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Immigration expert says legal hurdles remain on both sides of Cape Cod migrant situation

As seen in this video by reporter Eve Zuckoff, a bus carries migrants who were unwittingly flown to Martha's Vineyard to Joint Base Cape Cod, where shelter and other services are being set up.
Eve Zuckoff/WCAI
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Eve Zuckoff/WCAI
As seen in this video by reporter Eve Zuckoff, a bus carries migrants who were unwittingly flown to Martha's Vineyard to Joint Base Cape Cod, where shelter and other services are being set up.

Shelter and humanitarian support are being offered for about 50 migrants flown to Martha’s Vineyard last week in what critics call a political stunt by Florida Governor Ron DeSantis.

Governor Charlie Baker activated 125 members of the Massachusetts National Guard as part of the state’s emergency response plan. DeSantis’ maneuver is part of a larger move by Republican critics of President Joe Biden’s immigration policies hoping to target so-called sanctuary states. Locals have largely reacted with open arms.

For analysis, WAMC's Ian Pickus spoke with Elora Mukherjee of Columbia Law School, where she runs the immigrants’ rights clinic.

What was your first reaction when you heard about this story?

I was pretty surprised that officials down in Florida had let asylum seekers and migrants land in Martha's Vineyard without so much as a courtesy phone call to let the island residents know that people with needs would be arriving.

Now, Governor DeSantis of Florida said, we're sending these people to states that do want to work with them and have them there as opposed to states like Florida and Texas that don't have the capacity. Is that a true statement? I mean, is that based in reality?

It doesn't seem to be based in reality. As you've already mentioned, this seems to be a political stunt by the governor to advance his anti-immigrant agenda. The move also instills fear and hatred against asylum seekers and other migrants in the receiving cities and states. There's a real question here about whether the governor's actions are legal, and the extent to which the asylum seekers and migrants were duped into getting on planes to Martha's Vineyard.

What would normally happen when asylum seekers and migrants show up? Obviously, this seems to be pretty atypical.

Right. So, at ports of entry, meaning official border crossings, if an asylum seeker at an official border crossing tells a Customs and Border Patrol agent, that they are scared of returning to their home country and that they wish to seek asylum, then under a change in laws that was passed in 1996, that asylum seeker is subjected to mandatory detention and will be taken to a Customs and Border Patrol holding facility for some period of time until they have an interview, which is called a credible fear interview. This is a screening interview to determine whether or not the person can qualify for asylum in the United States. As you can imagine, for a person who has just undergone an arduous journey, and perhaps survived some very recent trauma, the experience of having a credible fear interview in detention, often by phone, the interviewing officers, often by phone with an interpreter, that can be very disorienting, and the majority of people do not pass their credible fear interviews and instead, are swiftly deported from the United States as part of a process known as expedited removal. Most people who fall into this category are deported, removed from the United States within 7 to 14 days and they're returned to their home countries.

For people who are not quickly deported, how long of a process are we talking about to have that case adjudicated?

That is a great question and it depends by jurisdiction, you know, average wait times for a case for an asylum seekers case to get through immigration court, depending on the region of the country you're talking about, can average as long as seven years. So, it can be a very long time before an asylum seeker has their day in court and has the opportunity to present their reasons for being afraid to an immigration judge.

For people who, like in this situation, a couple of plane loads of people who were sent to Cape Cod, they're now being sheltered there. Normally, where would they be right now?

Right, so often asylum seekers and other migrants have some kind of connection to the United States, maybe a family member, maybe a neighbor from their village, maybe a supportive religious community such as a church community to join. And often asylum seekers, other migrants, they live with the people who they know for some period of time while they get on their feet and they find employment and they often enroll their children in school as well. And over the period of time, until a person's case is heard by an immigration judge, they start to build their lives in the United States and economic studies confirm that asylum seekers give far more to the US economy than they take away.

Is the Biden administration dealing with this issue in any different way than the Trump administration did?

During the Trump years, the Trump administration effectively decimated the right to seek asylum in the United States. And the administration worked extremely hard to try and close the border to everyone, regardless of our nation's obligations under the United Nations Refugee Convention, which the United States and other Western countries developed in the wake of World War II to try to prevent those types of atrocities from ever happening again. And what we're seeing now is a response to the border being effectively closed for four years with an increasing number of asylum seekers and other migrants trying to come to the United States.

Republicans and critics of the Biden administration have said immigration and coming through proper channels is still recommended and folks just showing up, claiming asylum from several countries ago on their trek, is just not a good way of dealing with this issue. Do they have a point?

International law and domestic law both recognize that when a person is fleeing for their lives, they may not have time to get a visa to travel to the United States. These so-called irregular entries are contemplated both by international law and US law. And in fact, a person cannot seek asylum from outside of the United States, a person must first physically set foot in the United States before they can apply for asylum. You just can't do it from your home country.

Governor DeSantis said that sanctuary states were being targeted with this move. Is that a legal term?

It's not defined in the law. It is more of a political term, one that suggests that the receiving sanctuary city, state jurisdiction is more likely to be welcoming to asylum seekers and other immigrants.

And how do we determine what those states are? I mean, in other words, why Massachusetts?

Well, Massachusetts is a consistently democratic state where individuals generally support more liberal immigration policies than in other parts of the country. You know, this all goes back to the point you made at the outset, Ian, which is, this is a political ploy by the governor to use vulnerable asylum seekers and migrants largely from Venezuela who are fleeing for their lives as political pawns, as he tries to build a campaign and gain national recognition and media attention in a bid to be our next president.

It has to be said, it seems to be working.

It absolutely is working. He is gaining so much attention nationwide, including as a result of this interview for what he did, but what our nation needs right now is not cruel, political ploys but comprehensive immigration reform. Our nation's immigration system is broken, we need a better way to process asylum seekers and other immigrants who are coming to the United States, who will be part of our national fabric who will contribute to our economy and who provide essential labor in our workforce. Without asylum seekers and other immigrants, migrants, our food supply chains will not work. Our communities will not function. We need these individuals to be welcomed to the United States and treated with the dignity that every human being deserves.

Obviously, you know, people are showing up on the border, you know, by the thousands every day. This is a problem that's not going away. Do you have ideas about how to come to sort of a better fix here as a nation where, you know, the Southern states don't feel that they're the only ones taking on the burden to the point where something like this happens. But also, people who, as we saw in Martha's Vineyard, anecdotally, locals who were very welcoming to the migrants, who might support allowing more asylum seekers and refugees into the U.S. have some sort of stake in it?

Right, I think it goes back to the bigger issue of needing comprehensive immigration reform and a more systematic way to process the new arrivals to the United States. New arrivals to the United States should be welcomed by the federal government with dignity and processed accordingly, and so that if people choose to go to jurisdictions, those called sanctuary jurisdictions, they have that option available to them. Part of what is so troubling about the Martha's Vineyard example is that it appears according to many reports, that the migrants and asylum seekers were tricked into getting into these planes that they didn't know where they were going, and that perhaps they were coerced into doing so. So, coercion and human trafficking concerns should not be part of our immigration system.

Do they really have the right to say, well, I'm not going to get on that plane?

Absolutely. I think there are major questions here about whether a state has the authority to transport immigrants, migrants, asylum seekers. The most recent Supreme Court case that's directly on, that's close to on point here is the United States versus Arizona. It’s a case from about 10 years ago, June 2012, and in that case, the issue was whether Arizona could enforce, try to enforce, immigration laws through state criminal penalties and the Supreme Court in a five three decision held no, that the federal government has plenary powers to regulate immigration, and states cannot take on punitive measures based on immigration status. There is a question about the extent to which that case applies here. Can a border state get involved in immigration enforcement and if so, how, and to what extent? If individuals are being punished by the state as a result of their immigration status, that violates the plenary powers doctrine.

A lifelong resident of the Capital Region, Ian joined WAMC in late 2008 and became news director in 2013. He began working on Morning Edition and has produced The Capitol Connection, Congressional Corner, and several other WAMC programs. Ian can also be heard as the host of the WAMC News Podcast and on The Roundtable and various newscasts. Ian holds a BA in English and journalism and an MA in English, both from the University at Albany, where he has taught journalism since 2013.
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