By Alisa Wellek and Nancy Morawetz
In a cruel ruling last month in Barton v. Barr, the Supreme Court upheld a Trump administration position that will deny many green card holders facing deportation the possibility of asking for relief. This decision will put more people at risk at a time when immigration detention and deportation have exacerbated the effects of the COVID-19 pandemic and there is a national movement demanding decarceration and a halt to deportations.
As the pandemic rages, the Barton decision received scant attention yet it has major implications for thousands of our neighbors. The White House has sought to weaponize immigration issues as a means to jam through ever more reactionary policies, and it will surely use this decision to inflict further pain on communities across the country.
The petitioner, Andre Barton, a long-time green card holder who lived in the United States over thirty years before being placed in deportation proceedings, ran an auto repair shop as the primary provider for his family, including four U.S. citizen children. Facing deportation for decades-old contact with the criminal legal system, he sought a ruling that would allow the immigration judge in his case to consider these equities.
Justice Department lawyers, however, sought to cut off any consideration of Mr. Barton’s life circumstances, leaving permanent exile from his home and family as the only possible outcome. Last month, a majority of the Supreme Court sided with the Trump administration.
It’s time for the House of Representatives to serve as a bulwark against this hateful agenda. When Congress comes back in session, it must take action to restore due process and compassion to an immigration system that fails to live up to our most basic values of fairness and respect for human rights.
The urgency has never been greater. Thousands of medical workers have warned that detention centers, where the federal government systematically deprives thousands of liberty, are “tinderboxes” for COVID-19, with long records of medical neglect and no possibility of distancing. Shockingly, 75 percent of people on a recent deportation flight tested positive for the virus.
On top of separation from their families and lives in the United States, thousands of green card holders and other immigrants may face a potentially life-threatening COVID-19 infection unless we fundamentally transform our policies.
Under two laws passed in 1996, the Anti-Terrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act, an enormous range of contact with the fundamentally flawed criminal legal system often automatically results in loss of immigration status, detention, and deportation. For immigrants with lawful status, including green card holders, and undocumented community members alike, immigration courts’ ability to keep families together is already greatly limited. This has also contributed to the rapid growth of immigration detention in recent decades – where models estimate that 70 to 100 percent of detainees may have COVID-19.
Justice Kavanaugh, writing the Court’s opinion for a slim 5-4 majority in Barton, used his interpretation of these laws to deepen the injustice. His interpretation will force immigration judges to deport any person with certain offenses on their record during their first seven years in the country.
Disturbingly, Kavanaugh’s opinion applies this rule even if the long-ago offense was not one that Congress deemed should warrant deportation of a green card holder. The ruling underscores the need for Congress to pass legislation to avoid such injustice.
At the time the 1996 laws were passed, not all members of Congress understood how much they would fuel the mass incarceration and criminalization of immigrants. A bipartisan coalition in Congress, including prominent conservative Republicans, later came to regret the law. The Trump administration’s abuses, Kavanagh’s draconian interpretation, and the rising threat of the pandemic have demonstrated just how deeply the injustice is embedded.
As the enforcement dragnet has expanded, long-time residents have been detained for years, and Black immigrants and other immigrants of color have disproportionately suffered. One of the few recourses for some people was the possibility of a “relief hearing.” But the Barton decision has cut this possibility off at the knees, precisely at a moment where freeing community members from detention and preventing deportation has become a matter of life and death.
The only solution is for Congress to act. The New Way Forward Act (H.R. 5383), currently pending in the House of Representatives, would eliminate the provision Kavanaugh cited to subject green card holders to mandatory deportation based on long ago non-deportable conduct. Among other corrective measures, the legislation would restore the possibility of relief for other immigrants for “humanitarian purposes, to ensure family unity or when it is otherwise in the public interest.”
Now more than ever, we need action from Congress to restore a modicum of justice for families and communities.
Alisa Wellek is Executive Director of the Immigrant Defense Project, a member of the Immigrant Justice Network. Nancy Morawetz is Professor of Clinical Law at New York University School of Law and Co-Director of NYU’s Immigrant Rights Clinic.