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How to force the Trump administration to follow the law on refugees

A case from the 1980s outlines our obligations.

A U.S. Marine helps a young child off one of the refugee boats from Cuba that had been pouring into Florida for weeks on May 10, 1980. (Fernando Yovera/AP)

The border city of Tijuana. Internment camps in U.S. border towns. ICE facilities across the country. Each of these locations has become a site of the migrant and refugee crisis in the United States, one that shows no signs of abating. The current administration has issued a national emergency declaration to get to work on a border wall, but has done little to address the growing number of asylum seekers in detention centers, nor the legal and constitutional obligations of the U.S. government to this very same group.

Some of those obligations emerged in another refugee crisis, one in which the United States detained thousands of refugees who had been welcomed into the country by President Jimmy Carter. A legal struggle, combined with a prison riot, finally forced the government to grant Cuban detainees who were part of the Mariel boat lift, also known as Marielitos, their due process rights. Today, however, the government is once again derelict in its duty to provide timely legal proceedings entitled to refugees by international law and our Constitution. The lessons of the Marielitos’ struggle should serve as a reminder of how we need to use the courts and activism to force the government to abide by the law.

In April 1980, a bus driven by a Cuban crashed the gates of the Peruvian Embassy in Havana in an attempt to reach Peruvian grounds and request political asylum. Similar attempts had been made over the past year at other embassies in Havana, but the Peruvian situation was unique. Unlike earlier efforts at the Venezuelan and Argentine embassies, Peruvian diplomats declared they would grant asylum to those reaching the embassy, rejecting Fidel Castro’s call to turn away asylum seekers.

The number of asylum seekers soon swelled to 10,000. Within a few weeks, the Castro government declared that these anti-sociales (anti-socials) and disidentes (dissidents) represented the worst of Cuban society, and were unfit for its revolutionary project. Castro declared that those seeking to escape the island were free to leave from Mariel Port.

Two weeks later, President Jimmy Carter declared that the United States would provide “open arms and an open heart” to those fleeing Cuba, thus creating an invitation and, by extension, a liberty interest for this very specific group. A liberty interest, understood in this case as an inalienable right, can be created by the direct or indirect denial of a person’s life, liberty or property.

Castro allowed an estimated 10,000 refugees camping out in the Peruvian Embassy to leave with family members who came to pick them up. Nearly 125,000 Cubans left from Mariel Port that year, from April to August. Upon recognizing that a large number of his population was leaving, Castro realized his mistake and emptied numerous cells of Cuba’s prisons and mental hospitals, requiring any vessel that arrived at Mariel to pick up family to also load up a number of other Cubans before departing. He aimed to make it less attractive for the United States to take in Marielitos at the same time as he saved face in Cuba by thanking the U.S. for our “sanitation” efforts with less desirable Cuban nationals.

These migrants were processed upon arrival in Florida as best as possible, which was tricky since a number arrived without paperwork or passports. President Carter declared a national emergency on May 6, 1980, to allow FEMA to administer the humanitarian aid necessary to manage the situation; a judicious and logical use of that power. On July 15, the Carter administration created the Cuban-Haitian Task Force to help receive, process and resettle entrants. A great number of migrants were quickly placed with sponsors or family members, and their status was updated to paroled. At that point, they could begin the standard process of admission to the United States as either legal aliens or citizens, apply for jobs and begin anew.

However, by August 1980 more than 14,000 Marielitos remained in detention centers. Those still detained in Florida by the end of the year were transferred to Leavenworth Federal Penitentiary in Kansas, then to the Atlanta Federal Penitentiary. The unspoken reason for the transfer was to migrate the group to a state with conservative courts with intentions of eventual deportation.

These Marielitos languishing in prisons were still there when Carter left office, and Ronald Reagan entered with a very different posture toward them. Their fate triggered a struggle between Reagan’s attorney general, Edwin Meese, and the federal district court and the U.S. Court of Appeals for the 11th Circuit, which handles federal appeals from Alabama, Georgia and Florida.

The battle hinged on how to define the detained Marielitos and, thus, whether they could remain in the United States. Under U.S. immigration law, the difference between excludable and deportable aliens determines the eventual fate of immigrants. An excludable alien has not entered the United States but is seeking admission at the border, usually claiming political asylum. A deportable alien has entered the United States unlawfully and is processed differently. They are permitted a deportation hearing, where they have certain constitutional protections. The 14th Amendment additionally instructs that no person within jurisdiction of the states be denied the equal protection of laws.

The Garcia-Mir v. Meese appeal aimed to overturn a district-court ruling that had determined that the Marielitos detained in Atlanta were non-parolable because of their lack of paperwork alone. Under this status, since they could not be returned to their country of origin, the government concluded that indefinite detention was appropriate. The lawyers for the Marielitos argued, by contrast, that the U.S. government had created a liberty interest for each Cuban by this indefinite detention along with the invitation by Carter.

The Marielitos in Atlanta were detained for nearly eight years before the final Garcia-Mir v. Meese appeal ended. During that time, right before Thanksgiving in 1987, a group of Marielitos staged the single largest federal prison riot in American history. The cause? The Cubans learned that the U.S. government planned to repatriate 2,400 detainees back to Cuba, an action that would have put them in immediate peril. In protest, they took about 200 hostages and created a list of demands. Mediated by Atlanta immigration lawyers Dale Schwartz, Gary LeShaw and Myron Kramer, the riot ended and the hostages were freed.

The hostage standoff drew attention to the plight of the Marielitos, and along with the legal pressure, helped compel Meese to grant detainees a case-by-case review. The 1,800 who were considered nonviolent or had not committed federal crimes were released.

That case has implications for the migrant and refugee crisis in the U.S. today. There are currently between 7,000 and 9,000 migrants waiting in Tijuana, Mexico, to request political asylum and become excludable aliens. But they have little hope of a quick hearing; the U.S. currently has a processing backlog of 800,000 cases.

Yet what other option do they have but to wait? The U.S.-Mexico border of about 1,900 miles represents the only chance that many of these migrants have of escaping death in their countries of origin. And there is little doubt that fear is driving these caravans. A great majority of these migrants are fleeing the crisis-torn Northern Triangle of Central America, the countries of Honduras, El Salvador and Guatemala. Roughly 49 percent of those arriving in 2018 and 2019 are traveling as families or as unaccompanied minors.

The aftermath of Garcia-Mir v. Meese, however, suggests the infinite wait is not in line with U.S. law. The appeal was pursued to guarantee every excludable alien would be granted due process rights including a parole hearing. And it pertains to those deportable aliens already in the U.S. as well, because this appeal in the 11th Circuit determined that perpetual detention constituted a violation of the principles of public international law, because it violated a person’s physical liberty interest. While this precedent isn’t binding outside of Florida, Georgia and Alabama, it is a precedent that these refugees can cite in demanding fairer, and quicker, legal proceedings.

Nearly eight years of litigation transpired between the Mariel Boatlift and the close of Garcia-Mir v. Meese. For unaccompanied minors currently in detention facilities, what does eight years of detention mean psychologically or developmentally? With an 800,000-case backlog, what are the realistic time frames for each excludable alien to receive the due process rights guaranteed by our Constitution?

The situation at the border is not a national emergency; it is a humanitarian crisis. There are not enough immigration lawyers or advocates to secure due process rights. In fact, it seems that there is no practical system in place presently that can manage effectively this backlog. This is where our attention should lie — not in declarations of national emergencies that fail to address humanitarian crisis and instead fund border-wall construction.

To begin, we must adhere to a process that maintains dignity and upholds international immigration law, invest funds directly to hire processors and case managers to move cases forward as quickly as possible and prioritize intake of families and unaccompanied minors to allow for the recommended and acceptable amount of detention according to our own U.S. immigration policy: a mere six months.

How the attorney general responded to Mariel and the Garcia-Mir v. Meese appeal has a lot to teach us about basic due process and liberty interests, but the question is, what and when are we going to learn?