really be the narrative
[01:14:37.140]that changes someone's hearts
[01:14:39.830]or changes someone's mind, dare I say.
[01:14:44.490]So I think, to shift from fear to compassion
[01:14:49.250]takes a few steps that include education and conversation.
[01:14:57.160]Immigration law and policy
[01:14:58.670]are extremely complicated areas.
[01:15:01.070]I might argue they're even more complicated than tax law.
[01:15:05.030]Do you have any good strategies for making them accessible
[01:15:08.060]to laypeople who have interests
[01:15:10.100]or concerns about immigration law and policy?
[01:15:15.060]So first, let me share that I don't do my taxes.
[01:15:18.545](audience laughing)
[01:15:19.930]Second, one of my passions really
[01:15:25.140]is taking complex immigration law and policy
[01:15:30.390]and making it understandable to the community,
[01:15:34.380]to policymakers, and to the public.
[01:15:37.150]And I'm very grateful for having had a job in policy
[01:15:41.900]in between private practice and academia
[01:15:45.110]to really appreciate that no piece of paper
[01:15:49.600]or message is too small
[01:15:52.000]when it comes to the public understanding of immigration.
[01:15:56.770]And this is a principle that I've also brought
[01:15:59.220]to the Center for Immigrants' Rights.
[01:16:01.970]So one of my teaching goals is for law students
[01:16:07.450]to really understand the relationship
[01:16:09.570]between immigration law, policy, and politics,
[01:16:14.380]and the relationship between the three.
[01:16:17.010]And the work they do
[01:16:19.480]is also in the range of writing an appellate brief,
[01:16:24.980]to writing a fact sheet
[01:16:28.330]so that someone who wants to be a financial sponsor
[01:16:32.280]on a humanitarian parole application,
[01:16:35.100]but as a pastor at a church, understands what it involves.
[01:16:39.470]So I think that type of communication and that medium
[01:16:43.720]is not only crucial to public understanding,
[01:16:47.890]but it's also crucial to good lawyering.
[01:16:54.220]What would your biggest takeaway
[01:16:57.440]or what would you like our biggest takeaway to be
[01:16:59.810]from your talk tonight?
[01:17:04.270]So my big takeaway is
[01:17:09.070]that I love discretion.
[01:17:12.720]And second,
[01:17:14.720]that we need an immigration system
[01:17:18.220]that works for everybody.
[01:17:20.920]And there's a way to do that,
[01:17:23.030]and it begins with understanding our history,
[01:17:26.760]and it ends with using labels or tools to exclude
[01:17:33.330]and looking more towards those tools
[01:17:36.330]that are more inclusive
[01:17:38.270]and that reflect our shared humanity.
[01:17:43.180]I haven't gotten the hook yet,
[01:17:44.400]but I have a feeling I'm about to,
[01:17:46.070]so I think we'll end with that.
[01:17:48.070]I wanna thank Professor Wadhia again
[01:17:50.060]for her thoughts tonight.
[01:17:52.032](audience applauding) Thank you so much.
[01:18:01.740]And I also wanna thank all of you
[01:18:03.410]for attending tonight's E.N. Thompson Forum.
[01:18:06.460]We hope to see you on February 9th at 4:00 p.m.
[01:18:09.950]with Anna Deavere Smith at the Lied Center here
[01:18:13.550]for a conversation on race in the arts
[01:18:15.960]with Sandra Washington as moderator.
[01:18:19.080]Ms. Smith will be performing "Notes From the Field"
[01:18:21.680]at 7:30 p.m. at the Lied Center that evening
[01:18:24.660]and we encourage everyone to attend.
[01:18:27.220]You can find tickets on the Lied Center website.
[01:18:30.690]Again, thank you all for coming and have a pleasant evening.
[01:18:34.130]Thank you. (audience applauding)
[01:18:37.389](upbeat music)

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E.N. Thompson Forum - Facing Immigrant Exclusion: Then and Now

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