Last July, in the midst of public uproar over the Trump administration's efforts to stem the tide of Central American asylum seekers, immigration scholar and former INS general counsel David Martin weighed in with a plea for reforms that would be humane, workable, and sustainable. Writing for Vox, Martin made the case that due process could be provided within a framework that would keep the system from being overwhelmed by the crush of troubled humanity from around the world.
Martin, now a law professor at the University of Virginia, is well grounded in the crisis besieging our system. In the 1990s he helped design badly needed reforms that set up a professionalized corps of asylum officers and buttressed the badly stressed immigration courts. As he wrote in a 2000 essay published by the Center that was an edited version of a speech he had given, those reforms deterred abuse and established a reassuring sense of order: "New asylum applications received by the INS declined from 150,000 in 1994 to 35,000 in 1999."
Way back in 1983, when that asylum crisis was taking shape in the aftermath of the Mariel boatlift from Cuba and the flotilla of rafts fleeing Haiti, Martin wrote about it for the University of Pittsburgh Law Review. He described the sea change within the judiciary from the era when the Supreme Court "seemed to foreswear ... any constitutional mandate to police small-scale due process" in asylum cases. He quoted one case in which the Court wrote that it was "not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of Government to exclude a given alien."
Martin went on describe the "rude and unceremonious burial" to which the Court subjected that philosophy as the U.S. judiciary gravitated to the conviction that asylum-seekers were entitled to a range of due process protections that have come at the cost of great expense and enormous backlogs that have choked the system and incentivized abuse. He called for "an intellectually respectable framework for containing and rendering manageable the procedural requirements in this potentially volatile field — a framework that is responsive to the real-world constraints on immigration policy and yet consistent with the broad values that we associate with due process."
In other words, Martin was looking for pragmatic tradeoffs between the yin of the conservative yearning to conserve societal norms and the yang of liberals' conviction that we must offer refuge to all who seek it. In an era of rising universalism, Martin saw value in asserting the idea of manageable boundaries constrained by the limits of practicality and national community.
As Martin noted in the law review, in the 1980s Cubans and Haitians were joined by many others, including Salvadorans fleeing their country's brutal civil war. The Salvadorans' asylum petitions were routinely rejected because the Reagan administration, which supported the Salvadoran government's fight with left-wing insurgents, had decided the petitioners were economic refugees who lacked a "well-founded fear" of persecution. Thus denied, they turned to the courts. There, as Martin wrote, "Aided by skillful and relentless lawyers, these asylum claimants have raised due process challenges to all aspects of their treatment and processing."
Martin, whose liberal sensibilities are strong but measured, saw merit in many of these claims. But he was also concerned about the implications of the "procedural exuberance of the lower courts." He saw "highly problematic consequences" if due process rights were claimed by the virtually unlimited numbers of people from around the world who would find a way to cross our borders "whenever poverty, overcrowding, oppression, disappointment, hope, advertising, or adventurousness makes them sufficiently determined."
In a bow to fellow progressives, Martin acknowledged that his concern about the size of the potential influx "does not come easily" because it "risks association with some of the uglier portions of past immigration policy." This was a reference to racially motivated restrictionist impulses typified by the Chinese Exclusion Act of 1882. But he eschewed the liberal impulse to overcompensate for such bigoted restrictionism by providing unconstrained inclusion of those who seek membership in the national community of the United States. He defended the pragmatic, quintessentially restrictionist notion that "concern over numbers, at least in the crowded world of the late twentieth century, in fact rests on quite legitimate foundations."
Martin went on to develop an argument that varying degrees of legal process might be made available to those with different levels of attachment to the national community. "The excludable alien is not a constitutional stranger," Martin wrote, "but he is not quite intimate family either."
Martin is a scholar in constitutional law as well as immigration law. The concerns he laid out in a law review article 36 years ago clearly apply to the ongoing influx of hundreds of thousands of Central Americans who are turning themselves into the Border Patrol. As Martin wrote in 1983, "The volume of aliens taking that route can also expand beyond any controls that reasonably can be imposed through border enforcement and exclusion proceedings alone. Border enforcement has to be supplemented by removal of those who evade the usual entry screening. An appropriate understanding that the Constitution does not impose elaborate procedural requirements when clandestine entrants are deported (although it does impose some requirements) adds an important reassurance of containment."
Martin's concerns are as valid today as they were when he laid them out in his essay from 1983, when the world's population was 60 percent of its current level of 7.7 billion, with the greatest growth occurring in Third World countries. Of particular note right now, given the Trump administration's uncertain steps to have ICE arrest asylum-seekers who have received final notices of removal from an immigration judge, is a concern Martin raised in his 2000 essay. There he noted that the rate of actual removal of such people was as low as 10 percent. Such a breakdown of the system, he said, undermined its credibility and threatened to weaken support for other efforts to achieve generous immigration reforms.
Martin added a comment that in today's hyper-partisan political climate would seem hopelessly naïve. "I would hope to see more immigration advocacy groups engage on this issue. Counterintuitive though it may seem, they too have a considerable stake in improving removal statistics and thereby providing a key reassurance to those in the electorate and in Congress who are in the grips of the control impulse, in order to improve the climate for easing of other restrictions."