Book Review Series: Humanizing Immigration

This is the first iteration of a book review series for Immigration Medicine & Immigration Policy-specific reads. Join me in my quest to dive deeper into the world of Immigration literature!

This one is a doozy! Bill Ong Hing's Humanizing Immigration was the first book I picked up on Immigration Literature during my Health Policy fellowship. Being accustomed to a world of incremental change coming from the perspective of clinical asylum medicine, it was incredible to see so many actionable items spelled out clearly that could turn the current US immigration system on its head.

Background

Bill Ong Hing is an immigration attorney and academic (previously professor at UC Davis, more recently Associate Dean at University of San Francisco) with over fifty years of litigation and community experience. Throughout this book, he presents a series of Immigration Law issues, along with a list of actionable solutions. It is an academic book geared toward law and policy, with infrequent reference to the medical perspective of immigration. Each problem/solution pair is coupled with the stories of individuals with whom he was worked personally, along with some other landmark cases in Immigration Law that bolster his arguments.

Major Issues

Throughout this work, Ong Hing touches on many problematic spots in Immigration Law.

First, he addresses the overarching issues of racial injustice. He highlights the prison-to-deportation pipeline ushering Black and Latinx immigrants from the criminal court system to ICE custody, and explains the problematic quotas allowing a varying number of immigrants to the US depending on their country of origin.

Ong Hing pulls from his own experience visiting children in Clint, Texas to illustrate the inhumane treatment of detained children. He touches on the 1997 Flores Settlement Agreement detailing basic standard of care and treatment for detained children after Reno v. Flores (1993) approved the detention of unaccompanied minors via a DOJ policy, and gives examples of the atrocities that occur when the Flores agreement obligations are not met or are met to the minimum - the absence of nutritious food or medical care, solitary confinement, and even deaths of the children held in these Border Patrol facilities.

An excerpt from the Office of Inspector General report on widespread overcrowded and squalid conditions at migrant centers along the southern border prior to the Flores Settlement Agreement. SOURCE: “Squalid Conditions at Border Detention Centers, Government Report Finds”, The New York Times, July 2, 2019.

Through the cases of several clients, he discusses deporting aggravated felons. He describes the difference between relational justice (premised on the belief that individuals are capable of change) over incapacitation justice (the state has a duty to protect the public from future harms by perpetrators), and notes that noncitizen aggravated felons have already served and completed a sentence for the criminal offense, thus deportation proceedings double-dip their punishment. The zero-tolerance approach currently followed by the US government too often results in deportation, an outcome that is in many cases disproportionate to the crime.

Ong Hing then addresses the Morton Memo, and highlights issues with prosecutorial discretion & cancellation of removal. Cancellation of removal for undocumented non-citizens can be granted by an immigration judge if an individual has lived in the US for at least ten years and demonstrated good moral character. However, the statute requires a demonstration of "exceptional and extremely unusual hardship" to a person closely involved in the case - this is very subjective and classically difficult to prove. Also, in June of 2011, then-ICE Director John Morton released a memo encouraging the de-prioritization of non-criminals in immigration enforcement, in lieu of funneling the agencies' limited resources towards the cases of individuals who pose a threat to public safety. This also proved incredibly subjective, and has been inconsistently applied in immigration court cases.

The concept of "benefit of the doubt" in asylum seeker cases is then emphasized, citing the 1980 Refugee Act introducing refugee and asylum status in the US, which suggested a "well-founded fear" asylum relief language different than that of the "clear probability" language of withholding relief for deportation that was then standard. The INS v. Stevic (1984) Supreme Court case that followed hinted that the standard for asylum was probably more generous. Author Bill Ong Hing himself was one of the attorneys in the subsequent case of INS v. Cardoza-Fonseca (1987), where Justice Steven's majority opinion noted, "There is simply no room in the United Nation's definition for concluding that because an applicant only has a 10% chance of being shot, tortured, or otherwise persecuted, that he or she has no 'well-founded fear' of the event happening." This 10% language implied to many immigration attorneys that strong evidence of likely persecution is not required, and that applicants should be given the benefit of the doubt. However, this has not been consistently borne out - for quantitative evidence, check out the TRAC Reports from Syracuse for asylum approval and denial rates from varying immigration judges.

Ong Hing also details several large issues specifically pertaining to why asylum claim outcomes fail: the requirement of credibility as pretext, the lack of concern of impact of PTSD, the requirement of belonging to "a particular social group", and blatant discrimination against Central American asylum applicants.

Asylum seekers often bear the burden of proof when advocating for their asylum claims, instead of being given the benefit of the doubt. SOURCE: "The burden of proof: how asylum-seekers must prove their case in court", Sonoma County Gazette, April 12, 2023.

Ultimately, Ong Hing calls out problematic areas of the immigration court system, citing immigration judges' lack of resources, lack of authority, and lack of judicial independence. In regard to this last point, the Immigration Court system is housed within the DOJ's Executive Office for Immigration Review (EOIR). If the case is appealed, it goes to the Board of Immigration Appeals (BIA), which is also part of the EOIR. Both the EOIR and BIA are under the watchful eye of the presidential-appointed Attorney General (AG), who can remove cases or remove judges from their dockets, and override BIA decisions. This beholdening of the courts to the AG means there is huge political input to the appointment and overturning of Immigration Court decisions, which is unique and unlike most other courts.

Solutions

In solution to many of the above problems, Ong Hing calls for the abolition of many systems: ICE, immigration detention, and the current immigration court system, to name a few. But, it's not just destruction and disruption! Ong Hing also calls for many actionable solutions, a few of which I've outlined below as the most salient to Asylum Medicine.

1. Increase the tools in immigration judges' arsenal - allow for autonomy re: prosecutorial discretion and cancellation of removal to pursue just outcomes.

2. Allow alternatives to deportation for aggravated felons, including pre-trial diversion programs, community service requirements, probation officer reports, and required group living arrangements (e.g. residential treatment facilities, if necessary).

3. Analogize asylum law to criminal law: presume individuals innocent until proven guilty/presume credible until proven otherwise.

4. Establish a new Immigration Court institution free from political influence.

   
   

Ong Hing notes that Zoe Lofgren (Rep D-CA) previously introduced a bill to improve immigration courts, with the following suggestions:

• Separation from the executive branch

• 15-year renewable terms for immigration judges, subject to Senate confirmation

• Disallow the executive branch to overrule decisions of the new immigration courts

• Allow immigration court system to establish its own budget and empower judges to control their own cases

• Allow judges to impose civil fines for contempt of court

• Allow appointment of temporary judges/court facilities

Such a bill would provide substantial improvement, though Ong Hing notes that two other elements are needed:

• Provision of flexible approaches to achieve justice (e.g. prosecutorial discretion, ability to terminate proceedings where deportation would be unjust)

• Application of humanitarian principles (e.g. proportionality for lawful permanent residents who have committed crimes).

Overall Impression

5 out of 5 stars

Yes, Humanizing Immigration is dense and academic. But its logical progression and incorporation of personal stories from cases makes it easier to follow, and mostly approachable for readers coming from an Immigration Medicine background.

This is a great introduction to the legal implications of clients seen for forensic medical evaluations in academic-affiliated human rights clinics, and actionable approaches to systemic change in lockstep with our attorney colleagues.

Check out purchasing options here (no affiliation).

Feel free to leave a comment or share your experience below if you have had the chance to read Ong Hing's work!