On Morality and Personhood in the Immigration System

By Asabea Amaniampong and Mari Henderson

On January 31 of 2020, we sat in a small court room in downtown Denver, watching the judge make her way through her immigration docket of the day. Standing before her was an older, Asian woman — she was unrepresented. She calmly explained why she belonged in the United States: she had been through a few immigration court hearings and she was hoping to have her final hearing scheduled. The woman points out that she never had any legal issues since arriving in America over 20 years ago — she was eloquent and clearly prepared for any questions the judge may have asked her. She carried a folder full of correctly filled documentation requested by the courts, as well as written character witnesses from several church members and pastors. She seemed like a perfect case to move quickly down the line. However, before the woman was given her final court date, the judge encouraged her to find an attorney. The judge explained that because her husband had a DUI on his record, it could affect her ability to remain in the United States. In immigration hearings, individuals can hire an attorney, but they are not entitled to, or provided, one.

We were surprised by this; this woman, who had glowing character witnesses, a clean record, and immaculately filled out paperwork, could be denied permanent status due to the actions of her husband. As we continued our research, we found that this was one of the more delicate ways a judge may question a person’s morality. During the winter of 2020, we attended several court hearings and conducted interviews with expert witnesses and lawyers to grasp what it was like in immigration court during a time of assault on asylum — loudly at the border, and more quietly in the courtrooms. This was done as part of a graduate research-methods course at the Josef Korbel School of International Studies at the University of Denver in partnership with the Colorado Asylum Center. In fact, in every hearing we observed, the judges required proof of “good moral character” for about five years. In many cases, an immigrant without documentation’s future may rely on the perception of their moral turpitude, the act or behavior that gravely violates the sentiment or accepted standard of the community.

The focus on morality in immigration processes is neither uncommon or new. Immigration discourse centralizes morality when talking about one of two things: how immigrants entered the country and what they do while they’re here.

Entry to the United States can occur in several different ways; all of which have different moral standings attached to them. The immigrant populations considered the most moral in the US are those who “come in the right way.” This includes applying for and obtaining a green card, citizenship, or permanent residency. People who immigrate to the United States through legal channels tend to come from developed, white countries, while people of color, who come from developing nations, find it more difficult to migrate to the United States. This creates both a class and racial divide in the immigration system. The most prominent techniques the current legal system uses to create a divide on the basis of class is by implementing the public-charge exclusion, the per-country caps on immigration, and the limited number of employment visas for low- and moderately-skilled. All of these methods support a structure that makes it systematically more difficult for “unskilled” workers and people from larger countries with strong migration relationships with the United States to gain admission. These policies also racialize the immigration system. Bifurcated demand for immigrant labor in the US therefore racializes the categorization of skilled/unskilled labor and who qualifies for legal entry and work.

Asylum seekers are often seen as largely moral as well — coming from dark backgrounds to start a safe new life in the United States. Those perceived as the least moral are those who subvert the existing system by crossing the border with no documentation of such, despite the fact that, legally, there is no one correct way to seek asylum. The most important aspect of this morality hierarchy is the absolute subjectivity of it. All of these are perceptions, and can therefore be manipulated over time, which has been the case for most immigrant populations. A specific example of this is the conflation between immigration at the southern border and criminal acts.

Starting in the 1970s, media and politicians began using crime statistics to reconstruct immigration as a criminal problem which was only exacerbated by the 1986 Immigration Reform and Control Act (IRCA), which broadened the use of criminal penalties and enforcement related to entry from the Mexican border and the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) of 1996, which pushed the immigration and criminal justice systems closer together. Ultimately, decisions about who can enter and under what terms has been largely discretionary for the last 150 years. This is further exacerbated by the lack of independence of immigration courts; their authority is derived from the Department of Justice, whose primary directives change with the wind of politics as part of the Executive Branch. It is largely argued though, that the criminality attached to immigration we see in its modern form was adopted in the late 90s, which brought a wave of new types of penalties that could spur removal, many of which US citizens would not be able to maintain, with stiffer penalties and bars also applied to those who cross the border unauthorized compared to other immigration violations.

This brings us to the most pressing issue: the imposition of morality. Undocumented persons who find themselves with a criminal record are burdened with a scarlet letter of sorts -- not only is the perception of criminality attached to them because of their immigration status, but they also have to prove they deserve to be present in the United States no matter the scope of their offense. Crimes of “moral turpitude,” which include habitual drunkenness, violation of drug laws, or gambling offenses run the risk of thwarting an argument that the subject has “good moral character.” Due to the convergence of the criminal and immigration systems, aggravated felonies, which triggers severe immigration consequences including deportation and prevention from receiving immigration relief, need not be aggravated nor felonies in the non-immigration context. Basically, unequal judgement is applied to immigrants versus non-immigrants.

We were able to see this issue play out during our court observations. Several people who came through the courtroom had minor or one-time offenses on their record that put their status in jeopardy. One such example was of a young man who was 20 years old and was brought to the country from Mexico when he was three. When he was in high school, he received DACA status, however that was quickly taken away due to a DUI he received when he was 16. While a DUI is a serious problem, the fact that this mistake, which disproportionately affects immigrants as a means of immigration control, could cost him his home is a bigger problem.

Those of us who are lucky enough to have been born in the United States are not typically saddled with the gravity these examples pose. Imposing a higher standard of what “good moral character” entails when the subjects are immigrants is not only hypocritical when compared to the justice system for certain classes within the criminal justice system, it is also highly subjective based on the judge. This becomes especially problematic when judge asylum approval rates range from as high as 85% to as low as 0%. In the cases we observed, some judges, like the one from the case we mentioned first, were congenial and conscious of how they imposed their own understanding. Other judges were more exasperated that immigrants were not living as the pinnacle of human excellence; the judge in the case of the 20-year-old man emphasized that his record was going to be a problem that would determine if he could stay in the country. His biggest saving grace was his fiancé, an American citizen, whom he was going to marry in two weeks. The judge was kind enough to give him a follow up hearing after his wedding where he could bring his marriage certificate and make a better case for himself. This case highlights the aforementioned impossible human standard that is selectively applied to immigrants.

Immigration judges wield incredible discretion in their courtrooms that ultimately decides how a person gets to spend the rest of their life; morality has become the root from which they make decisions. However, that morality is often paired with prejudices. Judges are not perfect humans and there can be underlying biases and notions of how an immigrant should act and behave. The way in which morality functions in this system is not sustainable nor replicable. Our court observations showed a clear need for greater independence and oversight of proceedings and judges – the political influence of the Department of Justice too frequently results in inconsistent standards and, therefore, violations of due process.

Asabea Amaniampong is a second-year Master's candidate in Global Finance, Trade, and Economic Integration, Economic Development, and Data Analysis at the University of Denver's Josef Korbel School for International Studies. asabea.amaniampong@du.edu.

Mari Henderson earned her Master’s degree in the spring of 2020 in International Studies from the University of Denver's Josef Korbel School for International Studies, where she currently works as a Program Associate and Undergraduate Advisor. mari.hernderson@du.edu.