When the president signs a bill that Congress sends him, he imbues words with the elixir of the law. Once turned into law, words became orders that structure the world in which we live. But while the world constantly changes, the words that constitute a law don’t. When the politics of the moment in which we live no longer reflects the politics of the moment in which a law was enacted, tension erupts between people who want the law to do what it says and others who want it to do what fits more neatly into the current moment. A case that the Supreme Court is scheduled to hear next month, Wassily v. Blanche, highlights the tension between a law enacted half a century ago that seems to let people who had been granted asylum, only to lose it later, obtain a green card despite a conviction for a long list of crimes, and today’s prevailing political sentiment that can’t contemplate doing anything of the sort.
Obtaining asylum in the United States requires navigating a stringent set of requirements. Migrants may receive asylum if they are physically present in the United States and have a well-founded fear of persecution because of their race, religion, nationality, political opinion, or membership in a particular social group. Having received asylum, an asylee can live and work in the United States, but they can’t do so indefinitely unless they later become a lawful permanent resident – the colloquial green-card holder – through a process called adjustment of status.
In Wassily, which is scheduled for oral argument on Nov. 30, the court has been asked to decide whether migrants who have been granted asylum also must continue to hold that status to become permanent residents. The Justice Department claims that they must. The Immigration and Nationality Act “authorizes adjustment of status only for an alien who currently has asylum status,” the solicitor general argued in its brief urging the court to weigh in on this issue. Two migrants who were granted asylum, then lost it, Tamer Wassily and Byron Velásquez Arreaga, disagree with the government’s reading. Through the Refugee Act of 1980, Congress set out a detailed list of criteria that migrants who have been granted asylum must meet to be eligible for adjustment of status, but “[t]here is no additional, continuing asylum status requirement,” they argued in their brief to the court.
Despite the case’s broad significance, the parties’ arguments revolve around a narrow textual issue. Federal law currently allows the attorney general to issue a green card to a migrant who has previously been granted asylum. “[A]ny alien granted asylum” may become a permanent resident if they have been physically present in the United States for at least one year, haven’t resettled in another country, continue to have a well-founded fear of persecution, and are not excludable from the United States for some other reason. The parties disagree about whether the text’s reference to a past action – the requirement that asylum was “granted” – implicitly requires that the migrant have not since lost it.
While people can lose asylum for several reasons, the court’s decision will likely have the greatest impact on migrants who have been convicted of a large and varied group of crimes. Federal law allows the attorney general to terminate a person’s asylum status if they have been convicted of a “particularly serious crime,” a sweeping phrase that includes violent offenses, like murder, but also non-violent crimes, like tax fraud and mutilating a passport. Wassily was convicted of stalking and child endangerment and Velásquez Arreaga was convicted of driving while intoxicated and aggravated driving while intoxicated. In separate legal proceedings, immigration judges concluded that these offenses were particularly serious crimes and, for that reason, stripped both of their asylum. But while one immigration judge nonetheless later adjusted Wassily’s status to that of a permanent resident, the immigration judge in Velásquez Arreaga’s case concluded he wasn’t eligible because he had lost his asylum status.
The competing views that the parties urge the court to adopt challenge the justices to distinguish between what the text directs and the political and judicial climate in the years since the law was enacted. The eligibility criteria for adjustment of status haven’t changed since Congress enacted the Refugee Act in 1980. The original law allowed “any alien granted asylum” to apply for permanent resident status if they had been physically present for one year, hadn’t resettled in another country, remained admissible to the United States, and “continue[d] to be a refugee” under immigration law. To ensure that no one who had previously had a well-founded fear of persecution became a permanent resident if that risk had tapered, Congress explicitly required that the fear “continues.” But, just as now, the law referred to the government’s decision to grant asylum in the past tense.
In an era like today, when politicians and judges regularly express an unforgiving view of migrants who have committed crimes, it may be hard to understand why Congress would have left the door to permanent residence open for migrants who committed crimes. But when the Refugee Act was enacted, politicians and courts didn’t dwell on criminal activity as much as is now common.
Since the late 19th century, immigration law had included provisions targeting migrants who committed crime, but they were narrow and sparsely used. Flipping today’s consensus on its head, a century ago Judge Billings Learned Hand, among the most influential judges of the 20th century in the United States, suggested that immigration law should go easy on migrants who commit crime. Writing for the U.S. Court of Appeals for the 2nd Circuit in a case involving deportation proceedings against a Polish citizen who had twice been convicted of burglary, Learned Hand described deportation as “exile, a dreadful punishment” especially “to one already proved to be incapable of honest living.” Decades later, when it adopted the Immigration Act of 1965, Congress revamped the basic structure of immigration law to prioritize family unity and business demands for labor.
Congress would not begin the years-long process of ratcheting up the immigration law consequences of engaging in crime until the middle of the 1980s. As part of the nascent war on drugs, which the Reagan administration promoted heavily, the Anti-Drug Abuse Act of 1986 for the first time authorized deportation upon conviction for any state, federal, or foreign country’s drug laws. Two years later, the Anti-Drug Abuse Act of 1988 went further, adding the phrase “aggravated felony” to immigration law for the first time. The 1988 law required immigration officials to detain everyone convicted of one of the three crimes defined as an aggravated felony and making it exceedingly difficult to avoid deportation. Over the next ten years, Congress would regularly add to the list of crimes defined as an aggravated felony so that now a crime doesn’t have to be a felony, nor does it need to be aggravated, for severe consequences to kick in. Collectively, these reforms fundamentally altered immigration law. Detailing changes that Congress made in 1996, the court explained in 2010 that “[t]hese changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction.”
Without doubt, the political and legal landscape of immigration law has changed radically in the 46 years since President Jimmy Carter signed the Refugee Act. But the text has remained unchanged. As Wassily reaches the court, the justices will have to decide whether they emphasize text that appears to be from a different time, because it is, or read old text through the lens of contemporary politics.
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